Opinion
UPDATED: SNC Lavalin – Just the Facts Ma’am
Opinion by Cory Litzenberger
Let’s take emotion out of it. Let’s take a look at the legislation. While I am not a lawyer, I do interpret tax legislation for a living, and so I decided to take a closer look at the criminal legislation pertaining to the SNC-Lavalin scandal.
The relevant legislation is in 《parentheses》below, but here is the Coles notes:
FACT – in 2015 SNC was charged by the RCMP under Section 3 of the Corruption of Foreign Public Officials Act
《3 (1) Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official
(a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or
(b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.》
FACT – In 2015, the RCMP charged SNC-Lavalin, along with its international division, with corruption and fraud in relation with their business dealings in Libya. The RCMP said officials at the company attempted to bribe several public officials in the country, including dictator Moammar Gadhafi, as well as other businesses in Libya.
FACT – The prosecutor is allowed to enter into a remediation agreement under Section 715.32 of the Criminal Code of Canada , if ALL conditions are met under 715.32(1).
《715.32 (1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met:
(a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence;
(b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group;
(c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and
(d) the Attorney General has consented to the negotiation of the agreement.》
FACT – for the prosecutor to evaluate their public interest opinion, they must consider subsection 715.32(2) in its entirety which includes many relevant pieces of information except when 715.32(3) overrides it
《 Factors to consider
715.32(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors:
[(a) to (h)]; and
(i) any other factor that the prosecutor considers relevant.》
FACT – 715.32(3) says even with all those factors to consider, you can NOT factor in the national economic interest (ie: the jobs argument) if they were charged the way the RCMP charged them
《Factors not to consider
715.32(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.》
CONCLUSION – the jobs argument is irrelevant under the law in these circumstances – The prosecution knows this – The former Attorney General knows this – and based on the provisions as written, the jobs argument for SNC does not meet the legal requirement for a remediation agreement.
For these reasons, I find in favour of the former Attorney General.
— — — —
Update: While being interviewed on the afternoon of March 7, 2019, I looked even closer at the legislation and caught something I didn’t realize on first glance when reading it.
Notice at the end of 715.32(1)(c) the word “and”.
While I said this means that all of the tests in (a) through (d) must be met, I neglected to say that this means no one person has the sole final decision. The prosecutor is mentioned in (a), (b), and (c); while the Attorney General is only mentioned in (d).
To put another way, this law is written so that it is not solely the decision of the Attorney General, nor the prosecutor. Rather, it requires both the Attorney General and the Prosecutor to agree to proceed with negotiations.
Similar to a scene in the movies where you see nuclear codes kept between two different military heads before proceeding with the launch, such is the wording of this provision.
This means that the Attorney General does not have the final decision and so any suggestion that she does is incorrect. The decision is a joint one with most of the leg work having to be done by the prosecutor, not the Attorney General.
So let me recap: I think it is quite simple, that a Remediation Agreement (aka Deferred Prosecution Agreement) cannot be considered under the “national economic interest” (jobs) argument based on what legislation the RCMP used for the charges.
If that’s the argument, then the answer is “no” and the repeated number of times asking for the former Attorney General to revisit it over a four month period for something that appears so black and white might be considered workplace harassment if I were to do such a thing to one of my colleagues.
So, since the economic argument is moot, what other argument is there?
We heard in testimony that the parties may have wanted the Attorney General to look at it from a stance that does not imply economic interest.
Ironically, “we need to win an election” may actually be legal as “any other factor that the prosecutor considers relevant” but then we would have to assume the prosecutor would have to be partisan, and that is highly not likely in my experience.
So we now know that there must be an agreement between the prosecutor and the Attorney General.
We also know that “economic interest” cannot be the reason under the law.
So, if the law is that clear on economic interest, why would the Attorney General be asked repeatedly for reconsideration, unless it was not “economic interest” they wanted her to consider?
For these additional reasons, I still find in favour of the former Attorney General
—
Update #2: On March 8, 2019, the Federal Court of Canada ruled in favour of the Public Prosecution Service on SNC Lavalin’s request for judicial review citing:
“The law is clear that prosecutorial discretion is not subject to judicial review, except for abuse of process.” – Federal Court of Canada Justice Kane
Then, on March 11, 2019, the Organisation for Economic Co-operation and Development (OECD) came to the same conclusion as my interpretation of the law regarding the intention of the 1999 agreement, and said:
“political factors such as a country’s national economic interest and the identity of the alleged perpetrators must not influence foreign bribery investigations and prosecutions.” – OECD
We now have confirmation that there is no legal way that a country’s national economic interest can be considered under the law.
For these additional reasons, jurisprudence about the authority of the Public Prosecution Service, and third party reports about the intentions of the 1999 agreement from the OECD, I still find in favour of the former Attorney General for a third time.
