R. v. Cogger, [1997] 2 S.C.R. 845

Her Majesty The Queen Appellant

v.

Michel Cogger Respondent

and

The Attorney General of Canada Intervener

Indexed as: R. v. Cogger

File No.: 25221.

1997: May 26; 1997: July 10.

Present: La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Fraud upon the government ‑‑ Elements of offence ‑‑ Accepting benefit as government official to exercise influence on government ‑‑ Accused who had made representations to government on behalf of two companies in his capacity as their lawyer continued to do so after being appointed senator ‑‑ Accused receiving fees from companies and granted loan by principal shareholder ‑‑ Whether offence under s. 121(1)(a) of Criminal Code requires “corrupt” state of mind ‑‑ Whether trial judge erred in his appreciation of mens rea of offence ‑‑ If so, whether conviction should be entered or new trial ordered ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 121(1)(a).

Since April 1985, the accused had made representations to the various levels of government on behalf of two companies in his capacity as their lawyer. After being appointed to the Senate in 1986, he continued to do so for the purpose of obtaining grants. For all his fruitless approaches to governments, corporate law work and approaches to private investors, the accused received fees. He was also granted a loan by the principal shareholder of the two companies. The accused was charged with having accepted a benefit or advantage in consideration for cooperating, assisting or exercising influence in connection with a matter of business relating to the government, contrary to s. 121(1)(a) of the Criminal Code. At trial, the trial judge concluded that the accused did not possess the mens rea required by s. 121(1)(a) and entered a verdict of acquittal, concluding that a “corrupt state of mind” was necessary before a conviction could be entered under that section. The Court of Appeal upheld the acquittal.

Held: The appeal should be allowed and a new trial ordered.

Section 121(1)(a) of the Criminal Code is designed to prevent government officials from undertaking, for consideration, to act on another person’s behalf in conducting business with the government. The clear wording of s. 121(1)(a) does not require that the incriminating activity with which the person has been charged has been engaged in by that person in his official capacity. The Crown thus need not prove that a benefit was conferred because of a person’s position and correspondingly, that the recipient knew that it was given because of his employment status. It is the employee’s position in dealing with government, while a member of government, that is essential to make an action criminal. It does not matter whether in conducting this business the official purports to act in another capacity.

The Crown must establish that the accused intentionally committed the prohibited act with a knowledge of the circumstances which are necessary elements of the offence. An intention to commit a prohibited act combined with knowledge of the relevant circumstances is an accepted form of criminal culpability, and this should not be equated with a strict liability offence. In sum, to be guilty of an offence under s. 121(1)(a), the accused must know that he is an official; he must intentionally demand or accept a loan, reward, advantage or benefit of any kind for himself or another person; and he must know that the reward is in consideration for cooperation, assistance or exercise of influence in connection with the transaction of business with or relating to the government. “Corruption” is not a required element of the actus reus or the mens rea under s. 121(1)(a).

In this case, the trial judge was of the view that a “corrupt” purpose was necessary to ground a conviction under s. 121(1)(a) and thus misconstrued the necessary mental element of the offence. Given that the trial judge erred in his appreciation of the mens rea, a new trial should be ordered. The factual record before this Court is at best incomplete and all the findings necessary to support a verdict of guilty may not have been made or may be in issue.

Cases Cited

Applied: Martineau v. La Reine, [1965 85 (CSC)], [1966] S.C.R. 103, 48 C.R. 209; distinguished: R. v. Hinchey, [1996 157 (SCC)], [1996] 3 S.C.R. 1128; referred to: R. v. Greenwood (1991), [1991 2730 (ON CA)], 67 C.C.C. (3d) 435; R. v. City of Sault Ste. Marie, [1978 11 (SCC)], [1978] 2 S.C.R. 1299; R. v. Bernard, [1988 22 (SCC)], [1988] 2 S.C.R. 833; T. v. The Queen, [1965] Que. Q.B. 883, leave to appeal refused [1965 62 (CSC)], [1966] S.C.R. 49 (sub nom. Talbot v. La Reine); R. v. Cassidy, [1989 25 (SCC)], [1989] 2 S.C.R. 345.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, ss. 19, 121(1).

