SUPREME COURT OF CANADA Citation: R. v. Boulanger, 2006 SCC 32 p1..
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SUPREME COURT OF CANADA
Citation: R. v. Boulanger, 2006 SCC 32
Date: 20060713
Docket: 30853
Between:
Denis Boulanger
Appellant
and
Her Majesty the Queen
Respondent
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella
and Charron JJ.
Reasons for Judgment:
(paras. 1 to 68)
McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps, Abella and
Charron JJ. concurring)
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
______________________________
r. v. boulanger
Denis Boulanger
Appellant
v.
Her Majesty The Queen
Respondent
Indexed as: R. v. Boulanger
Neutral citation: 2006 SCC 32.
File No.: 30853.
2005: December 16; 2006: July 13.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps,
Abella and Charron JJ.
on appeal from the court of appeal for quebec
Criminal law - Breach of trust by public officer - Elements of
offence - Whether accused's actions rose to level of seriousness
required to establish actus reus of offence - Whether accused
intended to use public office for purpose other than public good -
Criminal Code, R.S.C. 1985, c. C-46, s. 122.
Following a car accident involving his daughter, the accused, the
director of public security, asked the officer in charge of the case to
prepare a second, more complete accident report. The supplementary
report led to the conclusion that his daughter was not at fault, with
the result that the accused did not have to pay the insurance
deductible of $250. He was charged with the offence of breach of trust
by a public officer under s. 122 of the Criminal Code. The trial judge
convicted the accused on the basis that he had used his office to
obtain a personal benefit. A majority of the Court of Appeal upheld the
conviction.
Held: The appeal should be allowed and an acquittal entered.
The offence of breach of trust by a public officer is established where
the Crown proves beyond a reasonable doubt that: (1) the accused is an
official; (2) the accused was acting in connection with the duties of
his or her office; (3) the accused breached the standard of
responsibility and conduct demanded of him or her by the nature of the
office; (4) the accused's conduct represented a serious and marked
departure from the standards expected of an individual in the
accused's position of public trust; and (5) the accused acted with
the intention to use his or her public office for a purpose other than
the public good, for example, a dishonest, partial, corrupt, or
oppressive purpose. [58]
Here, the offence was not made out. The accused is an official and, in
asking a subordinate officer to prepare a supplementary report, he was
acting in connection with the duties of his office. He was also
pursuing a personal interest contrary to the Code of ethics of Québec
police officers, which requires him to perform his duties
disinterestedly. While this may be enough to bring the accused within
the ambit of disciplinary action, it does not necessarily establish the
criminal offence of breach of trust by a public officer. The facts, as
found by the trial judge, raise a reasonable doubt that the accused had
the mens rea necessary for conviction under s. 122. The trial judge
found that the officer's report accorded with the preponderance of
evidence relating to the accident, that it was not falsified, and that
the accused did not ask or obtain a supplementary report with the
intent of misleading the insurance company. Although the accused knew
he would benefit from the officer's report, this alone does not
establish a culpable state of mind. The accused's intention was to
have the officer make a complete report, not to skew it in one
direction or another. In addition, it is clear that the actus reus was
not made out. While the proper course of conduct would have been for
the accused to have his insurer communicate directly with the officer,
the accused's course of action does not represent a marked departure
from the course of action he should have taken. Rather, as the trial
judge put it, his conduct was simply an error in judgment. In view of
all the circumstances, the accused's actions do not rise to the level
of seriousness required to establish the actus reus of the offence.
[61-67]
Cases Cited
Referred to: Case 136, Anonymous (1704), 6 Mod. 96, 87 E.R. 853; R. v.
Bembridge (1783), 3 Dougl. 327, 99 E.R. 679, 22 Howell's State Trials
1; R. v. Young (1758), 1 Burr. 557, 97 E.R. 447; R. v. Williams (1762),
3 Burr. 1317, 97 E.R. 851; R. v. Borron (1820), 3 B. & Ald. 432, 106
E.R. 721; R. v. Wyat (1705), 1 Salk. 380, 91 E.R. 331; R. v. Kennett
(1781), 5 Car. & P. 282, 172 E.R. 976; R. v. Pinney (1832), 5 Car. & P.
