World Bank Group Appellant v. Kevin Wallace, Zulfiquar Bhuiyan,, 2016 SCC 15

SUPREME COURT OF CANADA Citation: World Bank Group v.

Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207 Appeal heard: November 6, 2015 Judgment rendered: April 29, 2016 Docket: 36315 Between: World Bank Group Appellant and Kevin Wallace, Zulfiquar Bhuiyan, Ramesh Shah, Mohammad Ismail and Her Majesty The Queen in Right of Canada Respondents - and – Criminal Lawyers’ Association (Ontario), Transparency International Canada Inc., Transparency International e.V., British Columbia Civil Liberties Association, European Bank for Reconstruction and Development, Organisation for Economic Co-operation and Development, African Development Bank Group, Asian Development Bank, Inter-American Development Bank and Nordic Investment Bank Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Joint Reasons for Judgment: (paras. 1 to 149) Moldaver and Côté JJ. (McLachlin C.J. and Abella, Cromwell, Karakatsanis, Wagner, Gascon and Brown JJ. concurring) World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207

World Bank Group Appellant v. Kevin Wallace, Zulfiquar Bhuiyan, Ramesh Shah, Mohammad Ismail and Her Majesty The Queen in Right of Canada Respondents and Criminal Lawyers’ Association (Ontario), Transparency International Canada Inc., Transparency International e.V., British Columbia Civil Liberties Association, European Bank for Reconstruction and Development, Organisation for Economic Co-operation and Development, African Development Bank Group, Asian Development Bank, Inter-American Development Bank and Nordic Investment Bank Interveners Indexed as: World Bank Group v.

Wallace 2016 SCC 15 File No.: 36315. 2015: November 6; 2016: April 29.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the ontario superior court of justice Public international law — Jurisdictional immunity — International organizations — Financial institutions — Accused in Canadian criminal proceedings applying for third party production order to compel senior investigators of international financial organization to appear before court and produce documents — International financial organization claiming archival and personnel immunities under its Articles of Agreement — Whether claimed immunities apply to international financial organization — Bretton Woods and Related Agreements Act, R.S.C. 1985, c.

B-7 , Sch. II, arts. I, III, s. 5(b), art. VII, ss. 1, 3, 5, 6, 8, Sch. III, arts. I, V, s. 1(g), (h), art. VIII, ss. 1, 3, 5, 6, 8.

Criminal law — Evidence — Disclosure — Interception of communications — Accused charged with bribing foreign public officials — Accused challenging wiretap authorizations on Garofoli application — Accused seeking production of documents held by third party international financial organization and validation of subpoenas to organization’s personnel in support of application — Whether documents sought by accused are relevant to Garofoli application — Proper threshold for third party production on a Garofoli application.

The World Bank Group is an international organization headquartered in Washington, D.C. composed of five separate organizations, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association (“IDA”). Each constituent organization has its own set of governing documents which set out the immunities and privileges the organization is to enjoy in the territory of each member state. The World Bank Group provides loans, guarantees, credits and grants for development projects and programs in developing countries.

The World Bank Group was originally one of the primary lenders for the project at the heart of this case, the Padma Multipurpose Bridge in Bangladesh. SNC-Lavalin Inc. was one of several companies bidding for a contract to supervise the construction of the bridge. The four individual respondents — three former employees of SNC-Lavalin and one representative of a Bangladeshi official — allegedly conspired to bribe Bangladeshi officials to award the contract to SNC-Lavalin. They are all charged with an offence under the Canadian Corruption of Foreign Public Officials Act .

The Integrity Vice Presidency (“INT”) is an independent unit within the World Bank Group responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. It was the INT that had initially received a series of emails from tipsters suggesting there was corruption in the process for awarding the supervision contract, involving SNC-Lavalin employees. The INT later shared the tipsters’ emails, its own investigative reports and other documents with the Royal Canadian Mounted Police (“RCMP”).

The RCMP then sought and obtained authorizations to intercept private communications in order to obtain direct evidence ofthe accused’s participation in corruption, as well as a search warrant. Sgt. D was assigned to prepare affidavits for the application. Helargely relied on information the INT shared based on its communications with the tipsters, as well as knowledge of the bidding processof a senior investigator with INT. Sgt. D also spoke directly to one of the tipsters. Sgt. D did not make any handwritten notes of his workas affiant.

All of his emails for the period of the investigation were lost because of a computer problem, though many were recoveredthrough other sources. The Crown charged the four accused under the Corruption of Foreign Public Officials Act and joined their proceedings bydirect indictment. The Crown intends to present intercepted communications at trial. For their part, the accused seek to challenge thewiretap authorizations pursuant to R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421.

In support of their application, theaccused sought an order requiring production of certain INT records, as well as the validation of two subpoenas issued to theinvestigators of the INT. However, the Articles of Agreement of the IBRD and the IDA provide that their archives shall be inviolable. In addition, theArticles of Agreement provide that all officers and employees shall be immune from legal process with respect to acts performed by themin their official capacity, except when the IBRD or the IDA waives this immunity.

These immunities have been implemented in Canadianlaw by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in theirentirety through the Bretton Woods and Related Agreements Act. Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issuedby a Canadian court given the immunities accorded to the IBRD and the IDA, and (2) if so, whether in the context of a challenge to thewiretap authorizations pursuant to Garofoli, the documents sought met the test for relevance.

With respect to the first issue, the trial judge found that the immunities and privileges claimed were prima facie applicableto the archives and personnel of the INT. However, he determined that the World Bank Group had waived these immunities byparticipating in the RCMP investigation. In any event, he was not persuaded that the documents at issue were “archives”. Moreover, inhis view, the term “inviolable” in the Articles of Agreement connoted protection from search and seizure or confiscation, but not fromproduction for inspection.

On the second issue, the trial judge concluded that the documents were likely relevant to issues that wouldarise on a Garofoli application. Accordingly, he ordered that the documents be produced for review by the court. Held: The appeal should be allowed and the production order set aside. Notwithstanding its operational independence, the INT’s documents form part of either the IBRD’s or the IDA’s archives,and the INT’s personnel benefit from legal process immunity for acts performed in an official capacity.

Because the Articles ofAgreement of the IBRD and the IDA provide the legal foundation for the World Bank Group’s integrity regime, and by extension theINT, the immunities outlined in those Articles of Agreement shield the documents and personnel of the INT.

Section 3 of Articles VII and VIII of the IBRD’s and the IDA’s Articles of Agreement, respectively, which confirms that theIBRD and the IDA can be the subject of a lawsuit in a court of competent jurisdiction, is not engaged in the present appeal. The presentappeal involves a request for document production directed at personnel of the INT in the context of criminal charges. It is not the kindof action contemplated by s. 3.

Nor are the immunities outlined in ss. 5 and 8 of Articles VII and VIII, respectively, “functional” in the sense that theimmunities only apply where it has been demonstrated that their application is necessary for the organization to carry out its operationsand responsibilities. The signatory states of the Articles of Agreement set out, in advance, the specific immunities that enable the IBRDand the IDA to fulfill their responsibilities. The very wording of s. 1 of Articles VII and VIII suggests that this was an explicit choice.

