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.
—
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
Censorship Industrial Complex
Justice Centre campaigning Canadian provinces to follow Alberta’s lead protecting professionals
Justice Centre launches national campaign to stop ideological overreach in regulated professions
The Justice Centre for Constitutional Freedoms announces the launch of a national campaign urging all provinces to adopt legislation that restores professional regulators to their proper role of overseeing competence and ethics, rather than compelling speech or imposing political ideology on regulated professionals who serve the public.
Across Canada, professionals such as doctors, nurses, teachers, social workers, engineers, dentists, lawyers and many others are governed by regulatory bodies created to uphold technical competence and ethical standards. Instead of focusing on those core responsibilities, however, many regulators have begun embedding political or ideological content into mandatory courses, codes of ethics and continuing education requirements.
At the same time, professionals are increasingly being investigated or disciplined not for misconduct, but for expressing personal views or declining to endorse political positions.
To help Canadians take action, the Justice Centre has created an online tool with a ready-to-send letter that goes directly to the provincial representatives responsible for the relevant legislation. All the user needs to do is select their province and enter their information, and the tool automatically delivers the letter to the appropriate recipient.
The prepared letter outlines three essential legislative amendments:
- prohibiting regulatory bodies from pursuing political objectives;
- prohibiting regulators from monitoring or controlling the speech of their members; and
- prohibiting regulators from embedding political or ideological content into definitions of competence and ethics.
Alberta is the first province to take meaningful steps toward addressing this growing problem. Its proposed legislation, called the Regulated Professions Amendment Act, is designed to prevent regulators from compelling speech, advancing political objectives or embedding ideology into definitions of competence and ethics.
The Justice Centre encourages all Canadians to visit our website today to take action and help protect the independence of regulated professionals.
““He knows nothing; and he thinks he knows everything. That points clearly to a political career.” George Bernard Shaw
In the days immediately following Donald Trump’s rude intervention into the 2025 Canadian federal election— suggesting Canada might best choose American statehood— two schools of thought emerged.
The first and most impactful school in the short term was the fainting-goat response of Canadian’s elites. Sensing an opening in which to erode Pierre Poilievre’s massive lead in the 2024 polls over Justin Trudeau, the Laurentian elite concocted Elbows Up, a self-pity response long on hurt feelings and short on addressing the issues Trump had cited in his trashing of the Canadian nation state.
In short order they fired Trudeau into oblivion, imported career banker Mark Carney as their new leader in a sham convention and convinced Canada’s Boomers that Trump had the tanks ready to go into Saskatchewan at a moment’s notice. The Elbows Up meme— citing Gordie Howe— clinched the group pout.
(In fact, Trump has said that America is the world’s greatest market, and if those who’ve used it for free in the past [Canada] want to keep special access they need to pay tariffs to the U.S. or drop protectionist charges on dairy and more against the U.S.)
The ruse worked out better than they could have ever imagined with Trump even saying he preferred to negotiate with Carney over Poilievre. In short order the Tories were shoved aside, the NDP kneecapped and the pet media anointed Carney the genius skewing Canada away from its largest trade partner to the Eurosphere. We remain in that bubble, although the fulsome promises of Carney’s first days are now coming due.
Which brings us to the second reaction. That was Alberta premier Danielle Smith bolting to Mar A Lago in the days following Trump’s comments. Her goal was to put pride aside and accept that a new world order was in play for Canada. She met with U.S. officials and, briefly, with Trump to remind them that Canada’s energy industry was integral to American prosperity and Canadian stability.
Needless to say, the fainting goats pitched a fit that not everyone was clutching pearls and rending garments in the wake of Trump’s dismissive assessment of his northern neighbours. Their solution to Trump was to join China in retaliatory tariffs— the only two nations to do so— and to boycott American products and travel. Like the ascetic monks they cut themselves off from real life. Trump has yet to get back to Carney the Magnificent
And Smith? She was a “traitor” or a “subversive” who should be keel hauled in the North Saskatchewan. For much of the intervening months she has been attacked at home in Alberta by the N-Deeps and in Ottawa by just about everyone on CBC, CTV, Global and the Globe & Mail. “How could she meet with the Cheeto?”
Nonetheless conservatives in the province moved toward a more independence within Canada. Smith articulated her demands for Alberta to prevent a referendum on whether to remain within Confederation. At the top of her list were pipelines and access to tidewater. Ergo, a no-go for BC’s squish premier David Eby who is the process of handing over his province to First Nations.
It became obvious that for all of Carney’s alleged diplomacy in Europe and Asia (is the man ever home?) he had a brewing disaster in the West with Alberta and Saskatchewan growing restless. In a striking move against the status quo, Nutrien announced it would ship its potash to tidewater via the U.S., thereby bypassing Vancouver’s strike-prone, outdated port and denying them billions.
Suddenly, Smith’s business approach began making eminent good sense if the goal is to keep Canada as one. So we saw last week’s “memorandum of understanding” between Alberta and Ottawa trading off carbon capture and carbon taxes for potential pipelines to tidewater on the B.C. coast. A little bit of something for everyone and a surrender on other things.
The most amazing feature of the Mark Carney/Danielle Smith MOU is that both politicians probably need the deal to fail. Carney can tell fossil-fuel enemy Quebec that he tried to reason with Smith, and Smith can say she tried to meet the federalists halfway. Failure suits their larger purposes. Which is for Carney to fold Canada into Euro climate insanity and Smith into a strong leverage against the pro-Canada petitioners in her province.
Soon enough, at the AFN Special Chiefs Assembly, FN Chief Cindy Woodhouse Nepinak told Carney that “Turtle Island” (the FN term for North America popularized by white hippy poet Gary Snyder) belongs to the FN people “from coast to coast to coast.” The pusillanimous Eby quickly piped up about tanker bans and the sanctity of B.C. waters etc.
Others pointed out the massive flaw in a plan to attract private interests to build a vital bitumen pipeline if the tankers it fills are not allowed to sail through the Dixon Entrance to get to Asia.
But then Eby got Nutrien’s message that his power-sharing with the indigenous might cause other provinces to bypass B.C. (imagine California telling Texas it can’t ship through its ports over moral objections to a product). He’s now saying he’s open to pipelines but not to lift the tanker ban along the coast. Whatever.
Meanwhile the kookaburras of isolation back east continue with virtue signalling on American booze— N.S. to sell off its remains stocks — while dreaming that Trump’s departure will lead to the good-old days of reliance on America’s generosity.
But Smith looks to be wining the race. B.C.’s population shrank 0.04 percent in the second quarter of 2025, the only jurisdiction in Canada to do so. Meanwhile, Alberta is heading toward five million people, with interprovincial migrants making up 21 percent of its growth.
But what did you expect from the Carney/ Eby Tantrum Tandem? They keep selling fear in place of GDP. As GBS observed, “You have learnt something. That always feels at first as if you have lost something.”
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, his new book Deal With It: The Trades That Stunned The NHL And Changed hockey is now available on Amazon. Inexact Science: The Six Most Compelling Draft Years In NHL History, his previous 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 brucedowbigginbooks.ca.
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