254, 172 E.R. 962; R. v. Hollond (1794), 5 T.R. 607, 101 E.R. 340; R.
v. Llewellyn-Jones (1966), 51 Cr. App. R. 4, aff'd (1967), 51 Cr.
App. R. 204; R. v. Dytham (1979), 69 Cr. App. R. 387; Shum Kwok Sher v.
HKSAR, [2002] 5 HKCFAR 381; R. v. G, [2004] 1 A.C. 1034, [2003] UKHL
50; Attorney General's Reference (No 3 of 2003), [2004] 3 W.L.R. 451,
[2004] EWCA Crim 868; R. v. Arnoldi (1893), 23 O.R. 201; R. v. McMorran
(1948), 91 C.C.C. 19; R. v. Campbell (1967), 3 C.C.C. 250, aff'd
(1967), 2 C.R.N.S. 403; Leblanc v. The Queen, [1979] C.A. 417, aff'd
[1982] 1 S.C.R. 344; R. v. Hébert, [1986] R.J.Q. 236; Perreault v. The
Queen (1992), 75 C.C.C. (3d) 425, leave to appeal refused [1993] 1
S.C.R. viii; R. v. Fisher (2001), 139 O.A.C. 96; R. v. Power (1993),
122 N.S.R. (2d) 110; R. v. Pilarinos (2002), 168 C.C.C. (3d) 548; R. v.
Creighton, [1993] 3 S.C.R. 3; R. v. Rajic (1993), 80 C.C.C. (3d) 533;
R. v. Hundal, [1993] 1 S.C.R. 867.
Statutes and Regulations Cited
Code of ethics of Québec police officers, (1990) 122 G.O. 28, 1760, s.
9.
Criminal Code, 1892, S.C. 1892, c. 29, s. 135.
CrJuly 13, 2006iminal Code, S.C. 1953-54, c. 51.
Criminal Code, R.S.C. 1985, c. C-46, ss. 118 "office",
"official", 121(1)(c), 122, 139, 220, 221, 334, 346, 380.
Authors Cited
Burbidge, George Wheelock. A Digest of the Criminal Law of Canada
(Crimes and Punishments). Toronto: Carswell, 1890.
Canada. House of Commons. House of Commons Debates, vol. II, 1st
Sess., 32nd Parl., January 19, 1954, p. 1274.
Canada. House of Commons. House of Commons Debates, vol. XXXIV, 2nd
Sess., 7th Parl., April 12, 1892, p. 1312.
Canada. Senate and House of Commons. Bill No. 7, An Act respecting
the Criminal Law, 2nd Sess., 7th Parl., 1892 (2nd reading, 9th March
1892).
Finn, Paul. "Official Misconduct", [1978] 2 Crim. L.J. 307.
Great Britain. Royal Commission on the Criminal Code. Report of the
Royal Commission on the Criminal Code (Eng.) 1880 and Imperial Criminal
Code and criminal bills. London: H.M.S.O., 1888.
Mewett, Alan W. "The Criminal Law, 1867-1967" (1967), 45 Can.
Bar Rev. 726.
New Oxford Dictionary of English. Oxford: Clarendon Press, 1998,
"partiality".
Stephen, Sir James Fitzjames. A Digest of the Criminal Law (Crimes and
Punishments), 4th ed. London: MacMillan and Co., 1887.
Stephen, Sir James Fitzjames. A Digest of the Criminal Law (Indictable
Offences), 9th ed. By Sir Lewis Frederick Sturge. London: Sweet &
Maxwell, 1950.
Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough,
Ont.: Carswell, 2001.
