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S.C.C. File No. 36315

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE SUPERIOR COURT OF JUSTICE OF ONTARIO)

BETWEEN:

WORLD BANK GROUP Appellant

- and-

KEVIN WALLACE, ZULFIQUAR BHUIYAN, RAMESH SHAH, MOHAMMAD ISMAIL and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondents

MOTION RECORD OF TRANSPARENCY INTERNATIONAL CANADA INC. AND TRANSPARENCY

INTERNATIONAL e.V. FOR LEAVE TO INTERVENE Pursuant to Rules 4 7 and 55 of the Rules of the Supreme Court of Canada

OSLER, HOSKIN & HARCOURT LLP P.O. Box 50, 1 First Canadian Place Toronto, ON M5X 1B8

Mark A. Gelowitz (31857J) Geoffrey Grove (56787B) Tel: (416) 862-4743 I (416) 862-4264 Fax: (416) 862-6666 Email: [email protected] I [email protected]

Counsel for the Proposed Interveners, Transparency International Canada Inc. and Transparency International e. V.

OSLER, HOSKIN & HARCOURT LLP Suite 1900, 340 Albert Street Ottawa, ON KlR 7Y6

Patricia J. Wilson

Tel: (613) 235-7234 Fax: (613) 235-2867 Email: [email protected]

Ottawa Agent for the Proposed Interveners, Transparency International Canada Inc. and Transparency International e. V.

- 2 -

TO: The Registrar of the Supreme Court of Canada

AND TO:

LENCZNERSLAGHTROYCESMITH GRIFFINLLP 130 Adelaide Street West, Suite 2600 Toronto, ON M5H 3P5

Alan J. Lenczner, Q.C. (l 1387E) Tel: (416) 865-3090 Fax: ( 416) 685-2844 E-mail: [email protected]

BORDEN LADNER GERVAIS 100 Queen Street, Suite 1300 Ottawa, ON KlP 119

Nadia Effendi Tel: (613) 237-5160 Fax: (613) 230-8842

Agent for the Applicant I Appellant World Counsel for the Applicant I Appellant World Bank Group

AND TO:

Bank Group

FENTON, SMITH 2nd Floor 23 5 King Street East Toronto, ON M5A 119

Scott Fenton I Lynda E. Morgan Tel: (416) 955-4551 I (416) 955-0074 Fax: (416) 955-1237 E-mail: [email protected] I [email protected]

Counsel for the Respondent, Kevin Wallace

DAVID B. COUSINS 203-425 University Avenue Toronto, ON MSG 1 T6

David B. Cousins Tel: (416) 977-8871 Fax: (416) 787-1073

Counsel for the Respondent, Ramesh Shah

GOWLING LAFLEUR HENDERSON 160 Elgin Street Suite 2600 Ottawa, ON KIP lCP

Jeffrey W. Beedell Tel: (613) 786-0171 Fax: (613) 788-3857 E-mail: [email protected]

Agent for the Respondents, Kevin Wallace, Ramesh Shah and Mohammad Ismail

AND TO:

AND TO:

., - ..) -

WELLS CRIMINAL LAW 202-559 College Street Toronto, ON M5G 1 A9

Kathryn A. Wells Tel: (416) 944-1485 Fax: (416) 944-2529

Counsel for the Respondent, Mohammad Ismail

ADDARIO LAW GROUP 101-171 John Street Toronto, ON MST IX3

Frank R. Addario I Megan Savard Tel: (416) 649-5055 Fax: (866) 714-1196 E-mail: [email protected] I [email protected]

Counsel for the Respondent, Zulfiquar Bhuiyan

PUBLIC PROSECUTION SERVICE OF CANADA 130 King Street West Suite 3400 Toronto, ON M5X IK6

Richard Roy I Nick Devlin Tel: (416) 952-6213 I (416) 952-2109 Fax: (416) 973-8253 I (416) 952-2116 E-mail: [email protected] I [email protected]

Counsel for the Respondent, Her Majesty the Queen in Right of Canada

GOWLING LAFLEUR HENDERSON 160 Elgin Street Suite 2600 Ottawa, ON KIP ICP

Matthew Estabrooks Tel: (613) 786-0211 Fax: (613) 788-3857 E-mail: [email protected]

Agent for the Respondent, Zulfiquar Bhuiyan

DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA 160 Elgin Street 12th Floor Ottawa, ON KIA OH8

Francois Lacasse Tel: (613) 957-4770 Fax: (613) 941-7865 E-mail: [email protected]

Agent for Her Majesty the Queen

~

TABLE OF

CONTENTS ..

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TABLE OF CONTENTS

Document

Notice of Motion of Transparency International Canada Inc. and Transparency International e. V. for Leave to Intervene

Affidavit of Alesia Nahirny sworn September 16, 2015

Memorandum of Argument of Transparency International Canada Inc. and Transparency International e.V.

Draft Order

Page

1-4

5 -14

15-25

26 - 27

1



BETWEEN:

WORLD BANK GROUP

- and-


HER MAJESTY THE QUEEN IN RIGHT OF CANADA

NOTICE OF MOTION OF

Appellant

Respondents

TRANSPARENCY INTERNATIONAL CANADA INC. AND TRANSPARENCY INTERNATIONAL e.V. FOR LEA VE TO INTERVENE

Pursuant to Rules 47 and 55 of the Rules of the Supreme Court of Canada

TAKE NOTICE that a motion is hereby made to a Justice of this Honourable Court,

pursuant to Rules 47 and 55 of the Rules of the Supreme Court of Canada, for an Order: (i)

granting Transparency International Canada Inc. ("TI-Canada") and Transparency International

e.V. ("TI-Secretariat") leave to intervene in this appeal; (ii) permitting TI-Canada and TI

Secretariat to jointly file a factum not exceeding 10 pages; (iii) permitting TI-Canada and TI

Secretariat to make oral submissions of up to 10 minutes at the hearing of the appeal; and (iv)

such further and other Order this Honourable Court may deem appropriate.

