Court of Appeal for Ontario

Date: February 17, 2017

Docket: C61464

Judges: Simmons, Pardu and Miller JJ.A.

Between

Her Majesty the Queen Appellant

and

Bruce Carson Respondent

Counsel:

• Roger Shallow, for the appellant
• Patrick McCann, for the respondent

Heard: October 12, 2016

On appeal from the acquittal entered by Justice Bonnie Warkentin of the Superior Court of Justice on November 17, 2015, with reasons reported at 2015 ONSC 7127.

Majority Opinion

Pardu J.A.:

[1] Introduction

[1] The Crown appeals from an acquittal on a charge of influence peddling, contrary to s. 121(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46. This appeal turns on the interpretation of "any matter of business" in that provision and whether the respondent's admitted activities were in connection with "any matter of business relating to the government".

[2] The respondent, Bruce Carson, was a senior advisor in the Office of the Prime Minister from 2006 to 2008 and briefly in 2009. In 2010, he negotiated a contract with H2O Professionals Inc. ("H2O"), which provided for commissions to be paid to his then girlfriend on all sales by H2O of water treatment systems to First Nations. The respondent did not personally sign the contract, as it was a contract between his girlfriend and H2O; the second version of the contract appointed his girlfriend as H2O's "exclusive agent of [H2O] for the purpose of representing [H2O] in all matters relating to the sale of Water Purification Products to First Nations … (including dealing with the government of Canada relating to the sale of Water Purification Products to First Nations)."

[3] It was understood that the respondent would use his government contacts to help H2O sell its water treatment systems to First Nations.

[4] At trial, the respondent admitted that he was a person who had influence with the government and that he had demanded a benefit for his girlfriend in exchange for exercising his influence on behalf of H2O. The only issue at trial was whether the respondent's exercise of influence was in connection with "any matter of business relating to the government".

A. The Trial Evidence

[5] The Crown and the defence agreed to apply all of the evidence from the preliminary hearing to the trial. No witnesses were called at the trial and one additional document was filed as an exhibit, which was filed on consent. It was a government document published by Indian and Northern Affairs Canada (INAC), entitled Protocol for Decentralized Water and Wastewater Systems in First Nations Communities (the "Protocol for Decentralized Water"). The purpose of the Protocol for Decentralized Water was to establish standards and codes to be followed for on-site water treatment systems funded by INAC.

[6] According to the evidence, the respondent had several meetings and was in communication with government officials regarding H2O, including INAC employees. He also attempted to influence cabinet ministers and their staff for H2O's benefit.

[7] The trial judge undertook an analysis of the relationship between INAC and First Nations with a view to determining whether the respondent's exercise of influence was connected to a "matter of business relating to the government". She summarized the two kinds of funding First Nations receive that can be used to purchase water treatment facilities at paras. 32 and 33 of her reasons:

INAC provides two streams of funding to First Nations communities. The first stream relates to the operation and maintenance of existing facilities and is provided on an annual basis. This type of funding is formula-driven based upon a calculation of the size of the community, the inventory of assets and the relative lifecycle of those assets. This is the bulk of the funding that is provided to First Nations communities. The First Nations Band or community has complete autonomy with respect to how to allocate those funds each year. Neither INAC nor any other government department or official has input into how the community spends those funds. [Stream 1 funding].

The second stream of funding is for capital investments such as building new or conducting major renovations to existing facilities. This stream of funding is allocated based upon priority, need and risk levels. Proposals from First Nations communities are submitted to INAC which then considers each proposal in relation to the needs and proposals submitted by other First Nations communities. If approved, the proposal is placed in a queue with other proposals of this nature to be awarded when funds from this stream are available. [Stream 2 funding].

[8] First Nations had complete autonomy in deciding whether to purchase the smaller decentralized water treatment systems sold by H2O, as they could only use Stream 1 funding or their own resources to purchase this type of product. INAC was not involved in making decisions regarding purchases.

[9] The trial judge found that the point-of-use water treatment systems sold by H2O were not major capital projects envisioned by Stream 2 funding, which INAC was directly involved in allocating. Referring to the testimony of Gail Mitchell, INAC's Director General of Community Infrastructure, the trial judge explained:

If the water treatment system contemplated was a centralized or municipal system to supply water to the entire community, it would be a major project which would fall under the second stream of funding. [Gail Mitchell] confirmed that First Nations Bands could not afford to purchase such a system from their annual operating fund. The First Nations community seeking this type of system would have to submit a proposal to INAC that would then undergo a rigorous review, analysis and ranking and then make a decision about whether to proceed with that project. Ms. Mitchell indicated that the point-of-use water treatment systems marketed by H2O did not fall into this category for funding.

[10] The respondent also tried to promote pilot projects using H2O's water treatment systems to INAC officials. In November 2010, the respondent first mentioned the prospect of a pilot project. In an email, he stated that four communities had been identified as potential sites for pilot projects involving H2O's water treatment systems. Later, in February 2011, Mr. Carson wrote to INAC about the possibility of another pilot project. The trial judge found that these possibilities did not relate to any pilot projects contemplated by INAC.

[11] Ultimately, an INAC official told the respondent in an email that it was up to individual First Nations to identify their own needs and submit project proposals to INAC for funding. The same email referred to a partnership between INAC and the Province of Ontario to "evaluate and pilot-test drinking water technologies" and indicated that INAC was in the process of developing a list of potential technologies and vendors for that project. The email explained that the "final technologies/vendors selected for evaluation through pilot-testing would be chosen by the Project Team through a tendering process that will consider both technical merit and anticipated life-cycle cost (LCC). H2O Pros may be on the list of potential vendors invited to bid on this pilot-project."

[12] At the preliminary hearing, an INAC official testified that the pilot project with the Ontario government was only in the "conceptual planning stages" at the relevant time.

B. Positions of the Parties at Trial

[13] Section 121(1)(d) of the Criminal Code provides:

121(1) Every one commits an offence who,

(d) having … influence with the government …, 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) [the transaction of business with or any matter of business relating to the government ]. [Emphasis added]

[14] The Crown submitted that "any matter of business relating to the government" should be interpreted broadly. It argued that the relationship between the government, First Nations and third party suppliers, such as H2O, constituted a "three-way business relationship". The fact that the government provided funding to First Nations through INAC was sufficient to capture the respondent's approaches to government as "any matter of business relating to the government", even though INAC is not involved in the purchase of the water treatment systems sold by H2O and First Nations could use INAC funding as they saw fit. The Crown also argued that the respondent's pursuit of pilot projects on behalf of H2O was a matter of business relating to the government because INAC's approval was required for funding.

