Criminal Prosecution

April 24th, 2017

On November 25, 2016, in a small office of Provincial Court in Toronto, and before a Justice of the Peace, a series of criminal proceedings were commenced against certain of the leadership of the Canadian Standards Association (CSA).

RestoreCSA was there, it was our submission.

The prosecution filing, technically a Form 2 (from Sections 506 and 788 of the Criminal Code), begins as follows;  “The Informant intends prosecution of the following persons under Criminal Code sections 46.2(b) and (e), 46.3(b), 46.4.4, 120, 121(1), 122 and section 463”.

It was a long road to that signing.  The Court documents alone, just under five-hundred pages of them, took eight months of preparation.  The evidence is overwhelming, and voluminous, hence the heft.

The other problem was process.  Criminal prosecutions are almost always initiated by governments.  While citizens can indeed launch prosecutions, the process is so seldom used, and is so arcane in practice, that seemingly countless hours of research went into document preparation to ensure acceptance by the Court.

Still, with time and effort, the filing was signed and accepted.  And it’s fairly straightforward in delivery, dealing with each of the allegedly breached sections of the Criminal Code, by Code number, with the particulars following for each item thereafter.  That said, it’s all in legalese.

For instance;  “The Informant believes on reasonable grounds that during the third and fourth quarters of 2014, the above noted Subject Persons did violate Section 46(2)(b) without lawful authority, by communicating and making available to citizens, corporations and other entities of states other than Canada, scientific information and sketches, plans, articles, notes and documents of scientific character detailing the technical electrical engineering and wiring, both in place and planned for installation, that they knew or ought to have known may be used by those states for purposes prejudicial to the safety or defense of Canada”.

The filing features acres of ink on the particulars of charges.  Sparing you the drudgery of the lot of them, the highlights include as follows;

“The Informant believes on reasonable grounds that during the third and fourth quarters of 2014, the above noted Subject Persons did violate Section 120 by taking money in payment to influence domestic legislative processes in the amendment of provincial and Federal law [and] did violate Section 121 by taking financial payments as consideration for cooperation, assistance, and exercise of influence in connection with the transaction of business with, and matters of business relating to, the government [and] did violate Section 122 in connection with the duties of their offices, by committing fraud and breach of trust by taking the actions mentioned in 1.2 and described in detail below [and] did violate Section 46(2)(e) by conspiring with other persons and entities to take the actions mentioned in 1.2 and formed an intention to take the actions mentioned in 1.2 and manifested that intention by the overt acts mentioned in 1.2 and described in detail below.  […]”  And so on, charge by charge, for nine paragraphs.

Stripping the legal language, four CSA leaders (one executive, one manager, and two Board members) are Subject Persons of a private prosecution filing for their roles in CSA’s selling of influence over domestic legislation, most egregiously to foreign corporate interests (Sec. 46), and some of the financial benefits CSA enjoyed for doing so, and some of the specific acts of having done so.

Any one of these charges is a big deal; as a whole, they’re devastating.

The CSA’s leadership and governance is now facing what we warned about four years ago.  Back then, the National Post did a cover story on the CSA scandal, referencing our discussions with the Department of Justice on “whether the sale of […] votes to foreign entities violates the Criminal Code section on treason.”  You read that right, Section 46 is our treason law.

One year later, in March of 2014, we again warned of the consequences of flouting Canada’s treason laws.  The article was blunt; it was titled “Fourteen Years of Imprisonment.”

The CSA’s communications officer, Anthony Toderian, was interviewed for the National Post article, and his response was most amusing.  He said “It’s simply not possible for us to […] give influence over the Canadian Electrical Code [“CEC”] to anybody”.  Of course, the CSA published a list of everyone that they’d given influence to, the list is found in the first pages of the CEC.  Their admission was published, distributed; it’s pointless denying it.  Given Toderian’s record of pronouncements, perhaps he didn’t know, or perhaps he didn’t research before responding.  Either way, they’re deep in it now.

Like all such legal filings, this one contains the obligatory background and legislative basis in a paragraph by paragraph legal narration.  Some points are highlighted more than others, especially those susceptible to abuse by excuse by the usual suspects.

For example;  “Every jurisdiction in Canada, without exception, has passed the Canadian Electrical Code into law.  The Provincial and Territorial Acts passing the Canadian Electrical Code into law are attached (see Appendix XVIII).”

And again;  “The Statutory Instruments Act defines a law as any text that;  1) is incorporated into / passed as legislation by a legislative body;  2) requires compliance with the particulars of such text within the jurisdiction of that legislative body, and;  3) prescribes penalties for non-compliance.”