APPEAL from a judgment of the Quebec Court of Appeal (Pelletier,
Dalphond and Doyon JJ.A.) (2005), 29 C.R. (6th) 346, 2005 CarswellQue
622, [2005] Q.J. No. 798 (QL), 2005 QCCA 214, affirming a decision of
St-Cyr J.C.Q., [2003] Q.J. No. 4097 (QL). Appeal allowed.
François Beauvais, for the appellant.
Josée Grandchamp and Henri-Pierre Labrie, for the respondent.
The judgment of the Court was delivered by
The Chief Justice -
1. Introduction
1 The crime of breach of trust by a
public officer, embodied in s. 122 of the Criminal Code, R.S.C. 1985,
c. C-46, is both ancient and important. It gives concrete expression
to the duty of holders of public office to use their offices for the
public good. This duty lies at the heart of good governance. It is
essential to retaining the confidence of the public in those who
exercise state power. Yet surprisingly, the elements of this crime
remain uncertain. This appeal requires us to clarify those elements so
that citizens, police and the courts have a clear idea of what conduct
the crime encompasses.
2 The appellant was the director of
public security of the municipality of Varennes, Quebec. Following an
accident in which his daughter was involved, he asked the police
officer in charge of the case to prepare a second, more complete
accident report. The supplementary report led to the conclusion that
his daughter was not at fault, with the result that the appellant did
not have to pay the insurance deductible of $250. The question is
whether this conduct supports a conviction for breach of trust by a
public officer under s. 122 of the Criminal Code.
3 The trial judge convicted the
appellant on the basis that he had used his office to obtain a personal
benefit ([2003] Q.J. No. 4097 (QL)). A majority of the Court of Appeal
of Quebec confirmed the verdict ((2005), 29 C.R. (6th) 346, 2005 QCCA
214). Dalphond J.A., dissenting, would have ordered an acquittal on
the basis that the benefit obtained was not undue and that it had not
been established beyond a reasonable doubt that a reasonable person, in
full possession of the relevant facts, would necessarily conclude that
a breach of trust had occurred.
4 After analysing the elements of the
offence of breach of trust by a public officer, I conclude that the
appeal should be allowed and an acquittal entered.
2. Analysis
2.1 The Issue
5 Section 122 makes it an indictable
offence, punishable by up to five years in prison, for an official to
commit fraud or a breach of trust:
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.
An "official" is defined in s. 118 as a person who "holds an
office" or "is appointed to discharge a public duty". The term
"office" is defined broadly as including "an office or
appointment under the government", "a civil or military
commission" and "a position or an employment in a public
department".
6 It is clear that Mr. Boulanger is
an "official" under s. 122. It is also clear that in instructing
Constable Stephens to make a more complete accident report, he was
acting "in connection with the duties of his office" under s. 122.
The question is whether that act constituted a "breach of trust"
under s. 122.
7 Precisely what is required to
establish breach of trust under s. 122 is not clear from the Canadian
cases. Canada is not alone in this. As we shall see, other countries
which have inherited the common law offence of breach of trust by a
public officer have also wrestled with this question.
8 The Criminal Code does not inform
us of the elements of the offence. It simply sets out the common law
offence of breach of trust by public officers in general terms. The
purpose of the offence, the mens rea or guilty mind required for the
offence and the actus reus or conduct targeted by the offence remain
subject to conflicting decisions and conjecture.
9 These issues lie at the heart of
this appeal. In order to resolve them, we must look to the history of
the offence at common law and to how it has developed in Canada and
elsewhere.
10 I conclude that Parliament based s. 122
of the Criminal Code on the offence of misfeasance in public office, as
defined by Sir James F. Stephen, in Digest of the Criminal Law (4th ed.
1887), at p. 85, while choosing not to incorporate the different
offence, also recognized by Stephen, of neglect in public office. Much
of the confusion surrounding s. 122 stems from the failure to recognize
the difference between the two offences and from the fact that
Parliament adopted only one of them. Interpreting s. 122 as
incorporating the common law offence of misfeasance in public office, I
conclude that, on the facts found by the trial judge, the appeal should
be allowed.