[15] The defence position was that "any matter of business relating to the government" should be read narrowly and should be restricted to actual commercial business dealings with the government. The respondent submitted that business dealings with entities outside the federal government that might receive funding from the government do not fall within the ambit of s. 121(d) of the Criminal Code.

C. The Trial Judge's Decision

[16] The trial judge considered general principles of statutory interpretation. She adopted the views of Cunningham A.C.J.S.C.J., as he then was, in R. v. O'Brien, [2009] O.J. No. 5817 (S.C.), at para. 52, where he said that s. 121(1)(d) is directed at preventing influence peddling in order to protect "the public's confidence in the integrity and the appearance of integrity of the government". At paras. 48-49, he explained that "conduct will only fall within the purview of s. 121(1)(d) if it is perceived by the Canadian public as blameworthy" and that "conduct will be perceived as blameworthy where it gives rise to the appearance of dishonesty."

[17] The trial judge also considered R. v. Hinchey, [1996] 3 S.C.R. 1128, which dealt with payment to government officials or employees by a person who has "dealings with government", contrary to s. 121(1)(c). At para. 48, L'Heureux-Dubé J., writing for the majority, interpreted "dealings with government" in that section to be "truly concerned with persons who at the time of the commission of the offence had specific or ongoing business dealings with the government" (emphasis added).

[18] The trial judge did not accept the Crown's argument that the government, First Nations and H2O were in a three-way business relationship. Given the autonomous status of First Nations, she reasoned that the mere fact that the government provides funding to an organization does not transform persons attempting to do business with those organizations into partners with the government.

[19] She concluded that the respondent's assistance to H2O was not in connection with "the transaction of business with or any matter of business relating to the government" because there "simply was no government business":

Mr. Carson used his influence to set up meetings with INAC officials in which he tried to persuade INAC to support H2O as a supplier of water treatment systems in reserves. However, he was informed by INAC officials that they did not operate in that manner and that the First Nations Bands should be the point of contact if they wanted to sell their products to those communities.

[20] The trial judge refused to draw any conclusions from the Protocol for Decentralized Water:

The Crown's argument that the Protocol for Decentralized Water demonstrated that there was funding that came through INAC for the types of water treatment systems marketed by H2O was not supported by the evidence of those who testified on behalf of INAC. This document was not put to any of them.

It is not possible therefore to consider this Protocol for Decentralized Water in isolation without evidence from one of the INAC witnesses regarding how funding was provided under the Protocol for Decentralized Water; whether it applied to the type of point-of-use water treatment systems proposed by H2O and whether or not this Protocol for Decentralized Water had been part of the discussions between Mr. Carson and INAC.

D. Issues

[21] On appeal, the Crown submits that the trial judge erred in her interpretation of "any matter of business related to government" and erred in giving no weight to the Protocol for Decentralized Water.

E. Analysis

(1) Principles of Statutory Interpretation

[22] This appeal turns on the interpretation of "any matter of business relating to the government" or "un sujet d'affaires ayant trait au gouvernement."

[23] "Business" and "affaires" are elastic terms which may be read broadly, for example, as any matter dealt with by government, or narrowly, for example, as a commercial transaction to which the government is a party.

[24] The modern approach to statutory interpretation involves reading the impugned words of the statute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983), at p. 87. Interpreting s. 121(1)(d) requires an examination of the text of the provision, the context of the language and the legislative purpose: Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co., 2008 ONCA 561, 91 O.R. (3d) 321, at para. 23.

[25] Penal provisions should, where there is uncertainty or ambiguity of meaning, be generally construed in favour of, rather than against, an accused: R. v. McLaughlin, [1980] 2 S.C.R. 331, at p. 335; R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 39. Where, however, a broader reading is more consistent with the apparent legislative purpose, a provision in the Criminal Code may be given a liberal and purposive interpretation: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at para. 15.32-15.33; R. v. Lightfoot, [1981] 1 S.C.R. 566, at p. 575; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at paras. 18-19. The Interpretation Act, R.S.C. 1985, c. I-21, s. 12, provides: "Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

(2) Statutory Interpretation of s. 121(d) of the Criminal Code

[26] Offences related to corruption and government first appeared in the Criminal Code in 1892. The offence of trading in influence was introduced at that time: Criminal Code, 1892, S.C. 1892, c. 29, s. 133(f). Section 133(f) created the offence where a person:

by reason of, or under the pretence of possessing influence with the Government,… demands, exacts or receives from any person, any compensation fee or reward, for procuring from the Government the payment of any claim, or of any portion thereof,… or for procuring or furthering the obtaining for himself or any other person, of any grant, lease or other benefit from the Government.

[27] The prohibition against a person of influence receiving any compensation for procuring a benefit from government continued in various iterations to the present: An Act to amend the Criminal Code, 1892, S.C. 1893, c. 32; Criminal Code, R.S.C. 1906, c. 146; Criminal Code, R.S.C. 1927, c. 36; Criminal Code, S.C. 1953-54, c. 51; An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption, S.C. 2007, c. 13.

[28] Bill C-48, An Act to amend the Criminal Code in order to implement the United Nations Convention against Corruption, made technical changes to Criminal Code and received Royal Assent on May 31, 2007. Canada signed the Convention on May 21, 2004 and ratified it on October 2, 2007, following the coming into force of Bill C-48. Article 18 of the Convention, entitled "trading in influence", provides:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person;

(b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

[29] Article 18 does not mandate any particular form of anti-corruption measure. The conduct targeted by Article 18 is the paid exercise of influence to obtain an "undue advantage".

[30] As highlighted by the trial judge, the purpose of s. 121 Criminal Code is to maintain the integrity of the government and the appearance of government integrity: R. v. Giguere, [1983] 2 S.C.R. 448 at para. 30; Hinchey, at paras. 13, 16-17. Forbidding people who have or pretend to have influence from receiving a benefit for cooperating, assisting, exercising influence or acting in connection with "any matter of business relating to the government" promotes merit-based, impartial government decision making.

[31] Confining an interpretation of the phrase "any matter of business relating to the government" to transactions to which government is a party would fail to capture the mischief to which s. 121(1)(d) is directed. Paid exercise of influence to, for example, obtain preferential tax treatment for a manufacturer to the detriment of its competitors, might be the kind of decision based on influence rather than merit tending to undermine the integrity of government, which the criminal prohibition is designed to prevent. The interpretation urged by the respondent would largely limit the application of the section to payments akin to kickbacks on government contracts, and would not catch conduct highly corrosive of government integrity.

