By Wendy Berman
In a recent decision, the Supreme Court of Canada has tilted the scale in favour of the continued facilitation of international information sharing and collaboration in combating foreign corruption and against the rights of accused corporations (and their directors and officers) to gain access to such shared relevant and potentially exculpatory information to mount a full defence. The Supreme Court unanimously held that documents and information from World Bank Group investigations are immune from access by defendants, even in circumstances where the information has been shared with domestic police agencies and used by such agencies to support wiretap authorizations. This decision effectively constrains the ability of accused corporations and individuals to successfully challenge the legality of wiretap recordings, even in cases where the wiretap recording form a significant part of the prosecution’s case.
Key Facts and Key Findings
The SCC’s decision in World Bank Group v. Wallace,1 is the latest in the long-running saga flowing from the ongoing domestic and international investigation and prosecution of SNC-Lavalin Group Inc., its affiliates and certain former employees arising from allegations of foreign (and domestic) bribery to secure government contracts in Bangladesh (the subject of the SCC’s decision), Libya and other countries. As a result of the alleged misconduct, an SNC-Lavalin company and its affiliates were investigated and ultimately debarred by the World Bank in 2013 for a period of 10 years.
The World Bank Group decision arose from an application by individual defendants charged under the Corruption of Foreign Public Officials Act to challenge RCMP wiretaps obtained largely based on information from the World Bank Group. As part of this application, the defendants sought to obtain an order for access to such World Bank Group information and documents and to examine officials of the World Bank Group. The World Bank Group resisted the application by, among other things, relying on certain international treaties and domestic legislation granting immunity to the archives and personnel of World Bank Group constituent entities.
The SCC ultimately concluded that the documents and personnel of the World Bank Group sought by the defendants were protected by the asserted-immunities and, therefore, shielded from production orders of Canadian courts. The SCC’s decision is consistent with longstanding international legal principals as well as decisions of foreign courts.
The implications of the decision are significant given the acknowledgement by the SCC that the RCMP “primarily relied on” documents shared by the World Bank Group in preparing affidavits in support of obtaining the wiretap authorizations at issue in the case. As a result of the decision, the defendants will not have the opportunity to obtain additional documents or information from the World Bank Group and its personnel to challenge the basis for the wiretap authorizations.2
The decision is noteworthy given the increasing prevalence of both international cooperation and aggressive investigative tools (including search warrants and wiretaps) in the prosecution of white-collar crime and corporate misconduct, including foreign corruption. Together with the Canadian government’s continued commitment to combat such misconduct through enhanced statutory regimes, including the expanded use of wiretaps and other investigative tools, as well increased investigations and prosecutions, we expect to see more domestic prosecutions arising from information received from international organizations going forward. As a result of this decision, however, the ability of the targets of such investigations and prosecutions to obtain documents from international organizations in order to mount a full defence may be impaired.
For more information on the increasing prevalence of international cooperation and the expanded use of wiretaps in connection with the prosecution of white collar crime - including foreign and domestic corruption and securities-related misconduct - please see the following publications: