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
From the X account of Andrew Scheer
Mark Carney spent his entire life promoting the carbon tax.
Now he’s trying to scam Canadians out of billions and to do it he’s put a whole crew together.
It could be the biggest con job in Canadian history. Only YOU can stop it! pic.twitter.com/1DyywsynBN
— Andrew Scheer (@AndrewScheer) February 22, 2025
From the Daily Caller News Foundation
By Newt Gingrich
In an amazing show of courage, Vice President J.D. Vance offered an intervention for some of our European allies.
That is the best way to think of the two historic speeches he made in France and Germany last week.
In Paris, Vice President Vance pledged the United States would do whatever it takes to lead the world in the development of Artificial Intelligence. He went on to assert that Europe’s automatic response to regulate technological change rather than adapt to it was doomed to fail.
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Vance warned the Europeans that the Trump administration would retaliate to protect American high-tech companies from being fined and regulated by the European community.
Then, Vance went to the Munich Security Conference. It is the annual meeting of European leaders concerned about defense and threats to peace. The Vice President shocked the Europeans by launching a frontal assault on the decay of their political system.
As Vance put it:
“But while the Trump administration is very concerned with European security and believes that we can come to a reasonable settlement between Russia and Ukraine, and we also believe that it’s important in the coming years for Europe to step up in a big way to provide for its own defense, the threat that I worry the most about vis-à-vis Europe is not Russia, it’s not China, it’s not any other external actor. And what I worry about is the threat from within, the retreat of Europe from some of its most fundamental values — values shared with the United States of America.”
He then went through a litany of specific complaints about the behavior of different European countries. They ranged from failing to control immigration, suppressing free speech, and Brussels seeking to control and define futures of independent countries such as Hungary and Romania.
The leading French newspaper, Le Monde (their equivalent of the New York Times) asserted that the American Vice President was declaring “ideological war on Europe.”
Le Monde was right. The European elites have been decaying for at least two generations. They hide behind their privileged status and take ideological positions that feel good but are destructive. Europe’s failures are devastating for most everyday Europeans.
I have personal knowledge about this. I have a Ph.D. in Modern European History – and I have lived in France, Germany, Belgium and Italy. As a young Army dependent, we were living in France when the French Army came back from Algeria, killed the French Fourth Republic and brought back General Charles de Gaulle to establish the Fifth Republic.
It is now the longest serving non-royal government in French history.
The European elites value each other’s opinions more than they value serving the people of Europe. The European elites live in a fantasy world of green policies that destroy industries and jobs, welfare policies which destroy the work ethic, and immigration policies which undermine the popular culture. They simply hope for a peaceful world without a strong military.
Meanwhile, state enforced speech codes protect Islamic extremists at the expense of local citizens.
The result has been a steady decline of European culture, economic development, and defensive capacity.
The Afghan Islamist who wounded more than two dozen people and killed a mother and her two-year-old daughter with a car two days before the supposed security conference signals the willful avoidance of reality at the heart of the elite European worldview.
To be clear, I admire European civilization. I believe America is far stronger and safer if Europe is healthy and capable of growing and defending itself.
I hope vice president Vance’s intervention at least starts European elites thinking about what must be done to revive their continent.
For more commentary from Newt Gingrich, visit Gingrich360.com. Also subscribe to the Newt’s World podcast.
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