AND FURTHER TAKE NOTICE that in support of this motion will be read the

affidavit of Alesia Nahirny, sworn September 15, 2015, and such further and other materials as

counsel may advise and this Honourable Court may permit.

2 - 2 -

AND FURTHER TAKE NOTICE that the motion shall be made on the following

grounds:

(a) Tl-Canada and TI-Secretariat

1. TI-Canada is recognized as the foremost anti-corruption organization in Canada. It was

founded in 1996 as a non-profit corporation, and received registered charity status in 2009. TI

Canada' s mission is to be an informed voice that promotes anti-corruption practices and

transparency in Canada's governments, businesses and society at large.

2. TI-Canada has substantial experience as a leader in Canadian anti-corruption efforts, both

domestically and internationally. It has a longstanding history of engaging with the Federal and

provincial governments of Canada and non-governmental organizations for the purpose of

advancing the important goal of eliminating corruption.

3. TI-Canada is the Canadian chapter of Transparency International ("TI"), which is widely

regarded as the world's leading anti-corruption non-governmental organization. Founded in 1993

with the creation of TI-Secretariat, TI now has chapters in more than 100 countries. Its mission is

to stop corruption and promote transparency, accountability and integrity at all levels and across

all sectors of society. TI envisions a world in which government, politics, civil society and the

daily lives of all people are free of corruption.

4. TI-Secretariat carries out Tl's efforts to fight corruption on both the regional and global

stage. Based in Berlin, TI-Secretariat provides leadership for TI' s international initiatives,

supports TI' s chapters and coordinates TI' s regional work through knowledge sharing, advocacy

and coalition building. In collaboration with Tl's national chapters, including TI-Canada, TI

Secretariat produces numerous research, tools and policy positions. It also works to bring

together a wide variety of international representatives, including policy makers, citizens,

companies and the media. TI, through the work of TI-Secretariat and TI' s chapters, has played a

crucial role in bringing about and bolstering worldwide anti-corruption initiatives.

(b) This Appeal

5. This appeal will consider whether an immunity conferred under Canadian law to an

3 - 3 -

international organization may be vitiated by cooperation between the international organization

and domestic Canadian law enforcement. At stake is the manner in which Canada can continue

to participate in the global fight against bribery and corruption in both developing and developed

countries for the benefit of Canadians and all citizens of the world.

( c) TI-Canada's and TI-Secretariat's Interest, Expertise, and Perspective

6. TI-Canada and TI-Secretariat wish to contribute to this appeal because the Court's

decision in this case could have a broad impact on the manner in which Canada continues to

participate in international efforts to eradicate global corruption. This Court's decision can be

expected to . influence the ability of international organizations such as the World Bank to

continue to provide and to maintain robust undertakings of confidentiality to whistleblowers. It

can also be expected to affect the way that international organizations and Canadian law

enforcement cooperate to root out and prosecute corrupt activities in Canada and abroad. As the

leading voice of the anti-corruption movement in Canada, TI-Canada has a direct interest in the

outcome of this appeal.

7. If granted leave to intervene, the TI-Canada and TI-Secretariat would address this appeal

with the perspective of the leading voices on issues relating to the fight against global corruption,

and Canada's role in it. They will endeavour to assist the Court by providing an objective,

balanced approach to the applicable legal principles.

(d) TI-Canada's and TI-Secretariat's Proposed Submissions

8. If granted leave to intervene, TI-Canada and TI-Secretariat will elaborate in their factum

and oral submissions on the positions outlined in paragraphs 20-36 of their Memorandum of

Argument.

4 - 4 -

Dated at Toronto this 16th day of September, 2015.

_4~a~ MafA: Gelowitz -

Geoffrey E.J. Grove

OSLER, HOSKIN & HARCOURT LLP P.O. Box 50, 1 First Canadian Place Toronto, ON M5X 1B8

Tel: (416) 862-4743 I (416) 862-4264 Fax: (416) 862-6666 Email: [email protected] I [email protected]

Counsel for the Proposed Interveners, Transparency International Canada Inc. and Transparency International e.V.

OSLER, HOSKIN & HARCOURT LLP Suite 1900, 340 Albert Street Ottawa, ON KlR 7Y6

Patricia J. Wilson Tel: (613) 235-7234 Fax: (613) 235-2867 Email: [email protected]

Ottawa Agent for the Proposed Interveners, Transparency International Canada Inc. and Transparency International e. V.

5



BE TWEEN:

WORLD BANK GROUP

- and-



AFFIDAVIT OF ALESIA NAHIRNY (sworn September 16, 2015)

(Motion for Leave to Intervene pursuant to Rules 4 7 and 55 of the Rules of the Supreme Court of Canada)

Appellant

Respondents

I, Alesia Nahirny, of the Town of Oakville, in the Province of Ontario, MAKE OATH

AND SAY:

1. I am the Executive Director of Transparency International Canada Inc. ("TI-Canada").

As such, I have personal knowledge of the matters deposed to in this affidavit, except where my

knowledge is stated to be on information and belief, in which case I believe it to be true.

2. This affidavit is filed in support of the motion of TI-Canada and Transparency

International e. V. ("TI-Sec~etariat") for leave to intervene in this appeal.

Overview



6 - 2 -

and domestic Canadian law enforcement. At stake is the manner in which Canada can continue

to participate in the global fight against bribery and corruption in both developing and developed


4. As the leading voices of the anti-corruption campaign in Canada and internationally, TI

Canada and TI-Secretariat seek leave to intervene in this appeal to present their distinct

perspective and expertise on these important issues. If permitted to intervene, TI-Canada and TI

Secretariat will emphasize that global anti-corruption efforts cannot be successful without full

bodied protections for whistleblowers, who play an essential role in exposing corruption, fraud,

mismanagement and other wrongdoing, often at serious personal risk. It is therefore critical that

international organizations retain the ability to provide whistleblowers with ironclad and

internationally-recognizable assurances that their identities will not be revealed. These

assurances are necessary both so that whistleblowers are in fact protected, and so that those with

information do not stay silent for fear of retaliation or reprisal.

