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SCC strikes down subpoena of World Bank employees

Organization has immunity under international agreements
|Written By David Dias

Employees of the World Bank will not have to testify in the SNC-Lavalin bribery case, nor will the organization be required to produce documents that could aid in the defence of former executives charged in the scandal.

The Supreme Court of Canada ruled the World Bank does not have to hand over documents. (Photo: Reuters)
In World Bank v. Wallace, the Supreme Court of Canada heard the expedited appeal of the World Bank, which had been subject to a production order and subpoena at trial.

The defendants were challenging the admissibility of wiretap evidence. After the investigating RCMP officer’s e-mails were lost (due to a “computer problem”), defence sought testimony from World Bank employees who had tipped the RCMP off to the alleged corruption around a Bangladeshi construction bid.

The World Bank had barred SNC-Lavalin from participating in World Bank-funded projects for 10 years after conducting an investigation into corruption allegations concerning the engineering firm.

Despite international agreements that grant the World Bank immunity from court processes, the trial judge found that the World Bank had waived its right by providing the documents to the RCMP.

Today, in a unanimous decision co-written by justices Michael Moldaver and Suzanne Côté, the Supreme Court set aside the production order — ruling that the World Bank’s co-operation with Canadian authorities does not amount to a waiver of its immunity.

The decision finds clear immunity provisions under the World Bank’s Articles of Agreement:

“The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA [divisions of the World Bank] from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.”

“These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.”

Indeed, even if the World Bank did not have immunity under international agreements, the SCC ruled that the application to challenge the wiretap — known as a Garofoli application — was erroneously assessed at trial.

The defence had argued that the investigating officer’s lost emails may have revealed information that would render the wiretap illegal. But the SCC ruled that the burden of proof rested with the accused, and a theoretical connection wasn’t enough to show relevance between the production order and the wiretap authorization.

“While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits,” the decision states, “they are not reasonably likely to be of probative value to what [the investigating officer] knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the [World Bank’s investigative arm] and other officers.”

The World Bank welcomed Friday’s decision.

“Today’s announcement is a vote of support to the World Bank’s anti-corruption work and its cooperation with member countries to ensure that development projects are implemented with integrity,” said Leonard Frank McCarthy, World Bank Integrity Vice President.

With files from Reuters.


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