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
Are We Ready For A Russian To Become NHL’s Top Goal Scorer?
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With the grinding war in Ukraine showing no signs of ceasing and Biden-led sanctions doing nothing tangible to deter Vladimir Putin, Russia’s image in the West has rarely been this low. So now might be a good time to ask if the NHL is prepared for a Russian to become the greatest goal scorer in league history.
As the league prepares for its annual draft on Thursday/ Friday, the top pick in the 2004 Draft is showing every sign that he will pass the game’s greatest Canadians in goal scoring. Going into 2022-23, the 36-year-old Capitals star is just 21 goals behind the immortal Gordie Howe in second place and 114 back of Wayne Gretzky, the Prometheus of NHL scoring.
Wayne Gretzky. 894
2. Gordie Howe 801
3. Alex Ovechkin 780
Given good health Ovechkin will surpass Howe next season and probably leave Gretzky in his wake in four seasons. Even in a time of peace it will be interesting to see the public reaction in Canada and the U.S. to Ovechkin’s passing No. 99. While the No.1 pick in 2005, Sidney Crosby, has had a squeaky clean image, The Great Eight has been a little salty for some folks.
He plays a game Howe would love, dispensing devastating hits as well as brilliant goals. His gap-toothed sneer has not always endeared him to many. Nor has his proximity to Putin himself. In November 2017, Ovechkin started a movement called PutinTeam in support of Putin during the 2018 Russian presidential election .
In recent times he’s sought to have a foot in both camps. “I don’t know what’s happening out there. I know it’s a hard situation, but it is what it is. You know, I play here, and this is my second home. I don’t want to fight between two countries, because it’s going to be a mess.”
Too late on that front, Alex. Putin’s naked aggression and Biden’s desire to unseat him (he’s endorsed assassination) have put the West on the brink of a war with nuclear potential. Few can say where the conflict is headed, except that it’s highly unlikely the West will be surrendering its sons to the battlefield when NATO runs out of Ukrainians willing to die.
One thing is certain. As we point out in our book Inexact Science: the 6 Most Compelling Drafts in NHL History, Ovechkin put an end to the bias against Russians at the top of the NHL draft. While there had been Russian Hall of Fame selections in the middle to lower rounds of the draft (Sergei Fedorov, Pavel Bure, Sergei Zubov) Ovechkin’s No. 1 overall was considered a risk at the time. He changed the equation.
“It began in 2004, when the Capitals selected Russian phenom Alex Ovechkin, maybe the greatest pure goal scorer the NHL has seen. A number one pick who has lived up to the billing of “generational player,” Ovechkin maybe would have been even more widely hailed as that “Next One” had he developed under the intense hockey media spotlight of Canada, or North America in general.
Never before had an international player earned the kind of accolades Ovechkin received leading up to his draft year. After all, he was only the second Russian ever to go that high on draft day. But the fact he wasn’t a Canadian kid may have tempered the headlines around “Ovie” and made some fans skeptical about his supposed wizardry.
He wasn’t helped by how easily a stacked Team Canada had handled him and his Russians in the World Juniors of 2004 and 2005. In retrospect, “The Great 8” was actually undersold as a generational legend. But all of this made his majestic rookie season as a 20-year-old in 2005–06 more of a revelation than it would have been otherwise.
CAA agent J.P. Barry says that some resistance remains. “Even with Russian players, we’ve seen a hesitance in the past. A few teams have said to me, “Sorry, we just don’t draft Russians. End of story.” I know of several teams that did make that an internal memo. Some even said, “We can’t take a Euro in the first three rounds!” I don’t think there’s any team that could say any of that anymore, though. Way back when, however, there were these unwritten internal policies that were just silly.
There was definitely a period there where teams didn’t want to touch Russians, because they didn’t feel that they could get them to come over. Sometimes they were teams impacted by something negative that happened in the past and let it change their course of action.”
If Ovechkin didn’t entirely smash the Russian stereotype then his countryman Evgeni Malkin, selected right behind Ovechkin in the 2004 draft, sealed the deal. (Ironically the two were rivals for a long time, only reconciling in recent years). Lifetime, Malkin has 444 goals and 702 assists in an injury-riddled career.
To the NHL’s credit, it hasn’t banned or sanctioned its Russian stars as some have done. The country’s teams are banned from international soccer and hockey tournaments and the Paralympics. Russian tennis players Daniil Medvedev and Andrey Rublev (the top-2 ranked Russian male players) were barred from participating at Wimbledon. Many Russian artists have seen their concerts cancelled.
For now Ovechkin is walking a tight rope. He’s called for peace without mentioning Russia or Ukraine directly. In May 2022, he reiterated his support for Putin, as well as retaining the Russian president on his Instagram profile photo. Much depends on the progress of the war, and how much Canada and the U.S. are drawn into the combat.
The best advice is probably to keep his head down and his politics to himself if he wants to be celebrated for passing Howe and Gretzky.
Bruce Dowbiggin @dowbboy is the editor of Not The Public Broadcaster (http://www.notthepublicbroadcaster.com). The best-selling author was nominated for the BBN Business Book award of 2020 for Personal Account with Tony Comper. A two-time winner of the Gemini Award as Canada’s top television sports broadcaster, he’s also a regular contributor to Sirius XM Canada Talks Ch. 167. His new book with his son Evan Inexact Science: The Six Most Compelling Draft Years In NHL History is now available on http://brucedowbigginbooks.ca/book-personalaccount.aspx
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