The International Cooperation Group

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IMPROPER USE OF PUBLIC OFFICE

Aline Baroud
Andrew Gibbs

FRAUD

The provision of the Criminal Code that addresses fraud is also broadly worded. It generally prohibits anyone from defrauding the public or any person by deceit, falsehood or other fraudulent means[53]. Although this section applies to all persons in Canada, its relevance to an improper use of public office is clear, given the role of public officials as trustees of the public interest. The public interest must be protected from public officials who might use their position to obtain goods or services through deceit or falsehoods. Upon conviction, the accused could face up to ten years in prison if the subject matter of the fraud is over five thousand dollars, and up to two years in prison if it is under five thousand dollars.

In Saskatchewan, during the 1990s, an elaborate scheme was uncovered, including fictitious companies and falsified invoices, which resulted in 21 members of the provincial Progressive Conservative party being charged with fraud[54]. At the time the events unfolded, the Progressive Conservative party formed the government. Various members of the party devised a plan whereby money was channelled out of the public coffers, through fictitious companies, and into the accounts of the Conservative party. They then used these monies to further the partisan objectives of the party or in other unapproved ways, thereby circumventing the rules requiring public funds to be used to promote the objectives of the government as a whole. In some cases, the monies found their way into the personal bank accounts of party members. Those convicted include the former Deputy Prime Minister, the former Minister of Justice, the former government house leader and a number of other Ministers. The sentences included 12 months imprisonment, a $250 surcharge and restitution of $41,735.50[55], a conditional discharge and restitution of $3,645[56], 18 months in jail and restitution of $56,000[57], and three and one half years in jail and no restitution[58].

In a less intricate example, a public official employed as the chief of the Quebec Liquor Police, the government body responsible for enforcing Quebec's liquor laws, was convicted of fraud in 1962[59]. After more than ten years as chief, the public official requested an increase in salary from his supervisor. The matter was referred to the Attorney General, who was also sitting as Prime Minister of Quebec at the time. The public official was informed that the salaries of the Quebec Liquor Police were under review and that an increase would be forthcoming. In the meantime, he was instructed to claim $50 per month as "expenses", thereby increasing his annual salary by $600 per year. He began submitting expense claims immediately and in 1954 was informed that the amount could be increased to $100. He proceeded to claim $100 each month by submitting detailed accounts of railway tickets, meals and hotel expenses for trips that he had not taken. The claims were entirely false. In May 1960 his annual salary was increased and he ceased to submit expense claims.

In answer to the charges of fraud, the public official argued that his conduct had been authorised by his superiors and, therefore, could not be the subject of criminal liability. Following a number of appeals, the Supreme Court of Canada rejected this argument completely and convicted him on all counts. The Supreme Court reasoned that in order to prove fraud, it was sufficient that the accused had knowingly submitted falsified expense claims for costs he had never incurred and obtained payments for those amounts out of the public funds of the province of Quebec. It was the public official himself who had certified the authenticity of and submitted each false expense claim. As a result, he was the one who must answer the charges of fraud. The Supreme Court referred the matter back to the lower court to determine an appropriate sentence. The court considered the fact that the public official did not have a pre-existing criminal record and that he was 77 years of age, and yet sentenced him to three months in jail to avoid the appearance of special treatment for different cases[60].

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