World Bank Group v. Wallace et al., (2016) 482 N.R. 200 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 482 N.R. 200 (SCC);2016 SCC 15

World Bank Group v. Wallace (2016), 482 N.R. 200 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2016] N.R. TBEd. AP.026

World Bank Group (appellant) v. Kevin Wallace, Zulfiquar Bhuiyan, Ramesh Shah, Mohammad Ismail and Her Majesty the Queen in Right of Canada (respondents) and Criminal Lawyers' Association (Ontario), Transparency International Canada Inc., Transparency International e.V., British Columbia Civil Liberties Association, European Bank for Reconstruction and Development, Organisation for Economic Co-operation and Development, African Development Bank Group, Asian Development Bank, Inter-American Development Bank and Nordic Investment Bank (interveners)

(36315; 2016 SCC 15; 2016 CSC 15)

Indexed As: World Bank Group v. Wallace et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

April 29, 2016.

Summary:

The World Bank Group's Integrity Vice Presidency investigated allegations that representatives of SNC-Lavalin Inc. were planning to bribe officials of the Government of Bangladesh to obtain a contract related to the construction of the Padma Multipurpose Bridge, a project valued at US$2.9 billion. The World Bank Group, which was involved in financing the bridge project, shared some of the information from its investigation with the Royal Canadian Mounted Police (RCMP). On the basis of that and other information gathered by the RCMP, the RCMP obtained wiretap authorizations. Subsequently, the individual accused (the respondents), were jointly charged with one count of bribing foreign public officials under the Corruption of Foreign Public Officials Act (Can.). The respondents brought a Garofoli application challenging the wiretap authorizations. In support of their Garofoli application, they applied for a third party production order (an O'Connor application), to compel two senior investigators of the World Bank Group to appear before a Canadian court and produce documents.

The Ontario Superior Court, in a decision with neutral citation 2014 ONSC 7449, granted the respondents' applications. The World Bank Group, supported by the Crown respondent and several interveners, appealed from that order and sought to have it overturned, arguing that the documents ordered produced by the trial judge were immune from production and, in any event, were not relevant.

The Supreme Court of Canada agreed with the World Bank on both issues. Accordingly, the court allowed the appeal and set aside the trial judge's order.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See all Criminal Law - Topic 5275 and first International Law - Topic 2212 ].

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - The Supreme Court of Canada noted that the R. v. O'Connor framework addressed the right of an accused to obtain documents that were in the hands of third parties - The court reviewed the two-stop process on an O'Connor application and distinguished that process from the Stinchcombe framework which applied when documents were in the hands of the Crown or the police - The court also distinguished between an O'Connor application and a Garofoli application which assessed the reasonableness of a search when wiretaps were used to intercept private communications - The court stated that: "A typical O'Connor application is designed to deal with production of documents that relate to material issues at trial bearing directly on the guilt or innocence of the accused. A Garofoli application is more limited in scope, relating as it does to the admissibility of evidence, namely intercepted communications ... This is an important distinction - and one which requires clarification. An O'Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address ..." - See paragraphs 112 to 117.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - The Supreme Court of Canada stated that: "... while we do not foreclose the possibility that the O'Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O'Connor application. Specifically, where an accused asserts that third party documents are relevant to a Garofoli application, he or she must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. The fact that the documents may show errors or omissions in the affidavit will not be sufficient to undermine the authorization. They must also support an inference that the affiant knew or ought to have known of the errors or omissions. If the documents sought for production are incapable of supporting such an inference, they will be irrelevant on a Garofoli application ... This test for third party production is also consistent with another form of discovery on a Garofoli application: cross-examination of the affiant - and so it should be. Both forms of discovery serve similar purposes and engage similar policy concerns. They should be treated alike" - The court elaborated on the test - See paragraphs 124 to 135.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - The Supreme Court of Canada noted that: "On a Garofoli application, an accused may only cross-examine the affiant with leave of the trial judge. Leave will only be granted if the accused shows 'a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge' ... Simply put, the accused must show that the cross-examination is reasonably likely to be useful on the application" - See paragraph 126.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - [See first International Law - Topic 2212 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - [See all Criminal Law - Topic 5275 and first International Law - Topic 2212 ].

