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UPDATED: SNC Lavalin – Just the Facts Ma’am

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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

CEO | Director CGL Tax Professional Corporation With the Income Tax Act always by his side on his smart-phone, Cory has taken tax-nerd to a whole other level. His background in strategic planning, tax-efficient corporate reorganizations, business management, and financial planning bring a well-rounded approach to assist private corporations and their owners increase their wealth through the strategies that work best for them. An entrepreneur himself, Cory started CGL with the idea that he wanted to help clients adapt to the ever-changing tax and economic environment and increase their wealth through optimizing the use of tax legislation coupled with strategic business planning and financial analysis. His relaxed blue-collar approach in a traditionally white-collar industry can raise a few eyebrows, but in his own words: “People don’t pay me for my looks. My modeling career ended at birth.” More info: https://CGLtax.ca/Litzenberger-Cory.html

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Bruce Dowbiggin

From The Border To Kevin O’Leary, Canada Is Freaking Out Americans

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Tequesta, Fla.: Those Canadians who spend time in DeSantisLand  know that our American hosts are blissfully unaware of what happens in Canada. Outside blaming the True North for brisk weather like this week’s near-freezing temps in the South.

Then, out of nowhere, Canada and Canadians are suddenly blasting down the pike like an Alberta Clipper. Example: While everyone is talking the bum rush at the southern U.S. border, former GOP presidential hopeful Vivek Ramaswamy was frothing about the steady tide of illegals crossing southward from Canada into the U.S.

He told X ,“The Northern Border is the next frontier for illegals. Career politicians including Republicans derided me for saying it last year. Now we’re starting to see the consequences.” One of the consequences is the PM not talking about our leaky border. But since the Liberals removed visa requirements for Mexicans the flood gates have opened. Canada’s fastest growing industry is human smuggling.

Vermont residents are very engaged with Canada’s dirty little secret. Swanton, Vt. resident Chris Feeley told reporters that “he has been hunting in the area since he was a teen and rarely ran into anyone. Now he sees illegals frequently. ‘The border patrol actually told us, ‘You guys might want to put a pistol in your backpack’ because nine out of 10 of them are just here for a better life, but there’s that one guy that’s got a rap sheet,” he said.

Will Trump build a northern wall as well as a southern barrier? Inquiring minds in Canada want to know. Then came the bimbo eruption from New York’s governor Kathy Hochul. Hochul’s state has the highest percentage of Jews in America (seven percent). One and a half to two million Jews live in the New York City area alone. She has a vested interest in their issues.

So when the heinous Oct. 7 attacks murdered hundreds of innocent Israelis in their homes and communities Hochul (whose ancestry is Irish-American) sought to show her solidarity with her constituents. “If Canada someday ever attacked Buffalo, I’m sorry, my friends, there would be no Canada the next day,” Hochul said at an event for the United Jewish Appeal-Federation of New York.

“That is a natural reaction. You have a right to defend yourself and to make sure that it never happens again. And that is Israel’s right.” Hey, she likes us enough to massacre us in retaliation. Now that’s a caring neighbour. Not surprisingly, when Canada’s media grandees heard the news they plotzed. And Hochul scrambled to clarify her remarks. But for a few days, Canada was a something. Americas would obliterate us for destroying Buffalo. The mind boggles.

Next, the liberals in overheated #TDS legacy media had one of their periodic fits over former president #OrangeManBad . They were left aghast that another Donald Trump presidency might decline to protect NATO partners from the boogey man. Trump even suggested he’d give Putin the A-OK to do his worst on Luxembourg or Montenegro. Shocked and appalled, they declared the end of NATO and McDonald’s McRib sandwich.

What the Jake Tapper Brigade neglected to mention in all this fainting and pearl clutching was that this would happen ONLY IF rogue nations refused to pay their obligations under the NATO charter. (Why ruin a good hysteria over running the full quote? See: Charlottesville, Jan. 6, drinking bleach.)

Now, which American neighbour to the North of Biden’s Bedroom is delinquent in its obligations to NATO? Might it be Trudeaupia where it’s more important than agriculture minister Lawrence McAuley be seen casually gorging on lobster in Asia than paying up for deterrents against the Chinese?

So to all his other self-inflicted miseries Prince Justin of Rideau Cottage was confronted with the pitiful funding of Canada’s military (his government just cut military spending by a billion) and its reliance on the support of strangers when it comes to protecting the Arctic, among other tracts of lands. Trudeau has lobbied NATO to include other spending under its requirements. But so far, NATO is not accepting maple syrup, Melanie Joly desk calendars and Bollywood costumes as applicable contributions to defence spending.

According to reports reaching us in the Land of Farenheit, Trudeau responded to all this scrutiny by flying west in a carbon-belching jet to promote climate something-something. But how would an incoming Trump administration deal with Trudeau (and his paid media) who has made POTUS 45 a convenient whipping boy? Has Canada’s PM said too much already? Might Trump tighten the pressure on paying up— just in spite? Trump? Spiteful? Never!

Next on the screens of Americans was the ubiquitous Mr. Wonderful, Kevin O’Leary, Canada’s gift to Shark Tank/ Dragons Den. The recent civil trial of Trump in NYC has vexed him. So everywhere one looks O’Leary is schooling dim liberal hosts on CNN about the idiocy of the decision to fine Trump $354M for cheating no one out of nothing.

“It’s appalling. It’s unjust. I would go as far to say it’s un-American.” Here he is with some place setting named Laura Coates explaining how you do real estate in NYC. “That fact that he was found guilty, you might as well find guilty every real estate developer on Earth,” O’Leary says. “I don’t understand where someone got hurt … What developer doesn’t ask for the highest-price value for any building they built?… If this judgment sticks, every developer must be jailed. They must be found guilty. They must be put out of business. You can’t do this to one but not another. It’s not about Trump.”