2.2 The Common Law Offence
11 The modern Canadian offence of breach
of trust by a public officer can be traced to the common law offence of
"misbehaviour" or "misconduct" in public office. The first
mention of the offence, written in an age of judgments shorter than
ours, dates back to 1704:
Every publick officer is indictable for misbehaviour.
Per Curiam. If a man be made an officer by Act of Parliament, and
misbehave himself in his office, he is indictable for it at common law,
and any publick officer is indictable for misbehaviour in his office.
(Case 136, Anonymous (1704), 6 Mod. 96, 87 E.R. 853)
12 Lord Mansfield was to put flesh on the
bare bones of this emerging offence in R. v. Bembridge (1783), 3
Dougl. 327, 99 E.R. 679 (K.B.), the case which is often credited as
providing the seminal formulation of the offence (P. Finn, "Official
Misconduct", [1978] 2 Crim. L. J. 307, at p. 308). Bembridge, an
accountant in the paymaster's office of the British army, was charged
with misbehaviour in his office. The count on which he was convicted
charged that he, an officer in a "place and employment of great
public trust and confidence" had "wrongfully, unjustly, and
fraudulently" contrived to conceal omissions in the records and to
cheat and defraud the King.
13 Bembridge made a motion in arrest of
judgment on the ground that the matter was a civil injury that was not
indictable and for which there was no criminal precedent. Lord
Mansfield dismissed the motion and set out two basic principles which
supported the existence of the offence: first, "that a man accepting
an office of trust concerning the public, especially if attended with
profit, is answerable criminally to the King for misbehaviour in his
office"; and second, that "where there is a breach of trust, fraud,
or imposition, in a matter concerning the public, though as between
individuals it would only be actionable, yet as between the King and
the subject it is indictable". "Misbehaviour", "breach of
trust", "fraud" and "imposition" were not defined, however.
14 Lord Mansfield held that two elements
had to be made out: "first, that it was an office of trust ... and,
secondly, that the defendant in his office knowingly, and contrary to
his duty, concealed". He continued:
If the defendant knew of the omission, he must have applied to Powell
for explanation; and if he concealed it, his motive must have been
corrupt. That he did know was fully proved, and he was guilty
therefore, not of an omission or neglect, but of a gross deceit. The
object could only have been to defraud the public of the whole, or of
part of the interest. On the whole I have no doubt but that there was
sufficient evidence on both grounds. [p. 681]
15 In his charge to the jury, Lord
Mansfield emphasized the need to show corruption or fraud:
satisfied of. The first is, that this place of accountant in theFrom this charge, you see, there are two propositions for you to be
paymaster's office, is a place of public trust and confidence,
relative to the passing the accounts of the paymasters out of office,
that is, that it is a check upon those who pass the account of a
paymaster out of office, that they should be examined, controlled, and
surcharged before the auditor, by the accountant; that is the first
proposition of fact necessary for you to be satisfied of. The next
proposition in point of fact necessary for you to be satisfied of, is,
that these concealments were made by the defendant, Bembridge,
corruptly and fraudulently. If you are satisfied of these two facts,
you are then warranted to find the defendant guilty of the indictment,
in point of fact. [Emphasis added.]
(Reproduced in (1783), 22 Howell's State Trials 1, at p. 74)
16 This emphasis on a guilty mind in
Bembridge is consistent with an earlier pronouncement by Lord Mansfield
in R. v. Young (1758), 1 Burr. 557, 97 E.R. 447 (K.B.), which concerned
two justices of the peace accused of "arbitrarily, obstinately, and
unreasonably" refusing a licence to a tavern owner. In refusing the
information, Lord Mansfield underlined the distinction between error
and crime:
"But if it clearly appears that the justices have been partially,
maliciously, or corruptly influenced in the exercise of this
discretion, and have (consequently) abused the trust reposed in them,
they are liable to prosecution by indictment or information; or even,
possibly, by action, if the malice be very gross and injurious.
