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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

Transitory Madness: Woke Goes For Broke

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In the final days of World War I, exhausted Canadian soldiers made a curious discovery when viewing German soldiers captured or killed in a late-1918 confrontation. They noticed the regimental badges of many units of the German army mixed into the unit they’d just confronted.

This told them that the Germans were at the end of their resources, throwing together soldiers from whatever units that still had left. They were desperate to hold back the inevitable defeat. Indeed, the Canadian soldiers were correct. Within weeks the Germans sued for an Armistice, ending the slaughter.

When some future historian gets around to writing the current version of Gibbon’s Decline and Fall of the Roman Empire will they observe the obsession over trans-rights as being peak hysteria for early 21st century society? Will they ask, “Is that all there was?”

Having gone through victim status for women’s rights, gay rights, indigenous rights, Asian rights, immigrant rights and climate rights the past two decades, radical social engineers now seemingly only have trans-rights left in their chamber with which to create moral panics. While earlier manufactured victim crises could claim 51 percent of the population (women) down to five percent (LGBTQ), trans people represent an estimated 1.6 million people in the U.S. (0.04 percent).

Even allowing that the obsessive spotlight on the issue has boosted numbers in the impressionable 13-17 year old group, we are looking at a rounding-error segment of the population claiming grievance status. But you wouldn’t have any idea of the marginality of this community if you watched the current media cycle. Trans stories dominate the headlines.

The latest cause célèbre being a trans woman murdering children and staff at a Christian Academy in Nashville, Tennessee— all the while the trans lobby claims the shooter as a victim. A tiny community of dysphoric adults has been conflated into apparent martyrs by Woke society.

Which comes as a surprise to most middle-class citizens who haven’t been aware of trans people— or their own hatred for them— until informed by media outlets such as CBC, PBS or the New York Times (which just published an open letter from 1,000 writers, authors, and journalists demanding that The New York Times not report on problems with prescribing gender dysphoric children puberty blockers.)

How hysterical? Here’s career radical poseur Jane Fonda suggesting on The View that Christians who refuse to wear the Trans ribbon should be “murdered”. While her panel pals hasten to suggest she was simply joshing, a glib Fonda shrugs, raises an eyebrow and lets everyone know by her silence exactly what she’s thinking.

Then there’s a Michigan professor who wants murder over mediation. ”I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down,” said Wayne State endowed chair holder Steve Shepiro. “When right-wing groups invite such speakers to campus, it is precisely because they want to provoke an incident that discredits the left, and gives more publicity and validation to these reprehensible views than they could otherwise attain”.

Look, every movement has its loonies. (Witness TrumpWorld.) But the percentage of progressives who have suddenly gone from “I love RuPaul” to deciding trans rights is a hillside for them to die on is stunning. But such is the nature of modern hysterics. The Salem Witch Trials were generated by Christian fervour, the current fervour is driven by secular liberals casting about for quasi-religious meaning.

Citing new WSJ/ NORC polling showing a cratering of public trust in a number of categories since 2019, author Michael Shellenberger notes, “The evidence is now overwhelming that recent panics around climate, race, and sex — the mass desire to conform to a strict moral (Woke) code — stem from a) the acute need of liberal secular people for purpose, b) rising loneliness, and c) mass anxiety created by social media…

Like many new religions, Wokeism is characterized by intolerance.”  Witness the current disproportionate furore over a tiny number of NHL players refusing to wear Pride jerseys. Or the elite panic that spawned censorship of venerated authors such as Roald Dahl, Ian Fleming, and Agatha Christie whose work is now butchered after their deaths.

While Woke media pounds its drum over right-wing indoctrination and its incipient violence, psychology Professor Sam Vaknin says, “The potential for aggression and even violence in victimhood movements is much larger than in the general public.” Witness the @transdayofvengeance “Kill christcucks. Behead christcucks. Roundhouse kick a christcuck into the pavement…” @TNDtracker

That is worrisome in a society where virtually everyone now thinks they belong to a victim group that needs reparations from the rest of that society.

