What the Canadian court said

Recently, the Ontario Superior Court of Canada acquitted three former executives of the engineering company SNC-Lavalin who had been accused of bribing Bangladeshi officials to secure a $50 million construction supervision contract (CSC) involving the Padma Bridge project in Bangladesh (R V Wallace, 2017, ONSC 0132). The three officials of the Canadian Co. were charged under the Corruption of Foreign Public Officials Act, SC 1998, c. 34.

Previously, in the same case, and under another decision, the presiding judge, Justice Ian Nordheimer, stayed the charge against one of the accused persons, while another accused had the charges against him dropped. The acquittal followed the decision of the judge that evidence obtained through intercepting of communications was inadmissible, given the merits of the information and evidence. Consequently, the prosecution decided not to proceed with the case any further, as it did not have any reasonable prospects of securing convictions.

The prosecution followed after the World Bank (WB)'s specialized unit charged with investigations of allegations of fraud, corruption, collusion and other improper activities in relation to WB financed projects, the Vice Presidency for Integrity ("the INT"), carried out its own investigations and alleged that there was a "high-level corruption conspiracy among Bangladeshi government officials, SNC Lavalin executives, and private individuals in connection with the Padma Multipurpose Bridge Project" (WB Statement issued on June 29, 2012).

Following the allegations, and before such allegations were founded judicially, the WB citing such alleged corruption, withdrew its proposed $1.2 billion funding for the Padma Bridge project in Bangladesh. This is thus a very significant legal decision, which demonstrates that the evidence based on which WB brought such serious allegations and cancelled the funding were in fact grossly insufficient, especially for concluding the finding of a crime as serious as corruption. This also vindicates the claim of the Bangladeshi high-level authorities, including Prime Minister Sheikh Hasina, that there was in fact no corruption in this regard.

The following is an analysis of the Canadian Court's decision in R V Wallace, with particular focus on its observations regarding the evidence of alleged corruption and the quality and value of the evidence based on which the serious allegations were made, and the charges brought.

Finding of Fact
Although the application related to the applicants' (Kevin Wallace, Zulfiquar Bhuiyan and Ramesh Shah) challenge to the police's request for interception of private communications, the success or not of such an application was actually based on a preliminary finding of fact. The application was successful after the court duly applied the legal test for allowing such interception as suggested by Section 186(1) of the Canadian Criminal Code, that being: i) Whether there were reasonable and probable grounds to believe an offence was being or had been committed; and ii) whether it was necessary for investigations (Para 12, R V Wallace, ONSC 0132).

Only after the evidence presented failed the above test that the applications were granted resulting in the acquittals. Thus, in an indirect way, there was a finding of fact regarding the alleged corruption. This in turn, signifies that the evidence presented by the WB and later on the Canadian Police did not disclose that there were any reasonable and probable grounds to believe that the offence of corruption had been committed with respect to the CSC of the Padma Bridge. It should be noted that this was actually a lighter standard of proof, which the police and WB failed to discharge. Had it been a full-fledged trial, the standard of proof would have been much higher, that being, beyond reasonable doubt. This shows how little weight and values the evidence of corruption presented by the WB and Canadian Police carried.

About the Informants
The case against the accused was primarily based on the 'information' received from four tipsters or informants. In order to assess the information provided by the informants, the court primarily applied the 'three Cs' test, propounded in the Canadian case of R V Debot (1989, 2 SCR 1140). This asks courts to consider, whenever informants are involved, to assess whether the information provided by the informant is 'compelling, credible and corroborated'.

All of the four informants contacted the WB by email. Of the four, the WB did not know the identity of two of the informants (1 and 3). They did know the identity of Informant 2, but did not reveal that to the Canadian Police. Although the WB knew the identity of Informant 4, according to the Canadian Court, the information from this source was not taken into account because it was "very general in nature and was essentially irrelevant to the allegations" (Para 7).

Thus, only the information from three sources was considered. Among the three, the Canadian Police did not speak with Informants 1 and 3. They contacted Informant 2 only once by telephone. According to documents submitted by the police to the court (the Information to Obtain-ITO), almost all of the information provided by the three informants had been received from other sources, making them hearsay (Para 8). It is a general rule of evidence law that, hearsay evidence is generally inadmissible given its inherent unreliability.

As regards Informant 1, the court even doubted whether he/she was the same person as Informant 2 and/or 3. There was no avenue to distinguish them as different persons even, let alone know their identities. The Canadian Police or WBcould not even clarify whether he/she worked for the Government or any of the other competing bidders (Para 22). Regarding the information from Informant 1, the court said, "…the suggestion of corruption is based on rumours, on information that has not been seen, and is said not to be true, even by the author of the document, who is unknown" (Para 25).

