Tuesday 17 April 2012

Loren Berenda, Greg Gillispie, Cynthia Vanier, SNC-Lavalin...And the curse of the NDA

In the ongoing effort to find out the truth with regard to the alleged plot to smuggle Saadi Gaddafi – fallen Libyan dictator Muammar Gaddafi’s third son – and his family from North Africa to Mexico, non-disclosure agreements, or “NDAs”, have kept people's mouths shut.

They have also let speculation run rampant. Why? Because NDAs can be so rigorous they might result in serious legal implications if they are even mentioned.

We have known since this story broke that Cynthia Vanier, through her company Vanier Consulting, was contracted by the Canadian engineering giant SNC-Vanier to conduct a fact finding mission in Libya last July.

We know that she also intended to do further work for SNC-Lavalin – which had booked hundreds of millions of dollars in business with Libya’s Gaddafi regime – to address possible employee re-integration when the dust settled.

And we have always known that a lot of money was being spent on airplanes.

How much money did SNC-Lavalin pay Ms. Vanier? Sorry, that’s still a secret. The reason for not saying appears to be twofold: it is part of Ms. Vanier’s defense strategy, and the information may be under an NDA.

However, perhaps given that SNC-Lavalin has taken an extreme, and surely indefensible, position – namely that Vanier Consulting had no contract with the company because the executive who signed the agreement, controller Stephane Roy, was acting outside its code of ethics – Ms. Vanier has decided to be more forthcoming.

We know now, courtesy of the CBC, that Vanier Consulting had a retainer account in which SNC-Lavalin deposited more than $1 million. We also know – thanks partially to Greg Gillispie, who handled the plane contracts, but now also via Ms. Vanier – that a nine month, $3 million aircraft leasing deal was in the works.

If this information had been revealed at the outset, it would have eased speculation, which has now been ramping for five months, as to where Ms. Vanier was getting all the money to cover the cost of private jets.

As it stands, the damage is done, with the Mexicans now theorizing that Ms. Vanier may have been financed by other sources, too.

Non disclosure agreements - less information, more suspicion

The same is true for Greg Gillispie. Mr. Gillispie has told La politica that he was working on a deal to supply close protection for a Mexican politician and his family, and that this arrangement has been confused by the Mexican authorities with the alleged plan to move Saadi, his wife, and two young children to the St. Regis hotel in Mexico City.

“This was also obviously one of the times where NDAs were put in place,” Mr. Gillispie told La politica.   “Both for the protection of us and even more so for the individual who was seeking our help.  Obviously he does not want anyone down there to know that he can't even trust his own government to provide adequate security for his family who was at the time living in the States.” 

La politica and others have also sought comment from Loren Berenda. Mr. Berenda ran Envoy Expeditionary Service, a small company that apparently employed only himself and his wife.  He was the person whom Cynthia Vanier first contacted when looking for aircraft and close protection. He also travelled with her on her fact finding trip to North Africa in July, 2011.

But Mr. Berenda, it seems, is also constrained by an NDA.

“Your work is comprehensive,” Mr. Berenda told La politica in an email.   “However, I am not in the position to make expanded statements in fear that any individual comment might disrupt ongoing domestic or international investigations and/or violate Non Disclosure Agreements between me and various entities. “

The discussion of NDAs can make journalism difficult, and can make it hard for people like Mr. Gillispie, Mr. Berenda, and Ms. Vanier, to defend themselves. However, it can also be used as an excuse, and is certainly no barrier to a police investigation. Nor can an NDA be used as a vehicle to avoid legal liability if crimes are committed.

To attempt to determine how all this works in Canada, La politica reached out to the RCMP.  

David Falls, a Media Relations Officer with the RCMP, made the following statement:

Further to our conversation yesterday, the existence and contents of a non-disclosure agreement (NDA) between private parties might come to the attention of the police through several ways:

* If the NDA is provided to the RCMP by anyone, we can collect it.

* If the parties tell us "we have an NDA", we can note this.

* If the NDA is held in private files where there is a reasonable expectation of privacy in the circumstances, a search warrant can be used to enter private premises to obtain it, if the NDA is relevant to the investigation of a criminal offence.

* If the NDA is in the custody of a third party and we need to get a copy of it for our investigation of a criminal offence, we can request a Production Order under CC section 487.012 if the third party will not routinely provide us with it.

These represent reasonable limits to search and seizure, which are easily overcome by a police force with an interest in determining the facts of a relationship. As well, it is La politica’s understanding that an individual could not hide from the police whether or not he or she had an NDA, or whomever it was with.

Which is to say, under questioning the police could determine whether or not a person had an NDA, and then with whom. From there, they could get a search warrant to secure access.

Given the heat that is now being put on SNC-Lavalin, with the RCMP raiding its offices in Montreal, one might assume that the truth will come out, because any NDA resident in those offices is now in their hands, assuming it didn't hit the shredder long ago.

The RCMP’s glacial response has made this a much more difficult nut to crack, with SNC-Lavalin’s departed executive VP, Mr. Riadh Ben Aïssa, who was Stephane Roy’s boss and who is implicated in $56 million in undocumented payments, having now apparently made good his escape from Canada, and cooling his heels in his home town of Tunis, Tunisia.

(TE Wilson is the author of Mezcalero, a Detective Sánchez novel.)

Twitter: @TimothyEWilson
Email: lapoliticaeslapolitica [at] gmail [dot] com

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  1. Hello Timothy,

    thank you for this. It answer some questions for me.

    Aye, a slip of the lip, will sink a ship.

    I find it really amazing that a company that deals in mega-projects in many countries, the contracts signed by their executives can be declared void, because the executive who signed can be made to be outside their legal authority to do so.

    So, when Stephane Roy went to Mexico to talk with Mexico's major water utility, I wonder if that outside of his legal authority?

  2. Regarding NDA's, which I know zip about: Are they perpetual, like forever and a day? Who is the authorized signatory? And does the signatory continue to have the corporate power to bind them?

  3. Why would the Star run with an article today? The only 'news' is that it was Peters statement to the RCMP which lead to the indictment of Vanier, both of which the Star has obtained. (The Star has obtained Peters’ statement to the RCMP, which was taken on Jan. 18. On Feb. 1, Vanier was formally arrested. The indictment, sections of which have also been obtained by the Star, refers to this document repeatedly.) And I notice the Star is no longer describing Peters as x-Aussie military, because there is nothing to back that up except Peters twitter acc't saying he has a VA card, a reg # and a Pension as well as his Security website saying he is a graduate. It was the RCMP who told Peters he couldn't bring Gadaffi to Canada, that would be illegal so he dropped the 'mission' and instead Peters took Gadaffi to Niger; so Peters/RCMP had a previous relationship. And why is the Star and the RCMP just accepting that Peters version of events is the correct one? It seems everything stems from his police statement. His public statements otoh vary widely. Peters is nowhere to be found and again it seems that Peters is being protected by the RCMP. Why? Just thinking out loud.

  4. Peters has resurfaced. La politica has even been in touch with him, but he doesn't want to comment. I guess, in a way, that's the news - Gary Peters is ok and talking (we had heard he might have had health problems).

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  6. Are NDAs effectively canceled once they have been the object of a production order? How is it possible that an NDA can trump an individual's attempt to defend themselves from serious charges in a court of law? Or, in Vanier's case, is the NDA being used as an excuse for her to remain silent?