5. TI-Canada and TI-Secretariat will also submit that a br?ad recognition from this Court of

the privileges and immunities that Canada grants to international organizations is essential to this

country's continued participation in the global fight against corruption. Canada has an

international responsibility to pursue allegations of corruption against its nationals under its own

domestic laws, including the Corruption of Foreign Public Officials Act, (S.C. 1998, c. 34) (the

"CFPOA"). Much of the cooperation between Canadian agencies and international organizations

is made possible as a result of the privileges and immunities that Canada and other states have

provided to these organizations.

TI-Canada


founded in 1996 as a non-profit corporation, and received registered charity status in 2009. TI

Canada' s mission is to be an informed voice that promotes anti-corruption practices and

transparency in Canada's governments, businesses and society at large. TI-Canada receives

financial support and funding primarily from its membership and from individual,

organizational, professional and corporate supporters, including several Canadian publicly-listed

compames.

7

7.

- 3 -

The primary objectives and long-te1m goals of TI-Canada are:

(a) To encourage compliance with Canadian laws and international conventions

against bribery and corruption to which Canada is a signatory ("Canadian Anti

corruption Laws") by educating businesses, professional organizations,

governments and the public at large about Canadian Anti-corruption Laws and the

adverse impact of non-compliance with those laws.

(b) To develop and promote ethical standards of conduct for businesses, professional

organizations, governments and the public at large to assist them in complying

with Canadian Anti-corruption Laws.

( c) To conduct or commission research on issues concerning the prevention and

elimination of bribery and corruption and to communicate the results of those

efforts to businesses, professional organizations, governments and the public.

(d) To assist the Government of Canada in fulfilling its obligations under

international conventions to which Canada is a signatory in the prevention of and

the fight against bribery and corruption.

TI-Secretariat

8. TI-Canada is the Canadian chapter of Transparency International ("TI"), which is widely

regarded as the world's leading anti-corruption non-governmental organization. TI was founded

in Berlin, Germany in 1993 with the creation of TI-Secretariat, which is recognized under the

laws of Germany as a registered association (an eingetragener Verein). The TI movement was

born of a recognition that corruption weakens economies, undermines public institutions, and

often originates from the wealthiest countries in the form of payments made by companies to

public officials. Twenty-two years after it was founded, TI now has chapters in more than 100

countries. Its mission is to stop corruption and promote transparency, accountability and integrity

at all levels and across all sectors of society. TI envisions a world in which government, politics,

civil society and the daily lives of people are free of corruption.

8 - 4 -

9. TI-Secretariat, together with the national chapters, carnes out TI' s efforts to fight

corruption on both the regional and global stage. Based in Berlin, TI-Secretariat provides

leadership for Tl's international initiatives, supports Tl's chapters and coordinates Tl's regional

work through knowledge sharing, advocacy and coalition building.

10. TI-Secretariat's relationship with Tl's national chapters, including TI-Canada, is one of

mutual support. Drawing on its broad-based expertise, TI-Secretariat helps chapters develop the

tools and techniques needed to address corruption in their countries. TI-Secretariat also

facilitates the increase of financial and human resources among the national chapters in order to

ensure that the chapters are ever more effective in the fight against corruption. As a part of these

efforts, TI-Secretariat brings international support for chapters facing pressure or intimidation in

their respective countries.

11. In collaboration with Tl's national chapters, including TI-Canada, TI-Secretariat

produces numerous research, tools and policy positions. It also works to bring together a wide

variety of international representatives, including policy makers, citizens, companies and the

media. TI, through the work of TI-Secretariat and TI' s chapters, has played a crucial role in

bringing about and bolstering worldwide anti-corruption initiatives.

12. Since the incorporation of TI-Secretariat and the development of the TI movement,

considerable progress has been made to raise awareness about and to combat corruption and

bribery around the world, and particularly in developing states. In 1997, as a result of a major

and coordinated effort, 35 countries, including Canada, signed the Organization for Economic

and Cooperative Development Convention on Combatting Bribery of Foreign Officials in

International Business Transactions (the "OECD Convention"). The OECD Convention calls

for, among other things, each signatory to exercise its full jurisdictional powers to-punish foreign

bribery where the offense is committed on its soil or is committed by its nationals abroad. In

December 2005, the United Nations Convention Against Corruption (the "UNCAC") came into

force and currently has 140 signatories, including Canada. The UNCAC is founded on five core

principles: prevention of bribery and corruption; criminalization and law enforcement;

international cooperation; asset recovery; and technical assistance and information exchange

among signatory states. In Canada, one of the products of these international efforts is the

9 - 5 -

CFPOA, which the Government of Canada implemented m February 1999 to satisfy its

obligations under the OECD Convention.

13. As a part of TI, TI-Canada has worked since its inception to raise awareness about the

far-reaching and devastating effects of corruption in Canada and internationally. It has

participated in the creation of a coalition of organizations and individuals to help build just and

honest governments, and sound and socially responsible business practices.

TI-Canada's Involvement in Public Advocacy and Anti-corruption Efforts

14. TI-Canada has a longstanding history of engaging with the Federal and provincial

governments of Canada and non-governmental organizations for the purpose of advancing the

important goal of eliminating corruption, both domestically and abroad. Examples of TI

Canada' s public advocacy in the furtherance of these objectives include the following:

(a) In 2014, TI-Canada provided written submissions to the Commission of Inquiry

on the Awarding and Management of Public Contracts in the Construction

Industry chaired by The Honourable Justice France Charbonneau (known as the

Charbonneau Commission) and was as a part of an expert panel before the

Charbonneau Commission in respect of its investigation into allegations of

corruption in the management of public construction contracts in Quebec. In its

submission, TI-Canada emphasized, among other things, that the governments of

Quebec and Canada should actively participate in international activities aimed at

preventing and fighting corruption.