Toimport an added condition of functional necessity would undermine what appears to be a conscious choice to enumerate specificimmunities rather than to rely on a broad, functional grant of immunity. As regards the inviolability of the organization’s archives, the trial judge erred in construing so narrowly an immunity that isintegral to the independent functioning of international organizations. The immunity outlined in s. 5 shields the entire collection of storeddocuments of the IBRD and the IDA from both search and seizure and from compelled production. This broader

interpretation isconsistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntarydisclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity isnot subject to waiver. The personnel immunity also applies since the challenged subpoenas required Mr. Haynes and Mr. Kim to give evidence. Itis uncontested that the INT personnel were performing acts in their official capacity when they obtained the information that the accusednow seek.

It is also undisputed that the scope of the legal process immunity in s. 8 of Articles VII and VIII shields employees acting in anofficial capacity from not only civil suit and prosecution, but from legal processes such as subpoenas. While this personnel immunity canbe waived, the object and purpose of the treaty favour an express waiver requirement. Given the absence of such express waiver, the trialjudge erred in his finding that the World Bank Group waived this immunity.

Even if the World Bank Group did not possess any of the immunities identified in the Articles of Agreement, the productionorder should not have been issued under the framework for third party production set out in R. v. O’Connor, (SCC),[1995] 4 S.C.R. 411. A Garofoli application is more limited in scope than a typical O’Connor application, relating as it does to theadmissibility of evidence, namely intercepted communications. An O’Connor application made in the context of a Garofoli applicationmust be confined to the narrow issues that a Garofoli application is meant to address.

The Garofoli framework assesses thereasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutorypreconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlyingthe wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief inthe existence of the requisite statutory grounds.

What matters is what the affiant knew or ought to have known at the time the affidavit insupport of the wiretap authorization was sworn.

While the O’Connor process may be used to obtain records for purposes of a Garofoli application, the relevance thresholdapplicable to such an application is narrower than that on a typical O’Connor application. To obtain third party records in a Garofoliapplication an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on suchan application. This test for third party production is also consistent with another form of discovery on a Garofoli application:cross-examination of the affiant.

Both forms of discovery serve similar purposes and engage similar policy concerns. The justificationsthat warrant limiting cross-examination of the affiant apply with equal force to third party production applications. The “reasonablelikelihood” threshold is appropriate to the Garofoli context and fair to the accused. The trial judge erred in assessing the accused’s arguments. Although he correctly placed the burden on the accused, he didnot properly assess the relevance of the documents being sought.

In particular, he blurred the distinction in a Garofoli applicationbetween the affiant’s knowledge and the knowledge of others involved in the investigation. In this case, that distinction is crucial. Whilethe documents sought may be relevant to the ultimate truth of the allegations in the affidavits, they are not reasonably likely to be ofprobative value to what Sgt. D knew or ought to have known since he did not consult them. The accused have not shown that it wasunreasonable for him to rely on the information he received from the INT and other officers.

Furthermore, accepting the argument thatthe INT’s records should be presumed relevant because first party documents were lost or not created would require a significant changeto the O’Connor framework. Such a change is not necessary. Any loss of information must be addressed through the remedial frameworkset forth in R. v. La, (SCC), [1997] 2 S.C.R. 680, which may well be the appropriate framework for addressing anyprejudice resulting from the World Bank Group’s assertion of its immunities. The accused did not argue these issues on this appeal, andthey are best left to the trial judge.

Cases Cited Distinguished: Sparling v. Quebec (Caisse de dépôt et placement du Québec), (SCC), [1988] 2 S.C.R.1015; applied: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v. O’Connor, (SCC), [1995] 4 S.C.R.411; referred to: Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, [2013] 3 S.C.R. 866; Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835; A. (L.L.) v. B. (A.), (SCC), [1995] 4 S.C.R. 536; R. v.Pires, 2005 SCC 66, [2005] 3 S.C.R. 343; Law Society of British Columbia v.

Mangat, S.C.C., No. 27108, August 31, 2000 (Bulletin ofProceedings, September 29, 2000, p. 1542); Taypotat v. Taypotat, S.C.C., No. 35518, August 7, 2014 (Bulletin of Proceedings, August29, 2014, p. 1292); Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Thibodeau v. Air Canada, 2014SCC 67, [2014] 3 S.C.R. 340; Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1S.C.R. 982; Thomson v. Thomson, (SCC), [1994] 3 S.C.R. 551; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27; Scimet v.

African Development Bank (1997), 128 I.L.R. 582; Shearson Lehman Bros. Inc. v. Maclaine Watson & Co.(No. 2), [1988] 1 All E.R. 116; R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3), [2014] EWCA Civ708, [2014] 1 W.L.R. 2921; Taiwan v. United States District Court for the Northern District of California, 128 F.3d 712 (1997); Iraq v.Vinci Constructions (2002), 127 I.L.R. 101; Owens, Re Application for Judicial Review, [2015] NIQB 29; R. v. McNeil, 2009 SCC 3,[2009] 1 S.C.R. 66; R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. Duarte, (SCC), [1990] 1S.C.R. 30; R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Grant, (SCC), [1993] 3 S.C.R. 223; R. v. Sipes, 2009BCSC 612; R. v. McKinnon, 2013 BCSC 2212; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Ebanks, 2009 ONCA 851, 97 O.R.(3d) 721; R. v. Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL); R. v. Leipert, (SCC), [1997] 1 S.C.R. 281; R. v.Croft, 2013 ABQB 705, 576 A.R. 333; R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727; R. v. Ali, 2013 ONSC 2629; R. v.Alizadeh, 2013 ONSC 5417; R. v. Way, 2014 NSSC 180, 345 N.S.R. (2d) 258; R. v. Bernath, 2015 BCSC 632; R. v. Edwardsen, 2015BCSC 705, 338 C.R.R. (2d) 191; R. v.

Lemke, 2015 ABQB 444; R. v. La, (SCC), [1997] 2 S.C.R. 680. Statutes and Regulations Cited Bretton Woods and Related Agreements Act, R.S.C. 1985, c. B-7, Sch. II, arts. I, III, s. 5(b), art. VII, ss. 1, 3, 5, 6, 8, Sch. III, arts. I, V,s. 1(g), (h), art. VIII, ss. 1, 3, 5, 6, 8. Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. Criminal Code, R.S.C. 1985, c. C-46,

Part VI, ss. 185, 186, 187(1.4). International Development Association, International Finance Corporation and Multilateral Investment Guarantee Agency Privilegesand Immunities Order, SOR/2014-137. International Monetary Fund and International Bank for Reconstruction and Development Order, P.C. 1945-7421. Northwest Atlantic Fisheries Organization Privileges and Immunities Order, SOR/80-64, s. 3(1). Treaties and Other International Instruments Charter of the United Nations, Can. T.S. 1945 No. 7, art. 105. Convention on the Privileges and Immunities of the United Nations, Can. T.S. 1948 No. 2, art. II, s. 4.

Covenant of the League of Nations, art. 7, published in (1920), 1 League of Nations O.J. 3. Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, art. 1(1)(k), “consular archives”. Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, art. 24. Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 31, 32. Authors Cited

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Cooper, Jorge Heine and Ramesh Thakur, eds., The Oxford Handbook of Modern Diplomacy. Oxford: University Press, 2013,510. APPEAL from a decision of the Ontario Superior Court of Justice (Nordheimer J.), 2014 ONSC 7449, [2014] O.J. No. 6534(QL), granting in part an application by the accused seeking an order for the validation of subpoenas and compelling the production ofdocuments. Appeal allowed. Alan J. Lenczner, Q.C., Scott Rollwagen and Chris Kinnear-Hunter, for the appellant. Scott K. Fenton and Lynda E. Morgan, for the respondent Kevin Wallace.