[32] As explained above, the trial judge relied on Hinchey, a case that dealt with s. 121(1)(c), which makes it an offence for a government official to accept payments or gifts from a person who has "dealings" with the government. In interpreting the scope of the term "dealings", the court recognized at para. 48 that almost everyone has dealings with the government, perhaps to apply for licences, file tax returns or obtain passports. As well, government employees, like all individuals, may receive personal gifts from time to time, quite unrelated to their work. In this context, to avoid criminalizing conduct beyond the scope targeted by the legislature L'Heureux-Dubé J. interpreted s. 121(1)(c) at para. 48 as "truly concerned with persons who at the time of the commission of the offence had specific or ongoing business dealings with the government and that the gift was such that it could have an effect on those dealings" (emphasis added).

[33] The same concerns do not arise in the context of s. 121(1)(d), which does not target government officials but rather individuals who either have or pretend to have influence with the government and who promise to attempt to influence government decisions in exchange for a benefit – monetary or otherwise.

[34] Section 121(1)(a)(iii) forbids agreements to exercise influence in connection with "the transaction of business with" the government or "any matter of business relating to the government". If the second phrase is to have meaning, it must go beyond the scope of the first phrase, which pertains to business transactions to which the government is a direct party.

[35] Section 121(1)(d) criminalizes the conduct of a person having… influence who accepts… a benefit… as consideration for exercise of influence. The gravamen of the offence under s. 121(1)(d) is the acceptance of a benefit in exchange for a promise to influence government, whether or not any transaction results. This is influence peddling.

[36] In s. 121(1)(c), where the legislative purpose is to confine the application of the section to situations where there is a direct business relationship with the government, the interdiction bars acceptance of a benefit from "a person who has dealings with the government" or "une personne qui a des relations d'affaires avec le gouvernement", terminology narrower than "any matter of business relating to the government." It is reasonable to conclude that the use of two different expressions signifies an intention to define two different interactions with the government.

[37] Part of the legislative context surrounding s. 121(1)(d) of the Criminal Code is contained in the Lobbying Act, R.S.C. 1985, c. 44 (the "Act"). There is considerable overlap between the conduct targeted by the Act and that targeted by s. 121(1)(d). Read literally, almost identical conduct which, on its face, is made criminal by s. 121(1)(d) is sanctioned and regulated by the Act. I turn to an examination of the legislative scheme embodied in the Act which will inform the contextual analysis of s. 121(1)(d).

[38] The Lobbyist Registration Act, R.S.C. 1985, c. 44 (4th Supp.), came into force on September 30, 1989. It required paid lobbyists to register and provide the government with information about themselves and the subject matter of their lobbying. In January 1996, the Lobbyist Registration Act was amended by expanding disclosure requirements for lobbyists, making more information about lobbyists and lobbying activities available to the public: S.C. 1995, c. 12. The amendments also mandated the development of a code of conduct for lobbying. The first version of the Lobbyists' Code of Conduct came into effect on March 1, 1997.

[39] The Lobbyist Registration Act was further amended in 2006 when Bill C-2, the Federal Accountability Act, S.C. 2006, c. 9, received Royal Assent. Significant amendments were made to the legislation. The amendments shifted the regime from one governing lobbyists through registration to regulating lobbying, and the statute was renamed the Lobbying Act to reflect its broader scope. The lobbying provisions came into force on July 2, 2008.

[40] The preamble to the Lobbying Act provides:

WHEREAS free and open access to government is an important matter of public interest;

AND WHEREAS lobbying public office holders is a legitimate activity;

AND WHEREAS it is desirable that public office holders and the public be able to know who is engaged in lobbying activities;

AND WHEREAS a system for the registration of paid lobbyists should not impede free and open access to government.

[41] Section 5(1) of the Lobbying Act requires any individual who, for payment, on behalf of any person or organization undertakes to:

(a) communicate with a public office holder in respect of

(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,

(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,

(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,

(iv) the development or amendment of any policy or program of the Government of Canada,

(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or

(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or

(b) arrange a meeting between a public office holder and any other person.

to file a monthly return identifying, among other things:

• The name and business address of the individual; • His or her client; • Any government funding provided to the client; • The subject matter of the communication or meeting; • Particulars to identify the relevant legislative proposal, Bill, resolution, regulation, policy, program, grant, contribution, financial benefit or contract; and • The name of any government official or employee with whom the individual communicates, and the means of communication, including pressure applied through "grass-roots" communication.

[42] "Public office" holder includes any officer or employee of the government, as well as a member of the Senate or House of Commons and any person on the staff of such a member: Lobbying Act, s. 2(1). In s. 2(1) "organization" is defined to include traditional business organizations as well as trade unions and charitable organizations.

[43] Relating these provisions to the facts of this case, the foregoing description of the legislative regime governing lobbying illustrates that an individual paid to lobby on behalf of a business may communicate with cabinet ministers and government officials about the development of any policy or program, the award of any grant, contribution of financial benefit, or the award of any contract by or on behalf of the government, or may simply arrange a meeting between a public office holder and any other person, and be caught by the reporting requirements of the Act. If that same person were a person of influence or a person who pretended to have influence, he or she might also be caught by s. 121(1)(d) of the Criminal Code by his or her agreement to undertake this task.

[44] The purposes of the regime established by the Lobbying Act include recognition of the value of communication with government. Governments cannot be expected to know everything about everyone; information about constituency needs and the impact of government measures promotes better decision making by government. The complexity of some issues means that expertise or paid lobbyists may be required. Transparency of communications by lobbyists with government promotes decisions based on merit. Public availability of information and returns filed by lobbyists levels the playing field between groups attempting to influence the government and competitors vying for government attention and resources: C. Holman & W. Lunenburg, "Lobbying and transparency: A comparative analysis of regulatory reform" (2012), 1 Int Groups Adv 75, at pp. 77, 79.

[45] A violation of the Lobbying Act, which is an offence under s. 14 of the Act, is not completely co-extensive with a violation of s. 121(1)(d) of the Criminal Code.

