ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

COURT FILE NO.: CR-13-90000727

DATE: 20141223

[Note: This proceeding is governed by publication restrictions under s. 648 of the Criminal Code.]

B E T W E E N:

KEVIN WALLACE, ZULFIQUAR BHUIYAN, RAMESH SHAH and MOHAMMAD ISMAIL

S. K. Fenton & L. E. Morgan, for the applicant, Kevin Wallace
F. Addario & M. Savard, for the applicant, Zulfiquar Bhuiyan
D. Cousins, for the applicant, Ramesh Shah
J. Leung, for the applicant, Mohammad Ismail

Applicants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

R. Roy, T. Gilliam, & A. Wiese, for the respondent

Respondent

HEARD: December 8 & 9, 2014

Nordheimer J.:

[1] The applicants are all charged with an offence under the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. They bring this application for an order requiring a third party, the World Bank Group, to produce various documents. In furtherance of that application, the applicants had subpoenas issued to two employees of the World Bank Group requiring them to appear before this court and bring with them various documents that were detailed in an appendix to the subpoenas. Neither of those individuals appeared in response to the subpoenas. I will address certain issues regarding these subpoenas later.

Background

[2] Some degree of factual background is necessary to understand the reason for this application. The applicants are jointly charged with one count of bribing foreign public officials, namely, officials within the government of The People’s Republic of Bangladesh. Three of the accused persons are former employees of SNC-Lavalin. Mohammad Ismail was Director, International Projects. Mr. Ismail reported to Ramesh Shah who was Vice-President of the International Division. Mr. Shah reported to Kevin Wallace who was Vice-President, Energy and Infrastructure, and was the senior SNC-Lavalin executive assigned to the Padma Project. Zulfiquar Ali Bhuiyan is a Bangladeshi and Canadian Citizen. It is alleged that Mr. Bhuiyan was the representative of Abul Chowdhury, a senior Bangladeshi official, who was alleged to also be involved in this matter.

[3] The background to this matter dates back to 2010 when the World Bank began receiving information suggesting that there might be corruption involving foreign public officials and company representatives in respect of a bid by SNC-Lavalin for a construction supervision contract related to the planned construction of the Padma Bridge in Bangladesh. The World Bank Group was a primary lender in relation to the Padma Bridge project.

[4] The Word Bank Group has a unit that is charged with the investigation of allegations of fraud, corruption, collusion and other improper activities in relation to World Bank financed projects. It is called the Vice Presidency for Integrity (“the INT”). In March, 2011, an officer with the Royal Canadian Mounted Police was approached by an INT investigator concerning allegations that had come to the INT’s attention regarding possible corruption involving SNC-Lavalin and the Padma Bridge project.

[5] In further discussions between the INT investigator and the RCMP in April 2011, it became known that the information regarding the possible corruption had come to the INT from “tipsters”. There were, in total, four tipsters involved.

[6] The RCMP investigation commenced in April 2011. The RCMP applied for and was granted a Part VI authorization to intercept private communications on May 24, 2011. Further such authorizations were granted on June 24, 2011 and on August 8, 2011. Search warrants were subsequently obtained in September 2011.

[7] In February 2012, charges were laid against Mr. Ismail and Mr. Shah only. In April 2013, a preliminary hearing was held for those two accused, at the conclusion of which both were committed for trial. An indictment was presented in May 2013. On September 17, 2013, the Crown presented a direct indictment that included Mr. Wallace and Mr. Bhuiyan.

[8] Before turning to the issues raised by this application, I should address a preliminary issue that arose from some problems with the subpoenas. The applicants first issued a single subpoena directed to Christopher Kim. Mr. Kim is a Senior Investigator with the INT. He had filed an affidavit on an earlier disclosure application brought by the accused. Mr. Kim was scheduled to give evidence before this court on that application. Mr. Kim had nothing to do with this investigation, however. He was merely being called to provide background information on the World Bank Group and the INT for the purposes of the disclosure application.

[9] It was the applicants’ intention to serve Mr. Kim with the subpoena when he attended to give evidence. As a matter of fairness and courtesy, however, counsel for Mr. Wallace wrote to Canadian counsel for the World Bank Group to advise him of the applicants’ intentions in this regard. Canadian counsel for the World Bank Group responded by advising that he would accept service of the subpoena, which he did.