(b) On September 2, 2015, TI-Canada submitted comments to the Financial Sector

Policy Branch of the Department of Finance regarding proposed amendments to

regulations made under the Proceeds of Crime (Money Laundering) and Terrorist

Financing Act, S.C. 2000, c. 17. In its submission, TI-Canada urged the adoption

of lower transaction thresholds for "politically exposed persons" and more

stringent monetary penalties for anti-money laundering failings, and emphasized

that Canada's anti-corruption laws and anti-money laundering policies play a

crucial role in preventing corruption, both domestically and transnationally.

10

(c)

- 6 -

TI-Canada wrote to The Honourable Diane Finley, Minister of Public Works and

Government Services (PWGSC) by letter dated February 17, 2015, regarding TI

Canada's observations and recommendations with respect to certain proposed

amendments to PWGSC's Integrity Framework relating to procurement integrity I

supplier debarment provisions. In particular, TI-Canada advanced the view that,

in the interests of transparency and procedural fairness, and to ensure that

debarment rules are most effective at deterring corruption, the proposed

procurement integrity provisions ought to be adopted as legislative or regulatory

provisions rather than as a mere policy instrument.

(d) TI-Canada participated in Natural Resources Canada's consultative process on

mandatory reporting for the Canadian extractive industry, and provided comments

on issues relating to the extractive industry in respect of Canada's Open

Government Partnership consultation, which led to the passage of the Extractive

Sector Transparency Measures Act, S.C. 2014, c. 39, s. 376.

( e) In 2013, following the urging of TI-Canada and other non-governmental

organizations, Parliament passed amendments to the CFPOA that strengthened the

statute by adopting a nationality-based jurisdiction.

15. As a part of its broad mandate and in addition to its public advocacy work, TI-Canada has

extensive experience conducting research into corruption-related subjects, participating in non

governmental anti-corruption initiatives, and providing guidance and learning initiatives to

governments and businesses. Included among these efforts are the following:

(a) In April 2015, TI-Canada issued its Report on Whistleblower Protections m

Canada (the "Whistleblower Report"). 1 The Whistleblower Report surveys the

international framework for whistle blower protections as well as Canada's

international commitments regarding whistleblower protections and the

protections currently in place at the federal and provincial level. The

1 Transparency International Canada, "Report on Whistleblower Protections in Canada" (2015), online: http://www.transparency.ca/wp-content/uploads/2015/06/TI-Canada Whistleblower-Report Finall.pdf

11 - 7 -

Whistleblower Report also reiterated the principles set out in TI' s 2013

International Principles for Whistleblower Protection publication, in which TI

affirmed the need for whistleblower protection: "all employees and workers in the

public and private sectors need: (1) accessible and reliable channels to report

wrongdoing, (2) robust protection from all forms of retaliation, and (3)

mechanisms for disclosures that promote reform that correct legislative, policy or

procedural inadequacies, and prevent future wrongdoing. "2

(b) TI-Canada produces an annual Day of Dialogue: Spotlight on Anti-Corruption,

which provides an opportunity for audience members to engage leading experts

on current anti-corruption topics.

( c) TI-Canada has developed and continues to expand its Anti-Corruption

Compliance Checklist, including TI' s business . integrity toolkit for businesses

seeking to build effective anti-corruption programs.

( d) TI-Canada regularly hosts and participates in business roundtables, working group

consultations and seminars with members of government, non-governmental

organizations and the Canadian business community regarding anti-corruption

efforts and best practices in Canada.

TI-Secretariat's Anti-Corruption Efforts

16. TI-Secretariat is a global leader in anti-corruption research and education and a coalition

builder among the dozens of TI chapters and among the many international organizations

involved in the fight against corruption. TI-Secretariat provides leadership and support for Tl's

international activities and chapters. It also produces a variety of research, anti-corruption tools

and policy positions, which are widely-cited by academics, journalists and economists

worldwide.

2 Transparency International, "International Principles for Whistleblower Legislation" (2013), online: http://files.transparency.org/content/download/696/2991/file/2013 WhistleblowerPrinciples EN.pdf.

12 - 8 -

17. TI is perhaps best known for its annual Corruption Perceptions Index (CPI), which

measures levels of perceived public sector corruption around the world based on expert opinion.

TI-Secretariat also publishes its Global Corruption Barometer (GCB), a worldwide public

opinion survey of more than 100,000 people in over 100 countries on their experiences with

corruption.

18. Also included among the reports, working papers and other publications that TI-

Secretariat has issued in 2015 are the following:

(a) Exporting Corruption, Progress Report 2015: Assessing Enforcement of the

OECD Convention on Combatting Foreign Bribery (August 2015);

(b) Incentivizing Integrity in Banks (July 2015);

( c) Curbing Illicit Financial Flows to Unlock a Sustainable Future (July 2015);

(d) Give Back the Game- How to Fix FIFA (July 2015);

( e) The State of Corruption: Armenia, Azerbaijan, Georgia, Moldova and Ukraine

(July 2015);

(f) Speak Up: Empowering Citizens Against Corruption (April 2015);

(g) Lobbying in Europe: Hidden Influence, Privileged Access (April 2015);

(h) Integrity of Public Officials in EU Countries: International Norms and Standards

(March 2015); and

(i) Local Governance Integrity: Principles and Standards (February 2015).

TI-Canada's and TI-Secretariat's Interest and Distinct Perspective on this Appeal

19. TI-Canada and TI-Secretariat wish to contribute to this appeal because the Court's

decision in this case could have a broad impact on the manner in which Canada continues to

participate in international efforts to eradicate global corruption. This Court's decision can be

expected to influence the ability of international organizations such as the World Bank Group to

13 - 9 -

continue to provide and to maintain robust undertakings of confidentiality to whistleblowers. It

can also be expected to affect the way that international organizations and Canadian law

enforcement cooperate to root out and prosecute corrupt activities in Canada and abroad. As the

leading voices of the anti-corruption movement in Canada and internationally, TI-Canada and

TI-Secretariat have a direct interest in the outcome of this appeal.