International Law - Topic 2212

Sovereignty - Incidents of - Immunity - International financial institutions (incl. World Bank Group) - The World Bank Group's Integrity Vice Presidency investigated allegations that SNC-Lavalin Inc. representatives were planning to bribe officials of Bangladesh Government to obtain a contract related to the construction of a bridge - The World Bank Group (WBG), which was involved in the financing of the project, shared some of the information from its investigation with the RCMP - Using that information, the RCMP obtained wiretap authorizations - Corruption charges were laid against the individual accused (the respondents) - The respondents brought a Garofoli application challenging the wiretap authorizations, and applied for a third party production order (i.e., an O'Connor application), to compel senior WBG investigators to appear before a Canadian court and produce documents - The trial judge granted the applications - The WBG appealed, arguing that the documents ordered produced by the trial judge were immune from production pursuant to ss. 5 and 8 of Schedules II and III to the Bretton Woods and Related Agreements Act (Can.) and, in any event, the documents were not relevant - The Supreme Court of Canada held that the WBG's immunities covered the records sought and its personnel, and they had not been waived - Even if the WBG did not possess any of the immunities claimed, the production order should not have been issued under Canadian law - To obtain third party records in a Garofoli application, an accused had to show a reasonable likelihood that the records would be of probative value to the narrow issues in play on such an application - The respondents failed to do so in this case - See paragraphs 43 to 149.

International Law - Topic 2212

Sovereignty - Incidents of - Immunity - International financial institutions (incl. World Bank Group) - The World Bank Group (WBG) claimed that Schedules II and III to the Bretton Woods and Related Agreements Act (Can.) granted immunity to the archives of certain of its constituent organizations, including the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) - Section 5 of each Schedule provided that the respective organization's "archives ... shall be inviolable" - The Supreme Court of Canada interpreted s. 5 broadly, and in particular the words "archives" and "inviolable" - The court stated that the archival immunity outlined in s. 5 shielded the entire collection of stored documents of the IBRD and IDA from both search and seizure and from compelled production - The term inviolable connoted a sweeping protection against any form of involuntary production - The archival immunity was not subject to waiver - However, if a document was copied and transmitted to an external property, that copy was no longer part of the "archives" and s. 5 would no longer shield that transmitted copy - See paragraphs 66 to 84.

International Law - Topic 2212

Sovereignty - Incidents of - Immunity - International financial institutions (incl. World Bank Group) - The World Bank Group (WBG) claimed that ss. 5 and 8 of Schedules II and III to the Bretton Woods and Related Agreements Act (Can.) granted archival immunity for documents and legal process immunity to officers and employees of its constituent organizations, including the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) - Section 5 of the Schedules provided that IBRD's and the IDA's "archives ... shall be inviolable" and s. 8 provided that "All governors, executive directors, alternates, officers and employees ... (i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the [IBRD or IDA] waives this immunity" - The Supreme Court of Canada interpreted the immunities created by ss. 5 and 8, and whether those immunities were subject to waiver - The court held that archival immunity was not subject to waiver, be it express, implied or constructive - The immunities created by s. 8 could only be waived expressly - See paragraphs 88 to 94.

Practice - Topic 9053

Appeals - Record on appeal - Content of record on appeal - On an appeal from a ruling on a pre-trial motion, the respondents sought to have portions of the appellant's record and factum, and in particular two affidavits, struck on the ground that they constituted fresh evidence that was not before the trial judge - The Supreme Court of Canada stated that because this was an appeal of a pre-trial motion, it did not have the benefit of a full trial record - Further, the appellant had not appeared appear in front of the trial judge to assert its argument, but relied on the Crown to do so as it was entitled to do in this case - Although the affidavits were not admissible as fresh evidence, the court found that they assisted in completing the record - Consequently, the court admitted the affidavits for the limited purpose of providing procedural context to the appeal, which included the extent of the information which the Crown had disclosed to the respondents - See paragraphs 41 and 42.

