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.
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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 Alberta Party managed to attain 5x more votes than they did in 2015. Yet were the biggest losers of the 2019 election cycle. To be honest I believe we would have been well served to have the AB Party win a couple seats in the legislature. However, that is certainly not how things went down on April 16th. They gained 5x the votes and lost all three of their seats.
I have seen some curious behaviour from former Alberta Party candidates as of late and it got me to thinking: ‘What is the AB Party (both party and individual candidates) going through right now?’ Lets explore what I believe to be happening and where I think they need to go to turn (what is now a fringe party) into the opposition.
5 Stages of the Alberta Party Loss
Denial
As mentioned The AB Party went into the election holding 3 seats, hoping to build upon their party growth. What they attained was actually pretty incredible. They recieved over 5x the amount of votes they had in 2015. From 33,867 to 170,872. The response to attaining 0 seats was not surprising and was somewhat humble In my opinion. Mandel cited being proud of the AB Party brand and, frankly, they should be. However, he was wrong for blaming polarization as the reason for the loss. You cannot simultaneously gain 5x the votes and blame polarization. The one thing missing here is that there has been no recognition that their platform was extremely weak. They continue to be in denial that their ideas were not inspiring, their vision was lacking, and their boldness was not focussed on any areas of importance. The AB Party is currently in denial. I do, however, think they are moving past this. Slowly but surely.
Anger
Although we have not seen a direct example of anger from the Party we have started seeing some pretty broad examples of anger throughout the AB Party team/former candidates. I have seen individual candidates who have generally touted themselves as the calm and collected type start to lash out. I have seen insults directed towards conservatives and towards anyone who disagrees with them in general. It is clear that after a couple weeks individuals are starting to feel angry. This is to be expected it is, after all, a human trait. It is now a month after the election. Candidates who worked so hard for so long are realizing what the election cost them both financially, and emotionally. They find it freeing not to be under the “do no harm” mantra of the party system anymore and are beginning to say how they really feel. This is where the rubber really hits the road. The AB party was supposed to be different, made up of candidates who respond with thoughtfulness and consideration. The blinders are being pulled off and we are finding out that the AB party is just another party. They are no different than anyone else. They have their spin, they have their ideology, and ultimately they were fooling themselves into thinking they were different. Perhaps this is an opportunity for their candidates to prove me wrong and pull back on some of the over the top anger and remember that anger is in general, just not worth it.
Bargaining
We have seen a very very clear example of bargaining this week. The AB Party refuses to accept the fact that they are no longer in the Legislature. They have asked for money from they LAO with the intent of being a quasi opposition without a seat in the legislature. They want the funding to do the research while they no longer represent anyone. This is just part of the steps of grief that the AB Party is facing. They are trying to hold on to what once was but no longer is.
Depression
I don’t think the AB party is here yet. Depression in the party sense is devastating. We are going to see growing disinterest from individuals who gave so much before the election. We are going to see folks question ‘What is the point?’. They are going to question the AB party principles, they are going to ask themselves if they should just try to change the NDP or UCP from within. There will be some individuals who pull back and you won’t hear from them again. This is the stage that the Party’s head brass need to address head on. They need to quickly work on inspiring individuals and they need to come up with a plan to allow individuals the time to “shut-off” after a tough election while ensuring they don’t lose touch. If the depression symptom spirals out of control their party will die. On an individual sense, and with sincerity, I do ask anyone who finds themselves getting into this stage to take the time to reflect on the greater good in life. Please seek help if you need to. Depression is nothing to joke about and, yes, an election loss is a legitimate reason for someone to become depressed.
Acceptance.
I do hope the AB party is able to move to acceptance quickly. Let’s look at a few things that the AB party needs to accept.
1. They ran a terrible platform – Yes, there were things in their platform that were amenable. However, it was choppy there was no consistency. It focussed on things that Albertans didn’t care enough about. They were bold in all the wrong areas.
2. The AB party made a mistake kicking out Greg Clarke as leader – There was no opposition MLA that I liked more than Greg. Make no mistake, (while Greg may not admit it himself) Greg’s demotion was a result of a coup from old PC members who didn’t like Jason Kenney. They were quick to join the AB party and place their own person in the position of leadership. Stephen Mandel may have carried the party to 5x more votes but there is no doubt it was on the kindness and likability of former MLA Greg Clarke.
3. They cannot blame polarization for their loss – If they knew that the election was going to be a polarizing one they were perfectly positioned to create themselves as the opposing pole. Instead they positioned themselves as an outlier. The election was polarizing, yes. However, as I already said, they cannot simultaneously blame polarization while championing 5x more votes.
4. They are not different than other parties. – Trying to run a party as though Ideology doesn’t exist is a fools errand. The thought that they are going to do politics differently and its all going to turn out does not come from humility but rather just a vain attempt to pull the wool over the eyes of the public. Trudeau is a perfect example of the AB party narrative. He was going to do politics differently too. The AB party just isn’t different from other parties and the idea that they think they are is actually quite frightening.
5. They need to stop talking, and start working – The AB party is doing themselves no favours by silly maneuvers such as asking for money from the LAO. They need to stop this nonsense and come to grips with the fact that they are now no different than the FCP, the AAP, and the AIP. They should look at the votes they attained as an opportunity to fundraise, not as a passage to being taxpayer funded.
In Conclusion: There is a lot of room for the Alberta party to grow and become the official opposition in 2023. However, this will never happen if they get stuck where they are. They need to move beyond the Denial, Anger, Bargaining, and Depression stages and start to accept their failures so they can embrace the reasons for their incredible success at achieving 5x more votes than they did in 2015.
March 2018, City Manager Craig Curtis announced his planned retirement for July 31, 2018, He stayed under separate contract til March 2019 and it cost the city around $400,000 and then putting in 2 temporary city managers before a new city manager could be in place. 14 months to replace a city manager?
March 2017, the federal government announces the end of a 1/3 tax free subsidy for politicians slated for December 31` 2018. Council addressed that issue by giving themselves a double digit raise in the eleventh hour, November 2018 and it cost the city taxpayers dearly. To be fair Councillor Wyntjes, Councillor Handley, Councillor Higham and Councillor Dawe did vote against these pay increases.
The first thought would be how those at the top of the food chain down at city hall are well compensated, especially in these difficult times.
The second thought is how everything moves at a glacial pace down at city hall.
Besides these 2 issues look at issues like the Riverlands, look at the north of 11A development, look at the proposed aquatic centre for examples to remind us of extreme lengthy decision making.
What is it about city hall that sees it move at glacial speed then expensive decisions in the eleventh hour? Is it fear, natural procrastination, lack of vision or living in a bubble?
Would this contribute to our increased taxes and lack of growth? Just asking.
may, 2019
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