If their judgment is wrong, yet their heart and intention pure, God
forbid that they should be punished! and he declared that he should
always lean towards favouring them; unless partiality, corruption, or
malice shall clearly appear.
But it must be a clear and apparent partiality, or wilful misbehaviour,
to induce the Court to grant an information: not a mere error in
judgment. [Emphasis added; p. 450.]
17 The requirement of corruption was
affirmed in R. v. Williams (1762), 3 Burr. 1317, 97 E.R. 851, where
justices of the peace were accused of refusing to grant licences to
applicants who had voted for certain members of Parliament. According
to the case report:
And Lord Mansfield declared, that the Court granted this information
against the justices, not for the mere refusing to grant the licenses
(which they had a discretion to grant or refuse, as they should see to
be right and proper;) but for the corrupt motive of such refusal; for
their oppressive and unjust refusing to grant them .... [Emphasis
added; p. 851.]
18 A half-century later, in R. v. Borron
(1820), 3 B. & Ald. 432, 106 E.R. 721, a case concerning the conduct of
a magistrate, dishonesty and corruption remained defining
characteristics of the offence. Abbott C.J. made a critical
distinction between breaches of public duty arising from a dishonest,
oppressive or corrupt motive, which fall within the criminal offence,
and less serious mistakes or errors, which do not:
They [the Magistrates] are, indeed, like every other subject of this
kingdom, answerable to the law for the faithful and upright discharge
of their trust and duties. But, whenever they have been challenged
upon this head, either by way of indictment, or application to this
Court for a criminal information, the question has always been, not
whether the act done might, upon full and mature investigation, be
found strictly right, but from what motive it had proceeded; whether
from a dishonest, oppressive, or corrupt motive, under which
description, fear and favour may generally be included, or from mistake
or error. In the former case, alone, they have become the objects of
punishment. [Emphasis added; pp. 721-22.].
19 Bembridge, Young, Williams and Borron
were concerned with positive misfeasance (or malfeasance) - acts
committed with a corrupt, dishonest or oppressive intent. However,
around the same time, another branch of misconduct in public office
emerged. This branch concerned nonfeasance - the neglect of
official duties. In contrast to the offence of misfeasance in public
office, the offence of non-feasance did not require a specific intent
or mens rea. R. v. Wyat (1705), 1 Salk. 380, 91 E.R. 331 (K.B.),
advanced the proposition that "[w]here an officer neglects a duty
incumbent on him, either by common law or statute, he is for his
default indictable" (p. 332 (footnote omitted)). Neglect of duty was
also prosecuted in R. v. Kennett (1781), 5 Car. & P. 282, 172 E.R. 976,
and R. v. Pinney (1832), 5 Car. & P. 254, 172 E.R. 962, both of which
involved failure of officers to suppress a riot. In R. v. Hollond
(1794), 5 T.R. 607, 101 E.R. 340 (K.B.), the accused was similarly
charged with negligent performance of duties, but as Lord Kenyon noted,
the charge emanated from a specific statute which did not make
corruption an essential element of the offence.
20 Recognizing their distinct elements,
Sir James F. Stephen in his Digest of the Criminal Law (4th ed. 1887)
divided these branches into two distinct offences: "Frauds and
Breaches of Trusts by Officers" and "Neglect of Official Duty":
Article 121
FRAUDS AND BREACHES OF TRUST BY OFFICERS.
Every public officer commits a misdemeanor who, in the discharge of the
duties of his office commits any fraud or breach of trust affecting the
public, whether such fraud or breach of trust would have been criminal
or not if committed against a private person.
Article 122
NEGLECT OF OFFICIAL DUTY.
Every public officer commits a misdemeanor who wilfully neglects to
perform any duty which he is bound either by common law or by statute
to perform, provided that the discharge of such duty is not attended
with greater danger than a man of ordinary firmness and activity may be
expected to encounter.
21 Although Bembridge had dealt with
deliberate concealment and fraud, the principles referred to by Lord
Mansfield in dismissing the motion in arrest of judgment have sometimes
been cited as authority for the offence of neglect of official duty.