Frank Addario and Megan Savard, for the respondent Zulfiquar Bhuiyan. David Cousins, for the respondent Ramesh Shah. Kathryn Wells, for the respondent Mohammad Ismail. Nicholas E. Devlin and François Lacasse, for the respondent Her Majesty the Queen in Right of Canada. Scott C. Hutchison and Samuel Walker, for the intervener the Criminal Lawyers’ Association (Ontario). Mark A. Gelowitz and Geoffrey Grove, for the interveners Transparency International Canada Inc. and TransparencyInternational e.V. Gerald Chan and Nader R. Hasan, for the intervener the British Columbia Civil Liberties Association. Guy J.

Pratte and Nadia Effendi, for the interveners the European Bank for Reconstruction and Development, theOrganisation for Economic Co-operation and Development, the African Development Bank Group, the Asian Development Bank, theInter-American Development Bank and the Nordic Investment Bank. The judgment of the Court was delivered by [1] Moldaver and Côté JJ. — Corruption is a significant obstacle to international development. It underminesconfidence in public institutions, diverts funds from those who are in great need of financial support, and violates business integrity.Corruption often transcends borders.

In order to tackle this global problem, worldwide cooperation is needed. When internationalfinancial organizations, such as the appellant World Bank Group, share information gathered from informants across the world with thelaw enforcement agencies of member states, they help achieve what neither could do on their own. As this Court recently affirmed,“International organizations are active and necessary actors on the international stage” (Amaratunga v.

Northwest Atlantic FisheriesOrganization, 2013 SCC 66, [2013] 3 S.C.R. 866, at para. 1). [2] However, without any sovereign territory of their own, international organizations are vulnerable to stateinterference. In light of this, member states often agree to grant international organizations various immunities and privileges to preservetheir orderly, independent operation.

Commonly, an organization’s archives are shielded from interference, and its personnel are madeimmune from legal process. [3] In the present appeal, the World Bank Group’s Integrity Vice Presidency (“INT”) investigated allegations thatrepresentatives of SNC-Lavalin Inc. (“SNC-Lavalin”) were planning to bribe officials of the Government of Bangladesh to obtain acontract related to the construction of the Padma Multipurpose Bridge (“Padma Bridge”), a project valued at US$2.9 billion. The WorldBank Group shared some of the information from its investigation with the Royal Canadian Mounted Police (“RCMP”).

On the basis ofthis information and other information gathered by the RCMP, the RCMP obtained wiretap authorizations. Subsequently, the individualaccused (the “respondents”) were jointly charged with one count of bribing foreign public officials under the Corruption of ForeignPublic Officials Act, S.C. 1998, c. 34. [4] The respondents challenged the wiretap authorizations pursuant to R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421. In support of their Garofoli application, they applied for a third party production order pursuant to R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, to compel senior investigators of the World Bank Group, Paul Haynes and Christopher Kim, toappear before a Canadian court and produce documents. [5] The trial judge granted the applications. The World Bank Group, supported by the Crown respondent and severalinterveners, appeals from that order and seeks to have it overturned for two reasons. [6] First, the World Bank Group submits that the Schedules of the Bretton Woods and Related Agreements Act, R.S.C.1985, c.

B-7 (“Bretton Woods Act”), grant immunity to the archives and personnel of certain constituent organizations of the World BankGroup, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association(“IDA”). Under Schedules II and III of the Bretton Woods Act, the IBRD’s and the IDA’s “archives . . . shall be inviolable” (“archivalimmunity”), and “[a]ll [g]overnors, [e]xecutive [d]irectors, [a]lternates, officers and employees . . . (

i) shall be immune from legalprocess with respect to acts performed by them in their official capacity except when the [IBRD or IDA] waives this immunity”

(“personnel immunity”) (Sch. II, art. VII, ss. 5 and 8; Sch. III, art. VIII, ss. 5 and 8). [ 7 ] Accordingly, the World Bank Group submits that the documents ordered produced by the trial judge are immune from production. [ 8 ] Second, the World Bank Group and the Crown challenge the relevance of the documents sought in the context of the Garofoli application. They submit that the documents ordered produced by the trial judge are not relevant on the Garofoli application.

Therefore, in their view, the trial judge’s order must be set aside on that basis as well. [ 9 ] For reasons that follow, we agree with the appellant on both issues. Accordingly, we would allow the appeal and set aside the trial judge’s order. I. Facts [ 10 ] The World Bank Group is an international organization headquartered in Washington, D.C. It is composed of five separate organizations, the IBRD, the IDA, the International Finance Corporation, the Multilateral Investment Guarantee Agency and the International Centre for Settlement of Investment Disputes.

Canada has ratified the Articles of Agreement and conventions establishing these organizations, along with 187 other member states. [ 11 ] Among the World Bank Group’s most important responsibilities, it provides loans, guarantees, credits and grants for development projects and programs in developing countries. The World Bank Group was originally one of the primary lenders for the project at the heart of this case. The Padma Bridge project was to construct a six-kilometre long road and railway bridge over the Padma River in Bangladesh.

The bridge was intended to link the capital, Dhaka, to the isolated southwest region. Through the IDA, the World Bank Group was to lend the Government of Bangladesh US$1.2 billion of the total US$2.9 billion cost of the bridge. The rest was to be financed by an international consortium of development banks and agencies. [ 12 ] SNC-Lavalin was one of several companies bidding for a contract to supervise the construction of the bridge (the “Supervision Contract”). A committee of Bangladeshi officials evaluated the bids. The respondents allegedly conspired to bribe the committee to award the contract to SNC-Lavalin.

Three of the respondents are former employees of SNC-Lavalin: Kevin Wallace, Ramesh Shah and Mohammad Ismail. The fourth, Zulfiquar Bhuiyan, was allegedly a representative of Abul Chowdhury, a Bangladeshi official alleged to be involved in this matter. They are all charged with an offence under the Corruption of Foreign Public Officials Act . [ 13 ] The INT is responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. The INT is an independent unit within the World Bank Group, reporting directly to its President. Mr. Haynes and Mr.

Kim were senior investigators with the INT. Mr. Haynes was the primary investigator in this matter. [ 14 ] In 2010, the INT received the first of a series of emails suggesting there was corruption in the process for awarding the Supervision Contract. The tipsters alleged SNC-Lavalin employees were negotiating to pay a portion of the contract amount to Bangladeshi officials in exchange for favourable treatment. Ultimately, the INT received emails from four tipsters. All but one remains anonymous to the RCMP. A second tipster has shared his or her identity with Mr. Haynes, but has refused to share it with the RCMP.

The other two never revealed their identities to any investigator in this matter. [ 15 ] In an earlier ruling which is not challenged in this Court, two of the four tipsters were found to be confidential informants under Canadian law, while the other two were not. Therefore, the identities of two informants are protected by informer privilege. As of the hearing of this appeal, the Crown had no intention to call any of the tipsters as witnesses at trial. [ 16 ] The INT contacted the RCMP in March 2011 and shared the tipsters’ emails, investigative reports and other documents with the RCMP.