O’Leary followed up by saying he wouldn’t be doing business in NYC until the decision was reversed. Others, including Dilbert cartoonist Scott Adams followed suit, “100% of people who don’t understand banking, business, negotiating, or the world in general are sure Trump committed fraud. 100% of people who understand banking, business, negotiating, and the world in general saw ‘business as usual’ and no fraud.” Like O’Leary, Adams vowed not to visit nor do business in New York State, setting off an X wave of hysteria among former CDN sports writers and liberal arts graduates.

But Mr. Wonderful discouraging business is different. Hearing O’Leary’s warning to businesses to steer clear of NYC, Governor Hochul sought to reassure real-estate developers that the government will not go after them like they have gone after Donald Trump. Prompting Texas senator Ted Cruz to observe, “In other words, if you don’t make Democrats angry, you won’t get sued. But if you do, you’ll get the Donald Trump treatment.”

It’s almost too much Canada in the news. Luckily, Trudeaupia will slip beneath the waves of American attention again shortly, ignored and dismissed. To think we were that close.

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, he’s a regular contributor to Sirius XM Canada Talks Ch. 167. Inexact Science: The Six Most Compelling Draft Years In NHL History, his new 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.

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Fraser Institute

Yes, B.C.’s Land Act changes give First Nations veto over use of Crown Land

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From the Fraser Institute

By Bruce Pardy

Nathan Cullen says there’s no veto. Cullen, British Columbia’s Minister of Water, Land, and Resource Stewardship, plans to give First Nations joint decision-making authority over Crown land. His NDP government recently opened consultations on its proposal to amend the B.C. Land Act, under which the minister grants leases, licences, permits, rights-of-way and land sales. The amendments will give legal effect to agreements with Indigenous governing bodies. Those agreements will share decision-making power “through joint or consent models” with some or all of B.C.’s more than 200 First Nations.

Yes, First Nations will have a veto.

Cullen denies it. “There is no veto in these amendments,” he told the Nanaimo News Bulletin last week. He accused critics of fearmongering and misinformation. “My worry is that for some of the political actors here on the right, this is an element of dog-whistle politics.”

But Cullen has a problem. Any activity that requires your consent is an activity over which you have a veto. If a contract requires approval of both parties before something can happen, “no” by one means “no” for both. The same is true in other areas of law such as sexual conduct, which requires consent. If you withhold your consent, you have vetoed the activity. “Joint decision-making,” “consent,” and “veto” come out to the same thing.

Land use decisions are subject to the same logic. The B.C. government will give First Nations joint decision-making power, when and where agreements are entered into. Its own consultation materials say so. This issue has blown up in the media, and the government has hastily amended its consultation webpage to soothe discontent (“The proposed amendments to the Land Act will not lead to broad, sweeping, or automatic changes (or) provide a ‘veto.’”) Nothing to see here folks. But its documentation continues to describe “shared decision-making through joint or consent models.”

These proposals should not surprise anyone. In 2019, the B.C. legislature passed Bill 41, the Declaration of the Rights of Indigenous Peoples Act (DRIPA). It requires the government to take “all measures necessary” to make the laws of British Columbia consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

UNDRIP is a declaration of the U.N. General Assembly passed in 2007. It says that Indigenous people have “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired… to own, use, develop and control.”

On its own, UNDRIP is non-binding and unenforceable. But DRIPA seeks to incorporate UNDRIP into B.C. law, obligating the government to achieve its aspirations. Mere consultation with First Nations, which Section 35 of the Constitution requires, won’t cut it under UNDRIP. Under Section 7 of DRIPA, agreements to be made with indigenous groups are to establish joint decision-making or to require consent of the Indigenous group. Either Cullen creates a First Nations veto or falls short of the goalposts in DRIPA. He is talking out of both sides of his mouth.

Some commentators warned against these dangers long ago. For example, shortly after DRIPA was passed in 2019, Vancouver lawyer Robin Junger wrote in the Vancouver Sun, “It will likely be impossible for government to live up to the expectations that Indigenous groups will now reasonably hold, without fundamentally affecting the rights and interests of third parties.” Unfortunately, few wanted to tackle that thorny question head on at the time. All three political parties in B.C. voted in favour of DRIPA, which passed unanimously.

For a taste of how Land Act changes could work, ask some B.C. residents who have private docks. In Pender Harbour, for instance, the shishalh Nation and the province have jointly developed a “Dock Management Plan” to try and impose various new and onerous rules on private property owners (including red “no go” zones and rules that will make many existing docks and boat houses non-compliant). Property owners with long-standing docks in full legal compliance will have no right to negotiate, to be consulted, or to be grandfathered. Land Act amendments may hardwire this plan into B.C. law.

Yet Cullen insists that no veto will exist since aggrieved parties can apply to a court for judicial review. “[An agreement] holds both parties—B.C. and whichever nation we enter into an agreement (with)—to the same standard of judicial review, administrative fairness, all the things that courts protect when someone is going through an application or a tendering process,” he told Business in Vancouver.

This is nonsense on stilts. By that standard, no government official has final authority under any statute. All statutory decisions are potentially subject to judicial review, including decisions of Cullen himself as the minister responsible for the Land Act. He doesn’t have a veto? Of course he does. Moreover, courts on judicial review generally defer to statutory decision-makers. And they don’t change decisions but merely send them back to be made again. The argument that First Nations won’t have a veto because their decisions can be challenged on judicial review is legal jibber jabber.

When the U.N. passed UNDRIP in 2007, people said they can’t be serious. When the B.C. legislature passed DRIPA in 2019, people said they can’t be serious. The B.C. government now proposes to give First Nations a veto over the use of Crown land. Don’t worry, they can’t be serious.

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