20. If granted leave to intervene, TI-Canada and TI-Secretariat would address this appeal

with the perspective of the leading national and international organizations on issues relating to

Canada's role in the fight against global corruption. Their submissions will assist the Court by

highlighting the critical importance of protecting the confidentiality of whistleblowers and other

sources of information, and of ensuring that these sources can continue to be given absolute and

internationally-recognizable assurances that their identities will not be revealed. TI-Canada and

Tl-Secretariat also appreciate firsthand the immense international efforts that have led to the

current worldwide anti-corruption apparatus, and the key role that international organizations

have played in its development. Based on this perspective, TI-Canada and TI-Secretariat will

submit to the Court that the cooperation between Canadian domestic law enforcement and

international organizations such as the World Bank Group is essential to Canada's ability to

continue to fulfill effectively its responsibilities to fight corruption, both domestically and

internationally.

TI-Canada's and TI-Secretariat's Proposed Arguments

21. If granted leave to intervene, TI-Canada and TI-Secretariat will advance and elaborate on

the arguments outlined in their Memorandum of Argument submitted in support of this motion to

intervene.

22. While TI-Canada and TI-Secretariat propose to make submissions on the issues of legal

principle raised by this appeal, they will neither request any particular disposition of the appeal

nor support the position of either party.

. 14 - I 0 -

Costs

23. TI-Canada and TI-Secretariat will not seek costs, and they ask that they not be liable for

costs to any other party.

SWORN BEFORE ME at Toronto, in

the Province of Ontario on this 16th

day of September, 2015.

Commissioner for Taking Affidavits

G::tb~ ~

15

MEMORANDUM OF ARGUMENT OF TRANSPARENCY INTERNATIONAL CANADA INC. AND

TRANSPARENCY INTERNATIONAL e.V.

PART I- STATEMENT OF FACTS

A. Overview



and domestic Canadian law enforcement. At stake is the manner in which Canada can continue to

participate in the global fight against bribery and corruption in both developing and developed


2. As the leading voices of the anti-corruption campaign in Canada and internationally,

Transparency International Canada Inc. ("TI-Canada") and Transparency International e.V. ("TI

Secretariat") seek leave to intervene in this appeal to present their distinct perspective and

expertise on these important issues. If permitted to intervene, TI-Canada and TI-Secretariat will

advance two arguments on this appeal: first, that the privileges and immunities that Canada has

accorded to international organizations such as the World Bank Group (the "World Bank") are

essential for the robust protection of whistleblowers in international anti-corruption efforts; and

second, that without broad recognition of these privileges and immunities, Canada's (and other

countries') ability to coordinate effectively with international organizations, and therefore to

participate fully in the global fight against corruption, is undermined.

3. Global anti-corruption efforts cannot be successful without full-bodied protections for

whistleblowers, who play an essential role in exposing corruption, fraud, mismanagement and

other wrongdoing, often at serious personal risk. It is therefore critical that international

organizations retain the ability to provide whistleblowers with ironclad and internationally

recognizable assurances that their identities will not be revealed. These assurances are necessary

both so that whistleblowers are in fact protected, and so that those with information do not stay

silent for fear of retaliation or reprisal.

4. A broad recognition from this Court of the privileges and immunities that Canada grants

to international organizations is essential to this country's continued participation in the global

16 - 2 -

fight against corruption. Canada has an international responsibility to pursue allegations of

corruption against its nationals under its own domestic laws, including the Corruption of Foreign

Public Officials Act (the "CFPOA"). 1 Much of the cooperation between Canadian agencies and

international organizations is made possible as a result of the privileges and immunities that

Canada and other states have provided to these organizations. This Court's decision on this appeal

has the potential either to reinforce or undermine Canada's ability to work with international

organizations in pursuing anti-corruption efforts.

5. If granted leave to intervene, TI-Canada and TI-Secretariat will endeavour to assist the

Court by presenting an objective, balanced approach to the issues before the Court and the

appropriate legal framework. An outline of the TI-Canada's and TI-Secretariat's proposed

submissions if allowed to intervene appears below at paragraphs 20-36.·

B. TI-Canada and TI-Secretariat


founded in 1996 as a non-profit corporation, and received registered charity status in.2009. TI

Canada's mission is to be an informed voice that promotes anti-corruption practices and

transparency in Canada's governments, businesses and society at large. TI-Canada's primary

objectives include: encouraging compliance with Canadian and international anti-corruption laws

through education for businesses, governments and the public; commissioning and conducting

research on issues concerning the prevention and elimination of bribery and corruption; and

assisting the Government of Canada in fulfilling its obligations under international conventions to

which Canada is a signatory in the prevention of and the fight against bribery and corruption. 2

7. TI-Canada is the Canadian chapter of Transparency International ("Tl"), which is widely

regarded as the world's leading anti-corruption non-govei;nmental organization. Founded in 1993

with the creation of TI-Secretariat, TI now has chapters in more than I 00 countries. Its mission is

to stop corruption and promote transparency, accountability and integrity at all levels and across

2

Corruption of Foreign Public Officials Act, (S.C. 1998, c. 34).

Affidavit of Alesia Nahirny sworn September 16, 2015 ("Nahimy Affidavit"), para. 6; Motion Record of TICanada on Motion for Leave to Intervene ("Motion Record of TI-Canada"), Tab 2, p. 6.

17 ..., - .) -

all sectors of society. TI envisions a world in which government, politics, civil society and the

daily lives of all people are free of corruption. 3

8. TI-Secretariat carries out Tl's efforts to fight corruption on both the regional and global

stage. Based in Berlin, TI-Secretariat provides leadership for TI's international initiatives, supports

TI' s chapters and coordinates TI' s regional work through knowledge sharing, advocacy and

coalition building. In collaboration with TI' s national chapters, including TI-Canada, TI

Secretariat produces numerous research, tools and policy positions. It also works to bring together

a wide variety of international representatives, including policy makers, citizens, companies and

the media. TI, through the work of TI-Secretariat and TI's chapters, has played a crucial role in

bringing about and bolstering worldwide anti-corruption initiatives.