Finally, the Gibbon of this age will likely come to the conclusion that none of these tempests really have anything to do with their putative grievances. Rather they are the useful mechanisms by which totalitarians are trying to remake every aspect of society. Not unlike the effort attempted by Pol Pot and the Khmer Rouge in the 1970s. Like today’s radicals they sought to change human nature. If it took a million dead, it was a price they felt worth paying. Don’t underestimate today’s radicals if given the chance to demonize. If only they could seize the guns.

Or perhaps our historians will identify how a quasi-religious coalition of radical Maoists, declining media outlets and The View’s white progressive women saturated-with-class-guilt pulled back before it became The Killing Fields for dissenters. That a Joseph Welch asked them, Have you no shame?” as they frog-marched cultural figures to a gulag of their making, causing them to relent.

Perhaps. Or maybe the whiff of power will be too strong. With just 38 percent polled by WSJ favourable to patriotism, 30 percent positive about parenthood, 39 percent favourable to religion and 27 percent positive about community involvement they have an open field of despair to exploit for their purposes. What then? As Shellenberger concludes these forces are not the defeated German army of 1918. “It’s hard to see how Western civilization survives these trends.”

Sign up today for Not The Public Broadcaster newsletters. Hot takes/ cool slants on sports and current affairs. Have the latest columns delivered to your mail box. Tell your friends to join, too. Always provocative, always independent.  https://share.hsforms.com/16edbhhC3TTKg6jAaRyP7rActsj5

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 http://brucedowbigginbooks.ca/book-personalaccount.aspx

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COVID-19

Jordan Peterson explains why Canadians should pay attention to the National Citizens Inquiry.

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Most Canadians may be unaware that a Citizen-Led Inquiry into Canada’s COVID-19 Response is underway.  The first hearing which took place in Truro, Nova Scotia has already provided the five Inquiry Commissioners with hours of evidence to consider.

Hearings are also scheduled for Toronto, Winnipeg, Saskatoon, Red Deer, Vancouver, Quebec City, and finally Ottawa.  The second round of hearings starts Thursday, March 30 in Toronto.  On the eve of this, the National Citizens Inquiry has released a statement from renowned Canadian psychologist Jordan Peterson.  Below in his message to the commissioners, Dr. Peterson outlines all the reasons this inquiry is so important.

From NationalCitizensInquiry.ca

A Citizen-Led Inquiry Into Canada’s COVID-19 Response

Canada’s federal and provincial governments’ COVID-19 policies were unprecedented. These interventions into Canadians’ lives, our families, businesses, and communities were, and to great extent remain, significant. In particular, these interventions impacted the physical and mental health, civil liberties and fundamental freedoms, jobs and livelihoods, and overall social and economic wellbeing of nearly all Canadians.

These circumstances demand a comprehensive, transparent, and objective national inquiry into the appropriateness and efficacy of these interventions, and to determine what lessons can be learned for the future. Such an inquiry cannot be commissioned or conducted impartially by our governments as it is their responses and actions to the COVID-19 which would be under investigation.

The National Citizen’s Inquiry (NCI) is a citizen-led and citizen-funded initiative that is completely independent from government. In early 2023, the NCI will hear from Canadians and experts and investigate governments’ COVID-19 policies in a fair and impartial manner.

The NCI’s purpose is to listen, to learn, and to recommend. What went right? What went wrong? How can Canadians and our governments better react to national crises in the future in a manner that balances the interests of all members of our society?


Canadian psychologist, Dr. Jordan B. Peterson who is also an author, online educator, and Professor Emeritus at the University of Toronto spoke out about the Canadian response to COVID-19.

Dr. Peterson’s prerecorded testimony was directed to the five Commissioners at the National Citizens Inquiry in Truro, Nova Scotia.

 

Toronto, Ontario

DETAILS

Start:     March 30 @ 9:00 am
End:      April 1 @ 5:00 pm

The National Citizen’s Inquiry Hearings Event in the city of Toronto, Ontario Canada.

This event takes place starting March 30th to April 1st 2023.
Hearings go from 9:00am – 5:00pm Eastern Time.

You can register to attend the event here.

The hearing schedule is here.

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