[46] There are differences between the regulatory regime established by the Lobbying Act and the Criminal Code prohibition. The first is directed at regulation of professional lobbyists. The second is aimed at criminal influence peddling. The Act's reporting requirements apply to persons paid to communicate with government. Section 121(1)(d) applies to persons having or pretending to have influence with government. A report must be filed under the Act when an individual undertakes to communicate with or arrange a meeting with a public office holder in respect of enumerated issues for payment. The prohibition in s. 121(1)(d) forbids acceptance of a benefit in exchange for "cooperation, assistance, exercise of influence or an act or omission" in connection with a matter of business relating to the government. Both provisions are triggered by the antecedent agreement – the undertaking to communicate in the case of the Lobbying Act and the acceptance of a benefit in exchange for the exercise of influence or assistance in s. 121(1)(d).

[47] In light of the purposes of s. 121, the context and the above textual analysis, the trial judge erred in confining "any matter of business related to government" to actual transactions to which the government is a party. This led her to err in concluding that the government had to be a party to the decision to purchase a water treatment system for s. 121(1)(d) to apply.

F. Application

[48] I turn then to a consideration of Mr. Carson's undisputed conduct and whether his acceptance of the benefit was for a promise on his part to exert influence in connection with "any matter of business relating to the government." The critical question here is, what did Mr. Carson promise in exchange for the benefit?

[49] Mr. Carson attempted to secure a business advantage for H2O without the transparency that would have been afforded by compliance with the Lobbying Act.[1] The trial judge found at para. 22 that the respondent told H2O that he "could help them by making some important calls in order to connect them with the right people to push through their water treatment products to First Nation Bands." Mr. Carson had a lawyer prepare a contract in his girlfriend's name, which entitled her to a commission on sales of H2O's water treatment systems to First Nations, and it was understood that in exchange, he would attempt to influence government decisions. The undisputed evidence was that Mr. Carson advocated on behalf of H2O as a supplier.

[50] In this case, the government did not make any particular decision about whether to purchase H2O's water treatment systems, however, the essence of the offence is acceptance of a benefit for exercise of influence. Section 121(1) provides that it matters not "whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed." Accepting a benefit in exchange for exercising influence on government officials in order "to push through their water treatment products to First Nation Bands" is a "matter of business relating to the government."

[51] It is not necessary to deal with the appellant's argument that the trial judge erred in her treatment of the Protocol for Decentralized Water, but I observe briefly that I see no error in her conclusion that she could not attach any weight to that document.

[52] As Mr. Carson did not comply with the Act, it is unnecessary to consider the effect of compliance with the Act on the scope of criminality defined by s. 121(1)(d) of the Criminal Code, for both provisions embrace this conduct. If the purpose of the s. 121(1)(d) prohibition is to bar the non-transparent exercise of influence, it may be that the two regimes can work harmoniously together. It may be in some cases that the transparency afforded by compliance with the reporting requirements of the Lobbying Act will mitigate the evils to which s. 121(1)(d) is directed. As indicated by Jackson J.A. in Platana (Litigation guardian of) v. Saskatoon (City), 2006 SKCA 10, [2006] S.J. No. 44, at para. 89: "One cannot determine if legislation is in conflict in the abstract. Legislative conflict is determined when the application of the legislation to a particular fact situation will result in two different results."

G. Disposition

[53] Mr. Carson's conduct fell within the scope of the conduct captured by s. 121(1)(d) of the Criminal Code. Accordingly, I would allow the appeal, set aside the acquittal, enter a verdict of guilty, and remit the matter to the trial judge for sentencing.

"G. Pardu J.A."

"I agree B.W. Miller J.A."

Dissenting Opinion

Simmons J.A. (dissenting):

A. Introduction

[54] I have had the benefit of reading the reasons of my colleague, Pardu J.A. As she has explained, the Crown appeals from the respondent's acquittal on a charge of influence peddling contrary to s. 121(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46.

[55] Among other things, s. 121(1)(d) prohibits a person "having or pretending to have influence with the government" from accepting, "for themselves or another person, a … benefit of any kind as consideration for cooperation, assistance, exercise of influence … in connection with [the transaction of business with or any matter of business relating to the government]."

[56] At trial, the respondent admitted that he was a person with influence with the Government of Canada at the relevant time. He also admitted that he demanded a benefit for his then girlfriend from a company with whom she was associated as consideration for using his government contacts on behalf of the company. The respondent denied that his assistance was in connection with a "matter of business relating to the government". Rather, he asserted that it was to obtain information about a matter of business relating to First Nation bands.

[57] After reviewing the evidence, the trial judge concluded that "there simply was no government business" involved. Accordingly, she acquitted the respondent.

[58] The Crown argues that the trial judge erred in law by misinterpreting s. 121(1)(d); by misinterpreting the actus reus of the offence; and by failing to give proper legal effect to a government protocol that was admitted at trial.

[59] My colleague would accept the Crown's submission that the trial judge misinterpreted s. 121(1)(d) and would therefore allow the appeal.

[60] I do not agree that the trial judge misinterpreted s. 121(1)(d) or that she made any other error of law. In my view, she found, simply, that the Crown had failed to prove that the respondent's conduct fell within the purview of the section.

[61] I would therefore dismiss the Crown's appeal. To explain my reasons, I will set out my own summary of the facts and the trial judge's decision before turning to my analysis.

B. Background

[62] The respondent worked as a senior advisor in the Prime Minister's Office between 2006 and 2008, and briefly in 2009.

[63] After leaving the Prime Minister's office, in February 2010, the respondent met and began a romantic relationship with Michele McPherson.

[64] Ms. McPherson met the principals of H20 Professionals Inc., a company that marketed and sold point-of-use water treatment systems and water softener systems, and had some brief involvement with that company. Point-of-use water treatment systems are typically marketed to private homeowners to purify water for use in the home. H20 did not sell water treatment systems that would supply clean water to an entire community.

[65] Subsequently, in exchange for a contract that provided commissions to Ms. McPherson on sales of water treatment systems to First Nations communities, the respondent agreed to help promote H20 products. In doing so, the respondent had various interactions with officials from a federal government department then known as Indian and Northern Affairs Canada ("INAC")[2], as well as others, including Ministers and their staff.

