The Supreme Court of Canada has upheld the immunity status and
independence of international organizations by rejecting an attempt
by a group of accused individuals to compel personnel of the World
Bank Group to appear in court and produce various documents.
The implication for organizations and individuals subject to a
World Bank Group probe is that they are unlikely to receive the
content and details of such an investigation if charges are
ultimately laid. This could significantly impact the ability of an
accused to challenge the fairness of an investigation or its
integrity, and could impede the assertion of Charter rights and
equitable remedies. The same is likely true for investigations
conducted by other international bodies with immunity.
The World Bank Group v. Wallace, et al. (2016 SCC
15) decision arose in the context of a criminal proceeding
under the Corruption of Foreign Public Officials Act where
four parties are charged with offences as a result of an
investigation triggered by a series of tips. The tips were received
by a branch of the World Bank Group — a third party to the
prosecutions — responsible for investigating allegations
of fraud, corruption, and collusion with respect to projects
financed by the World Bank Group. Wiretap authorizations were
subsequently granted to the RCMP on the basis of information
provided by the World Bank Group. In order to challenge the wiretap
authorizations, the respondents sought to examine two senior
investigators at the World Bank Group and compel production of
documents in their possession by way of subpoena. Neither of the
investigators complied with the subpoenas, causing the accused
parties to bring this application for an order requiring production
of the requested documents and for validation of the
No representative of the World Bank Group appeared at the
application hearing, nor was any evidence filed by it, leaving the
Crown prosecutor to assert immunity on its behalf. The trial judge
ultimately ordered production of various documents in the hands of
the World Bank Group and validated the subpoenas. Since the
decision affected the rights of a third party to the criminal
proceedings, the decision was appealed by the World Bank Group,
with leave, directly to the Supreme Court.
The Supreme Court decided that the documents sought were
protected by an "archival immunity," while the subpoenas
were invalid on the basis of a "personnel immunity."
The applicability and breadth of the relevant immunities
turned on principles of statutory interpretation since they were
conferred on the World Bank Group by the federal government through
two Orders in Council and pursuant to the Bretton Woods and
Related Agreements Act.
The Supreme Court found that the archival immunity protects the
entire collection of documents and records held by the World Bank
Group from production or search and seizure. In analyzing the
scope of the archival immunity, the Supreme Court favoured a
sweeping ambit that would permit the World Bank Group to properly
fulfill its functions without interference from a member state, or
the courts of a member state. Furthermore, the Supreme Court
concluded that the immunity is not subject to waiver. Interpreting
the immunity in this manner conformed with the object and purpose
of the relevant legislative provisions and will help to foster the
independent functioning of the World Bank Group.
A separate immunity applies to personnel of the World Bank Group
and provides protection to all employees of the World Bank Group,
acting in their official capacity, from civil suits, criminal
prosecution, and legal processes such as subpoenas. The purpose
behind such an immunity is to prevent harassment of international
officials through court proceedings. The personnel immunity can be
waived, but only expressly to ensure the World Bank Group maintains
control over the circumstances in which its personnel are summoned
to court. Since there was no evidence of an express waiver, the
subpoenas issued to the two senior investigators at the World Bank
Group were invalidated.
Although this appeal was decided in the context of specific
legislative provisions, it suggests more generally that courts
should be reluctant to grant production of documents in the
possession of international organizations or compel the attendance
of its personnel in court if the organization is subject to an
immunity. Accordingly, organizations and individuals must take the
existence of any immunities into consideration when deciding
whether, and to what extent, they co-operate with an investigation
by an international organization. If criminal charges are
eventually laid on the basis of information provided by an immune
international organization, the avenues available for challenging
the investigation may be limited by this decision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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