As a result, these two offences have often been treated as one, giving
rise to confusion over the distinct elements of each.
22 In particular, the failure to separate
these two offences has created uncertainty as to when the mens rea of
corruption, oppression or dishonesty must be made out. The English
Court of Appeal (Criminal Division) was faced with this question in R.
v. Llewellyn-Jones (1967), 51 Cr. App. R. 204. Llewellyn-Jones
argued that a count charging misbehaviour in public office had to
specifically allege fraud, dishonesty or corruption, as these were
essential elements of the offence at common law. The court declined to
answer the question, holding that dishonesty was implicit in the facts
as alleged.
23 This uncertainty soon resurfaced in R.
v. Dytham (1979), 69 Cr. App. R. 387 (C.A.). Dytham, a police officer
in uniform, was charged with misconduct of an officer of Justice after
having watched as an individual was kicked to death outside a night
club. He had done nothing to intervene, and had left the scene of the
crime. No dishonesty, corruption or oppression was alleged or implied.
24 Relying on Wyat and referring
specifically to Stephen's offence of "neglect of official duty"
(art. 145 in the 9th ed. 1950), Widgery L.C.J. concluded that Dytham
could be convicted for neglect of duty. However, presumably concerned
to maintain a mens rea appropriate to criminal sanction, he specified
that the neglect had to be wilful and not merely inadvertent. He
continued as follows:
This involves an element of culpability which is not restricted to
corruption or dishonesty but which must be of such a degree that the
misconduct impugned is calculated to injure the public interest so as
to call for condemnation and punishment. [p. 394].
Widgery L.C.J. did not specify whether the above characterization was
restricted to the "neglect of duty" line of cases upon which he
relied or whether his comments also applied to the cases dealing with
misfeasance in office, where corruption, dishonesty or oppression had
typically been required.
25 The confusion extended beyond England
to other parts of the Commonwealth. In Shum Kwok Sher v. HKSAR, [2002]
5 HKCFAR 381, the Court of Final Appeal of Hong Kong was called upon to
establish the elements of the common law offence of misconduct in
public office in order to determine whether it was consistent with the
rights guaranteed by the Basic Law. Sir Anthony Mason, formerly Chief
Justice of Australia, reviewed the history of the offence of
misconduct in office and determined that it comprised different types
of conduct, each of which required a different mental element: paras.
81-82. He then went on to impose, in all instances, an overriding
requirement of seriousness:
The second qualification which I attach to the elements of the offence
stated in the previous paragraph is that the misconduct complained of
must be serious misconduct. Whether it is serious misconduct in this
context is to be determined having regard to the responsibilities of
the office and the officeholder, the importance of the public objects
which they serve and the nature and extent of the departure from those
responsibilities. [para. 86]
26 Shortly thereafter, in light of the
unsatisfactory state of the law after Dytham and the reconsideration of
the concepts of "recklessness" and "wilful neglect" by the
House of the Lords in R. v. G, [2004] 1 A.C. 1034, [2003] UKHL 50, a
reference was directed to the English Court of Appeal (Criminal
Division) asking for clarification of the elements of the offence of
misconduct in a public office (Attorney General's Reference (No 3 of
2003), [2004] 3 W.L.R. 451, 2004 EWCA Crim 868 ("Attorney General's
Reference").
27 After reviewing Bembridge, Borron,
Llewellyn-Jones and Dytham, as well as Shum Kwok Sher, the Court of
Appeal held that misconduct in public office required a breach of duty
by the officer, consisting either in an act of commission or one of
omission, but that in either case, the conduct must be wilful. Wilful
misconduct was held to mean "deliberately doing something which is
wrong knowing it to be wrong or with reckless indifference as to
whether it is wrong or not" (para. 28), and recklessness to mean
"an awareness of the duty to act or a subjective recklessness as to
the existence of the duty" (para. 30). The recklessness test was
said to apply to the determination of whether a duty arises in the
circumstances, as well as to the conduct of the defendant if it does.
