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.
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
Bjorn Lomborg shows how social media censors forgot to include the facts in their fact check
Dr. Bjorn Lomborg is president of the Copenhagen Consensus Center, and visiting fellow at the Hoover Institution, Stanford University. The Copenhagen Consensus Center is a think-tank that researches the smartest ways to do good. For this work, Lomborg was named one of TIME magazine’s 100 most influential people in the world. His numerous books include “False Alarm: How Climate Change Panic Costs Us Trillions, Hurts the Poor, and Fails to Fix the Planet”, “The Skeptical Environmentalist”, “Cool It”, “How to Spend $75 Billion to Make the World a Better Place”, “The Nobel Laureates’ Guide to the Smartest Targets for the World 2016-2030” and “Prioritizing Development: A Cost Benefit Analysis of the UN’s SDGs”.
The heresy of heat and cold deaths
A group of campaign researchers try hilariously, ineptly — and depressingly —to suppress facts
TL;DR. A blog, claiming to check facts, does not like that I cite this fact: the rising temperatures in the past two decades have caused more heat deaths, but at the same time avoided even more cold deaths. Since this inconvenient fact is true, they ignore to check it. Instead, they fabricate an absurd quote, which is contradicted in the very article they claim to ‘fact-check’.
166,000 avoided deaths
Cold deaths vastly outweigh heat deaths. This is common knowledge in the academic literature and for instance the Lancet finds that each year, almost 600,000 people die globally from heat but 4.5 million from cold.
Moreover, when the researchers include increasing temperatures of 0.26°C/decade (0.47°F/decade), they find heat deaths increase, but cold deaths decrease more than twice as much:
Or here from the article:
The total impact of more than 116,000 more heat deaths each year and almost 283,000 fewer cold deaths year is that by now, the temperature rise since 2000 means that for temperature-related mortality we are seeing 166,000 fewer deaths each year.
However, this is obviously heretical information, so the self-appointed blog, Climate Feedback, wants it purged. Now, if they were just green campaigning academics writing on the internet, that might not matter much. But unfortunately, this group has gained the opportunity to censor information on Facebook, so I have to spend some time showing you their inept, often hilarious, and mostly nefarious arguments. The group regularly makes these sorts of bad-faith arguments, and apparently appealing their Facebook inditements simply goes back to the same group. It is rarely swayed by any argument.
They never test the claim
Climate Feedback seemingly wants to test my central claim from the Lancet article that global warming now saves 166,000 people each year, from my oped in New York Post:
But notice what is happening right after the quote “Global warming saves 166,000 lives each year”. They append it with something that is not in the New York Post. You have to read much further to realize that they are actually trying — and failing — to paste in an entirely separate Facebook post, which addressed a different scientific article.
It turns out, Climate Feedback never addresses the 166,000 people saved in their main text. “166” only occurs three times in the article: twice stating my claim and once after their main text in a diatribe by an ocean-physics professor, complete with personal insults. In it, the professor doesn’t contest the 166,000 avoided deaths. Instead, he falsely claims that I am presenting the 166,000 as the overall mortality impact of climate change, which is absurd: anyone reading my piece understand that I’m talking about the impact of temperature-related mortality.
Perhaps most tellingly, Climate Feedback has asked one of the co-authors of the 166,000 Lancet study (as they also very proudly declare in their text). And this professor, Antonio Gasparrini, does not only not challenge but doesn’t even discuss my analysis of the 166,000 avoided deaths.
Climate Feedback not only doesn’t present any reasonable argument against the 166,000 avoided deaths. It has actually asked one of the main authors of the study to comment and they have nothing.
In conclusion, Climate Feedback simply has no good arguments against the 166,000 people saved, and yet they pillory my work publicly in an attempt to censor data they deem inconvenient. . That academics play along in this charade of an inquisition dressed up ‘fact-check’ is despicable.
Rest of Climate Feedback’s claim is ludicrously wrong
So, beyond the claim of 166,000, Climate Feedback is alleging that I say the following: “those claiming that climate change is causing heat-related deaths are wrong because they ignore that the population is growing and becoming older.”
This is a fabricated quote. I never say this. Climate Feedback has simply made up a false statement, dressing it as a quote of mine, even though I never claimed anything like this. This is incredibly deceptive: it is ludicrous to insist that I should argue that it is wrong to claim “climate change is causing heat-related deaths.” I simply do not argue that “climate change is not causing heat-related deaths”
Up above I exactly argued that climate change causes more heat deaths. My graph shows that climate change causes more heat deaths.
And I even point out exactly that the temperature increases cause heat deaths in my New York Post piece:
“As temperatures have increased over the past two decades, that has caused an extra 116,000 heat deaths each year.” Sorry, Climate Feedback, but the rest of your claim is straight-out, full-on stupid.
Evaluation of Climate Feedback’s review
So Climate Feedback is simply wrong in asserting that I somehow say climate change is not causing heat-related deaths — because I do say that, even in my New York Post article:
Climate Feedback doesn’t show anywhere in their main text how the 166,000 avoided deaths are wrong. They even ask one of the main authors of the study, and that professor says nothing.
