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 subpoenas.
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.