The RCMP then sought a wiretap authorization to intercept private communications pursuant to

Part VI of the Criminal Code , R.S.C. 1985, c. C-46, in order to obtain direct evidence of the respondents’ participation in corruption. The authorization was granted, along with two further authorizations. [ 17 ] The process of applying for these authorizations is at the heart of this matter. Sgt. Jamie Driscoll was assigned to prepare an affidavit for the initial application (also known as an information to obtain). In preparing that affidavit and two subsequent affidavits, Sgt. Driscoll largely relied on information the INT shared based on its communications with the tipsters, as well as Mr.

Haynes’s knowledge of the bidding process. Sgt. Driscoll also spoke directly to one of the tipsters but not to the others. [ 18 ] Sgt. Driscoll did not make any handwritten notes of his work as affiant. All of his emails for the period of the investigation were lost because of a computer problem, though many were recovered through other sources. The respondents rely on these deficiencies in support of their production applications. More will be said about these deficiencies in our discussion of the Garofoli application. [ 19 ] The RCMP applied for and was granted its first wiretap authorization on May 24, 2011.

Further authorizations were granted on June 24, 2011 and August 8, 2011. A search warrant was granted in September 2011. [ 20 ] Mr. Ismail and Mr. Shah were charged first, in early 2012. Both were committed for trial after a preliminary hearing in April 2013 and indicted in May 2013. On September 17, 2013, the Crown charged Mr. Wallace and Mr. Bhuiyan and, the following month, joined their proceedings to Mr. Ismail’s and Mr. Shah’s by direct indictment. [ 21 ] The Crown intends to present intercepted communications at trial.

In addition, an alleged co-conspirator, Muhammad Mustafa, has agreed to testify as a Crown witness against the respondents. [ 22 ] As a result of the investigation, the World Bank Group cancelled its financing for the Padma Bridge and debarred SNC-Lavalin from participating in World Bank Group-funded projects for 10 years.

II. Decision Below [23] The decision under review arises from an application brought in the Ontario Superior Court of Justice, in which therespondents sought the validation of two subpoenas issued to Mr. Haynes and Mr. Kim, as well as an order requiring production of thefollowing documents (the “INT’s records”): 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 partof 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 ChristinaAshton-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 [of] theRCMP and/or the Crown regarding the Investigation, the related RCMP investigation and/or the charges or proceedings commenced bythe Crown before the Courts in Ontario. (2014 ONSC 7449, [2014] O.J.

No. 6534 (QL), at Appendix

A) Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issued by aCanadian court, and (2) if so, whether in the context of a Garofoli application, the documents sought met the test for relevance. [24] Nordheimer J., the trial judge, found that the INT’s archives and personnel formed part of the IBRD, whoseimmunities are set out in

Article VII of the IBRD Articles of Agreement and implemented in Canadian law by an Order in Council, theInternational Monetary Fund and International Bank for Reconstruction and Development Order, P.C. 1945-7421. The immunities andprivileges set out in

Article VII were therefore prima facie applicable to the archives and personnel of the INT. The trial judge furtherfound that both Mr. Haynes and Mr. Kim were acting in an official capacity and were therefore shielded by the personnel immunityprovided in

Article VII, s. 8. However, he determined that the World Bank Group had waived this personnel immunity. [25] In so concluding, the trial judge rejected the Crown’s submission that the World Bank Group’s personnel immunitycould only be waived expressly, determining instead that it could be waived either implicitly or expressly.

He provided three reasons forthis. [26] First, the trial judge noted that the relevant provisions of the Articles of Agreement do not explicitly require anexpress waiver, as do the provisions providing legal process immunity to the United Nations and to the International Monetary Fund. [27] Second, the trial judge reasoned by analogy that just as a privilege holder cannot choose to selectively reveal someprivileged communications but not others, the World Bank Group similarly could not choose to provide some of its documents for use inthe criminal prosecution but refuse to provide other relevant documents. [28] Finally, the trial judge relied on the “benefit/burden exception” to Crown immunity discussed by La Forest J. inSparling v.

Quebec (Caisse de dépôt et placement du Québec), (SCC), [1988] 2 S.C.R. 1015. He found that the WorldBank Group had chosen to benefit from Canadian criminal proceedings; for example, it had sought to obtain materials seized pursuant tothe search warrants and information obtained from the intercepted communications. Consequently, the World Bank Group was obligedto accept the attendant burdens of doing so, which includes compliance with procedural rules. [29] The trial judge then turned to the archival immunity provided in

Article VII, s. 5. He found that the different sectionswithin

Article VII of the IBRD Articles of Agreement do not set out discrete free-standing immunities; in other words, archival immunitywas not separate from personnel immunity. Accordingly, he concluded that if the World Bank Group had waived its immunity, it haddone so for all purposes. In any event, he was not persuaded that the documents at issue should be considered part of the “archives”,which he limited to historical records.

Moreover, in his view, the term “inviolable” connoted protection from search and seizure orconfiscation, but not from production for inspection. [30] On the second issue, the trial judge concluded that the documents sought by the respondents were likely relevant toissues that would arise on a Garofoli application. Virtually all of the information relied on by the affiant in the affidavits filed in supportof the wiretap authorizations came from the INT and its investigative file. The affiant did not keep handwritten notes of his workpreparing the affidavits.

Accordingly, the trial judge ordered that the documents listed under headings a., b., c. and e., in para. 23 above,

be produced for review by the court, the second step in an O’Connor application. [31] The World Bank Group appealed the decision to this Court, with leave, on the authority of Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835, and A. (L.L.) v. B. (A.), (SCC), [1995] 4 S.C.R. 536,which allows a third party affected by an order of a superior court judge to challenge that order before this Court. III. Parties’ Submissions [32] The World Bank Group submits that the INT is a division of the IBRD, and enjoys, as a result, the immunitiesconferred on that organization.

Its personnel are therefore immune from legal processes and its documents are immune from any legalprocess of compulsion, including production of information and evidence through subpoenas, warrants, or court orders.

In their view, theimmunities and privileges granted by the Articles of Agreement should be interpreted in a generous and liberal manner, as theimmunities are necessary to avoid undue interference in the operations of an international organization. [33] The World Bank Group argues that the term “waiver” as it applies to its personnel immunity under s. 8 must beinterpreted as meaning “express waiver” only, which they define as an expressly stated, positive and intentional act by the President ofthe World Bank Group or its Executive Board.

Regarding the inviolability of the archives under s. 5, the World Bank Group argues that“archives” includes contemporaneous documents, and that archival immunity can never be waived. [34] The Crown argues that the production order was erroneously issued under Canadian law, and should not have beenmade regardless of the World Bank Group’s immunities. The application for production was brought within the context of a Garofoliapplication to attack the wiretap authorizations. The respondents must therefore show that the evidence sought has a reasonablelikelihood of assisting in the Garofoli application.

On a Garofoli application, the affidavit before the authorizing judge is assessed basedon what the affiant “knew or ought to have known”, not whether the information is true (R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343,at para. 41). Thus, the documents sought will only be relevant if they can demonstrate that the affiant knew or ought to have known thatthe information he relied on was false. [35] The respondent Mr. Wallace argues that the materials sought are likely relevant for the purposes of both a third partyrecords application under the O’Connor framework, and the Garofoli application.