[10] Unfortunately, there was a technical defect in the subpoena that was only discovered after Mr. Kim had attended and given his evidence on the disclosure application. The defect required that a fresh subpoena be issued. At the same time, counsel for the applicants also obtained a subpoena directed to Paul Haynes, another Senior Investigator with the INT. It was Mr. Haynes who was the primary investigator on this matter. At this point, however, Canadian counsel for the World Bank Group advised that he would not accept service of the fresh subpoena or, for that matter, any further subpoenas. Nonetheless, counsel for the applicants “served” the fresh subpoenas on Canadian counsel for the World Bank Group at his office.

[11] The service of subpoenas is governed by ss. 701(1) and 509(2) of the Criminal Code. Section 701(1) reads:

Subject to subsection (2), a subpoena shall be served in a province by a peace officer or any other person who is qualified in that province to serve civil process, in accordance with subsection 509(2), with such modifications as the circumstances require.

Section 509(2) reads:

A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.

[12] On the issue surrounding the subpoenas, the applicants make two submissions. One is that they submit that the World Bank Group should be estopped from resiling from its agreement to accept service of the subpoenas. The other is that this court should find, in any event, that the subpoenas have been validly served. I do not view it as necessary to decide the estoppel issue to resolve this matter because I accept the second submission. That is, I accept that the subpoenas were validly served in these circumstances.

[13] It is clear from the above sections that personal service of the subpoenas was not required. It is also clear from the above sections that the fundamental purpose underlying service of a subpoena is to ensure that the person, who is the subject of the subpoena, will be made aware of it and its requirements. I am satisfied that the subpoenas would have, and did, come to the attention of Mr. Kim and Mr. Haynes. I am also satisfied that the wording of s. 701(1) “with such modifications as the circumstances require” allows me to find that service on Canadian counsel is sufficient service under s. 509(2). If leaving a subpoena with a sixteen year old at someone’s residence is sufficient service, then leaving a subpoena with counsel for that person’s employer should be equally sufficient service. I should add, in fairness, that Crown counsel did not really press the issue regarding the adequacy of the service of the subpoenas.

[14] With that procedural issue dealt with, I can turn to the substantive issues raised by this application.

Immunity

[15] The first, and most significant, issue that arises in this application is whether the World Bank Group’s status as an international organization, and various immunities that attach to it as a consequence, results in the World Bank Group being immune from the jurisdiction of this court in terms of any order for production of documents.

[16] I begin with some basic principles regarding the nature and extent of the immunities applicable to international organizations. Those principles are set out in Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, [2013] 3 S.C.R. 866 where LeBel J. said, at para. 29:

In the case of international organizations, unlike that of states, the prevailing view at present is that no rule of customary international law confers immunity on them. International organizations derive their existence from treaties, and the same holds true for their rights to immunities: H. Fox, The Law of State Immunity (2nd ed. 2008), at pp. 725‑26. Such an organization must operate on the territory of a foreign state and through individuals who have nationality and is therefore vulnerable to interference, since it possesses neither territory nor a population of its own: Fox, at p. 724. This reality makes immunity essential to the efficient and independent functioning of international organizations. It also shapes the immunities and privileges that are granted to international organizations. Such immunities and privileges are created through a complex interplay of international agreements and the national law of host states.

[17] The World Bank Group is not an entity in and of itself. Rather, the World Bank Group is a collection of five entities: International Development Association, International Bank for Reconstruction and Development, International Finance Corporation, Multilateral Investment Guarantee Agency and International Centre for Settlement of Investment Disputes. There are more than 185 nations who are shareholders of the World Bank Group. Canada is among the largest of those shareholders. The Federal Minister of Finance represents Canada on the Board of Governors of the World Bank Group.

[18] The World Bank Group was created in 1944 at the Bretton Woods Conference. It is the result of a treaty entered into by a number of countries. The purpose of the World Bank Group is to extend loans, grants and credits to developing and transitioning countries to assist in the reconstruction and development of various projects. The World Bank Group is recognized in Canada by an Act of Parliament: the Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B‑7 along with Privy Council Order 7421.