PART II- QUESTION IN ISSUE

9. Should TI-Canada be granted leave to intervene in this appeal?

PART III - ARGUMENT

A. The Criteria For Granting Leave To Intervene

10. Leave to intervene is granted where a prospective intervener has: (1) a real interest in the

appeal; and (2) submissions that will be useful and argued from a perspective that is different than

that of the other parties. 4

11. Intervener status should be granted to an applicant who can "present argument from a

different perspective with respect to some of the issues" raised in an appeal. 5 An intervention "is

welcomed if the intervener will provide the Court with fresh information or a fresh perspective on

an important constitutional or public issue."6 TI-Canada's and TI-Secretariat's international focus

on anti-corruption efforts and whistleblower protections gives them a perspective not shared by

the other parties to this appeal.

4

5

6

Nahimy Affidavit, para. 7; Motion Record of TI-Canada, Tab 2, p. 7.

Reference re Workers' Compensation Act, 1983 (Nfld), (1989] 2 S.C.R. 335, p. 339, per Sopinka J.

Norberg v. Wynrib, (1992] 2 S.C.R. 224, p. 225, per Sopinka J.

Reference re Workers' Compensation Act, above, note 4, p. 240.

18 - 4 -

B. TI-Canada's and TI-Secretariat's Interest In This Appeal

12. The standard for an "interest" is flexible. Any interest in an appeal is sufficient, subject

always to the Court's discretion. 7

13. TI-Canada and TI-Secretariat wish to contribute to this appeal because the Court's decision

in this case could have a broad impact on the manner in which Canada continues to participate in

international efforts to eradicate global corruption. This Court's decision can be expected to

influence the ability of international organizations such as the World Bank to continue to provide

and to maintain robust undertakings of confidentiality to whistleblowers. It can also be expected

to affect the way that international organizations and Canadian law enforcement cooperate to root

out and prosecute corrupt activities in Canada and abroad. As the leading voices of the anti

corruption movement in Canada and internationally, TI-Canada and TI-Secretariat have a direct

interest in the outcome of this appeal.

C. TI-Canada and TI-Secretariat Bring the Different and Useful Perspective of an International Organization Focussed on Global Anti-Corruption Efforts

14. Intervener status should be granted to an applicant who can "present argument from a

different perspective with respect to some of the issues" raised in an appeal. 8 An intervention "is

welcomed if the intervener will provide the Court with fresh information or a fresh perspective on

an important constitutional or public issue. "9

15. If granted leave to intervene, TI-Canada and TI-Secretariat would address this appeal with

the perspective of the leading voice on issues relating to the international fight against global

corruption. They will endeavour to assist the Court by providing an objective, balanced approach

to the applicable legal principles.

D.

16.

7

8

9

TI-Canada and TI-Secretariat have Considerable Expertise in International AntiCorruption Efforts and Whistleblower Protections

The criterion of useful submissions is "easily satisfied by an applicant who has a history of

Norean Limited v. Lebrock, (1969] S.C.R. 665, p. 666; Reference re Workers' Compensation Act, id, p. 339; R. v. Finta, [1993] 1 S.C.R. 1138, p. 1142.

Norberg v. Wynrib, above, note 5, p. 225.

Reference re Workers' Compensation Act, above, note 4, p. 340.

19 - 5 -

involvement in the issue giving the applicant an expertise which can shed fresh light or provide

new information on the matter." 10

17. TI-Canada and TI-Secretariat meet this criterion. In Canada, TI-Canada has substantial

experience as a leader in anti-corruption efforts, both domestically and internationally. It also has

a longstanding history of engaging with the Federal and provincial governments of Canada and

non-governmental organizations for the purpose of advancing the important goal of eliminating

corruption. In 2014, TI-Canada provided written submissions to the Commission of Inquiry on the

Awarding and Management of Public Contracts in the Construction Industry chaired by The

Honourable Justice France Charbonneau (known as the Charbonneau Commission) and was as a )

part of an expert panel before the Charbonneau Commission in respect of its investigation into

allegations of corruption in the management of public construction contracts in Quebec. TI-Canada

has recently submitted comments to the Financial Sector Policy Branch of the Department of

Finance regarding proposed amendments to regulations made under the Proceeds of Crime (Money

Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, and in April 2015 wrote to The

Honourable Diane Finley, Minister of Public Works and Government Services (PWGSC)

regarding certain proposed amendments to PWGSC's Integrity Framework. TI-Canada has also

recently participated in Natural Resources Canada's consultative process on mandatory reporting

for the Canadian extractive industry, and provided comments on these issues to Canada's Open

Government Partnership consultation, which led to the passage of the Extractive Sector

Transparency Measures Act, S.C. 2014, c. 39, s. 376. 11

18. TI-Canada and TI-Secretariat have extensive experience conducting research into

corruption-related subjects, participating in non-governmental anti-corruption initiatives, and

providing guidance and learning initiatives to governments and businesses. As a part of these

efforts, TI-Canada published in April 2015 its Report on Whistle blower Protections in Canada. 12

19. TI-Secretariat is a global leader in anti-corruption research and education, and regularly

publishes research, anti-corruption tools and policy positions, which are widely-cited by

10 Ibid 11 Nahimy Affidavit, para. 14; Motion Record of TI-Canada, Tab 2, p. 9-10. 12 Nahimy Affidavit, para. 15; Motion Record of TI-Canada, Tab 2, p. 10-11.