APPEAL from a judgment of the Quebec Court of Appeal, [1996] Q.J. No. 133 (QL), J.E. 96‑408, 31 W.C.B. (2d) 246, dismissing the Crown’s appeal from the accused’s acquittal on a charge of accepting a benefit as a public official contrary to s. 121(1) of the Criminal Code. Appeal allowed and new trial ordered.

Pierre Lévesque and Maurice Galarneau, for the appellant.

Marc Cigana and Raphael H. Schachter, Q.C., for the respondent.

Bernard Laprade, for the intervener.

The judgment of the Court was delivered by

//L’Heureux-Dubé J.//

1. L’Heureux-Dubé J. -- At issue in this appeal is the interpretation of s. 121(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. Specifically, the question which must be addressed is whether this crime requires a “corrupt” state of mind, or whether knowledge of the circumstances and an intention to commit the constituent elements is sufficient to attract culpability.

I. Facts

2. The facts in this case are straightforward and uncontested. The respondent was charged in February of 1993 with having accepted a benefit or advantage in consideration for cooperating, assisting, or exercising influence in connection with a matter of business relating to the government, contrary to s.121(1)(a)(ii) and (iii) of the Criminal Code.

3. At trial, the parties presented the trial judge with a joint statement of facts. No witnesses were called to give evidence. The agreed facts were summarized by the trial judge as follows:

[translation] On May 2, 1986, the accused was appointed to the Senate and began receiving a senator’s salary. Since April 1985, he had been acting and was being paid as a lawyer for a number of companies, including Silicart and Gigamos. The principal shareholder of these companies was one Guy Montpetit. Since April 1985, the accused had been making representations to the various levels of government on behalf of Montpetit’s companies in his capacity as their lawyer.

After his appointment to the Senate, the accused continued to make representations to the various levels of government on behalf of Guy Montpetit’s companies for the purpose of obtaining grants.

These representations were made in particular to a federal‑provincial committee chaired at the time by one Gabriel Voyer. All the accused’s efforts to obtain grants for Guy Montpetit’s companies were in vain.

The accused also approached the Secretary of State at the time, Mr. Lucien Bouchard, to obtain the contract to translate Saskatchewan’s legislation for one of Guy Montpetit’s companies, but was unsuccessful.

It can be seen from the evidence that the accused was very effective in having ministers and senior officials meet in order to “advance” his client’s business. It can also be seen from the evidence that while he appeared to be very good at having these people meet very quickly, the meetings never had the expected success, as no grants were awarded to Guy Montpetit’s companies.

For all these fruitless approaches to governments, for corporate law work and for approaches to private investors, the accused received fees totalling $162,000.00 for the period referred to in the charge. Furthermore, Guy Montpetit granted the accused a loan in the amount of fifty thousand dollars ($50,000.00) in May 1986, and an accountant named St‑Laurent whose evidence was also the subject of an admission was unable to find any indication that it had been repaid.

4. After hearing submissions, the trial judge ruled that the Crown had failed to establish that the respondent possessed the mens rea required by the section and entered a verdict of acquittal: [1993] Q.J. No. 1007 (QL). The Court of Appeal dismissed the Crown’s appeal: [1996] Q.J. No. 133 (QL), J.E. 96-408, 31 W.C.B. (2d) 246.

II. Judgments

Court of Quebec

5. Falardeau Q.C.J. recognized that the sole question in this case was whether the necessary mens rea was present. With regard to the actus reus, he had no difficulty concluding that this aspect of the offence had been satisfied, concluding that [translation] “[i]t must therefore be recognized that all the essential elements of the alleged indictable offence have been established in the present case.”

6. Referring to the mens rea, he began by discussing whether the crime was one of strict liability, or whether it required a “blameworthy” element. He concluded that as a result of the Canadian Charter of Rights and Freedoms, every true crime required that the offender be morally blameworthy. Purporting to rely upon the decision of Doherty J.A. in R. v. Greenwood (1991), [1991 2730 (ON CA)], 67 C.C.C. (3d) 435 (Ont. C.A.), he concluded that a “corrupt state of mind” was necessary before a conviction could be entered under s. 121(1)(a).

