Gerald Chan and Nader Hasan practise criminal and regulatory law at Stockwoods LLP in Toronto. They represented the B.C. Civil Liberties Association in World Bank Group v. Wallace.
Foreign governments and civil society have frequently criticized Canada's lax enforcement of its anti-corruption law, the Corruption of Foreign Public Officials Act (CFPOA). Just three weeks ago, however, the Supreme Court of Canada released World Bank Group v. Wallace, a precedent-setting decision on the CFPOA that paves the way for increased enforcement of Canada's anti-corruption laws. It also creates interesting challenges for the right to a fair trial when that enforcement results in a criminal prosecution.
The CFPOA makes it a criminal offence to bribe a foreign public official in order to gain a business advantage. A bribe includes any "loan, reward, advantage or benefit of any kind." The offence is punishable by up to 14 years in prison. Canadian citizens and corporations can be prosecuted in Canada regardless of where in the world the bribe was made.
Given the number of Canadian corporations (resource companies, in particular) that do business in challenging foreign markets, and the severe potential consequences, CFPOA compliance should rank high on the business community's priority list.
The World Bank Group v. Wallace decision arose out of the Padma bridge project in Bangladesh. Montreal-based SNC-Lavalin Group won the bid for the project, which was awarded by the Bangladeshi government. The project, however, was to be funded in part by the World Bank, which has a keen interest in ensuring that its projects are free from corruption.
In 2012-2013, the RCMP laid charges against three SNC-Lavalin executives over an alleged bribe concerning the Padma bridge project in Bangladesh.
Interestingly, the World Bank conducted the original investigation and shared its information with the RCMP. This raised a host of complex legal issues.
In the resulting prosecution (which is continuing), the defence sought access to those parts of the World Bank's investigative file that had not been turned over to the RCMP. The trial judge granted the defence request. The World Bank then appealed this ruling directly to the Supreme Court on the basis that the World Bank, as an international organization, enjoys immunity from such court orders. The Supreme Court agreed.
The Supreme Court's ruling will have ramifications for all CFPOA prosecutions in the future. International organizations such as the World Bank are uniquely positioned to investigate allegations of transnational corruption. A number of these organizations intervened in the Supreme Court case to support the World Bank's position, including the European Bank for Reconstruction and Development, the African Development Bank Group and the Asian Development Bank. All of them suggested that they might have to stop sharing information with domestic law enforcement authorities if a court could force them to turn over all of their documents.
Now that the Supreme Court has sided with them, one can expect the information sharing to continue in earnest.
International organizations such as the World Bank Group are critical to the enforcement of anti-corruption laws in Canada and around the world. Unlike the United States and Britain, Canada still does not have specialized, well-funded white-collar-crime enforcement bodies. (Other countries have even fewer resources to devote to white-collar-crime investigations.) If international organizations do the investigative groundwork, however, that makes it much easier for Canada to enforce the CFPOA against Canadian businesses. In this case, the RCMP obtained a wiretap order against SNC-Lavalin executives based largely on the information provided by the World Bank.
The Supreme Court's decision will undoubtedly make it easier to lay CFPOA charges. But it will also create new challenges for the trials of such charges. Most concerning is the problem of selective disclosure. What if an international organization interviews a key witness multiple times and then discloses only the final witness statement to the RCMP? Without any way of securing access to the previous statements in the international organization's possession, the defence will have no way of knowing whether the witness's story changed along the way. This could undermine the right to a fair trial.
The Supreme Court was careful to leave the door open to the defence to seek an alternative remedy from the court if disclosure is not available because of the international organization's immunity. If the unfairness of non-disclosure cannot be cured by less drastic remedies, courts may be compelled to end the prosecution by staying the proceedings. Lawyers and judges alike will have to be alert to these concerns in future CFPOA cases.
Fighting global corruption is a national priority, but in order for Canada to do so with legitimacy, it must also ensure that the accused receive a fair trial.