20 - 6 -

academics, journalists and economists worldwide. 13

E. Overview Of TI-Canada's and TI-Secretariat's Proposed Submissions

20. If granted leave to intervene, TI-Canada and TI-Secretariat will argue two points: (i) the

privileges and immunities that Canada has accorded to international organizations such as the

World Bank are essential for the robust protection of whistleblowers in international anti

corruption efforts; and (ii) without broad recognition of these privileges and immunities, Canada's

(and other countries') ability to coordinate effectively with international organizations, and

therefore to participate in the global fight against corruption, is undermined.

i. Privileges and immunities for international organizations are needed to protect whistleblowers

21. Whistleblowers play an essential role in the global anti-corruption campaign. Witness

accounts offer invaluable insights into corruption and are powerful tools in the fight against it.

22. The World Bank and other international organizations are often instrumental in gathering

information from whistle blowers. In the case of the World Bank's Integrity Vice Presidency

("INT"), much of its key information is obtained from whistleblowers.14 In this case, the

information that the RCMP relied on to obtain wiretap authorizations originated with four

individuals who brought forward credible allegations of corruption to the INT. The evidence these

whistleblowers provided, together with the cooperation between the RCMP and the INT, provided

the foundation for this prosecution under the CFPOA. 15

23. Robust protections for whistle blowers are crucial, particularly in developing countries

where corruption is often rampant. Individuals who come forward with allegations of corruption

and other serious crimes take on significant personal risk. They may be fired, sued, blacklisted,

arrested, threatened or, in extreme cases, assaulted or killed. 16 A core principle of whistleblower

protection is that the identity of the whistleblower or any information that may be used to ascertain

13 Nahirny Affidavit, para. 16; Motion Record of TI-Canada, Tab 2, p. 11. 14 Affidavit of Galina Mikhlin-Oliver sworn February 18, 2015 (the "MO Affidavif'), para. 25; Appellant's Record,

Volume I, Tab 5, p. 38. 15 Affidavit of Tanit Loraine Gilliam sworn March 18, 2015 (the "Gilliam Affidavit"), paras. 4-5; Appellant's

Record, Volume VI, Tab 7, p. 143. 16 MO Affidavit, para. 28; Appellant's Record, Volume I, Tab 5, p. 39.

21 - 7 -

the identity of the whistleblower must not be revealed. In this regard, the World Bank has given

evidence that "the need to keep certain information confidential lies at the core of INT' s

investigative procedures". 17

24. Canadian jurisdictions have recognized the importance of whistleblowers and of the

maintenance of whistleblower confidentiality through the passage of various legislation. Federally,

section 425.1 of the Criminal Code prohibits an employer from attempting to dissuade an

employee from providing information to law enforcement agencies. 18 Since April 2007, Canada

has also provided protection to whistleblowers in the federal public sector through the Public

Servants Disclosure Protection Act (the "PSDPA"). 19 The objective of the PSDPA is to encourage

public servants to come forward with information if they suspect wrongdoing in the workplace

and to protect them from reprisal when they do so. Many provinces have enacted similar

legislation. 20

25. In criminal cases, this Court has confirmed that the identities of police informers are

protected by a "near-absolute privilege".21 The principles on which the Canadian "informer's

privilege" is based track closely the rationale for robust whistleblower protections on the

international stage. In R. v. Barros, Binnie J. explained that there is a need for the informer's

privilege because the privilege "encourages other potential informers to come forward with some

assurance of protection against reprisal. A more flexible rule that would leave disclosure up to the

discretion of the individual trial judge would rob informers of that assurance and sap their

willingness to cooperate. "22

26. In the inteniational context, it is first and foremost the privileges and immunities that

Canada and other states have conferred to international organizations such as the World Bank that

17 MO Affidavit, para. 26; Appellant's Record, Volume I, Tab 5, p. 39. 18 Criminal Code, (R.S.C., 1985, c. C-46). 19 Public Servants Disclosure Protection Act, SC 2005, c. 46. 20 Public Service of Ontario Act, RSO 2006; Public Interest Disclosure Act, RSM 2007 (Manitoba); Public Interest

Disclosure of Wrongdoing Act, RSNS 2010 (Nova Scotia); Public Interest Disclosure Act, RSS 2011(Saskatchewan); Public Interest Disclosure Act, RSNB 2012 (New Brunswick); and Public Interest Disclosure Act, RSA 2012 (Alberta).

21 R. v. Barros, [2011] 3 S.C.R. 368, p. 374, per Binnie J. 22 Ibid, p. 385, per Binnie J.

22 - 8 -

provide the environment in which whistleblowers can confidently come forward in countries

around the world. Most whistleblowers who provide information to the World Bank and other

international organizations do not do so in Canada. Rather, they often come forward in developing

countries with little or no knowledge of or interest in the niceties of the Canadian legal system and

its ability to protect their identities.

2 7. The promise of confidentiality from international organizations is of little worth if it must

be subject to the caveat that the whistleblowers' identities and other inforn1ation provided may be

compelled by and revealed in Canadian courts. For a would-be whistleblower outside of Canada,

an international organization's qualified assurance of confidentiality based on the local practices

of a foreign legal system provides cold comfort and could foreseeably "sap the willingness to

cooperate" from those who might otherwise have been prepared to provide important information.

ii. A broad recognition of privileges and immunities is necessary for Canada to continue to participate effectively in global anti-corruption efforts

28. The privileges and immunities that Canada has accorded to certain international

organizations such as the World Bank facilitate cooperation between Canada and these

organizations in the furtherance of Canada's international obligations to combat corruption, among

other obligations. If these privileges and immunities are watered down or undermined, so too is

Canada's ability to effectively pursue and prosecute its nationals in coordination with these

organizations under the CFPOA.

29. Prosecutions under the CFPOA are conducted for the public good, for the benefit of all

Canadians and indeed for the benefit of all of the citizens of the world. It is fundamentally Canada's

international responsibility to pursue allegations of corruption under its own domestic laws against

its own nationals.