7. He then turned to the facts of the case and concluded that the accused did not possess the necessary mens rea:

[translation] The effect of the following evidence is that the accused must benefit from a reasonable doubt as to his mental state when the alleged acts took place:

1. In May 1986 (when he was appointed to the Senate), the accused had already been acting as a paid lawyer for Guy Montpetit’s companies for at least eleven months for the purpose, inter alia, of obtaining grants from the various levels of government. He continued to act in the same capacity after becoming a senator.

2. The accused acted as a lawyer for Guy Montpetit’s companies, not just for the purpose of obtaining government grants, but also to seek private investment and to give advice relating to corporate law. This evidence is found in an invoice sent by the accused to Guy Montpetit.

3. Finally, and most importantly, nothing was done in secret, from the sending of invoices to the receiving and cashing of cheques. Furthermore, invoicing and cheque cashing procedures were not changed as a result of the accused’s appointment to the Senate.

In view of these circumstances, I am not convinced beyond a reasonable doubt that the accused performed the alleged acts with the moral turpitude (guilty mind, blameworthiness) required for him to be convicted under the indictment in question.

Court of Appeal

8. The Crown appealed the acquittal on the basis that the trial judge had erred in his conception of the mens rea required to convict under the section. Specifically, it argued that:

[translation] In saying this, it is obvious that the honourable trial judge considered it necessary to find that the accused had intended to do wrong or to behave reprehensibly. Furthermore, since the respondent’s conduct in the year preceding the period set out in the indictment had been the same and since he had been paid by cheque, the trial judge found that he had not intended to do wrong and acquitted him on that basis. In our view, this reasoning is totally erroneous and can only lead to an absurd situation. The “moral turpitude” sought by the trial judge can only be the respondent’s awareness of the fact that he was breaking the law, which means that, in essence, the acquittal is based on ignorance of the law, as the honourable trial judge believed he had found on the part of Michel Cogger. [Emphasis in original.]

9. The Court of Appeal did not agree. In its view, the trial judge made no substantial error of law. While he used some questionable terminology, it was corrected when he used the term “guilty mind”, an accepted and oft-utilized description of mens rea: R. v. City of Sault Ste. Marie, [1978 11 (SCC)], [1978] 2 S.C.R. 1299; R. v. Bernard, [1988 22 (SCC)], [1988] 2 S.C.R. 833.

10. In conclusion, the court stated:

[translation] The fact that the trial judge referred here to the concept of “moral turpitude” does not change his definition of the mens rea, since he qualified it with the words “guilty mind” and “blameworthiness”, which, as mentioned earlier, are consistent with the law. It can therefore be concluded that the appellant’s only criticism of the trial judge, namely that he “erred in defining the required mens rea” in the context of s. 121(1)(a), is unfounded.

III. Relevant Statutory Provisions

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

12. (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, 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 he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;

(c) being an official or employee of the government, 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 directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him;

(d) having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself 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 himself, to an office;

(e) gives, offers or agrees to give or offer to a minister of the government or an official 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 himself, to an office; or

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

(i) gives, offers or agrees to give or offer to another person who has made a tender or to a member of his 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) demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind as consideration for the withdrawal of his tender.

IV. Issues

12. There are three issues on this appeal:

(1) What is the mens rea necessary to attract culpability under s. 121(1)(a) of the Criminal Code?

(2) Did the trial judge err in his consideration of the mens rea for s. 121(1)(a)?

(3) If the trial judge erred, can a conviction be entered against the accused?

V. Analysis

(1) What is the mens rea necessary to attract culpability under [s. 121(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec121subsec1_smooth)(a) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?

13. The positions of the parties on this point can be easily summarized. The appellant has submitted that the wording of the section is quite clear and should not be deviated from. In order for the Crown to prove the mens rea required by the section, it must establish nothing more than that an accused possessed an intention to commit the acts therein, combined with a knowledge of all relevant circumstances. On the other hand, the respondent submits that s. 121(1)(a) requires a finding of “corruption”, and that the Crown must establish that an accused received the benefit as a result of his or her position as government employee. The employee must also know that this was the reason why the benefit was conferred. Additionally, it was argued that absent this mental element, the crime would be one of strict liability.