He argues that the RCMP investigative file isincomplete as the affiant did not make adequate notes, and submits that the affiant acknowledged in cross-examination that he hadmisrepresented facts in his affidavits. [36] On the issue of immunity, Mr. Wallace argues that there is no evidence explaining how the INT fits within theWorld Bank Group, or which immunities, if any, apply to the INT. [37] Mr. Wallace further argues that the INT’s personnel are only immune from legal process insofar as is necessary forthe INT to perform its functions without undue interference. Mr.

Wallace submits that production of the documents sought would notunduly interfere with the IBRD’s operations and that, in any event, the INT’s investigative file is simply not a part of the IBRD’sarchives. Finally, Mr. Wallace argues that the immunities of the World Bank Group’s constituent organizations are subject to implicitwaiver, and that the World Bank Group waived any immunity by its conduct when it actively participated in the domestic criminalinvestigation and prosecution of the respondents. [38] On the issue of immunity, the respondent Mr. Bhuiyan also submits that s. 3 of

Article VII — stating that “[a]ctionsmay be brought against the [IBRD]” by private parties in jurisdictions in which the IBRD has a legal presence — demonstrates thatParliament did not intend for the World Bank Group to be immune from Canadian judicial process. [39] A number of interveners also presented submissions before this Court.

Transparency International Canada Inc. andTransparency International e.V. stress the importance of protecting whistleblowers, and submit that failure to uphold an internationalorganization’s immunities in a context such as this may result in a chilling effect on these organizations’ cooperation with domesticcriminal prosecutions.

The European Bank for Reconstruction and Development, the Organisation for Economic Co-operation andDevelopment, the African Development Bank Group, the Asian Development Bank, the Inter-American Development Bank and theNordic Investment Bank submit that the waiver of archival and personnel immunities must always be express, and can never be implied.In their view, only a requirement of express waiver can provide the needed protection and ensure uniformity across internationalorganizations’ member states. [40] The British Columbia Civil Liberties Association, for its part, submits that the right to make full answer and defence,recognized in both domestic and international law, compels the recognition of an implied waiver of immunity in certain circumstances.

Ina similar vein, the Criminal Lawyers’ Association (Ontario) argues that, when deciding whether to compel an international organizationto produce its records in the context of a criminal proceeding, the public interest in upholding the immunity must be balanced against theaccused’s constitutional right to make full answer and defence. IV. Analysis A. Admission of Fresh Evidence [41] As a preliminary matter, the respondents ask that portions of the World Bank Group’s record and factum be struckout on the ground that they constitute fresh evidence that was not before the trial judge.

They primarily take issue with two affidavits.The Mikhlin-Oliver affidavit provides information about the organization and operations of the World Bank Group, and somebackground on the investigation in the present case. The Gilliam affidavit sets out the chronology of the prosecution, and describes thestate of disclosure. Much of the evidence contained in the affidavits was presented in some form before the trial judge. [42] As the present matter is an appeal of a pre-trial motion, we do not have the benefit of a full trial record.

In addition,the World Bank Group did not appear in front of the trial judge to assert its immunity. It relied instead on the Crown to do so, which itwas entitled to do. Although the affidavits are not admissible as fresh evidence, we find that they assist in completing the record before

this Court (see Law Society of British Columbia v. Mangat, S.C.C., No. 27108, August 31, 2000, order by Arbour J. (Bulletin ofProceedings, September 29, 2000, at p. 1542); Taypotat v. Taypotat, S.C.C., No. 35518, August 7, 2014, order by Moldaver J. (Bulletinof Proceedings, August 29, 2014, at p. 1292)). Consequently, we admit the affidavits for the limited purpose of providing proceduralcontext to this appeal, which includes the extent of the information which the Crown has disclosed to the respondents. B. The Archival and Personnel Immunities Conferred by the Articles of Agreement

(1) Background [43] The World Bank Group does not itself benefit from any immunities conferred by international treaty, and the partiesto the present dispute have not pleaded any immunity flowing from customary international law. Rather, certain immunities have beenconferred on the World Bank Group’s five constituent organizations by their 188 member states. As outlined above, these constituentorganizations are the IBRD, the IDA, the International Finance Corporation, the Multilateral Investment Guarantee Agency and theInternational Centre for Settlement of Investment Disputes.

Each of these five institutions has its own set of governing documents, whichset out the immunities and privileges the organization is to enjoy in the territory of each member state. The Articles of Agreement of theIBRD and the IDA are most relevant for the purposes of the present appeal. [44] The IBRD was created alongside the International Monetary Fund at the Bretton Woods Conference in 1944. Itsprincipal purpose was to promote the reconstruction and development of its member states by providing financing on more favourableterms (Articles of Agreement of the IBRD,

Article I).

Article VII of the IBRD’s Articles of Agreement sets out the immunities andprivileges to be accorded to the IBRD in the territories of each member state. [45] The IDA was created in 1960. Its purpose is to further the IBRD’s overall objective of promoting economicdevelopment by providing financing on more favourable terms to less-developed countries in particular (Articles of Agreement of theIDA,

Article I). It was through the IDA that the World Bank Group sought to loan the Government of Bangladesh US$1.2 billion for theconstruction of the Padma Bridge. The IDA’s immunities are set out in

Article VIII of its Articles of Agreement and are, for thepurposes of the present appeal, identical to those accorded to the IBRD. [46] The immunities accorded in the Articles of Agreement of the IBRD and the IDA have been implemented inCanadian law by two Orders in Council, the International Monetary Fund and International Bank for Reconstruction and DevelopmentOrder, and the International Development Association, International Finance Corporation and Multilateral Investment GuaranteeAgency Privileges and Immunities Order, SOR/2014-137 (collectively the “Orders in Council”).

The Articles of Agreement of the IBRDand the IDA have been “approved” by Parliament in their entirety through the Bretton Woods Act. There is no dispute between theparties that the relevant immunities have the force of law in Canada. [47] As is the case with implementing legislation, the Articles of Agreement of the IBRD and the IDA must beinterpreted in accordance with the general rules of

interpretation set out in the Vienna Convention on the Law of Treaties, Can. T.S. 1980No. 37 (“Vienna Convention”) (Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 11-12;Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 35; Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, (SCC), [1994] 3S.C.R. 551, at pp. 577-78). These general rules, set out in Articles 31 and 32 of the Vienna Convention, are similar to the modernapproach to statutory

interpretation affirmed by this Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27.It is worth reproducing them at length:

Article 31 General rule of

interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contextand in the light of its object and purpose. 2. The context for the purpose of the

interpretation of a treaty shall comprise, in addition to the text, including its

preamble and annexes: (

a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (

b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the otherparties as an instrument related to the treaty. 3. There shall be taken into account together with the context: (

a) any subsequent agreement between the parties regarding the

interpretation of the treaty or the application of its provisions;

(

b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its

interpretation; (

c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 Supplementary means of

interpretation Recourse may be had to supplementary means of

interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of

article 31, or to determine the meaning when the

interpretation according to

article 31: (

a) leaves the meaning ambiguous or obscure; or (

b) leads to a result which is manifestly absurd or unreasonable. Thus, pursuant to the Vienna Convention , the scope of the immunities at issue must be interpreted in accordance with the ordinary meaning of the treaty terms and in light of their purpose and object. [ 48 ] Sections 5 and 8 of the IBRD’s and the IDA’s Articles of Agreement provide as follows: IBRD Articles of Agreement,

Article VII

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; IDA Articles of Agreement,

Article VIII

Section 5 Immunity of Archives The archives of the Association shall be inviolable.