—
Click to listen to Red Deer Accountant Cory Litzenberger on Charles Adler Tonight
Cory G. Litzenberger, CPA, CMA, CFP, C.Mgr is the President & Founder of CGL Strategic Business & Tax Advisors; you can find out more about Cory’s biography at http://www.CGLtax.ca/Litzenberger-Cory.html
The 1997 political comedy Wag The Dog featured a ruling president far behind in the polls engaging Hollywood to rescue his failing ratings. By inventing a fake war against Albania and a left-behind “hero”— nicknamed Shoe— the Hollywood producer creates a narrative that sweeps the nation.
The meme of hanging old shoes from the branches of trees and power lines catches on and re-elects the president. In a plot kicker, the vain producer is killed by the president’s handlers when he refuses to stay quiet about his handiwork. The movie’s cynicism over political spin made it a big hit in the Bill Clinton/ Monica Lewinsky days.
In the recent 2024 election the Democrats thought they’d resurrect the WTD formula to spin off senile Joe Biden at the last minute in favour of Kamala Harris. Americans saw through the obvious charade and installed Donald Trump instead.
You’d think that would be enough to dissuade Canadians who pride themselves on their hip, postmodern humour. But you’d be wrong, they don’t get the joke. Wag The Carney is the current political theatre as Liberals bury the reviled Justin Trudeau and pivot to Mark Carney. If you believe the polling it might just be working on a public besotted by ex-pat Mike Myers and “Canada’s Not For Sale”.
As opposed to Wag The Dog, few are laughing about this performative theatre, however. There are still two debates (English/ French) and over three more weeks of campaign where anything— hello Paul Chiang—can happen. But with Laurentian media bribed by the Libs— Carney is threatening those who stray— people are already projecting what another four years of Liberals in office will mean.
As the most prominent outlier to Team Canada’s “we will fight them on the beaches…” Alberta’s premier Danielle Smith is already steering a course for her province that doesn’t include going to war with America on energy. She asked Trump to delay his tariffs until Canadians had a chance to speak on the subject in an election April 28. Naturally the howler monkeys of the Left accused her of treason. She got her wish Wednesday when Canada was spared any new tariffs for the time being.
Clearly, she (and Saskatchewan premier Scott Moe) have no illusions about Carney not using their energy industry as a whipping post for his EU climate schemes. They’ve seen the cynical flip in polls as former Trudeau loyalists hurry back to the same Liberal party they abandoned in 2024. They know Carney can manipulate the Boomer demographic just as he did when he called for draconian financial methods against the peaceful Truckers Convoy in 2022.
Former Reform leader Preston Manning is unequivocal: “’Large numbers of Westerners simply will not stand for another four years of Liberal government, no matter who leads it.’“ So how does the West respond within Confederation to protect itself from a predatory Ottawa elite?
Clearly, the emissions cap— part of Carney’s radical environmental plans— will keep Alberta’s treasure in the ground. With Carney repeating no cancellation of Bill C-69 that precludes building pipelines in the future, the momentum for a referendum in Alberta will only grow. The NDP will howl, but there will be enough push among from the rest of Albertans for a new approach within Canada.
In this vein Smith even wants to approach Quebec. While it seems like odd bedfellows the two provinces most at odds with the status quo have much in common . “This is an area where our two provinces may be able to coordinate an approach,” Smith wrote this week. That could include referendums by the middle of 2026.
Perhaps the best recipe for keeping the increasingly fractious union together is a devolution of power, not unlike that governing the United Kingdom. While Westminster remains the central power since 1997, there are now separate parliaments in Scotland, Wales and Northern Ireland that put power closer to the citizen, so that local factors are better recognized in decision making.
With so little uniting the regions of the country any longer, devolution might provide a solution. What form could decentralization take within Canada? A Western Canada Parliament could blunt predatory federal energy policies while countering the imbalances of Canada’s equalization process. Similar parliaments representing Quebec, the Atlantic provinces, Ontario and B.C. would protect their own special interests within Canada. Ottawa could handle Canada’s international obligations to defence, trade and international cooperation.
While the idea is fraught with pitfalls it nonetheless remains preferable to a breakup of the nation, which four more years of Liberals rule under Mark Carney and the same Trudeau characters will likely precipitate. Smith’s outreach case would be the beginning of such a process.
None of this would be necessary were the populations of Eastern Canada and B.C.’s lower mainland remotely serious after snoozing through the Trudeau decade. The OECD shows Canada’s 1.4% GDP barely ahead of Luxembourg and behind the rest of the industrialized world from 2015-2025. As we’ve said before the Boomers sitting on their $1 million-plus homes are re-staging Woodstock on the Canada Pension and OAS. As with Wag The Dog, they’re not getting the joke.