The subjective test would apply both to reckless indifference to the
legality of the act or omission and in relation to the consequences of
the act or omission: para. 30. The result was a unified offence that
incorporated both the former offences of public misfeasance and neglect
of official duty. However, in keeping with the development in recent
cases of the requirements of a criminal state of mind, simple neglect,
in itself, would no longer suffice. At a minimum, reckless indifference
was required.
28 Over and above these basic
requirements, the Court of Appeal endorsed the condition imposed in
Shum Kwok Sher that the misconduct at issue be serious misconduct:
[T]here must be a serious departure from proper standards before the
criminal offence is committed; and a departure not merely negligent but
amounting to an affront to the standing of the public office held. The
threshold is a high one requiring conduct so far below acceptable
standards as to amount to an abuse of the public's trust in the
office holder. A mistake, even a serious one, will not suffice. [para.
56]
29 In this way, the Court of Appeal sought
to ensure that the offence would apply only to truly criminal conduct.
2.3 History of the Offence in Canada
30 The failure to recognize the
distinction between the offences of misfeasance in public office and
neglect of official duty has also led to confusion in Canada. This
confusion first surfaced in R. v. Arnoldi (1893), 23 O.R. 201 (Ch. D.).
Arnoldi was the Chief Mechanical Engineer of the Department of Public
Works of Canada and was in charge of public dredging. His duties
included auditing accounts payable. Arnoldi hired his yacht and
storehouse for public purposes, registering them in the names of
friends to conceal the fact that he was the one being paid under the
contract. As auditor, he falsely certified that the accounts were
correct.
31 There was no suggestion that Arnoldi
was paid more than the fair price. It was therefore argued that no
offence had occurred because the public had not suffered any damage.
Chancellor Boyd rejected this argument:
.... in my opinion the gravity of the administrative transgression is
not to be measured by mere ascertained pecuniary results. The
defendant was tempted to do what he did by the prospect of gain, - he
profited by his own dereliction of duty, and to accomplish his purpose
it was necessary to conceal the actual transaction. This was
misbehaviour in office, which is an indictable offence at common law.
[p. 209]
Boyd C. further emphasized that Arnoldi had placed himself in a
conflict of interest by deliberately certifying an account he knew to
be false. He reiterated his earlier comment:
The gravity of the matter is not so much in its merely profitable
aspect as in the misuse of power entrusted to the defendant for the
public benefit, for the furtherance of personal ends. Public example
requires the infliction of punishment when public confidence has thus
been abused ... [p. 212]
32 Although Arnoldi was a clear case of
deliberate dishonesty, Boyd C. cited some of the cases dealing with
neglect of duty. This was the beginning of a gradual erosion of the
mental element of the modern offence of breach of trust under s. 122 of
the Criminal Code.
33 In 1892, Canada enacted the Bill
Respecting the Criminal Law, which came into force on July 1, 1893 as
Canada's first Criminal Code (S.C. 1892, c. 29). Sir John Thompson,
who was then the Minister of Justice, explained that the Bill was
founded on Stephen's Digest of the Criminal Law (1887), Burbidge's
Digest of the Criminal Law of Canada, (1889), and the Draft Code
prepared by the Royal Commission on the Criminal Code in Great Britain
in 1880 (Hansard, vol. XXXIV, 2nd Sess., 7th Parl., April 12, 1892, at
p. 1312; A.W. Mewett, "The Criminal Law, 1867-1967" (1967), 45 Can.
Bar Rev. 726, at p. 727; D. Stuart, Canadian Criminal Law: A Treatise
4th ed. 2001), at p. 2). Burbidge's Digest and the Draft Code were
themselves heavily based on the work of Sir James F. Stephen.
34 It is clear that Stephen's s. 121,
"Frauds and Breaches of Trust by Officers" was included as s. 135.
The language is virtually identical:
Criminal Code, 1892
Stephen's Digest of the Criminal Law
.
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