Section 8 Immunities and Privileges of Officers and Employees All Governors, Executive Directors, Alternates, officers and employees of the Association (

i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Association waives this immunity; [ 49 ] There remains a certain ambiguity regarding where the INT fits within the World Bank Group’s overall structure, and whether it benefits in Canada from the immunities conferred on the World Bank Group’s constituent entities. This ambiguity remains in large part because of a dearth of evidence in the record.

From this, the trial judge limited himself to noting that the INT is “an independent unit within the World Bank Group reporting directly to the President”, and that it was unclear “whether the INT is structurally part of one of the five entities making up the World Bank Group, in terms of its governance, or whether it is separate and apart from them” (para. 24). [ 50 ] Notwithstanding this operational independence, we are of the view that the INT’s documents form part of either the IBRD’s or the IDA’s archives, and that the INT’s personnel benefit from either the IBRD’s or the IDA’s legal process immunity for acts performed in an official capacity.

Because these immunities are identical, we need not determine conclusively whether it is

Article VII of the IBRD’s Articles of Agreement or

Article VIII of the IDA’s Articles of Agreement that applies. [ 51 ] The INT forms part of the World Bank Group’s integrity regime. It is charged with identifying and investigating allegations and other indications that sanctionable practices may have occurred in connection with projects financed by the World Bank Group, and in commencing internal sanctions proceedings when appropriate. The legal foundation for this integrity regime is laid out by the Articles of Agreement of the IBRD and the IDA, which require these organizations to make arrangements to ensure that funds are used for their intended purpose and with due attention to economy and efficiency.

Article III, s. 5(

b) of the IBRD Articles of Agreement provides: (

b) The Bank shall make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted, with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations. [ 52 ] In the same spirit,

Article V, ss. 1(

g) and 1(

h) of the IDA Articles of Agreement provide: (

g) The Association shall make arrangements to ensure that the proceeds of any financing are used only for the purposes for which the financing was provided, with due attention to considerations of economy, efficiency and competitive international trade and without regard to political or other non-economic influences or considerations. (

h) Funds to be provided under any financing operation shall be made available to the recipient only to meet expenses in connection with the project as they are actually incurred. [ 53 ] Because the Articles of Agreement of the IBRD and the IDA provide the legal foundation for the World Bank Group’s integrity regime, and by extension the INT, common sense demands that the immunities outlined in those Articles of Agreement shield the documents and personnel of the INT. After all, the immunities outlined in the respective Articles of Agreement are accorded to enable the IBRD and the IDA to fulfill the functions with which they are entrusted (Article VII, s. 1 of the IBRD Articles of Agreement;

Article VIII, s. 1 of the IDA Articles of Agreement). In support of this conclusion, the trial judge observed that the letterhead used by the Director, Operations for the INT bears the name of the IBRD, which provides some evidence that the World Bank Group considers the INT to be part of the IBRD. We turn now to consider the immunities set out in ss. 5 and 8, namely, when they apply, their scope, and under what conditions they may be waived.

(2) Is

Section 3 Engaged? [ 54 ] Mr. Bhuiyan argues that

Article VII, s. 3 of the IBRD’s Articles of Agreement (or

Article VIII, s. 3 of the IDA’s Articles of Agreement) expressly permits the respondents’ document production order, notwithstanding the IBRD’s or the IDA’s other immunities.

Section 3 reads as follows: Actions may be brought against the [IBRD or IDA] only in a court of competent jurisdiction in the territories of a member in which the [IBRD or IDA] has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members.

The property and assets of the [IBRD or IDA] shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the [IBRD or IDA]. [ 55 ] In our view, s. 3 is not engaged in the present appeal.

Section 3 confirms that the IBRD and the IDA, unlike many other international organizations, can be the subject of a lawsuit in a court of competent jurisdiction. This can be explained on the grounds that the IBRD and the IDA, in addition to other international development banks, engage in borrowing and lending operations and, in order to attract lender confidence, the IBRD’s and the IDA’s creditors must have access to courts to recover their claims

(A. Reinisch and J. Wurm, “International Financial Institutions before National Courts”, in D. D. Bradlow and D. B. Hunter, eds., International Financial Institutions and International Law (2010), 103, at pp. 123-24; P. Sands and P. Klein, Bowett’s Law of International Institutions (6th ed. 2009), at p. 496). The present appeal involves a request for document production directed at personnel of the INT in the context of criminal charges. It is simply not the kind of action contemplated by s. 3.

(3) Are the Immunities Outlined in the Articles of Agreement “Functional”? [ 56 ] The respondents argue that the immunities outlined in ss. 5 and 8 are “functional”. On the respondents’ understanding, a functional immunity is one that only applies where it has been specifically demonstrated that the immunity is necessary for the organization to carry out its operations and responsibilities. This was indeed the case for the immunity considered by this Court in Amaratunga .

By contrast, an immunity said to be “absolute” is not subject to this case-by-case determination of functional necessity. [ 57 ] To support their theory, the respondents draw this Court’s attention to s. 1, which states as follows: “To enable the [IBRD or IDA] to fulfill the functions with which [they are] entrusted , the status, immunities and privileges [set forth or provided] in this

Article shall be accorded to the [IBRD or IDA] in the territories of each member.” [ 58 ] A plain reading suggests that this is merely a descriptive, purposive clause. It states the reason for according the IBRD and the IDA the immunities set out in

Article VII and

Article VIII of their respective Articles of Agreement. As the Court of First Instance of Brussels concluded with regards to similar immunities outlined in the governing agreement of the African Development Bank, this kind of purposive clause explains why the enumerated immunities were granted. It is not meant to require international organizations to justify the application of the asserted immunity ( Scimet v. African Development Bank (1997), 128 I.L.R. 582, at p. 584) .

Our conclusion that the provision is only an interpretive aid is further supported by the fact that, unlike ss. 3, 5 and 8, s. 1 is not implemented in Canadian law through the Orders in Council. [ 59 ] In addition, the ss. 5 and 8 immunities are not subject to any express condition of functional necessity.

This distinguishes ss. 5 and 8 from the functional immunity provision this Court considered in Amaratunga , which stated that the Northwest Atlantic Fisheries Organization “shall have in Canada the legal capacities of a body corporate and shall, to such extent as may be required for the performance of its functions, have the privileges and immunities set forth in Articles II and III of the Convention for the United Nations” ( Northwest Atlantic Fisheries Organization Privileges and Immunities Order , SOR/80-64, s. 3(1)). [ 60 ] It is noteworthy that this express condition is stipulated in s. 6 of

Article VII and

Article VIII. By virtue of s. 6, “all property and assets” of the IBRD and the IDA shall be free from “restrictions, regulations, controls and moratoria of any nature”, but only “ [t]o the extent necessary to carry out the operations provided for in [the Articles of Agreement] ”. These words would be meaningless if the privileges and immunities outlined in Articles VII and VIII were already subject to this condition by virtue of s. 1. [ 61 ] Fundamentally, the respondents misinterpret the role and significance of s. 1.

