World Bank Group v. Kevin Wallace, et al.

(Ontario) (Criminal) (By Leave)

(Sealing order)




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Public international law - Jurisdictional Immunity - Criminal law - Evidence - Accused charged with bribing foreign public officials - Accused demanding production of internal documents of third party international organization - Interlocutory Order for production of records for court review under R. v. O’Connor, [1995] 4 S.C.R. 411 - Third party seeking to appeal interlocutory judgment - Whether deference is to be accorded to the immunities of the Bank by virtue of the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7, this Court’s Decision in Amaratunga v. Northwest Atlantic Fisheries Organization, [2013] 3 S.C.R. 866 and international law as established by judgments of foreign courts and the Vienna Convention - Whether to waive any of the immunities in Article VII there must be an intentional act and must it be made at the direction of the President or of the Executive Board of the Bank - Whether the absence of the word “expressly” before “waives” weakens the strength of the immunities or permits any employee in the Bank to impliedly waive the immunities accorded to the Bank - Whether the benefit/burden principle derived from Canadian federalism has any application to the absolute immunities guaranteed to the Bank - Whether, on these facts, in any event, there was a benefit sought by the Bank and which accrued to it such that it equates to an implied waiver of its immunities - Whether the panoply of immunities in Article VII is singular such that an implied waiver of one undermines the inviolability of the archived material which enjoys its own separate immunity - Whether archived is, in context, to be interpreted to encompass historical documents only.

The individual respondents (the “accused”) are jointly charged with one count of bribing foreign public officials under the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, in relation to SNC-Lavalin’s bid for a construction supervision contract for the Padma Bridge in Bangladesh. In the course of their criminal proceeding, the accused brought an application for an order requiring the appellant third party to produce certain documents. The appellant had received information from tipsters about possible corruption involving SNC-Lavalin, and had approached the RCMP, providing it with information concerning the allegations. Two of the appellant’s employees subpoenaed by the defense did not appear before the court and the appellant took the position that it was not required to attend given its immunity from court process as an international organization. The defense’s application for an order requiring the production of documents by the appellant was granted in part by the Superior Court of Justice on the basis that the appellant had waived its immunity. The appellant was ordered to produce certain records for court review in accordance with R. v. O’Connor, [1995] 4 S.C.R. 411.

Lower Court Rulings

December 23, 2014
Ontario Superior Court of Justice

CR-13-90000727, 2014 ONSC 7449
Application by individual respondents for an order requiring the production of documents by the applicant third party, granted in part