Anti-Bribery & Corruption Enforcement Protects Immunity of Whistleblowers

The international landscape on the law with respect to whistleblowing is changing dramatically and quickly. The Supreme Court of Canada is the first national high court in the world to recognize and protect the role of whistleblowers, their identity, and immunity, from disclosure and criminal prosecution.  In its decision involving the World Bank Group,  it addressed the subject of whistleblower immunity in an international case.

The opening paragraph of the Supreme Court Judgment, delivered by Justices Moldaver and Cote, reads as follows:

“Corruption is a significant obstacle to international development.  It undermines confidence 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 international financial organizations, such as the appellant World Bank Group, share information gathered from informants across the world with the law enforcement agencies of member states, they help achieve what neither could do on their own”.[1]

The Court confirmed that the World Bank Group did not waive their immunities by voluntarily providing that information to Canadian law enforcement officials.  This included two confidential tipsters who told the Bank’s investigative unit that SNC-Lavalin Inc. was in the process of bribing Bangladeshi officials to grant the Canadian engineering firm a contract to supervise the Padma Bridge project in Bangladesh.

The Court held that the International Bank for Reconstruction and Development and the International Development Agency, two of the five institutions that make up the World Bank Group, are protected by the immunities in their constituent treaty, which Canada implemented in the Federal Bretton Woods and Related Agreements Act.  These immunities generally insulate members of the World Bank Group from being compelled by domestic court orders to produce their officials and documents, as part of disclosure in criminal prosecutions.

Criminal defence lawyers may legitimately be concerned regarding the international organization’s immunity from domestic criminal disclosure obligations.  The right to full disclosure of all the relevant evidence associated with the investigation is an important legal right of an accused in Canadian law.[2]  The fundamental debate is between immunity of whistleblowers and the right of accused to make full answer and defence is alive in many jurisdictions around the world. It remains to be seen if the immunity rights of whistleblowers will consistently trump the rights of accused to full disclosure and defence in Canadian courts.

 

[1] World Bank Group v. Wallac, 2016 S.C.C. 15, para. 1

[2] R. v. Stinchcombe, [1991] 3 S.C.R. 326

Norm Keith

Norm Keith

Mr. Keith is a senior partner and member of the White Collar Defence practice group in the Toronto office of Fasken Martineau and the author of 12 books, including Insider Trading in Canada (Lexis Nexis, 2012). Contact him at +1 416 868 7824 or nkeith@fasken.com.