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UPDATED: SNC Lavalin – Just the Facts Ma’am

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10 minute read

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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Energy

Mistakes and misinformation by experts cloud discussions on energy

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From the Fraser Institute

By Jason Clemens and Elmira Aliakbari

The new agreement (MOU) between the Carney and Alberta governments sets the foundation for a pipeline from Alberta to the British Columbia coast, at least conceptually. Unfortunately, many politicians and commentators, including the bureau chiefs for the Globe and Mail and Toronto Starcontinue to get many energy facts wrong, which impairs the discussions of how best the country can and should move forward to capitalize on our natural resources.

For example, commentors often wrongly describe the tanker ban on the west coast (C-48) as a general ban on oil tankers. But in reality, the law only applies to tankers docking at Canadian ports. It does not and cannot prevent tankers from travelling the west coast so long as they’re not stationing at Canadian ports. This explains the continued oil tanker traffic in the northwest region for tankers docking in U.S. ports in Alaska. Simply put, there is not a general tanker ban on the west coast.

Commentators also continue to misrepresent the current capacity on the expanded Trans Mountain pipeline (TMX). According to the Canada Energy Regulator (CER), the average utilization of the TMX since it came online in June 2024 is 82 per cent (reaching as high as 89 per cent in March 2025). So, while there’s some room for additional oil transportation via TMX, it’s nowhere close to the “doubling” being discussed in central Canada. Critically, though, according to the CER, from “June 2024 to June 2025, committed capacity was effectively fully utilized each month, averaging 99% utilization.”

Similarly, there’s a misunderstanding by many in central Canada regarding the potential restart of the Keystone XL pipeline, which apparently President Trump is keen on. Keystone would not diversify Canada’s exports because while oil does make its way down to the southern U.S. where it can be exported, the actual sale of Canadian oil is to U.S. refineries, so our reliance on the U.S. as our near-sole export market would continue unless a west and/or east coast pipeline is developed.

There also continues to be an artificial and costly connection made between Ottawa removing the arbitrary emissions cap on greenhouse gases by the oil and gas sector and the approval of a new pipeline with the proposed Pathways carbon capture project, which is a collaboration between five of Canada’s largest oil producers. This connection was galvanized in the MOU.

The idea behind the project is to reduce (conceptually) the amount of greenhouse gas (GHG) emitted from oil extraction and transportation projects linked with Pathways. The Pathways project produces no economic value or product—it simply collects and stores GHG emissions—and reports suggest the total cost for the first phase of the project will reach $16.5 billion.

Should Canadians care about adding costs related to GHG mitigation? There are several factors to consider. First, Canada is already a low-GHG emitting producer of oil. According to the Carney government’s first budget (page 105, chart 1.5 which ranks the world’s 20 top oil producers based on their GHG emissions per unit of output), Canada already ranks 7th-lowest in terms of emissions. And more importantly, it’s lower than every country—Venezuela, Russia, Iraq and Mexico—that produces a similar type of oil as Canada. Any resources spent further reducing GHG emissions via carbon capture will result in small incremental gains contrasted with large costs (again, at least $16.5 billion). A number of analysts have already raised concerns about the investment and competitiveness implications of increasing the cost structures for Alberta producers.

Second, according to the federal government, in 2022 Canada produced 1.4 per cent of global GHG emissions, and the oil and gas sector produced roughly one-quarter of those emissions. In other words, if Canada eliminated all GHG emissions from the oil sector via carbon capture, the process would consume vast amounts of scarce resources (i.e. money) and result in a nearly undetectable change in global GHG emissions. One can only conclude that this is much more about international virtue-signalling than the actual economics and environmental implications of Canada’s potential energy projects.

At a time when Canada is struggling with crisis levels of private business investmentfalling living standards and as the Bank of Canada described, a break-the-glass crisis in productivity growth, it’s clearly not wise to spend tens of billions of dollars on projects that might make politicians and bureaucrats feel better and enable them to use near Orwellian language like “zero-emissions oil” but that actually deliver almost no detectable environmental benefits.

To borrow our prime minister’s favourite phrase, kickstarting Canada’s oil and gas sector is the easiest way to catalyze economic growth given our vast energy reserves, know-how in the sector, and high productivity. To do so, we need a national dialogue rooted in facts.

