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
CEO | Director, Canadian Tax Advisory
CGL Strategic Business & Tax Advisors
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://www.CGLtax.ca/Litzenberger-Cory.html
Stephen Koonin served as Undersecretary of Energy in former U.S. President Barack Obama’s administration. A PhD Physicist, he is a smart guy.
Referencing materials from the International Panel on Climate Change (IPCC) – an organization that is widely viewed by governments and media as the single most important source for information on climate change – Koonin demonstrates that the science of climate change is anything but settled, and that we are not in, nor should we anticipate, a crisis.
In fact, despite decades of apocalyptic warnings there is in fact remarkably little knowledge of what might happen. Over the last 5 decades of apocalyptic warning, life on earth has dramatically improved as our management of countless environmental challenges has improved.
What the evidence really shows is that as the global economy improves, our ability to deal with whatever mother nature throws at us improves. On that point, Koonin draws attention to what the IPCC experts say about the possible economic impacts of possible climate change-induced temperature changes.
Koonin notes that, according to the IPCC, a temperature increase of 3 degrees centigrade by 2100 – which some scientists say might happen – might create some negative environmental effects, which in turn would cause an estimated 3% hit to the economy in 2100.
But even as it makes these claims, the IPCC further predicts that the economy, in 2100, will be several times the size of the economy today (unless, of course, we interfere with it as the Net Zero by 2050 crowd wants us to do). In other words, a strategy of doing nothing may or may not mean a temperature increase, the effects of which if bad, are expected to represent a small economic hit to the economy, but that economy will be much, much larger.
In Koonin’s words, this “translates to a decrease in the annual growth rate by an average of 3 percent divided by 80, or about 0.04 percent per year. The IPCC scenarios…assume an average global annual growth rate of about 2 percent through 2100; the climate impact would then be a 0.04 percent decrease in that 2 percent growth rate, for a resulting growth rate of 1.96 percent. In other words, the U.N. report says that the economic impact of human-induced climate change is negligible, at most a bump in the road.”
So this doesn’t sound like a crisis to me. It sounds like a very modest reduction in extraordinary economic growth. So from extraordinary economic growth to slightly less extraordinary economic growth.
Why do I draw attention to this?
Because Canada is pursuing a Net Zero by 2050 target with a whole bunch of policies that will kill economic growth.
The IPCC predicts significant global economic growth without all the things Trudeau and other Net Zero by 2050 advocates are pursuing – massive carbon taxes, additional carbon taxes called clean fuel standards (CFS), building code changes that will make a new home unaffordable, huge subsidies for pet projects, etc. In other words, the IPCC predicts growth without crazy and wasteful spending of taxpayer dollars that will hurt citizens.
So why are we allowing Trudeau and co to pursue these things?
We don’t know the full costs of Net Zero by 2050, but every signal we have is that it is absurdly expensive. AND (thank you Stephen Koonin for making this explicitly clear) the International Panel on Climate Change says ignoring the Net Zero by 2050 target and doing nothing will mean a much bigger economy.
Prime Minister Trudeau and the activists won’t tell you that.
Nor will they acknowledge what the IPCC actually says.
Let’s all applaud Stephen Koonin for trying to do so.
Green activists are driving a radical agenda screaming at us that the science is settled. As courageous scientists like Stephen Koonin note, science is never settled and to say it is settled is irresponsible. The activists say we have to radically change our economy, but don’t tell us how much that will cost – but the IPCC tells us doing absolutely nothing would result in only slightly less economic growth than we would otherwise have.
Governments are spending massive sums of your money on Net Zero by 2050.
Corporate interests commit to this radical agenda and hide behind rhetoric of doing the right thing, while they also seek out government subsidies (which taxpayers will pay for) to meet their absurd Net Zero by 2050 commitments.
An 18 year veteran of the House of Commons, Dan is widely known in both official languages for his tireless work on energy pricing and saving Canadians money through accurate price forecasts. His Parliamentary initiatives, aimed at helping Canadians cope with affordable energy costs, led to providing Canadians heating fuel rebates on at least two occasions.
Widely sought for his extensive work and knowledge in energy pricing, Dan continues to provide valuable insights to North American media and policy makers. He brings three decades of experience and proven efforts on behalf of consumers in both the private and public spheres. Dan is committed to improving energy affordability for Canadians and promoting the benefits we all share in having a strong and robust energy sector.
When one of media’s most successful journalists is constantly punished by Facebook Fact Checkers it makes for a compelling story all on it’s own. Does a 19 time Emmy Award Winning Journalist not check his facts? Well… turns out the facts aren’t the problem. Enjoy some more revealing insight from John Stossel.
Before Facebook censored it, my video, “Are We Doomed”, got more 24 million views. You can watch it here: https://www.youtube.com/watch?v=b8JZo… Now Facebook won’t show it to many people — not even to my subscribers. Facebook’s also punishing Stossel TV by showing our other videos less. All because Facebook foolishly gave Emmanuel Vincent, a recent PhD graduate from France, the power to censor. Vincent assembled a group of like-minded scientists into a group called Climate Feedback climatefeedback.org that declared parts of my video “misleading,” or “partially false.” What facts did the “fact-checkers” correct? NONE! There was not a single hard fact that in the video that was wrong. We address the censor’s claims here, listing our sources: https://www.johnstossel.com/climate-f… I asked one Vincent “reviewer,” the only one willing to be interviewed, why I deserve censorship even though our facts were correct.
After 40+ years of reporting, I now understand the importance of limited government and personal freedom. Libertarian journalist John Stossel is a zealous advocate of free markets, a syndicated columnist and Fox News contributor. Prior to joining Fox, John co-anchored ABC’s primetime newsmagazine show, 20/20. Stossel’s economic programs have been adapted into teaching kits by a non-profit organization, “Stossel in the Classroom.” High school teachers in American public schools now use the videos to help educate their students on economics and economic freedom. They are seen by more than 12 million students every year. Stossel has received 19 Emmy Awards and has been honored five times for excellence in consumer reporting by the National Press Club. Other honors include the George Polk Award for Outstanding Local Reporting and the George Foster Peabody Award.