Words and Phrases

Archives - The Supreme Court of Canada interpreted the word "archives" as it appeared in the phrase: "the archives of the ... shall be inviolable" in s. 5 of the Articles of Agreement respecting the International Bank for Reconstruction and Development and the International Development Association as set out in Schedules II and III to the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7 - See paragraphs 66 to 72.

Words and Phrases

Inviolable - The Supreme Court of Canada interpreted the word "inviolable" as it appeared in the phrase: "the archives of the ... shall be inviolable" in s. 5 of the Articles of Agreement respecting the International Bank for Reconstruction and Development and the International Development Association as set out in Schedules II and III to the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7 - See paragraphs 74 to 84.

Words and Phrases

Waiver - The Supreme Court of Canada interpreted the word "waiver" as it appeared in the phrase: "except when the ... waives this immunity" in s. 8 of the Articles of Agreement respecting the International Bank for Reconstruction and Development and the International Development Association as set out in Schedules II and III to the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7 - See paragraphs 89 to 94.

Cases Noticed:

Amaratunga v. Northwest Atlantic Fisheries Organization, [2013] 3 S.C.R. 866; 451 N.R. 1; 338 N.S.R.(2d) 360; 1071 A.P.R. 360; 2013 SCC 66, refd to. [para. 1].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, appld. [para. 4].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, appld. [para. 4].

Sparling v. Québec, [1988] 2 S.C.R. 1015; 89 N.R. 120; 20 Q.A.C. 174, dist. [para. 28].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 31].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 31].

L.L.A. v. A.B. - see L.L.A. v. Beharriell.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 34].

R. v. Pires (F.B.) - see/voir R. v. Lising (R.) et al.

Taypotat v. Taypotat et al. (2015), 471 N.R. 173 (S.C.C.), refd to. [para. 42].

Febles v. Canada (Minister of Citizenship and Immigration), [2014] 3 S.C.R. 431; 464 N.R. 7; 2014 SCC 68, refd to. [para. 47].

Thibodeau v. Air Canada, [2014] 3 S.C.R. 340; 463 N.R. 231; 2014 SCC 67, refd to. [para. 47].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 47].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [para. 47].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 47].

Scimet v. African Development Bank (1997), 128 I.L.R. 582, refd to. [para. 58].

Shearson Lehman Bros. Inc. v. Maclaine Watson & Co. (No. 2), [1988] 1 All E.R. 116, refd to. [para. 73].

R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3), [2014] EWCA Civ. 708; [2014] 1 W.L.R 2921, refd to. [para. 80].

Taiwan v. United States District Court for the Northern District of California (1997), 128 F.3d 712 (9th Circ.), refd to. [para. 80].

Iraq v. Vinci Constructions (2002), 127 I.L.R. 101 (Brussels C.A.), refd to. [para. 80].

Owens, Re, Application for Judicial Review, [2015] NIQB 29, refd to. [para. 80].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 114].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 114].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 120].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 120].

R. v. McKinnon (T.D.), [2013] B.C.T.C. Uned. 2212; 2013 BCSC 2212, refd to. [para. 122].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 122].

R. v. Morelli - see R. v. U.P.M.

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 97 O.R.(3d) 721; 2009 ONCA 851, refd to. [para. 122].

R v. Ahmed, 2012 ONSC 4893, refd to. [para. 123].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 129].

R. v. Croft (J.C.) (2013), 576 A.R. 333; 2013 ABQB 705, refd to. [para. 129].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 130].