[66] These interactions gave rise to the influence peddling charge laid against the respondent. In particular, he was charged with being:

a person having or pretending to have influence with the Government of Canada, or with a minister or an official of the Government of Canada, [who] did directly or indirectly demand, accept, or agree to accept for himself or Michele McPherson, a reward, advantage or benefit as consideration for cooperation, assistance, exercise of influence, or acts in connection with a matter of business relating to the Government of Canada, contrary to s. 121(1)(d) of the Criminal Code. [Emphasis added]

[67] Following a preliminary inquiry, the Crown and the defence agreed that the evidence from that proceeding would be admitted as evidence at trial. The Crown did not call any additional witnesses at trial but filed as an exhibit one additional document that had not been filed at the preliminary inquiry, INAC's Protocol for Decentralized Water and Wastewater Systems in First Nations Communities, dated April 15, 2010 (the "Protocol").

[68] At trial, the respondent admitted that he was a person who had influence with the Government of Canada at the time of the alleged offence. He also admitted that he demanded a benefit for Ms. McPherson from H20 in exchange for using his government contacts on H20's behalf.[3]

[69] However, the respondent denied that his assistance was in connection with "any matter of business relating to the government" for the purposes of s. 121(1)(d). Rather, he maintained that his interactions with government officials were in connection with a matter of business relating to First Nations bands.

C. Section 121(1)(d) of the Criminal Code

[70] Section 121(1)(d) of the Criminal Code incorporates by reference certain portions of s. 121(1)(a). It is therefore necessary to review s. 121(1)(a) to understand s. 121(1)(d). The full text of both the English and French versions of s. 118 (the definition provision) and s. 121 is set out in Appendix 'A' to these reasons. For convenience, the English version of s. 121(1)(a) and (d) is reproduced below:

121 (1) Every one commits an offence who

(a) directly or indirectly

(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(iii) the transaction of business with or any matter of business relating to the government, or

(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

(d) 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), or

(ii) the appointment of any person, including themselves, to an office [Emphasis added.]

D. The Trial Judge's Reasons

[71] Given the respondent's admissions and the manner in which the charge against the respondent was framed, the only issue at trial was whether the respondent used his influence with the government to obtain a benefit for Ms. McPherson in connection with "any matter of business relating to the government."

[72] At trial, the Crown argued that there was a three-way business relationship between the Crown, First Nations communities and H20. In the Crown's submission, the fact that INAC was the agency providing taxpayers' money to First Nations Bands for their use was sufficient for the respondent's actions to be captured under s. 121(1)(d) as "any matter of business relating to the government".

[73] In her reasons, the trial judge reviewed the evidence about INAC funding to First Nations communities.

[74] The evidence indicated that INAC provides two streams of funding.

[75] The first stream relates to the operation and maintenance of existing facilities and is provided on an annual basis. The funding is formula-driven based on various factors, including the size of the community. The First Nations Band or community has complete autonomy with respect to how to allocate those funds each year.

[76] The second stream of funding is for capital investments such as building new facilities or conducting major renovations to existing facilities. First Nations communities can submit proposals to INAC for such funding, and INAC allocates funds on the basis of priority, need and risk levels.

[77] The evidence indicated that smaller types of water treatment systems, such as the type sold by H20, would be purchased by the First Nations bands from the first stream of funding or from resources the community raised on its own.

[78] However, there was also some evidence about H20 seeking to participate in a pilot project in one or more First Nations communities. The trial judge found this evidence to be "somewhat unclear." She also noted evidence from an INAC official that a pilot project that had been in the conceptual stages around the time of the respondent's interactions with INAC officials. However, the official confirmed that "it was ultimately up to First Nations Bands to take action in either participating in or advancing the project."

[79] After reviewing the evidence, the positions of the parties, relevant principles of statutory interpretation, case law interpreting s. 121, and the purpose of s. 121, the trial judge embarked on her analysis in a section of her reasons entitled "Analysis and Conclusion". She found that it was "abundantly clear" that the respondent was attempting to influence government officials to promote H2O's water treatment systems. Moreover, he had admitted doing so to obtain a benefit for his girlfriend. Nonetheless, the evidence supported a finding that it was up to individual First Nations communities to determine whether to purchase the systems being sold by H20.

[80] As noted by the trial judge, the testimony of INAC employees indicated that INAC did not offer funding to First Nations outside of its first stream of annual formula-based funding to purchase the type of product sold by H20.

[81] The trial judge rejected a Crown submission that because INAC was the funding agency for, and an advisor to, First Nations, a three-way business relationship was created between the government, First Nations and third-party suppliers such as H20. In the trial judge's view, such a finding would be contrary to First Nations' right to autonomy.

[82] Based on a common sense reading of s. 121(1)(d), and applying the modern rule of statutory interpretation, the trial judge concluded that the respondent's conduct did not fall within the purview of s. 121(1)(d). While the respondent had tried to persuade INAC employees to support H20 as a vendor to First Nations communities, the employees instructed him that they "did not operate in that manner" and that the First Nations communities must be his point of contact.

[83] Accordingly, the trial judge found that the respondent's "actions were not in connection with 'the transaction of business with or any matter of business relating to the government' - there simply was no government business."

[84] The trial judge elaborated on these conclusions in the context of the purpose of s. 121 being to preserve the integrity of the government. She found that the government was not in the business of procuring water systems for First Nations communities; nor did the government have any authority to approve the systems to be purchased. Rather, First Nations communities were autonomous from the government in relation to third party vendors such as H20. She said:

In light of my findings that there was no business with the government, it follows that the integrity of the government was not in issue. I do agree, however, that it was Parliament's intent that s. 121(1)(d) … should be applied so as to preserve the integrity of government. It may also be true that the public, viewing [the respondent's] conduct, would believe that there was, at the very least, an appearance that his conduct as someone with influence with the government compromised the government's integrity and gave rise to the appearance of dishonesty as described … in O'Brien.

However, the difference between O'Brien and this case is that the government's integrity was never in issue here because regardless of [the respondent's] attempts to persuade INAC officials to purchase water systems from H2O, INAC officials were not in the business of procuring these water treatment systems for First Nations communities.

[The respondent] appears to have erroneously believed that the government, particularly INAC, was able to assist H2O in selling their water treatment products to First Nations communities. He either never understood, or chose to ignore the information he received from his contacts at INAC and the [Assembly of First Nations] that they were the wrong entities to engage. Had I found that INAC had the authority to either approve or purchase H2O's water treatment systems, beyond the provision of funding to First Nations, [the respondent's] conduct would have been blameworthy and I would have found him guilty of the charge of committing a fraud on the government pursuant to s. 121(1)(d).