When the Boomers award themselves another four years of taxapalooza and Mike Myers and the other “Canada Not For For Sale” celebs head south to their tax-avoidance schemes how will the Boomers say they’ve left Canada better off for anyone under 60? We’ll hang up and listen to your answer on the TV.
Bruce Dowbiggin @dowbboy is the editor of Not The Public Broadcaster A two-time winner of the Gemini Award as Canada’s top television sports broadcaster, his new book Deal With It: The Trades That Stunned The NHL And Changed hockey is now available on Amazon. Inexact Science: The Six Most Compelling Draft Years In NHL History, his previous book with his son Evan, was voted the seventh-best professional hockey book of all time by bookauthority.org . His 2004 book Money Players was voted sixth best on the same list, and is available via brucedowbigginbooks.ca.
From The Audit
State capacity is the measure of a government’s ability to get stuff done that benefits its population. There are many ways to quantify state capacity, including GDP per capita spent on health, education, and infrastructure versus outcomes; the tax-to-GDP ratio; judicial independence; enforcement of contracts; and crime rates.
But a government’s ability to actually implement its own policies has got to rank pretty high here, too. All the best intentions are worthless if, as I wrote in the context of the Liberal’s 2023 national action plan to end gender-based violence, your legislation just won’t work in the real world.
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So I thought I’d take a look at some examples of federal legislation from the past ten years that passed through Parliament but, for one reason or another, failed to do its job. We may agree or disagree with goals driving the various initiatives, but government’s failure to get the work done over and over again speaks to a striking lack of state capacity.
The 2018 Cannabis Act (Bill C-45). C-45 legalized recreational cannabis in Canada, with a larger goal of regulating production, distribution, and consumption while reducing illegal markets and protecting public health. However, research has shown that illegal sales persisted post-legalization due to high legal prices and taxation. Studies have also shown continued use among children despite regulations. And there are troubling indicators about the overall impact on public health.
The 2021 Canadian Net-Zero Emissions Accountability Act (Bill C-12). The legislation aimed to ensure Canada achieves net-zero greenhouse gas emissions by 2050 by setting five-year targets and requiring emissions reduction plans. However, critics argue it lacks enforceable mechanisms to guarantee results. A much-delayed progress report highlighted a lack of action and actual emissions reductions lagging far behind projections.
The First Nations Clean Water Act (Bill C-61) was introduced in late 2024 but, as of the recent dissolution of Parliament, not yet passed. This should be seen in the context of the Safe Drinking Water for First Nations Act (2013), which was repealed in 2021 after failing to deliver promised improvements in water quality due to inadequate funding and enforcement. The new bill aimed to address these shortcomings, but a decade and a half of inaction speaks to a special level of public impotence.
The 2019 Impact Assessment Act (Bill C-69). Passed in 2019, this legislation reformed environmental assessment processes for major projects. Many argue it failed to achieve its dual goals of streamlining approvals while enhancing environmental protection. Industry groups claim it created regulatory uncertainty (to put it mildly), while environmental groups argue it hasn’t adequately protected ecosystems. No one seems happy with this one.
The 2019 Firearms Act (Bill C-71). Parts of this firearms legislation were delayed in implementation, particularly the point-of-sale record keeping requirements for non-restricted firearms. Some provisions weren’t fully implemented until years after passage.
The 2013 First Nations Financial Transparency Act. – This legislation, while technically implemented, was not fully enforced after 2015 when the Liberal government stopped penalizing First Nations that didn’t comply with its financial disclosure requirements.
The 2019 National Housing Strategy Act. From the historical perspective of six years of hindsight, the law has manifestly failed to meaningfully address Canada’s housing affordability crisis. Housing prices and homelessness have continued their rise in major urban centers.
The 2019 Indigenous Languages Act (Bill C-91). Many Indigenous advocates have argued the funding and mechanisms have been insufficient to achieve its goal of revitalizing endangered Indigenous languages.
The 2007 Public Servants Disclosure Protection Act (PSDPA). Designed to protect whistleblowers within the federal public service, the PSDPA has been criticized for its ineffectiveness. During its first three years, the Office of the Public Sector Integrity Commissioner (OPSIC) astonishingly reported no findings of wrongdoing or reprisal, despite numerous submissions. A 2017 review by the Standing Committee on Government Operations and Estimates recommended significant reforms, but there’s been no visible progress.
There were, of course, many bills from the past ten years that were fully implemented.¹ But the failure rate is high enough that I’d argue it should be taken into account when measuring our state capacity.
Still, as a friend once noted, there’s a silver lining to all this: the one thing more frightening than an inefficient and ineffective government is an efficient and effective government. So there’s that.
The fact that we’re still living through the tail end of a massive bout of inflation provides clear testimony that Bill C-13 (COVID-19 Emergency Response Act) had an impact.
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