Partial voluntary disclosure of documents did not amount to waiver of immunity

Discovery

Partial voluntary disclosure of documents did not amount to waiver of immunity

WBG, international organization composed of separate organizations, provides loans, guarantees and grants for development projects in developing countries and primary lender for Multipurpose Bridge in Bangladesh. Three former employees of SNC-Lavalin, one of several companies bidding to supervise construction, and one representative of Bangladeshi official, charged under Canadian Corruption of Foreign Public Officials Act after allegedly conspiring to bribe Bangladeshi officials. Articles of Agreement of two WBG constituent organizations, IRBD and IDA, set out immunities and privileges. Articles provided archives inviolable and officers and employees immune from legal process for acts in official capacity unless immunity waived. INT, independent unit within WBG, forwarded emails suggesting corruption in process for awarding supervision contract to RCMP which obtained authorizations to intercept private communications and search warrant. Sgt. D prepared affidavits but made no handwritten notes and lost all emails. Crown intended to present intercepted communications at trial. Accused challenged wiretap authorizations pursuant to R. v. Garofoli and applied for order requiring production of INT records. Trial judge held that immunities and privileges facie applicable but WBG waived immunities by participating in RCMP investigation. He concluded documents were not archives and inviolable referred to protection from search and seizure or confiscation, not production. Trial judge ordered documents be produced for review. WBG’s appeal allowed. Despite its operational independence, INT’s documents formed part of IBRD’s or IDA’s archives, and INT’s personnel benefit from legal process immunity for acts in official capacity. Partial voluntary disclosure of some documents did not amount to waiver. In absence of express waiver, trial judge erred in finding WBG waived immunity. Production order should not have been issued under framework for third-party production. Garofoli framework assesses reasonableness of search when wiretaps used to intercept private communications. To obtain third-party records on Garofoli application, accused must show reasonable likelihood records will be of probative value to narrow issues in play on such application. Although documents sought could be relevant to ultimate truth of allegations in affidavits, they were not reasonably likely to be of probative value to what Sgt. D knew or should have known. Not unreasonable for Sgt. D to rely on INT information.
World Bank Group v. Wallace (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36315) 264 A.C.W.S. (3d) 1026.