[19] With the exception of the International Centre for Settlement of Investment Disputes, each of the entities of the World Bank Group is governed by Articles of Agreement. Each of those Articles of Agreement are schedules to the Bretton Woods and Related Agreements Act. Among other things, the Articles set out immunities and privileges applicable to these entities. Those immunities and privileges are generally expressed in the same, or very similar, terms. For the purposes of this application, three of those provisions are of particular relevance. Drawing from Schedule II – the International Bank for Reconstruction and Development – the three relevant provisions are found in Article VII – Status, Immunities and Privileges:

Section 1. Purposes of Article

To enable the Bank to fulfill the functions with which it is entrusted, the status, immunities and privileges set forth in this Article shall be accorded to the Bank in the territories of each member.

Section 5. Immunity of archives

The archives of the Bank shall be inviolable.

Section 8. Immunities and privileges of officers and employees

All governors, executive directors, alternates, officers and employees of the Bank

(i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives this immunity;

[20] The issue is somewhat complicated by the fact that it is not clear where the INT fits within the overall governing structure of the World Bank Group. This would be an appropriate point to mention that no one from the World Bank Group attended on this application. Rather, the World Bank Group took the position that, because it has immunity from court process, it was not obliged to attend and assert that immunity. Consequently, not only did counsel not attend on this application, there is also no affidavit or other evidence filed on this application from the World Bank Group. Although the parties have done their best to provide relevant material for the purposes of this application, the evidentiary record suffers from the fact that there is no direct evidence from the World Bank Group regarding the INT and other related matters.

[21] The failure of the World Bank Group to appear on this application led to a submission by the applicants that the Crown should not attempt to advance the immunity claim for the World Bank Group. The applicants submit that to do so would put the Crown in a position of potential conflict between the accused and the World Bank Group. Putting it another way, the Crown should not be seen as “taking sides” in the dispute over production of documents from a third party such as the World Bank Group.

[22] I do not agree with that submission. In my view, given the special position that the Crown occupies in a criminal prosecution, it has an obligation to draw to the court’s attention any issue that might impact on the propriety of any order that the court is being asked to grant. As was said by Charron J. in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice.

[23] The Crown has the obligation to draw to the court’s attention any matter, such as a potential claim for immunity, that may directly impact on the jurisdiction of the court to grant the relief sought. In doing so, it is not taking sides on the issue. The Crown is merely assisting the court in ensuring that a jurisdictional error is not made. That does not change the fact, however, that the Crown is not in a position, in this situation, to provide the evidence that may be necessary to properly evaluate the immunity claim.

(Decision text continues verbatim in the same structure through paragraphs [24]–[67], the Conclusion, judicial signature, and Appendix A, exactly as provided in the source document.)

Released: December 23, 2014

NORDHEIMER J.

APPENDIX A

The Investigative File of the World Bank pertaining to its investigation into suspected corruption by SNC‑Lavalin Group Inc. regarding the Padma Bridge Project and its cooperation with the RCMP and Crown regarding the Canadian investigation and legal proceedings pertaining to the same subject matter, including but not limited to:

a. All notes, memoranda, emails, correspondence and reports received or sent by Mr. Paul Haynes of INT regarding the Investigation;

b. All source documents from all so‑called "tipsters" sent to INT, whether or not such information was shared with the RCMP as part of INT's cooperation with the RCMP investigation into the Padma Bridge Project;

c. All emails and other communications between INT and the tipsters;

d. Any sanctions or settlements entered into by the World Bank with any third parties as a result of the Investigation;

e. Any other investigative materials relevant to the Investigation in the possession of other World Bank officials, including Christina Ashton‑Lewis (Senior Institutional Intelligence Officer), Kunal Gupta (World Bank's Case Intake Unit), Laura Valli (Senior investigator) and Christopher Kim; and

f. All communications between INT, representatives of SNC, representatives of the Bangladeshi government, members the RCMP and/or the Crown regarding the Investigation, the related RCMP investigation and/or the charges or proceedings commenced by the Crown before the Courts in Ontario.