Functional forms of immunity appear to be inspired from the broad and flexible immunity outlined in the Charter of the United Nations , Can. T.S. 1945 No. 7 (“U.N. Charter”) (A. Reinisch, “Transnational Judicial Conversations on the Personality, Privileges, and Immunities of International Organizations ― An Introduction”, in A. Reinisch, ed., The Privileges and Immunities of International Organizations in Domestic Courts (2013), 1, at p. 5). Rather than enumerate specific immunities, Article 105(1) of the U.N.

Charter simply provides that “[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes ”. Article 105(2) of the U.N. Charter extends this protection to representatives and officials of the U.N., subject to the same condition. As Anthony J.

Miller has stated: This approach of formulating privileges and immunities in general terms, rather than as a series of detailed rules, enabled the drafters of the Charter to closely connect privileges and immunities “to the realization of the purposes of the Organization, to the free functioning of its organs and to the independent exercise of the functions and duties of officials”, rather than trying to formulate concrete provisions dealing with particular privileges and immunities. [Footnote omitted.] (“The Privileges and Immunities of the United Nations” (2009), 6 I.O.L.R. 7, at p. 16) [ 62 ] However, flexibility is bought at the price of uncertainty, as what is “functional” is essentially a matter of perspective (J.

Klabbers, An Introduction to International Organizations Law (3rd ed. 2015), at p. 132; C. W. Jenks, International Immunities (1961), at p. 26; A. Reinisch, International Organizations Before National Courts (2000), at p. 206). [ 63 ] Instead of committing the IBRD and the IDA to this uncertainty, the signatory states of the Articles of Agreement set out, in advance, the specific immunities that would enable these organizations to fulfill their responsibilities.

The very wording of s. 1 suggests that this was an explicit choice; the immunities are accorded “[t]o enable the [IBRD or IDA] to fulfill the functions with which [they are] entrusted”. To import an added condition of functional necessity would undermine what appears to be a conscious choice to enumerate the specific immunities rather than to rely on one broad, functional grant of immunity. [ 64 ] For these reasons, we are of the view that s. 1 does not impose a condition of functional necessity that must be satisfied whenever any immunity is asserted.

However, as stated previously, the scope of these immunities should nevertheless be interpreted purposively, taking into consideration their object outlined in s. 1. [ 65 ] Having concluded that the immunities outlined in ss. 5 and 8 apply without the need for further justification, we turn now to interpret the scope of these immunities.

(4) Scope of the IBRD’s and the IDA’s Archival Immunity [ 66 ] By virtue of s. 5, the “archives of the [IBRD and the IDA] shall be inviolable”. The trial judge concluded that this immunity does not shield the IBRD from the respondents’ document production order, since, on the basis of a definition provided in a

dictionary, “archives” refers exclusively to a “collection of historical documents or records” (para. 54). In addition, the trial judge was of the view that the word “inviolable” only entails protection from a search and seizure order, but not protection from an order for compelled production. [ 67 ] In our respectful view, the trial judge erred in construing so narrowly an immunity that is integral to the independent functioning of international organizations. On our reading, the immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA from both search and seizure and from compelled production. This broader

interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. [ 68 ] First, the word “archive” is frequently defined as a collection of records and documents held by an organization. For example, the Canadian Oxford Dictionary (2nd ed. 2004) defines “archive” as: “1 . . . a collection of public, corporate or institutional documents or records. 2 . . . the place where these are stored” (p. 67).

The definition in the Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) is similarly broad: “1: a place in which public records or historical documents are preserved; also : the material preserved ― often used in pl. 2: a repository or collection esp. of information” (p. 65), as is the Black’s Law Dictionary (10th ed. 2014) definition: “1. A place where public, historical, or institutional records are systematically preserved. 2. Collected and preserved public, historical, or institutional papers and records. 3.

Any systematic compilation of materials, esp. writings, in physical or electronic form” (pp. 127-28 (emphasis added)). [ 69 ] For their part, the Collins Canadian Dictionary (2010), at p. 42, defines “archives” as “a collection of records or documents”, while the Multidictionnaire de la langue française (5th ed. 2009) defines the French word “ archives ” firstly as a [ translation ] “[c]ollection of documents, regardless of their dates or their nature, produced or received by a person or an organization for his or its needs or for the performance of his or its activities, and retained for their general information value” (p. 123 (emphasis added)).

Finally, Le Lexis: le dictionnaire érudit de la langue française (2009) describes “ archives ”, at p. 103, as a [ translation ] “[c]ollection of documents (handwritten papers, printed material, etc.) that come from an organization, a family or an individual”. [ 70 ] This broader meaning of “archive”, which does not differentiate between current versus historical documents, reflects its known usage in international law. The Vienna Convention on Consular Relations , Can.

T.S. 1974 No. 25, defines “consular archives” as including “ all the papers, documents, correspondence books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indexes and any

article of furniture intended for their protection or safekeeping” (art. 1(1)(k)). This definition has also been applied to the Vienna Convention on Diplomatic Relations , Can. T.S. 1966 No. 29, where the term “archives” is undefined (J. P. Grant and J. C. Barker, eds., Parry and Grant Encyclopaedic Dictionary of International Law (2nd ed. 2004), at p. 35 (“archives, diplomatic and consular”); see also J. R. Fox, Dictionary of International and Comparative Law (3rd ed. 2003), at p. 86 (“diplomatic archives”)).

The Dictionnaire de droit international public (2001) defines “ archives d’une organisation internationale ” (archives of an international organization) in a similarly broad fashion: [ translation ] “Papers and documents related to the functioning of an international organization and whose status is determined by the treaties applicable to that organization” (J. Salmon, ed., at p. 80). [ 71 ] Interpreting “archives” in the narrow manner proposed by the trial judge would not only deviate from the manner in which this term is commonly used in international law, it would also undermine the purpose of s. 5.

As this Court held in Amaratunga , immunities are extended to international organizations to protect them from intrusions into their operations and agenda by a member state or a member state’s courts (paras. 29, 30 and 45). Shielding an organization’s entire collection of stored documents, including official records and correspondences, is integral to ensuring its proper, independent functioning.

Without it, the “confidential character of communications between states and the organisation, or between officials within the organisation, would be less secure” (Sands and Klein, at p. 502; see also Jenks, International Immunities , at p. 54; and K. Ahluwalia, The Legal Status, Privileges and Immunities of the Specialized Agencies of the United Nations and Certain Other International Organizations (1964), at p. 81). [ 72 ] This explains why archival immunity is affirmed in the constituent agreements of many international organizations in such broad, uncompromising terms (Sands and Klein, at pp. 501-2).

Jenks has described the importance of international organizations’ archival immunity as follows: The inviolability of international archives does not appear to have raised any special problem; it is designed partly to secure the safe- keeping of original documents and partly to preserve the confidential character of official records; it appears to be generally accepted as self-evident that to recognise that the legislative, executive or judicial agencies of any one country may call for the production of documents from international archives would be to undermine the freedom and independence with which international staffs are expected to advise the international organisations towards which they have been vested by treaty with an exclusive responsibility and to destroy the whole basis of reciprocal respect for the confidential character of such archives without which governments would be unwilling to communicate confidential information to international organisations . [Emphasis added; footnotes omitted.] ( International Immunities , at p. 54) [ 73 ] Limiting the protection of s. 5 to historical documents would leave exposed current and more sensitive documents, whose confidentiality is likely more important to the IBRD’s independent functioning.