However, one cannot engage in "the transaction of business with or any matter of business relating to the government" nor damage the integrity of the government when the government is not the entity with which business must be conducted in order to achieve the benefit sought. In this case, the evidence supports only one conclusion and that is that First Nations communities were autonomous from the government with respect to any business transactions with H2O. [Emphasis added.]

[85] The trial judge also rejected the Crown's argument that the Protocol demonstrated that there was funding that came through INAC for the types of systems marketed by H20. She found the argument "was not supported by the evidence of those who testified on behalf of INAC. This document was not put to any of them." In the trial judge's view, it was not possible to afford weight to the Protocol in the absence of evidence from an INAC witness concerning how the Protocol operated, whether it applied to H20-type water treatment systems and whether it had been part of the discussions between the respondent and INAC.

E. Issues & Analysis

[86] Under s. 676(1) of the Criminal Code, the Attorney General may appeal against an acquittal "on any ground of appeal that involves a question of law alone" (emphasis added). Thus, the Crown is precluded from challenging findings of fact, or findings of mixed fact and law, on this appeal.

[87] The Crown argues that the trial judge erred in law in three respects:

• she adopted an overly narrow interpretation of s. 121(1)(a)(iii), as incorporated in s. 121(1)(d);
• she misinterpreted the actus reus of the offence; and
• she failed to give proper legal effect to the Protocol.

[88] The Crown contends that but for the trial judge's legal errors, there would have been a finding of guilt in this case. It is the Crown's position that the "matter of business relating to the government" to which the respondent's conduct related is government funding of, and funding decisions concerning, decentralized water systems in First Nations communities.

[89] I will address each of the alleged errors relied on by the Crown in turn.

(1) Alleged Error #1: Misinterpretation of s. 121

[90] The Crown submits that the trial judge made several errors in interpreting s. 121(1)(a)(iii), as incorporated in s. 121(1)(d).

[91] First, the Crown says that the trial judge erred in focusing on the phrase "transaction of business with … the government", and ignored the intentionally broad language of the phrase "any matter of business relating to the government".

[92] Second, the Crown argues that the trial judge relied improperly on narrow judicial interpretations of other offences created by s. 121 to justify a narrow interpretation of s. 121(1)(a)(iii).

[93] Third, the Crown submits that the trial judge failed to apply the "modern approach" to statutory interpretation by ignoring the broad and specific words used by Parliament and reading down the grammatical and ordinary meaning of "any matter of business relating to the government" to mean "actual commercial dealings with the government".

[94] Fourth, the Crown maintains that trial judge ignored the concluding language in s. 121(1)(a), which makes an official's ability to "cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be" irrelevant to the offence.

[95] Fifth, the Crown submits that the trial judge's decision ignores the purpose of the section in that it fails to capture "blameworthy" conduct that Parliament intended to be captured.

[96] I would not accept these arguments.

[97] Contrary to the Crown's submission, in my opinion, the trial judge did not ignore the broad language of the phrase "or any matter of business relating to the government"; nor did she focus on the phrase "the transaction of business with … the government." Rather, on the evidence before her, the trial judge found that "[the respondent's] actions were not in connection with 'the transaction of business with or any matter of business relating to the government'". Read fairly and in context, her statement "there simply was no government business" can only be seen as referring to both elements of s. 121(1)(a)(iii).

[98] Further, in my view, the trial judge did not rely on narrow judicial interpretations of other provisions in the scheme of offences created by s. 121 to justify a narrow interpretation of s. 121(1)(a)(iii). Before turning to the "Analysis and Conclusion" section of her reasons, she quite properly reviewed what little case law there is dealing with the interpretation of s. 121 of the Criminal Code. While she recognized that none of the cases were directly on point, she used them to help inform her understanding of the purpose of s. 121, as discussed below.

[99] Similarly, I do not agree that the trial judge read down the grammatical and ordinary meaning of "any matter of business relating to the government" to mean "actual commercial dealings with the government" (emphasis added).

[100] The trial judge uses the word "commercial" twice in her reasons. At para. 58, she notes the defence's argument that "the phrase in s. 121(1)(d) 'transaction of business with or any matter of business relating to the government' must be restricted to actual commercial business dealings with the government." She also uses the word "commercial" at paragraph 74, in quoting from R. v. Hinchey, [1996] 3 S.C.R. 1128. There is no mention of the word "commercial" elsewhere in her reasons, including in her "Analysis and Conclusion" section.

[101] On my reading of her reasons, the trial judge found that there was no matter of business relating to the government in this case because INAC did not have the authority to either approve or purchase H20's water treatment systems. Had INAC had the authority to approve a transaction, the trial judge would have found that there was a "matter of business relating to the government", even though INAC was not a party to the transaction. The trial judge did not read s. 121(1)(d) to require that the government be a party to any transaction, actual or proposed. I therefore reject the Crown's submission that the trial judge read down the section in the manner alleged.

[102] Nor, in my view, did the trial judge err in ignoring the closing phrase of s. 121(1)(a). That section makes it an offence to bribe officials or their families and the closing phrase stipulates that it is not a defence that the official is unable to "cooperate, render assistance, exercise influence or do or omit to do what is proposed".

[103] However, no such closing phrase is included in s. 121(1)(d). Moreover, I see no basis on which to hold that the fact that s. 121(1)(d) incorporates sub-paragraphs 121(1)(a)(iii) and (iv) by reference also serves to incorporate by reference the closing phrase of s. 121(1)(a).

[104] As I read s. 121(1)(a), the closing phrase is not an integral part of sub-paragraphs (iii) and (iv); rather, sub-paragraphs (iii) and (iv) stand alone. Section 121(1)(d)(i) refers specifically to subparagraphs (a)(iii) and (iv); it makes no mention of the closing phrase of s. 121(1)(a), or the remainder of that subsection.

[105] Further, if the closing phrase of s. 121(1)(a) were to be incorporated into s. 121(1)(d), it would have to be modified to fit the different context. While s. 121(1)(a) deals with bribes to officials and their families, s. 121(1)(d) deals with influencing officials or ministers. Thus, if the closing phrase were to apply in the context of s. 121(1)(d), it would have to read "whether or not, in fact, the official or Minister is able to cooperate…".

[106] I would also reject the Crown's submission that the trial judge's decision ignores the purpose of s. 121(1)(d) in that it fails to capture "blameworthy" conduct that Parliament intended to be captured. The trial judge acknowledged that the purpose of s. 121 is to preserve the integrity and appearance of integrity of the government. However, on the facts of this case, she found that "the government's integrity was never in issue". This was because INAC officials were not in the business of procuring water treatment systems for First Nations communities; nor did they have authority to approve them.