Climate Feedback’s deceptive hit job is long on innuendo and bad arguments (see a few, further examples below). But the proof really is in the pudding.
They make two central arguments. First, that my claim of “Global warming saves 166,000 lives each year” is incorrect. Yet, they never address this in their main text. And while they get information from one of the main authors of the Lancet study that is the basis for the 166,000 lives saved, they get no criticism of the argument.
Second, they assert that I somehow say that it is wrong to claim climate change is causing more heat-related deaths, which is just ludicrous because I make that very point, even in my New York Post article:
Verdict: Climate Feedback is fundamentally wrong in both their two main claims.
Additional point: It really shouldn’t be necessary to say, but you can’t make a ‘fact-check’ page, write page after page of diatribe, ignore the first main point and bungle the other main point, and then hope at the end nobody notices, and call my arguments wrong. Or, at least, you shouldn’t be able to get away with such nonsense.
Two examples of the inadequate arguments in the rest of Climatefeedback
Lomborg doesn’t have a time machine
Climate Feedback asks professor Gasparrini, co-author of the Lancet study above. He doesn’t cover anything on the 166,000 deaths avoided. Instead, his text entirely discusses a 2016 WSJ article where I used his 2015-article but he criticizes me for not citing his 2017 article:
The reason I didn’t cite his 2017-article is of course that I didn’t have access to a time machine when I wrote my article in 2016.
Indeed, I have corresponded with Professor Gasparrini several times later about his 2017-article. And yes, his 2017-study indeed shows that at very high emissions, additional heat deaths will likely outweigh avoided cold deaths towards the end of the century. But his study also shows that all regions see additional heat deaths vastly exceeded by extra avoided cold deaths from the 1990s to the 2010s — the exact point I’ve made here.
Serious academics take into account population growth and aging
In a refreshing comment, Climate Feedback asks Philip Staddon, Principal Lecturer in Environment and Sustainability from the University of Gloucestershire to chime in. He says, that I’m wrong to criticize the lack of standardization from population growth and aging, because clearly “all serious academic research already takes account of population growth, demographics and ageing”:
I, of course, entirely agree with Staddon, that all serious academic research should do that. But the research that I have criticized has exactly not done so, resulting in unsupported claims. So, for instance, in the Facebook post that Climate Feedback discusses, I show how CNN believes that a study shows a 74% increase caused by the climate crisis:
This is based on not adjusting for population and age, and is actually from the press release of the paper (and in table S6 in the paper).
Likewise, Staddon might have noticed that a very high-profile editorial in the world’s top medical journals made that very amateurish mistake. They argue that temperature increases over the past 20 years have increased deaths among people 65 and older:
But they cite numbers that are not adjusted for age or population — indeed the world’s population of people above age 65 has increased almost as much:
I absolutely agree with Principal Lecturer Philip Staddon on the necessity of making sure that good arguments in the public sphere are adjusted for population and aging before blaming climate. Unfortunately, they often aren’t
Ethics prof at one of Canada’s oldest universities on temporary paid leave for stance against forced vaccinations
Huron University in London, Ontario, was incorporated way back in 1863 as one of the founding colleges of Western University. Western is one of the largest universities in Canada.
On the University’s website under academic objectives, Huron University strongly encourages “critical thinking through excellent teaching and research”. But it appears critical thinking may have landed a university ethics professor in a career ending dilemma. Dr. Julie Ponesse has been teaching Ethics at Huron for 20 years. Dr. Ponesse says the University of Western Ontario has barred her from campus and put her on temporary paid leave for taking an ethical stance against the University’s vaccine policy.
Here is the first measure of that policy as highlighted on the University website.
- Mandatory Vaccination on Campus: Huron and its affiliate partners are implementing a vaccination policy which will require proof of vaccination or have an exemption in order to come on campus, including living in residence. Those with an exemption must be tested for COVID-19 twice weekly. There is no testing option for those who choose not to be vaccinated. Those without proof of vaccination or an exemption will not be permitted on campus.
Professor Ponesse says just a few days before the school year began, she was mandated by her employers to take the vaccine immediately. As an Ethics educator she decided it was her job to teach her students it’s ethically wrong to force people to take a vaccine. Instead of lining up for the jab, Dr. Ponesse went to her office and recorded a video which has now been seen across Canada tens of thousands of times. At the end of the video a statement appears indicating Professor Julie Ponesse was dismissed by her employers on September 7.
The video is being shared and commented on by Canadians from coast to coast, in various social media platforms. It’s a fascinating discussion on ethics in a terribly confusing and controversial time, by an experienced ethics professor who has courageously put her ethics ahead of her career.
The video has been taken down by both Facebook and Twitter for statements Ponesse makes about the effectiveness of vaccines. This video was reloaded to Facebook. Supporters of Dr. Ponesse have also posted it to Instagram. We’ve posted two links in case one is taken down yet again.
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