Regarding Informant 2, the court found that while the WB knew his identity, the Canadian Police did not actually investigate his background to determine his credibility or reliability. In fact, it turned out that he was a disgruntled competing bidder (Para 28), who had been previously involved in corruption and was also engaged in corrupt practices with respect to the CSC process itself (Para 29). Regarding the quality of the information from this source, the court noted that Informant 2 had no direct knowledge of the alleged corrupt conduct, and his contributions were based on what others had told him (Para 31). Thus, it was a clear case of an unreliable source providing unreliable information.

As regards Informant 3, another source whose identity was unknown, he/she only sent the WB a single email, which the court dismissed as being 'clearly based on rumour and supposition' (Para 33). Basically his information was that he believes that technical evaluations by the Government of Bangladesh are generally manipulated, that he has heard that one of the bidders had quoted very high and there were rumors that SNC was offering high bribe amounts. These are very generalized statements, which had no factual grounds to be backed up by. Naturally, the court did not take them into account.

Corroboration of Information
Regarding corroboration, the court rejected the notion that the informants corroborated each other, or that there was corroboration of the information with recourse to other evidence or information, or that the police were able to corroborate their stories (Paras 35-42, 62-63).Reliable corroboration was also not found from the statements of two present and former employees of SNC-Lavalin (Paras 49-50), or from another unrelated matter in India (Para 51), all of which were presented by the Canadian Police as evidence that supported the informants' version.

Without corroboration naturally, the already unreliable evidence, becomes even more so. As to whether all the information, coming from all three material informants, was reliable or not, the court used the legal test from the Canadian case R V Garfoli (1990, 2 SCR 1421), which states:

"Evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds…The reliability of the tip is to be assessed by recourse to the 'totality of the circumstances'". The court also noted that in order to assess reliability, the court can have regard to a number of factors including, the degree of detail of the tip, the informer's source of knowledge, and indicia of the informer's reliability such as past performance or confirmation from other investigative sources (Para 43).

Applying the above principles, the court found that "there is very little, that is provided, other than the hearsay and rumours that emanate from the tipsters" (Para 44). The court also noted that the information, taken together, lack the 'requisite detail'. It commented that "…there is nothing more than generalized allegations of corruption with virtually no detail…" (Para 45). The court also noted that the source was unknown (Para 46) and none of the informants had 'proven reliability based on past performance, and there is no independent confirmation of any of the information…' (Para 47).

None of the evidence/information provided by the informants was found to be 'compelling' as well. The court stated that "In this case, the information provided by tipsters 1 and 3 constitutes rumour and gossip. Neither tipster purported to have first-hand knowledge of the allegations…Tipster 2 purported to have more in-depth knowledge, but it, again, was not first-hand information. It was all second hand (or worse) hearsay obtained from sources that only tipster 2 vouched for…" (Para 59).

The Canadian Police also referred to the travel histories of the applicants, Wallace and Shah, along with a former accused, Ismail as evidence of corruption supporting the informants' allegations. Informant 2 mentioned a meeting where the applicants and a Bangladeshi official purportedly met in Dubai to finalize the corruption deal for the CSC. However, the Informant 2 did not have personal knowledge of the said meeting. He knew this because …"a foreign public official" told "someone" who told Tipster 2, a clear case of multiple hearsay, one of the most unreliable forms of evidence. The Canadian Police could not even corroborate that the said officials were in Dubai during that time. And hence, even this piece of evidence was rendered useless for being hearsay unsupported by concrete documentary evidence (Paras 52-55).

Conclusion
It was only after the Canadian Court found that the evidence from the informants were not 'credible, compelling and corroborated' that it came to the conclusion that that there were no 'reasonable and probable grounds to believe' that the offence of corruption had been committed with respect to the CSC of the Padma Bridge. There is thus, no scope to argue that the case was dismissed on technical grounds only. The application challenging the interception of private communications was accepted due to the lack of evidence from the WB and Canadian Police to sustain their allegations of corruption, which in turn, led to the prosecution not pressing ahead with the charges against the accused applicants.

Since the allegations emerged several years back, the Government Bangladesh has not only started works of the Padma Bridge project through its own funding, but has actually managed to complete around 40% of the works. Once complete, the largest infrastructural undertaking of the country to date has the potential to transform the lives of at least 30 million people in Bangladesh's southwest region and boost the Gross Domestic Product (GDP) by an estimated 1.2%.

It was the right move from the Government of Bangladesh, especially Prime Minister Sheikh Hasina, to stick firmly to the claim that there was no corruption in this regard and go ahead with the project with own funds. Now, finally, the truth has been established. However, in the meantime, the prestige and dignity of the country has been dealt a strong blow unjustifiably. Reputations of senior politicians and bureaucrats have been unnecessarily defamed. Thus, as citizens of this country, we can now naturally expect that the WB compensate them and the country for the loss and damages suffered as a result. At the very least, we can expect WB to apologize to the persons adversely affected, the people of the country at large and the Government of Bangladesh, and that too, with the same notoriety with which it so eagerly besmirched their reputation.