[107] As for the Crown's reliance on an isolated passage from the Supreme Court's decision in R. v. Giguère, [1983] 2 S.C.R. 448, I would simply note that the issue in Giguère was not the proper interpretation of the phrase "the transaction of business with or any matter of business relating to the government." The passage on which the Crown relies does not address that question.

[108] Before concluding on this issue, I note that my colleague contends that the "gravamen of the offence under s. 121(1)(d) is the acceptance of a benefit in exchange for a promise to influence government or assistance, whether or not any transaction results." I do not agree with this characterization. Among other things, it ignores the essential requirement that "cooperation, assistance, exercise of influence or an act or omission" must be in connection with "the transaction of business with or any matter of business relating to the government" (emphasis added). A promise to influence the government can only meet that criterion if the promise is in connection with "the transaction of business with or any matter of business relating to the government".

[109] In the result, I am not persuaded that the trial judge erred in law in interpreting s. 121(1)(a)(iii) as incorporated in 121(1)(d). Absent an error of law alone, it is not open to this court to overturn an acquittal. I would not give effect to this ground of appeal.

(2) Alleged Error #2: Misinterpretation of the Actus Reus of the Offence

[110] The Crown points to para. 76 of the trial judge's reasons, where she said:

Subsection 121(1)(a)(ii) of the Criminal Code includes the same language as s. 121(1)(d), (both make reference to s. 121(1)(a)(iii)). The difference between the two sections is that s. 121(1)(a)(ii) applies to government officials who commit a fraud against the government whereas subsection 121(1)(d) applies to anyone "having or pretending to have influence with the government". On the facts of both Cogger and this case, for the accused to be found guilty he must have engaged in "the transaction of business with or any matter of business relating to the government". [Emphasis added.]

[111] The Crown submits that by including the words "he must have engaged in" prior to the final phrase, the trial judge imposed an additional conduct requirement where none exists.

[112] Similar language appears in para. 98, where the trial judge states:

However, one cannot engage in "the transaction of business with or any matter of business relating to the government" nor damage the integrity of the government when the government is not the entity with which business must be conducted in order to achieve the benefit sought.

[113] I see no merit in this argument.

[114] Reading these paragraphs in the context of the trial judge's reasons as a whole, in my view, it is clear that the trial judge did not create an additional conduct requirement.

[115] In paragraph 76, the trial judge was discussing the differences between the offences in R. v. Cogger, [1997] 2 S.C.R. 845, and that alleged against the respondent.

[116] In para. 98, the trial judge was focused on the impact of the respondent's conduct on the integrity of the government.

[117] A full reading of the trial judge's reasons reveals that she was keenly aware that the only issue in the trial was whether the respondent was assisting H20 in a "matter of business relating to the government."

[118] I would not give effect to this ground of appeal.

(3) Alleged Error #3: Failure to Give Legal Effect to the Protocol

[119] As indicated above, the evidence from the preliminary inquiry was incorporated into the trial on consent. However, the Protocol was not filed as an exhibit at the preliminary inquiry. Rather, the Crown filed it as an exhibit at trial on consent.

[120] In her reasons, at paras. 46–50, the trial judge reviewed the evidence relating to the Protocol. Ultimately, however, since it had not been put to the INAC witnesses who testified, in the absence of their evidence on a document that could have been put to them, the trial judge declined to put any weight on it.

[121] On appeal, the Crown attempts to formulate the trial judge's assessment of this evidence as some form of legal error. I reject this submission. Although the Protocol was before the court on consent, there was no agreement on what conclusions could or should be drawn from it.

[122] The trial judge considered the evidence relating to the Protocol and concluded that she could not give it the weight the Crown submitted it should have. I fail to see how this gives rise to a question of law alone affording the Crown a right of appeal.

[123] I would not give effect to this ground of appeal.

F. Disposition

[124] Based on the foregoing reasons, I would dismiss the appeal.

Released: "B.M." February 17, 2017

"Janet Simmons J.A."

Appendix 'A'

Criminal Code, R.S.C. 1985, c. C-46

Definitions

118 In this Part,

evidence or statement means an assertion of fact, opinion, belief or knowledge, whether material or not and whether admissible or not; (témoignage, déposition ou déclaration)

government means

(a) the Government of Canada,

(b) the government of a province, or

(c) Her Majesty in right of Canada or a province; (gouvernement)

judicial proceeding means a proceeding

(a) in or under the authority of a court of justice,

(b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath,

(c) before a court, judge, justice, provincial court judge or coroner,

(d) before an arbitrator or umpire, or a person or body of persons authorized by law to make an inquiry and take evidence therein under oath, or

(e) before a tribunal by which a legal right or legal liability may be established,

whether or not the proceeding is invalid for want of jurisdiction or for any other reason; (procédure judiciaire)

office includes

(a) an office or appointment under the government,

(b) a civil or military commission, and

(c) a position or an employment in a public department; (charge ou emploi)

official means a person who

(a) holds an office, or

(b) is appointed or elected to discharge a public duty; (fonctionnaire)

witness means a person who gives evidence orally under oath or by affidavit in a judicial proceeding, whether or not he is competent to be a witness, and includes a child of tender years who gives evidence but does not give it under oath, because, in the opinion of the person presiding, the child does not understand the nature of an oath. (témoin)

Frauds on the Government

121 (1) Every one commits an offence who

(a) directly or indirectly

(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

(iii) the transaction of business with or any matter of business relating to the government, or

(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

(b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee's or official's family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place;

(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;

(d) 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), or

(ii) the appointment of any person, including themselves, to an office;

(e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

(ii) the appointment of any person, including themselves, to an office; or

(f) having made a tender to obtain a contract with the government,

(i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person's family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or

(ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.

Contractor subscribing to election fund

(2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration

(a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or

(b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province.