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Energy

Ottawa and Alberta’s “MOU” a step in the right direction—but energy sector still faces high costs and weakened competitiveness

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From the Fraser Institute

By Tegan Hill and Elmira Aliakbari

The Memorandum of Understanding (MOU) between Alberta Premier Danielle Smith and Prime Minister Mark Carney, which includes a new oil pipeline to BC’s northwest coast, offers some hope for Canada’s energy future. While this agreement is a step in the right direction, it puts Alberta’s energy sector on the hook to secure access to new markets while facing higher costs and reduced competitiveness.

Earlier this year, Smith demanded then-newly elected Prime Minister Carney repeal nine “bad laws” stifling oil and gas investment, which has collapsed by nearly 61 per cent in the province since 2014, falling from $64.7 billion to $25.4 billion in 2024 (inflation-adjusted).

One key policy on the list was the proposed federal emissions cap, which would have applied exclusively to the oil and gas sector. According to the MOU, Canada will not move forward with the cap, which is a welcome change. Indeed, multiple analyses showed that the cap would have inevitably resulted in a production cut, costing the economy billions and resulting in tens of thousands of job losses. And, with oil and gas demand continuing to climb, the cap would have shifted production to other countries with lower environmental and human rights standards such as Iran, Russia and Venezuela.

Scrapping the Clean Electricity Regulations (CER) was also one of Smith’s demands. While the MOU states that “Canada and Alberta remain committed to achieving net zero greenhouse gas emissions by 2050”, the CER as it applies to the province will be suspended for the time being. Again, this is a critical and positive change for a province where 85 per cent of its electricity comes from fossil fuels—a larger share than nearly any other province. (For perspective, in Quebec, over 85 per cent of its electricity comes from hydro.) The Alberta Electric System Operator (AESO) estimates it would cost $44 to $54 billion to decarbonize Alberta’s grid by 2041—a 30 to 36 per cent spending increasecosts that ultimately fall on consumers.

A third key policy on Smith’s list of nine bad laws was repealing Bill C-48, which banned large oil tankers off BC’s northern coast from docking in Canadian ports. According to the MOU, there may be a limited exemption to the ban. Specifically, it states that to enable the export of bitumen there may be an “appropriate adjustment.” The law effectively prevents Canadian producers from accessing Asia and other international markets. Crucially, the legislation applies only to tankers docking in Canadian ports—U.S. and foreign tankers continue to operate freely in the same waters accessing U.S. ports. In other words, the law exclusively hinders Canada’s competitiveness—creating a carve out for one pipeline will not fix this problem.

All of these policy changes or exemptions are conditional on stronger industrial carbon pricing and support for the massive multibillion-dollar Pathways project–a 400-kilometer pipeline transporting carbon trapped at oil facilities to an underground storage facility near Cold lake Alberta and led by a group of Canada’s five largest oil companies. Earlier this year, Alberta froze its industrial carbon tax at $95 per tonne through 2026, but the MOU states that the system will ramp up to a minimum price of $130/tonne. This will increase the cost of producing, processing and transporting oil, at a time when a surge in global oil production and downward pressure on oil prices is expected. Ultimately, this will widen the competitiveness gap between Alberta and many other jurisdictions, such as the United States, that do not have comparable carbon pricing in place.

The agreement is also conditional on the $16.5 billion (minimum estimate) Pathways project to capture, sequester and store carbon underground. Adding carbon capture technology would increase production costs by roughly US $1.2-$3 per barrel for oil sands mining operations and US $3.6-$4.8 for oil sands facilities that use steam. These higher costs further erode the province’s competitiveness and won’t help in attracting private sector investment.

The memorandum of understanding makes some important strides for Canada’s energy future and is certainly an improvement on the status quo, but it still leaves Alberta’s energy sector facing higher costs and weakened competitiveness, and more broadly doesn’t remove the many impediments to large-scale development of our oil sector.

Tegan Hill

Director, Alberta Policy, Fraser Institute

Elmira Aliakbari

Director, Natural Resource Studies, Fraser Institute
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