14. I shall deal with the last point first, as I believe it is the most easily disposed of. As I recently stated for a majority of the Court in R. v. Hinchey, [1996 157 (SCC)], [1996] 3 S.C.R. 1128, at para. 3, it is clear that an intention to commit a prohibited act combined with knowledge of the relevant circumstances is an accepted form of criminal culpability, and that this should not be equated with a strict liability offence:

Quite simply, this offence cannot be one of strict liability as it requires a bona fide mental element. At a minimum, the charge given to the jury required they find that the appellant possessed an intention to commit a prohibited act, while having subjective knowledge of the circumstances. As Doherty J.A. recognized when dealing with this very offence in R. v. Greenwood (1991), [1991 2730 (ON CA)], 8 C.R. (4th) 235 (Ont. C.A.), at pp. 255-56:

A conscious choice to perform a prohibited act, combined with knowledge that all or at least some of the relevant circumstances exist, is a well-recognized form of criminal culpability: see R. v. Sault Ste. Marie (City), supra, at p. 1324 (S.C.R.). . .; A. W. Mewett and M. Manning, Criminal Law -- 2d. ed. (Toronto: Butterworths, 1985), pp. 116‑120; Law Reform Commission of Canada, Criminal Law -- The General Part (Working Paper 29) (1982), pp. 24‑26. Knowledge combined with a volitional act may be seen as a minimum level of culpability. However, for many crimes which do not require proof that any consequence flowed or was intended to flow from the doing of the prohibited act in the relevant circumstances, a volitional act combined with knowledge of the relevant circumstances generally constitutes the only culpability requirement. Indeed, in its recent work, Recodifying the Criminal Law (Working Paper No. 31) (1987), at pp. 21‑23, the Law Reform Commission of Canada, in its proposed General Part for a new Criminal Code, recommends, where the definition of a crime does not require proof of a particular consequence, that the culpability or fault requirement consist of a volitional act done with knowledge of, or recklessness as to, the existence of the circumstances set out in the statutory definition. The Crown's submission is firmly rooted in contemporary notions of criminal culpability.

15. I also disagree with the respondent’s proposition that for there to be culpability, the recipient must accept the benefit qua government employee, and not in some other capacity. In my view, a reading of the section gives no indication whatsoever that this is what Parliament intended by the provision. Indeed, the very opposite is true.

16. The wording of s. 121(1)(a)(ii) is quite clear. It is also comprehensive. It is designed to prevent government officials from undertaking, for consideration, to act on another person’s behalf in conducting business with the government. This is both a clear and an honourable goal. Parliament has indicated that it is unacceptable for government officials to accept consideration from individuals for the purpose of conducting business with government on that party’s behalf. I see no reason, especially given the clear wording of the section, to insert an additional element which was not desired by the drafters of the Code.

17. Indeed, while the respondent has phrased his argument with regard to the mens rea, I believe he is actually asking this Court to read in a new element of the actus reus, which of course would have a corresponding mental component. While there is nothing in the section which indicates that this is a requirement, the respondent suggests that a finding of guilt requires a determination that the gift was given with the purpose of having the employee use his influence as an official in dealing with government.

18. In my view, this point has already been decided by this Court. In Martineau v. La Reine, [1965 85 (CSC)], [1966] S.C.R. 103, 48 C.R. 209, the very same submission was made regarding the interpretation of the section. It was unanimously rejected, Fauteux J. writing (at pp. 218-19 C.R.):

[translation] In rejecting the argument that s. 102 [now s. 121] applies to a Legislative Councillor only in the case where the incriminating activity with which he has been charged has been engaged in by him in his official capacity, the Court of Appeal held that the section is of general application; that it deals with the improper use which a person appointed to discharge a public duty makes or seeks to make of any influence, real or imagined, which he enjoys; that selling influence constitutes the essence of the offence and that the purpose of the section is to prevent this type of corruption in at least one sphere of public life; the Court also felt that for the provisions of the section to apply nothing requires that the seller of influence be acting in his official capacity, and that it is sufficient for him to be a “fonctionnaire” or an “official”, since it is this fact that could lead certain persons to presume that he has something to sell, namely influence. With respect, I also agree with this view. I would add that the language of s. 102 does not require, as does s. 100 [now s. 119], that the incriminating activity with which the person has been charged has been engaged in by that person in his official capacity. [Emphasis added.]

