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
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
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.
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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While that agreement mandated export measures on Canadian softwood lumber exports destined for the United States, it also protected those lumber exports from the potential imposition of onerous import measures by the U.S.
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