For all of these reasons, we are of the view that the term “archives” is better construed as the entire collection of stored documents of the IBRD and the IDA, including their official records and correspondences. We note, in passing, that the House of Lords endorsed a similarly broad definition of “archives” in the context of interpreting the International Tin Council’s immunities ( Shearson Lehman Bros. Inc. v. Maclaine Watson & Co. (No. 2) , [1988] 1 All E.R. 116, at p. 122) . [ 74 ] For its part, the term “inviolable” connotes a sweeping protection against any form of involuntary production.

Maintaining a distinction, as the trial judge suggests, between document production orders as opposed to searches and seizures is neither suggested by the plain meaning of this provision, nor is it consonant with the purpose for extending immunity. As we have said, shielding the IBRD’s and the IDA’s archives is integral to ensuring their proper, independent functioning. However, what is truly important is not the documents themselves but the information they contain. From this vantage point, it is irrelevant whether this

information is revealed in the context of a search and seizure or in the context of a compelled production order. The purpose underlying the immunity is thwarted in either case. [ 75 ] Admittedly, the use of the word “inviolable” may seem out of place when referring to the archives of an organization.

However strange it may seem to speak of violence towards a collection of stored records, documents and correspondence, the term “inviolable” has a history in international law that sheds some light on its meaning in the IBRD and the IDA Articles of Agreement. [ 76 ] Originating in the law of diplomacy, and later becoming common in treaties establishing certain international organizations, the term “inviolable” implies freedom from unilateral interference. Originally, the person of an ambassador was said to be inviolable. This entailed freedom from arrest or any kind of restraint (C.

Morton, Les privilèges et immunités diplomatiques (1927), at p. 49; J. Secretan, Les immunités diplomatiques des représentants des états membres et des agents de la Société des nations (1928), at p. 67). Inviolability was later extended to the premises of diplomatic missions. In that context, “inviolable” connoted an immunity from the enforcement of local law within the premises by local authorities (E. Denza, Diplomatic Law (3rd ed. 2008), at p. 136) . [ 77 ] Prior to the First World War, many international organizations were accorded the same privileges and immunities known to the law of diplomacy (E. H.

Fedder, “The Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization” (1960), 9 Am. U.L. Rev. 60, at p. 60). The personnel of many of the first international organizations were thus inviolable (L. Preuss, “Diplomatic Privileges and Immunities of Agents Invested with Functions of an International Interest” (1931), 25 A.J.I . L. 694, at pp. 696-99; J. L. Kunz, “Privileges and Immunities of International Organizations” (1947), 41 A.J.I.L. 828, at pp. 828-32) .

Later, t he 1920 Covenant of the League of Nations provided that the “buildings and other property occupied by the League or its officials or by Representatives attending its meetings shall be inviolable” ( art. 7, (1920), 1 League of Nations O.J. 3, at p. 5) .

A subsequent agreement concluded in 1926 between the League and Switzerland provided that “inviolable” meant “no agent of the public authority may enter” without the consent of the League (“ Communications from the Swiss Federal Council Concerning the Diplomatic Immunities to be Accorded to the Staff of the League of Nations and of the International Labour Office” (1926), 7 League of Nations O.J. 1422, at p. 1423) . The agreement also added for the first time that the “archives of the League of Nations are inviolable” ( ibid. ). [ 78 ] This formulation was reprised in the Articles of Agreement of the IBRD.

It has since become standard in the constituent agreements of many international organizations (see e.g. Convention on the Privileges and Immunities of the United Nations , Can. T.S. 1948 No. 2,

Article II, s. 4; Vienna Convention on Diplomatic Relations , art. 24). Though the word has been applied in various contexts — to persons, premises, and archives — this history makes clear that the term “inviolable” generally entails freedom from any form of unilateral interference on the part of a state. [ 79 ] This broad

interpretation also finds support in international law scholarship. The inviolability of archives is said to afford a complete shield from investigation, confiscation or interference of any kind with the documents belonging to the archives of an international organization (A. S. Muller, International Organizations and their Host States: Aspects of their Legal Relationship (1995), at p. 205; F ox, at p. 173 (“inviolability”); Morton, at pp. 56-57) .

Philippe Sands and Pierre Klein write that, as a consequence of the principle that archives are inviolable, “international organisations are under no duty to produce any official document or part of their archives in the context of litigations before national courts” (p. 502, citing C. W. Jenks, The Proper Law of International Organisations (1962), at p. 234). This appears to reflect the consensus view of international law scholarship (see e.g. Jenks, International Immunities , at p. 54; B. Sen, A Diplomat’s Handbook of International Law and Practice (3rd rev. ed. 1980), at pp. 117-18; J. Wouters, S.

Duquet and K. Meuwissen, “The Vienna Conventions on Diplomatic and Consular Relations”, in A. F. Cooper, J. Heine and R. Thakur, eds., The Oxford Handbook of Modern Diplomacy (2013), 510, at p. 523). The United Nations Special Rapporteur was also of the view that the absolute secrecy of an organization’s archives protects it from all forms of document production orders (L. Díaz González, “Fifth report on relations between States and international organizations (second part of the topic)”, U.N. Doc. A/CN.4/438, in Yearbook of the International Law Commission 1991 (1994), vol.

II, Part One, 91, at pp. 95-99). [ 80 ] Finally, it is worth noting that our

interpretation is also favoured in the decisions of foreign courts. The Court of Appeal for England and Wales has written recently that “the universal definition of ‘inviolability’ is freedom from any act of interference on the part of the receiving state” ( R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 3) , [2014] EWCA Civ 708, [2014] 1 W.L.R. 2921, at para. 61 (emphasis added) ). What is more, several foreign courts appear to have specifically taken it for granted that the inviolability of archives shields international organizations from document production orders ( Taiwan v.

United States District Court for the Northern District of California , 128 F.3d 712 (9th Cir. 1997); Iraq v. Vinci Constructions (2002), 127 I.L.R. 101 (Brussels C.A.) ; Owens, Re Application for Judicial Review , [2015] NIQB 29, at paras. 63 and 69 (BAILII)). [ 81 ] For these reasons, we are of the view that the protection afforded by s. 5 extends to all documents stored by the INT from search, seizure and compelled production. [ 82 ] Further, we are of the view that partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity.

Indeed, on our reading, the archival immunity is not subject to waiver. [ 83 ] We have already concluded that archival inviolability connotes protection from all forms of unilateral interference with the INT’s archives. As a result, where the World Bank Group has expressly permitted the consultation of documents in its archives, the sanctity of those archives is respected. In other words, where there is express permission to consult, s. 5 simply does not apply. This likely explains why, unlike the personnel immunity outlined in s. 8, s. 5 does not contemplate the possibility of waiver.

Moreover, where a document has been copied and transmitted to an external party, that transmitted copy no longer forms part of the “archives”, as we have defined them. As a result, s. 5 no longer applies to shield that transmitted copy. The House of Lords arrived at a similar conclusion in Shearson Lehman Bros. Inc. [ 84 ] Since a qualified representative of the IBRD or the IDA never agreed to allow Canadian officials to consult the documents sought in the document production order, s. 5 applies.

(5) The IBRD’s and the IDA’s Legal Process

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