30. The current international anti-corruption infrastructure was born of and continues to

operate as a result of significant cooperation among dozens of sovereign states and international

organizations. In 1997, Canada, together with 34 other countries, signed the Organization for

Economic and Cooperative Development Convention on Combatting Bribery of Foreign Officials

in International Business Transactions (the "OECD Convention"). These states were bound

together under the OECD Convention out of a recognition that corruption undermines good

23 - 9 -

governance and economic development, and that all countries share a responsibility to combat

bribery in international business transactions. 23

31. In Canada, one of the products of these international efforts is the CFPOA, which the

Government of Canada implemented in February 1999 to satisfy its obligations under the OECD

Convention. 24

32. Courts across Canada have recognized both the important public benefits that arise from

pursuing corruption charges and the burden that Canada must bear in prosecuting its nationals who

are accused of participating in foreign corruption schemes. For example, in R. v. Niko Resources

Ltd., a prosecution under the CFPOA, Brooker J. of the Alberta Court of Queen's Bench observed

that the bribing of a foreign official by a Canadian company is "an embarrassment to all

Canadians" that "prejudice[ s] Canada's efforts to foster and promote effective governmental and

commercial relations with other countries. "25

3 3. In view of this international context, it cannot be the case that a prosecution of Canadian

nationals under a Canadian statute that was enacted expressly in ratification of Canada's

international obligations is merely for the benefit of the World Bank.

34. Canada remains under international pressure to fulfill its obligations under the OECD

Convention, including by way of prosecutions under the CFPOA. The continued involvement and

assistance of international organizations such as the World Bank will facilitate Canada's ability to

discharge this important mandate. 26

35. However, assistance from the World Bank and other international organizations to

Canadian law enforcement agencies in respect of investigations and prosecutions under the

CFPOA and other laws may be diminished if these organizations' immunities are compromised.

In addition, there is every reason to believe that the Court's decision in this case will have an

23

24

MO Affidavit, para. 17; Appellant's Record, Volume I, Tab 5, p. 36. See, also, Nahirny Affidavit, para. 12; Motion Record of TI-Canada, Tab 2, p. 8-9.

See CFPOA, the full title of which is "An Act respecting the corruption of foreign public officials and the implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and to make related amendments to other Acts".

25 R v. Niko Resources Ltd, [2012] A.W.L.D. 4536, paras. 13-14 (Alta. Q.B.). 26 Gilliam Affidavit, para. 21; Appellant's Record, Volume VI, Tab 7, p. 146.

24 - 10 -

international impact and could affect the World Bank's cooperation with law enforcement agencies

in other countries, especially given evidence from the World Bank that "it would be destructive of

INT's and [the World Bank's] credibility and reputation, and would severely undermine the ability

of INT to fulfill its investigative mandate going forward, were it to ever be required, as a matter

of any national law, to breach its undertakings or promise of confidentiality it has made to

whistleblowers, complainants and witnesses. "27

36. In TI-Canada's and TI-Secretariat's submission, this Court should take care to ensure that

its decision does not have the effect of chilling cooperation between individual states and

international organizations, which has proven to be such an important aspect of the fight against

global corruption.

PART IV - SUBMISSIONS ON COSTS

3 7. If granted leave to intervene, TI-Canada and TI-Secretariat will not seek costs and asks that

they not be liable to pay the costs of any party or intervener.

PART V - ORDER SOUGHT

38. TI-Canada and TI-Secretariat respectfully ask: (1) for leave to intervene in this appeal; (2)

to jointly file a factum not exceeding 10 pages; and (3) to make oral submissions at the hearing of

this appeal.

DATED at Toronto this 16th day of September, 2015.

/fadaMt --Mark A. Gelowitz

~ Geoffrey E.J. Grove

OSLER, HOSKIN & HARCOURT LLP Lawyers for Transparency International Canada Inc. and Transparency International e.V.

27 MO Affidavit, para. 28; Appellant's Record, Volume I, Tab 5, p. 39.

25

PART VI-TABLE OF AUTHORITIES

Cases

Norberg v. Wynrib, [1992] 2 S.C.R. 224

Norean Limited v. Lebrock, [1969] S.C.R. 665

R. v. Barros, [2011] 3 S.C.R. 368

R. v. Finta, [1993] 1 S.C.R. 1138

R. v. Niko Resources Ltd, [2012] A.W.L.D. 4536 (Alta. Q.B.)

Reference re Workers' Compensation Act, 1983 (Nfld.) (Application to intervene), [1989] 2 S.C.R. 335

Legislation

Corruption of Foreign Public Officials Act, (S.C. 1998, c. 34)

Criminal Code, (R.S.C., 1985, c. C-46)

Public Servants Disclosure Protection Act, SC 2005, c. 46

Public Interest Disclosure Act, RSM 2007

Public Interest Disclosure of Wrongdoing Act, RSNS 2010

Public Interest Disclosure Act, RSS 2011

Public Interest Disclosure Act, RSNB 2012

Public Interest Disclosure Act, RSA 2012

Public Service of Ontario Act, RSO 2006

Paragraph Referred to

11, 14

12

25

12

32

10, 11, 12, 14, 16

4,32

24

24

24

24

24

24

24

24

26



BETWEEN:

WORLD BANK GROUP

-and-



ORDER

Appellant

Respondents

UPON APPLICATION by counsel for Transparency International Canada Inc. ("TI-

Canada") and Transparency International e.V. ("TI-Secretariat") for an Order: (i) granting

leave to intervene in this appeal; (ii) permitting TI-Canada and TI-Secretariat to jointly file a

factum not exceeding 10 pages; (iii) permitting TI-Canada and TI-Secretariat to make oral

submissions at the hearing of this appeal; and (iv) such further and other Order that the Court

may deem appropriate;

AND UPON the material having been read;

IT IS HEREBY ORDERED:

(i) that TI-Canada and TI-Secretariat are granted leave to intervene in this appeal;

(ii) that TI-Canada and TI-Secretariat may jointly file a factum not exceeding 10 pages,

and a Book of Authorities, by October 23, 2015; and

27 - 2 -

(iii) that TI-Canada and TI-Secretariat may make oral submissions of up to 10 minutes

at the hearing of the appeal.

J.S.C.C.

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