Punishment

(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Code Criminel, L.R.C. 1985, ch. C-46

Définitions

118 Les définitions qui suivent s'appliquent à la présente partie.

charge ou emploi S'entend notamment :

a) d'une charge ou fonction sous l'autorité du gouvernement;

b) d'une commission civile ou militaire;

c) d'un poste ou emploi dans un ministère public. (office)

fonctionnaire Personne qui, selon le cas :

a) occupe une charge ou un emploi;

b) est nommée ou élue pour remplir une fonction publique. (official)

gouvernement Selon le cas :

a) le gouvernement du Canada;

b) le gouvernement d'une province;

c) Sa Majesté du chef du Canada ou d'une province. (government)

procédure judiciaire Procédure :

a) devant un tribunal judiciaire ou sous l'autorité d'un tel tribunal;

b) devant le Sénat ou la Chambre des communes ou un de leurs comités, ou devant un conseil législatif, une assemblée législative ou une chambre d'assemblée ou un comité de l'un de ces derniers qui est autorisé par la loi à faire prêter serment;

c) devant un tribunal, un juge, un juge de paix, un juge de la cour provinciale ou un coroner;

d) devant un arbitre, un tiers-arbitre ou une personne ou un groupe de personnes autorisé par la loi à tenir une enquête et à y recueillir des témoignages sous serment;

e) devant tout tribunal ayant le pouvoir d'établir un droit légal ou une obligation légale,

que la procédure soit invalide ou non par manque de juridiction ou pour toute autre raison. (judicial proceeding)

témoignage, déposition ou déclaration Assertion de fait, opinion, croyance ou connaissance, qu'elle soit essentielle ou non et qu'elle soit admissible ou non. (evidence or statement)

témoin Personne qui témoigne oralement sous serment ou par affidavit dans une procédure judiciaire, qu'elle soit habile ou non à être témoin, y compris un enfant en bas âge qui témoigne sans avoir été assermenté parce que, de l'avis de la personne qui préside, il ne comprend pas la nature d'un serment. (witness)

Fraudes Envers le Gouvernement

121 (1) Commet une infraction quiconque, selon le cas :

a) directement ou indirectement :

(i) soit donne, offre ou convient de donner ou d'offrir à un fonctionnaire ou à un membre de sa famille ou à toute personne au profit d'un fonctionnaire,

(ii) soit, étant fonctionnaire, exige, accepte ou offre ou convient d'accepter de quelqu'un, pour lui-même ou pour une autre personne,

un prêt, une récompense, un avantage ou un bénéfice de quelque nature que ce soit en considération d'une collaboration, d'une aide, d'un exercice d'influence ou d'un acte ou omission concernant :

(iii) soit la conclusion d'affaires avec le gouvernement ou un sujet d'affaires ayant trait au gouvernement,

(iv) soit une réclamation contre Sa Majesté ou un avantage que Sa Majesté a l'autorité ou le droit d'accorder,

que, de fait, le fonctionnaire soit en mesure ou non de collaborer, d'aider, d'exercer une influence ou de faire ou omettre ce qui est projeté, selon le cas;

b) traitant d'affaires avec le gouvernement, paye une commission ou une récompense, ou confère un avantage ou un bénéfice de quelque nature, directement ou indirectement, à un employé ou à un fonctionnaire du gouvernement avec lequel il traite, ou à un membre de sa famille ou à toute personne au profit de l'employé ou du fonctionnaire, à l'égard de ces affaires, à moins d'avoir obtenu le consentement écrit du chef de la division de gouvernement avec laquelle il traite;

c) pendant qu'il est fonctionnaire ou employé du gouvernement, exige, accepte ou offre ou convient d'accepter d'une personne qui a des relations d'affaires avec le gouvernement une commission, une récompense, un avantage ou un bénéfice de quelque nature, directement ou indirectement, pour lui-même ou pour une autre personne, à moins d'avoir obtenu le consentement écrit du chef de la division de gouvernement qui l'emploie ou dont il est fonctionnaire;

d) ayant ou prétendant avoir de l'influence auprès du gouvernement ou d'un ministre du gouvernement, ou d'un fonctionnaire, exige, accepte ou offre, ou convient d'accepter, directement ou indirectement, pour lui-même ou pour une autre personne, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie d'une collaboration, d'une aide, d'un exercice d'influence ou d'un acte ou d'une omission concernant :

(i) soit une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit la nomination d'une personne, y compris lui-même, à une charge;

e) donne, offre ou convient de donner ou d'offrir, directement ou indirectement, à un ministre du gouvernement ou à un fonctionnaire ou à quiconque au profit d'un ministre ou d'un fonctionnaire, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie d'une collaboration, d'une aide, d'un exercice d'influence ou d'un acte ou d'une omission du ministre ou du fonctionnaire concernant :

(i) soit une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit la nomination d'une personne, y compris lui-même, à une charge;

f) ayant présenté une soumission en vue d'obtenir un contrat avec le gouvernement :

(i) soit donne, offre ou convient de donner ou d'offrir, directement ou indirectement, à une autre personne qui a présenté une soumission, à un membre de la famille de cette autre personne ou à quiconque au profit de cette autre personne, une récompense, un avantage ou un bénéfice de quelque nature en contrepartie du retrait de la soumission de cette autre personne,

(ii) soit exige, accepte ou offre ou convient d'accepter, directement ou indirectement, d'une autre personne qui a présenté une soumission, une récompense, un avantage ou un bénéfice de quelque nature, pour lui-même ou pour une autre personne, en contrepartie du retrait de sa propre soumission.

Entrepreneur qui souscrit à une caisse électorale

(2) Commet une infraction quiconque, afin d'obtenir ou de retenir un contrat avec le gouvernement, ou comme condition expresse ou tacite d'un tel contrat, directement ou indirectement souscrit, donne ou convient de souscrire ou de donner à une personne une contrepartie valable :

a) soit en vue de favoriser l'élection d'un candidat ou d'un groupe ou d'une classe de candidats au Parlement ou à une législature provinciale;

b) soit avec l'intention d'influencer ou d'affecter de quelque façon le résultat d'une élection tenue pour l'élection de membres du Parlement ou d'une législature provinciale.

Peine

(3) Quiconque commet une infraction prévue au présent article est coupable d'un acte criminel et passible d'un emprisonnement maximal de cinq ans.

Footnotes

[1] As a former staff member of the PMO, Mr. Carson was a "designated public office holder" under the Lobbying Act, forbidden under s. 10.11(1) of the Lobbying Act from being engaged as a paid lobbyist for a five year period. Section 10.1(1) forbids payment to a lobbyist which is contingent on the outcome, as provided in the contract in issue.

[2] INAC was later succeeded by Aboriginal Affairs and Northern Development Canada and is now named Indigenous and Northern Affairs Canada.

[3] The evidence at trial confirmed that, under the contract(s) the respondent demanded that Ms. McPherson receive a commission on sales of H20's water treatment systems to First Nations communities.