R. v. Ali (M.), [2013] O.T.C. Uned. 2629; 2013 ONSC 2629, refd to. [para. 131].

R. v. Alizadeh, 2013 ONSC 5417, refd to. [para. 131].

R. v. Way (B.K.) (2014), 345 N.S.R.(2d) 258; 1092 A.P.R. 258; 2014 NSSC 180, refd to. [para. 131].

R. v. Bernath (R.W.), [2015] B.C.T.C. Uned. 632; 2015 BCSC 632, refd to. [para. 131].

R. v. Edwardsen (D.H.), [2015] B.C.T.C. Uned. 705; 338 C.R.R.(2d) 191; 2015 BCSC 705, refd to. [para. 131].

R. v. Lemke (D.J.), [2015] A.R. TBEd. JL.103; 2015 ABQB 444, refd to. [para. 131].

Statutes Noticed:

Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7, Schedule II, art. VII, sect. 3 [para. 54]; sect. 5, sect. 8; Schedule III, art. VIII, sect. 3 [para. 54]; sect. 5, sect. 8 [para. 48].

Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, generally [para. 3].

International Development Association, International Finance Corporation and Multilateral Investment Guarantee Agency Privileges and Immunities Order, SOR/ 2014-137, generally [para. 46].

International Monetary Fund and International Bank for Reconstruction and Development Order, P.C. 1945-7421, generally [para. 46].

Vienna Convention on the Law of Treaties, Can. T.S. 1980, No. 37, art. 31, art. 32 [para. 47].

Counsel:

Alan J. Lenczner, Q.C., Scott Rollwagen and Chris Kinnear-Hunter, for the appellant;

Scott K. Fenton and Lynda E. Morgan, for the respondent, Kevin Wallace;

Frank Addario and Megan Savard, for the respondent, Zulfiquar Bhuiyan;

David Cousins, for the respondent, Ramesh Shah;

Kathryn Wells, for the respondent, Mohammad Ismail;

Nicholas E. Devlin and François Lacasse, for the respondent, Her Majesty the Queen in Right of Canada;

Scott C. Hutchison and Samuel Walker, for the intervener, the Criminal Lawyers' Association (Ontario);

Mark A. Gelowitz and Geoffrey Grove, for the interveners, Transparency International Canada Inc. and Transparency International e.V;

Gerald Chan and Nader R. Hasan, for the intervener, the British Columbia Civil Liberties Association;

Guy J. Pratte and Nadia Effendi, for the interveners, the European Bank for Reconstruction and Development, the Organisation for Economic Co-operation and Development, the African Development Bank Group, the Asian Development Bank, the Inter-American Development Bank and the Nordic Investment Bank.

Solicitors of Record:

Lenczner Slaght Royce Smith Griffin, Toronto, Ontario, for the appellant;

Fenton, Smith, Toronto, Ontario, for the respondent, Kevin Wallace;

Addario Law Group, Toronto, Ontario, for the respondent, Zulfiquar Bhuiyan;

David B. Cousins, Toronto, Ontario, for the respondent, Ramesh Shah;

Wells Criminal Law, Toronto, Ontario, for the respondent, Mohammad Ismail;

Public Prosecution Service of Canada, Toronto, Ontario, for the respondent, Her Majesty the Queen in Right of Canada;

Henein Hutchison, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Osler, Hoskin & Harcourt, Toronto, Ontario, for the interveners, Transparency International Canada Inc. and Transparency International e.V.;

Stockwoods, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Borden Ladner Gervais, Ottawa, Ontario, for the interveners, the European Bank for Reconstruction and Development, the Organisation  for  Economic Co-operation  and Development, the African Development Bank Group, the Asian Development Bank, the Inter-American Development Bank and the Nordic Investment Bank.

This appeal was heard on November 6, 2015, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada. The following joint reasons for judgment were delivered for the court, in both official languages, by Moldaver and Côté, JJ., on April 29, 2016.