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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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Eco-radical Canadian Cabinet minister resigns after oil deal approved

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From LifeSiteNews

By Anthony Murdoch

Steven Guilbeault, a Quebec MP who had formerly served as Justin Trudeau’s Minister of Environment, said he was leaving the Cabinet because his ‘climate’ policies were being abandoned.

One of Canada’s most radical environmentalist politicians has resigned from Prime Minister Mark Carney’s Cabinet.

Steven Guilbeault, until recently the Culture Minister, quit his position after the federal government struck a deal with the province of Alberta that relaxes environmental regulations and allows the construction of a new oil pipeline.

On Thursday, November 27, Guilbeault, a Quebec MP who had served as former Prime Minister Justin Trudeau’s Minister of Environment, said he was stepping down because his “climate” policies were being abandoned.

“This afternoon, it is with great sadness that I submitted my resignation to the Prime Minister as Minister of Canadian Identity and Culture and Minister responsible for Official Languages, Minister of Nature and Parks Canada, as well as his Lieutenant in Quebec,” he said in a statement.

“When I entered politics, it was because I had a deep conviction that I could make a difference in fighting climate change and protecting our environment. My commitment to leaving a better world for the future of our children and our planet remains unchanged.”

Alberta Premier Danielle Smith and Prime Minister Mark Carney signed on Thursday a memorandum of understanding (MOU) which will let Alberta build an oil pipeline to the coast of British Columbia. It also lessens tanker restrictions and allows Albertan oil to be sold on Asian markets. The pipeline still faces opposition from British Columbia’s ruling New Democratic Party government. 

The MOU agreement changes a host of other green-related initiatives that Guilbeault had a hand in, such as imposing an emissions cap on the oil and gas sector and new Clean Electricity Regulations. Under the deal, Alberta will be exempt from these radical environmental regulations.

Premier Smith has been battling Guilbeault over his extreme climate change policies for years now. She said of the recent MOU that, although it’s a “massive win for Alberta and Canada, we will still hold the federal government accountable for keeping their end of the bargain.”

“There’s a lot of work left to do so let’s roll up our sleeves and get the job done, Alberta!” she stated.

Smith has repeatedly defended Alberta from Trudeau-era climate regulations and asserted Alberta’s right to control its power grid, also promising the province will not be “transitioning away” from oil and natural gas. She had called on the then-prime minster to replace Guilbeault because he was too “extreme.” Last year, Smith blasted the Minister after he said the federal government would no longer fund road construction projects and instead funnel the savings to “climate change” projects.

Alberta does have support from the Supreme Court, however, which recently sided in favor of provincial autonomy when it comes to natural resources. The Supreme Court ruled that Trudeau’s law, C-69, dubbed the “no-more pipelines” bill, is “mostly unconstitutional.” This was a huge win for Alberta and Saskatchewan, who challenged the law in court. The decision returned authority over the pipelines to provincial governments, meaning oil and gas projects headed up by the provinces should be allowed to proceed without federal intrusion.

Guilbeault’s extreme eco-activist past

Guilbeault, under Trudeau’s watch, pushed a radical environmental agenda similar to the World Economic Forum’s “Great Reset” and the United Nations’ “Sustainable Development Goals.”

He was as extreme as they come for an environment minister, and his background shows a history of breaking the law for ideological aims. In 1997, he joined Greenpeace and served for a time as a director and then campaign manager of its Quebec chapter for a decade.

He was arrested many times for environmental protests, the most famous arrest coming after an incident in 2001 when he climbed Toronto’s CN Tower with British activist Chris Holden. The pair hung a banner saying “Canada and Bush — Climate Killers.”

Greenpeace is a group that advocates for population control in addition to calling for an end to all oil and gas.

His extreme ideals continued in his role as environment minister. He threatened Saskatchewan Premier Scott Moe, who said that his province would no longer collect a federally imposed carbon tax on electric heat in addition to natural gas, with arrest and jail.

While Minister of Environment, Guilbeault was hoped to create a new “global’ carbon tax applied to all goods shipped internationally that could further drive-up prices for families already struggling with inflated costs.