19. In my view, this case is directly on point, and is dispositive of this issue. According to Fauteux J., there is no need for the Crown to prove that a benefit was conferred because of a person’s position and correspondingly, that the recipient knew that it was given because of his or her employment status. See also: T. v. The Queen, [1965] Que. Q.B. 883, leave to appeal refused [1965 62 (CSC)], [1966] S.C.R. 49 (sub nom. Talbot v. La Reine).

20. Still, the respondent attempts to raise the recent decision of Hinchey, supra, in support of his interpretation. Frankly, I do not believe this case is of much assistance. First, Hinchey involved a different section of the Code (s. 121(1)(c)), one which, at least on the surface, had a potentially unlimited application. Even the minority reasons of Cory J. were premised upon the fact that absent a stricter interpretation of both the actus reus and mens rea, innocent conduct could be rendered criminal. Here, there is no fear of trapping innocent actions. Indeed, it is clear that for a person to fall within the confines of s. 121(1)(a), contrary to s. 121(1)(c), his or her actual integrity will have to have been compromised. For an offence under s. 121(1)(a) to be committed, an accused will have agreed to deal with the government on another’s behalf for consideration. Contrary to what the respondent submits, it is not necessary for the official to believe his or her integrity has been compromised. On the contrary, this automatically follows from the engaging in of the prohibited quid pro quo action: Greenwood, supra, at p. 456. As Hinchey indicates, s. 121(1)(c) is markedly different, in that the recipient of the benefit need commit no additional action; it is the appearance of integrity with which that provision is most concerned.

21. Additionally, the respondent attempts to rely upon the following passage from my reasons in Hinchey in support of his position that the recipient of a benefit must know that it was given because of his or her status as an official (at para. 21):

This section [s. 121(1)(a)] clearly tries to preserve the actual integrity of government employees by deterring them from taking benefits in return for giving or promising some sort of reward to the benefactor. It is noteworthy that no actual return need be made to be trapped under the section. It is sufficient for culpability if the gift was given for an ulterior purpose, in that it was designed to compromise the integrity of the employee. The purpose behind the section recognizes that the integrity of government employees can be compromised when they accept rewards because of their position in government. This is in stark contrast, however, to s. 121(1)(c) which does not explicitly require the reward to come as a result of the employee’s position. It does not have to. This is not the evil the section is designed to prevent. [Emphasis in original.]

22. At first glance, this excerpt would appear to support the respondent’s position. Still, the judgment must be read in its entirety and also in light of this Court’s other jurisprudence on s. 121(1)(a). As stated at the outset, the object of s. 121(1)(a) is to prevent government officials from taking benefits from a third party in exchange for conducting some form of business on that party’s behalf with government. The essence of the section, therefore, is the quid pro quo arrangement, which is not a required element under s. 121(1)(c). The term “position in government” must also be examined in this regard. It is the employee’s position in dealing with government while a member of government that is essential to make an action criminal: Greenwood, supra. As stated in Martineau, supra, it does not matter whether in conducting this business the official purports to act in another capacity.

23. Despite the respondent’s valiant attempts to confine Hinchey, I am of the view that the reasoning in that case ultimately defeats the proposition he puts forward. Where the intention of Parliament is clear, there is no need to insert additional elements into the actus reus. The act which has been criminalized is legitimately within the scope of the legislature, and the courts should not undertake a rewriting of the section.

