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Opinion

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

Opinion

Red Deer’s population grew by 195 since 2015

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2019 RED DEER MUNICIPAL CENSUS = 101,002

2016 RED DEER MUNICIPAL CENSUS= 99,832

2015 RED DEER MUNICIPAL CENSUS= 100,807

In the four years since 2015 Red Deer has grown by 195 residents or less than 0.2% in 4 years.

Timberlands grew from 1834 residents in 2015 to 3038 residents in 2019 or 1204 residents, for a growth of about 66% so where did we lose all our residents? Let us look at the neighbourhoods north of the river.

Residents living north of the river in 2015=32,005, 2016=31,228 and finally 2019= 30,576 for a total decline of 1,429 residents.

Let us break it down;

……YEAR………..2019.…………….2016.……………..2015

Kentwood-………….4235.……………4267.……………..4299

Glendale………..….4284.……………4288.……………..4430

Normandeau……….3275.……………3530.……………..3603

Pines……………..…1725.……………..1718.……………..1851

Highland Green……3896.…………….3920.……………4065

Oriole Park…………5200.…………..…5244.…………….5300

Riverside Meadows..3423.…………….3686.…………….3810

Fairview…………….733.………………710.……………..761

Johnstone…………..3805.……………..3865.…………….3886

Total……………….30,576.…………31,228.……………32,005

So it looks like we just relocated residents from north of the river to new subdivisions like Timberlands. In an age where we are trying to limit our footprint Red Deer expanded our footprint faster than our population growth demanded. New neighbourhoods require infrastructure ($), schools ($), sewers ($), water ($), roads ($), transit ($) etc.

30,000 plus people live north of the river down from 32,000 plus 4 years ago, but still a large community. I wrote about this very topic in 2016 and was given the brush off by many in city hall. One city councillor suggested that I have more children to populate the north side.

The issue was not taken seriously in 2016 and again in 2019.

I wrote that Lethbridge would overtake us and become the 3rd largest city in Alberta, and they did.

I dove deeper to see what was happening in local neighbourhoods and found that the north side of the river is being decimated and annexing or new neighbourhoods are fuelling our growth.

People keep telling me it is the provincial economy that is preventing growth. Lacombe grew by 7% last year, Blackfalds has seen record growth, Penhold, Sylvan Lake and the county grew in the same province, so I discount that theory.

My thinking is perhaps more closer to home. The other communities invested in their residents. New recreation complexes that required per capita investments that dwarf Red Deer’s by huge margins, up to 100s of percents.

Red Deer has neglected the residents north of the river. For every dollar they spend north of the river they spend 20 south of the river. No high school north of the river with 4 current and 2 planned, south of the river.

If the city could just bring their culture from 1980 to 2020 then maybe we will not lose so many residents from north of the river. It is time to stop neglecting the residents living north of the river.

Start investing in substantial recreational facilities north of the river after years of building so many south of the river. Build the next aquatic centre north of the river, build the next school, especially high school north of the river.

For the whole city the powers that be need to wake up, and invest in it’s residents. It has been said that insanity is doing the same thing over and over again and expecting different results. It is time to wake up, what the powers that be have been doing has not worked, the census proves it, it is time to do things differently.

No I am not having more children, councillor.

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Opinion

Politicians focus too much on the wallets of the few.

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We welcome opinions from our readers like this one from Garfield Marks of Red Deer, AB.

According to the Ethics Commissioner, Trudeau broke ethical guidelines on behalf of a big corporate entity, SNC-Lavalin, and as expected, it appears, everyone is calling for his resignation. I am confused, but hasn’t almost every politician of a major political party, for the last few decades, been advocating breaks for big corporations and the top 1%.

Didn’t Alberta elect a Premier who had to pay an ethics violation fine when he was a federal cabinet minister? Does he not lead a party who had issues with electoral fraud, kamikaze candidate and members issued $75,000 in fines by the ethics commissioner, due to actions during their leadership race?

Was it not a conservative government that supposedly just gave a $4.5 billion tax break to businesses? Was it not a conservative government that was supposedly lowering taxes for the top 1%? Was it not a conservative government(s) that was cutting services to everyone else to pay for these tax breaks?

Here in Alberta was there not lots of promises of jobs to rationalize billions in tax breaks for corporations only to find out that Alberta then subsequently lost 14,000 jobs in July alone?

I am not saying that Trudeau’s actions pressuring the Attorney General to give a deal to a big company is okay, but don’t they all do special deals for big corporations? Don’t we as tax payers subsidize the oil industry, cow tail to unions, pay homage to gun manufacturers, serve the auto industry, and placate the wealthy? The average voter just pays for them.

My wallet sure feels those political fingers. My costs keep going up, while my income hasn’t kept pace.

My mind has tuned out the politicians, and their desire to woo the rich and big corporations, and my heart is focused on the future, and my family.

Scientists and engineers have made great discoveries and given me some great things like cars, computers, cell phones and medical break-throughs but these same non-partisan intellectuals have also made huge unsettling discoveries, and given me causes for concern.

Issues like climate change, reminiscent of second hand smoke, are concerns to our health and our lives but are not given the same level of regard as tax breaks for the big corporations.

Second hand smoke was a major health care cost but tax breaks for cigarette companies and tobacco growers were the demands.

There is an election this fall and here in my riding there is no contest, as the conservatives will win, then become a seat warmer no one hears about, till the next election. My concerns will be ignored, my wallet will get thinner to placate the more well to do.

I do think it is about time to move on from focusing on the wallets of the few and focus on the health of the whole community. The person or party that can convince me that their focus is on the whole, for the future and not on big corporations and the wealthiest in a realistic manner, will get my support and vote.

Will my wallet survive the next election? I hope so, but I cannot be certain. I am worried we might get a Trump-like Prime Minister out of protest and the climate crisis will be pushed back and my wallet will be front and centre for political fingers for another few decades.

Is there another option?

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august, 2019

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