The International Cooperation Group

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IMPROPER USE OF PUBLIC OFFICE

Aline Baroud
Andrew Gibbs

BREACH OF TRUST

Of all the sections addressing frauds on the government, perhaps the most general is the one aimed at preventing breaches of trust by public officers. Section 122 of the Criminal Code targets every official who, in connection with the duties of his or her office, commits fraud or a breach of trust. Section 122 does not require intent to commit fraud or a breach of trust. As a result, public officials have broader liability than private citizens who are charged under the general fraud provision, section 336 of the Criminal Code, which requires a specific intent to defraud[69]. Correspondingly, public office holders can be sentenced only to a maximum of five years in prison, whereas private citizens who engage in similar activities can face up to 14 years in jail[70].

For a public office holder to be convicted of breach of trust, it is sufficient that the accused be an official, that the act in question was committed in the general context of the execution of his or her duties, and that the act constitute fraud or breach of trust[71]. For a breach of trust to have occurred, the public official must have committed the act contrary to a duty imposed on him or her by law, and the act must have produced a personal benefit[72]. It is not necessary that the public official have dishonest or corrupt intentions.

The rationale behind punishing officials who abuse the public trust was succinctly stated in a nineteenth-century decision of the Ontario courts. The court observed that :

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 (...).[73]

This concept of an abuse of public confidence was elaborated in a 1967 decision of the Ontario Court of Appeal[74]. In that case, the director of the Ontario Securities Commission, which regulates the main public stock exchange in Canada, was found to have made a concerted effort to prevent a company from being removed from the stock exchange. It was later discovered that he had a substantial financial interest in the company. In its decision, the Court of Appeal determined that the Criminal Code provision addressing breach of trust by a public officer is "wide enough to cover any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office (...)"[75]. As a result, the question to be determined in each case is whether or not the public official in question breached the public trust and confidence placed in him or her by the electorate.

Another example of breach of trust arose in the case of a government employee who was in charge of public works in a city in Quebec[76]. Although not elected, the employee was still considered a public office holder under the Criminal Code. As part of his duties, he was responsible for awarding government contracts for road construction and maintenance, and for overseeing the work of the successful contractors. One contractor, who had obtained a contract to resurface the roads in the city, paved the entrance to the government employee's home as a gift. There was no evidence that the city had paid for the job, nor was there proof that the accused had demanded the work in exchange for the contract. Although it would appear that the employee could have been charged under section 121(1)(c), prohibiting gifts from people having dealings with government, the state elected to invoke the more general offence of breach of trust by a public officer. At trial, the employee was acquitted. However, on appeal, the Court of Appeal concluded that the first court misapplied the relevant test. The paved entrance was directly related to the resurfacing of the roads, which the employee was supposed to supervise. The acceptance of the gift was a breach of the appropriate standard of conduct expected of a public official. As a result, the Court of Appeal imposed a conviction and referred the matter back to the lower court to determine the appropriate punishment.

This same individual was also charged with breach of trust under the Criminal Code in relation to a separate incident[77]. In the second case, he and a friend used the municipal garage to replace the motor in his car. The work was done after hours and no fees were paid. Nonetheless, charges were laid. The court found that although this type of activity was at the extreme limit of public tolerance, the employee still deserved the benefit of the doubt. Government employees should not use public equipment for their own personal ends. However, the court stated that the facts of this case were not sufficient to constitute a breach of trust, and the employee was acquitted.

In a final example, a high-ranking official in the government of the Northwest Territories pleaded guilty to breach of trust by a public officer for using his influence to encourage people to purchase property in which he had an interest[78]. The court recognised that, in so doing, he became the first person in the Northwest Territories to be prosecuted for this type of offence. The individual was born and raised in the northern part of Canada and worked his way into territorial government from relatively humble beginnings[79]. As Deputy Speaker of the Legislative Assembly of the Northwest Territories, he was in a position of influence and power. He then used his position to attempt to convince people to purchase the property in question. In sentencing the accused, the court was sympathetic to the situation of the accused and took into consideration his role in government and his contributions to northern society. The court also considered the pervasiveness of government in the north and concluded that public confidence in the integrity of the system must be strongly protected. It stated that normally this type of offence should attract a jail term. With reference to breach of trust by public officials, the court stated in its reasons :

(...) the courts, in my view, must step hard on this when they find it. It is like a rabid animal or a disease in our midst ; and I think if we let it spread it will destroy our land and our democracy. So, when this kind of insidious crime is found out, I think it must be destroyed.
In order to stamp out this type of crime, in my view a fine will not suffice. To take a monetary fine from a criminal who breaches the public trust for money would, in my view, reduce the whole exercise to something akin to a lottery where you might make some money one day, and you might lose some money another day. These crimes are not crimes or offences against one person. They are not like an assault. They are like offences (...) against all of us and against our country. Indeed, they would destroy the kind of conditions we would want to pass on to our children.[80]

Nonetheless, given the unusual circumstances of this case, including the fact that this was the first person charged with such an offence in the Northwest Territories, the former Deputy Speaker was only fined. However, the fine was in the amount of $10,000, substantially more than he had gained from the attempted transactions[81].

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December 2004

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