24. I conclude that “corruption” is not a required element of the actus reus or the mens rea under s. 121(1)(a). What is required is that the accused intentionally commit the prohibited act with a knowledge of the circumstances which are necessary elements of the offence. Thus, to be guilty of an offence under this section, the accused must know that he or she is an official; he or she must intentionally demand or accept a loan, reward, advantage or benefit of any kind for himself, herself or another person; and the accused must know that the reward is in consideration for cooperation, assistance or exercise of influence in connection with the transaction of business with or relating to the government.

(2) Did the trial judge err in his consideration of the mens rea for s. 121(1)(a)?

25. The trial judge’s reasons were rather cursory and did not elaborate in detail upon which aspect of the mens rea had not been proven by the Crown. The respondent has suggested, and this argument was accepted by the Court of Appeal, that while the trial judge’s language was at times unfortunate, he ultimately demonstrated a proper appreciation for the required mens rea in his use of the accepted terms “guilty mind” and “moral blameworthiness”.

26. Regrettably, I am unable to accept this submission. Upon a reading of the trial judge’s reasons as a whole, I am inexorably led to the conclusion that he did, in fact, misconstrue the necessary mental element.

27. To begin with, the trial judge’s repeated use of the terms “corrupt intention” and “moral blameworthiness” gives me the impression that he was of the view that a “corrupt” purpose was necessary to ground a conviction under this section. This, combined with the fact that at no time did he explain which portion of the mens rea was lacking in this case, indicates that he was uncertain as to the proper mental element required.

28. While on its own, this might not be enough to warrant setting aside an acquittal, my ultimate conclusion is strengthened by the factors the trial judge stressed which led him to find a reasonable doubt about the respondent’s culpability.

29. First, he emphasized that the respondent had conducted identical business dealings prior to his appointment as senator. With respect, this fact is completely irrelevant to a determination of culpability under s. 121(1)(a). Regardless of the nature of his activities prior to being appointed a senator, the respondent’s position vis-à-vis the Criminal Code changed once he became a government official. That he may have been unaware of the law or his status therein is simply not a consideration bearing upon guilt or innocence; ignorance of the law is no excuse: Criminal Code, s. 19.

30. The second factor cited by the trial judge is equally puzzling. While it may be true that the respondent conducted some business on the same party’s behalf in which he did not deal with government, I fail to see how this furthers the inquiry in any meaningful fashion. So long as some of his business did concern the government, which was conceded, he fell within the confines of the section. Conduct involving other business is of little concern and does not in any way “legitimize” one’s contact with the government.

31. Finally, the trial judge noted a lack of “clandestinité” in characterizing the dealings between the respondent and Mr. Montpetit. In essence, the trial judge was impressed with the fact that the dealings were not hidden or concealed in any way, and this helped lead him to have a reasonable doubt. With respect, I cannot agree with this reasoning. While the clandestine nature of dealings might be a factor if a “corrupt” intention is required by the section, this is not an aspect of the offence as currently drafted. I do not agree that one would be any more, or less, likely to convict under this section as a result of the transactions being kept secret. It simply has no relevance to a determination of guilt.

32. In my view, none of these factors has any real bearing on the consideration of the mens rea for s. 121(1)(a), but each would be important if the trial judge were considering whether a corrupt intention existed. I can only conclude that this is what he did, and as such, he erred in law.

(3) If the trial judge erred, can a conviction be entered against the accused?

33. Given the finding that the trial judge did indeed err in his appreciation of the mental element necessary to ground a conviction under this section, it remains to consider whether this Court should enter a conviction or order a new trial.

34. I am of the view that the latter disposition is the preferable one. The factual record before this Court is at best incomplete and I am not convinced that all the findings necessary to support a verdict of guilty have been made or are not in issue: R. v. Cassidy, [1989 25 (SCC)], [1989] 2 S.C.R. 345. As a consequence, I would order a new trial.

VI. Disposition

35. The appeal is allowed. Accordingly, the decision of the Court of Appeal is set aside and a new trial ordered.

Appeal allowed and new trial ordered.

Solicitor for the appellant: Pierre Lévesque, Montreal.

Solicitors for the respondent: Lapointe, Schachter, Champagne & Talbot, Montreal.

Solicitor for the intervener: George Thomson, Ottawa.