And again:  “The Canadian Electrical Code, as passed into law by legislative bodies throughout Canada, meets all of the requirements of the Statutory Instruments Act for definition as law.”

Get the idea?  Killing off CSA’s excuse that the law isn’t really the law means that one has to hammer it.

“Electrical law in Canada is enforced by municipalities, by provincial governments and, on crown land and Federal holdings in foreign lands (military installations, embassies, etc.), by the Federal Government directly.”

And again; “Throughout Canada, any electrical wiring installation of any size or significance under the definitions within the Canadian Electrical Code must be made in compliance with that law.”

And again;  “[…] the physical installation of such wiring must be conducted under municipal or provincial permit stipulating compliance with electrical law.  Further, once completed, electrical installations must be inspected by municipal, provincial or Federal officials to certify compliance with electrical law.  Non-compliance is not legal.  Various penalties for non-compliance apply, depending on jurisdiction, from fines to imprisonment.”

And the nail in it; “The Canadian Electrical Code is therefore defined as law, is passed into law, is referenced as law, is treated as law, and is enforced as law.  At law, electrical law is law.”

And then the dig;  “The definition of law is unaffected by its non-recognition by CSA.”

The big irony?  In the months since this filing, the CSA quietly dropped their claim that the CEC isn’t the law.  It seems they got humiliated in Court on this claim once too often. 

Having established that the law is in fact, and in practice, the law, the filing turned to CSA’s treatment of the law.

Specifically, the filing highlighted the CSA practice of facilitating foreign interests to influence the legislative amendment process.  We noted that CSA has not been empowered with “Federal authorization [to] furnish influence to foreign persons or entities.”  And that’s quite right, we verified this absence of authority in a series of communications with the Department of Foreign Affairs in August of 2013. 

Then we excerpted CSA’s own admission of furnished influence, from CEC pages 8 – 17 (or pages X-XXVI, if you’re still using CSA’s version).  From this, we noted that;

“Among those influencing and directing legislative processes during the 2012-15 amendment cycle, there are 48 non-citizens of Canada and those representing foreign corporate interests, special interest groups, or governments.  These non-citizens and foreign entities are resident in the Bahamas and in 13 different States of the United States of America”.

Of course, the CSA doesn’t merely furnish influence to foreigners, though that’s enough to prosecute.  But it’s worse, and as we put it, “the CSA compounds the offence by selling that influence.”

That’s a big accusation, so we carefully outlined the argument and buttressed with masses of evidence.  The CSA’s been sloppy, there is no shortage of evidence.  And we hammered that too.

“Voting rights at CSA are purchasable for as little as $2,000.  As with most cases of influence peddling, the more one is willing to pay, the more influence one will get.  The CSA uses tiered memberships to assign levels of pricing to levels of influence.”

Then we referenced the screen captures of CSA’s website advertising of votes for dollars.

“Specifically, if one pays enough to become a ‘Level 1 member,’ then one is ‘entitled to 2 votes.’  If one pays double that amount to CSA, then one is ‘entitled to 4 votes.’  If one pays more than $6,000 per year, then one becomes a ‘Level 3 member’ and is ‘entitled to 8 votes’.” 

We also chronicled this CSA practice on RestoreCSA here, and here, and here.

The CSA dollars-for-votes webpages, by the way, were deleted right after we reported them.  We chronicled that too, in an article about evidence destruction.  And CSA kept covering their tracks, so we kept reporting it.  But, back to the prosecution filing….

“There is no ceiling on payment value, ‘more than’ can be a very large figure indeed.  Like an auction, the amount CSA charges for influence varies based on capacity to pay and the value of competitive advantage gained against one’s commercial opponent in crafting the laws that the opponent will have to comply with.”

We extensively quoted from CSA’s own advertisements, as;

“If one pays CSA to be in the top tier, one receives ‘access to key standards information’ and ‘quick access to CSA staff’ through the use of a ‘special unlisted telephone number.’  In function, paying CSA enough money means that one gains non-public access to the legislative process, the working papers in the drafting of legislation made available during that drafting process, and secret access to the persons who actually draft the legislation during their drafting process”.

Regular readers will recall that successive governments have granted CSA powers to amend legislation without Parliamentary review, the so-called “accepted-as-amended” powers.  This means that CSA’s committees aren’t merely drafting text for potential inclusion within law, they’re actually amending legislation itself.

“CSA committees are therefore also amending existing legislation external to legislative review or vote.  In this, the unauthorized foreign influence on CSA committees are paying to directly amend domestic laws to their liking without democratic oversight.”

That’s a big no-no.  Democratic society is incompatible with the practice of legislation drafted by persons external to that society and unaccountable within that society.  This is a basic of civics, and a very, very, big prima facie breach of criminal law.