The reduction and eventual elimination of the use of so-called “fossil fuels” and a transition to unreliable “green” energy has also been pushed by the World Economic Forum – the globalist group behind the socialist “Great Reset” agenda – an organization in which Trudeau and some of his cabinet have been involved.

The reality of  Trudeau’s, and then Carney’s push, for so-called renewable energy showed itself just over a month ago when Alberta’s power grid faced near certain collapse due to a failure of wind and solar power.  

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Daily Caller

John Kerry Lurches Back Onto Global Stage For One Final Gasp

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From the Daily Caller News Foundation

By David Blackmon

John Kerry, one of the grandest and most persistent climate scolds of the 21stcentury, lurched back into the news this week when he was knighted by Britain’s King Charles, a prominent climate scold in his own right.

In fact, their shared efforts involving flying off on carbon-spewing private jets to lecture the masses to live smaller, more costly lives in the name of fighting climate change was the motivation for the award, as the King thanked Kerry for his “services to tackling climate change.” That seems to be a bit of a grammatical error, but when royalty is involved, no one really cares, do they?

“King Charles and I share the same point of view — that there’s an urgency to doing things,” Kerry told the Globe in an interview. “He’s been ahead of most folks on this from the time I can remember… He always had a commitment to nature.”

Unfortunately for the U.K.’s citizens, the Labour government’s “commitment to nature” mainly appears to involve covering thousands of acres of bucolic British farmland with massive solar arrays and felling thousands of forest trees to make home to big wind installations these days.

Projects like those – frequently forced by the central government on objecting rural communities – form the centerpiece of Secretary of State for Energy Security and Net Zero Ed Miliband’s program to deindustrialize the formerly formidable British economy.

That program – based on the shared philosophy of King Charles and Kerry – has sent the U.K.’s utility rates skyrocketing to the highest on earth. It has also rendered the former global power dependent on imports from foreign nations for its energy security, with China the most prominent among them.

Such are the fruits of the King Charles/Kerry “point of view.” Most would agree with Kerry’s statement that “there’s an urgency to doing things.” The problem is that pretty much everything he and the King have been doing in this realm across the first quarter of the 21st century leads inevitably to serfdom to the Chinese Communist Party.

In an interview with the Financial Times the same day, Kerry repeated much of the tiresome dogma of his alarmist religion, in the process excoriating President Donald Trump as a “denier” and calling U.S. corporate leaders cowards for straying from the narrative he and the King prefer.  “It is not that they don’t believe [in climate change] or they don’t want to move forward. They are just scared,” Kerry said of the corporate CEOs, adding, “The process of Donald Trump in the last months, coupled with the justice department, coupled with his vengeance programs, has scared… a lot of people.”

But a more believable alternative explanation for the shift away from the twin manias of ESG and DEI by many companies in recent years is that these corporate leaders have a fiduciary duty to maximize returns on capital to their investors. The problem for Kerry and his disciples is that the preferred alternatives they have advanced too often devolved into unprofitable boondoggles that fail to satisfy that duty. Kerry wants to place the entire blame on Trump – who, ironically, was recently honored by King Charles himself with an unprecedented second state dinner. But the truth is that shift started in earnest in 2023, when Joe Biden’s autopen was still in charge of the ship of American state.

That shift has certainly accelerated this year, as companies have been freed from the incessant hectoring of the Biden government and are now being denied access to the ruinous green subsidies from the IRA that so radically distorted energy markets. This has little to do with climate denialism or cowardice and much to do with sound business practice and CEOs properly carrying out the mandates of their high positions. No amount of hyperbolic talking points from Kerry or the King can change that reality.

In the end, Kerry’s remarks come off as a lot of sound and fury signifying nothing. Now in the twilight of his career, he has become a relic, a totem of a fading global religion whose end cannot come soon enough.

David Blackmon is an energy writer and consultant based in Texas. He spent 40 years in the oil and gas business, where he specialized in public policy and communications.

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