And it’s not like CSA can deny the evidence.  The Canadian Electrical Code, the CEC, is distributed nationwide, with 60,000 copies released in a single Code cycle.  The CSA’s admission of conduct, printed in every copy of the CEC, is “therefore very substantial and unambiguous, very public and very well broadcast.”

Specific legal baselines for the five most serious charges are as follows;

Sec. 46.2(b)

Quoting Sec.46.2(b); “Every one commits treason who, in Canada, […] without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character [that] may be used […] for a purpose prejudicial” to Canada. 

“All private working papers (documents, notes, articles, etc.) related to legislation controlled by the CSA are necessarily available to the foreigners on the committees that amend those laws.  The laws in question are electrical laws, dealing with matters of electrical engineering and are therefore scientific and technical in their nature.  Moreover, the laws controlled by the CSA are, in the main, laws governing the safety of the Canadian people.  Further, foreign commercial interests are intrinsically at variance with Canadian commercial interests, inasmuch as our corporations compete against theirs.  In this, it appears that every component category within Section 46.2(b) is met in CSA conduct.”

Sec. 46.2.(e)

Quoting Sec.46.2.(e); Every one commits treason who “conspires with any person to do anything mentioned in [Sec.46.2.(b), as above] or forms an intention to do anything mentioned [above] and manifests that intention by an overt act.” 

“The four persons identified in this action were responsible for authorizing the process of amending electrical law, including the persons influencing or controlling those amendments, and for managing the process of amending electrical law, including the management of foreign persons drafting those amendments.”

Sec. 120

Quoting Sec. 120; “Every one is guilty of an indictable offence […who] directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment with intent (i) to interfere with the administration of justice”.

“While having been tacitly permitted to behave as a private entity, the CSA legally remains a Government chartered Agency of Industry Canada reporting to the Minister of Industry through the Standards Council of Canada.”

“The CSA annually receives sizeable funding from the Federal Government for the legislative activities described above, the amendment of the Electrical Code being a typical example.  In the last year for which calculated subsidies are available, the CSA received $5,623,998.30 from Canadian governments and government agencies during 2012.  In this, the CSA remains functionally a Government Agency and is, through the actions described above, taking additional and illegitimate payments on the side.”

“Electrical law is enforced throughout Canada and violations thereof are punishable at law in both civil and criminal proceedings.  Amendments to domestic electrical law alters what is, and what is not, legally enforceable.  Large multi-year construction projects may be governed by multiple amended versions of electrical law.  In this, furnishing influence over electrical law alters the profile of legal culpability in construction projects while those projects are underway.”

Sec. 121(1)

Quoting Sec. 121(1)(c);  “Every one commits an offence who (c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official.”

“There is no evidence that CSA has at any time received ‘consent in writing’ for their practice of accepting ‘commission, reward, advantage or benefit’ in trade for furnishing influence over domestic legislation.”

Quoting Sec. 121(1)(d);  Every one commits an offence who “having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with (i) anything mentioned in subparagraph (a)(iii) or (iv)”.

“The CSA rightfully and publicly claims influence with the government in that their role in drafting legislation is longstanding (since 1927) and uninterrupted (89 years).”

Sec. 122

Quoting Sec. 122;  “Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.”

“The CSA’s Government mandated role in drafting legislation and its Government charter necessarily makes CSA ‘an official’ of Government.”


The filing closed by reiterating the power of precedent, a principle the Court knows very well.  We stated that this prosecution filing was the Court’s opportunity, in the face of CSA’s flouting of it, “to reassert the legitimacy and authority of Section 46 of the Criminal Code.”

Further, “should the Court decline to reassert the legitimacy of this Section, there is a high probability that such a decision will be reasonably interpreted as reclassifying as legal commercial undertakings that conduct formerly regarded as illegal, and will therefore be acted upon commercially by a variety of domestic and international entities.”

Or, more succinctly, if CSA is allowed to take bribes, then so can any public official, whether civil servant or politician.

And that isn’t tolerable in a democracy.

Indeed, we intend to be intolerant of CSA’s influence peddling practices, and we’re making it personal.  With this filing, we are going beyond the corporate badge of this public Agency, we’re introducing legal accountability to CSA’s management, its leadership and its governance.  We’re shortly to make similar introduction to CSA’s committees. 

We believe the case is clear, incredibly clear.  We believe that CSA is operating outside the law.  In this, we’re endeavoring to hold CSA personnel responsible for crimes they used their authority to commit.

We are doing our part to drag this government, kicking and screaming in self interested protest, into compliance with law and into respectable and contributory membership in civil society.

—————

Next week:  The first Court Hearing on CSA prosecution – what happened, and what happens next.