SUPREME COURT OF CANADA

Citation: R. v. Boulanger, [2006] 2 S.C.R. 49, 2006 SCC 32

Date: 20060713

Docket: 30853

Between:

Denis Boulanger

Appellant

and

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

Reasons for Judgment:

(paras. 1 to 68)

McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ. concurring)

R. v. Boulanger, [2006] 2 S.C.R. 49, 2006 SCC 32

Denis Boulanger Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Boulanger

Neutral citation: 2006 SCC 32.

File No.: 30853.

2005: December 16; 2006: July 13.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Criminal law — Breach of trust by public officer — Elements of offence — Whether accused’s actions rose to level of seriousness required to establish actus reus of offence — Whether accused intended to use public office for purpose other than public good — Criminal Code, R.S.C. 1985, c. C‑46, s. 122.

Following a car accident involving his daughter, the accused, the director of public security, asked the officer in charge of the case to prepare a second, more complete accident report. The supplementary report led to the conclusion that his daughter was not at fault, with the result that the accused did not have to pay the insurance deductible of $250. He was charged with the offence of breach of trust by a public officer under s. 122 of the Criminal Code. The trial judge convicted the accused on the basis that he had used his office to obtain a personal benefit. A majority of the Court of Appeal upheld the conviction.

Held: The appeal should be allowed and an acquittal entered.

The offence of breach of trust by a public officer is established where the Crown proves beyond a reasonable doubt that: (1) the accused is an official; (2) the accused was acting in connection with the duties of his or her office; (3) the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; (4) the accused’s conduct represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and (5) the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose. [58]

Here, the offence was not made out. The accused is an official and, in asking a subordinate officer to prepare a supplementary report, he was acting in connection with the duties of his office. He was also pursuing a personal interest contrary to the Code of ethics of Québec police officers, which requires him to perform his duties disinterestedly. While this may be enough to bring the accused within the ambit of disciplinary action, it does not necessarily establish the criminal offence of breach of trust by a public officer. The facts, as found by the trial judge, raise a reasonable doubt that the accused had the mens rea necessary for conviction under s. 122. The trial judge found that the officer’s report accorded with the preponderance of evidence relating to the accident, that it was not falsified, and that the accused did not ask or obtain a supplementary report with the intent of misleading the insurance company. Although the accused knew he would benefit from the officer’s report, this alone does not establish a culpable state of mind. The accused’s intention was to have the officer make a complete report, not to skew it in one direction or another. In addition, it is clear that the actus reus was not made out. While the proper course of conduct would have been for the accused to have his insurer communicate directly with the officer, the accused’s course of action does not represent a marked departure from the course of action he should have taken. Rather, as the trial judge put it, his conduct was simply an error in judgment. In view of all the circumstances, the accused’s actions do not rise to the level of seriousness required to establish the actus reus of the offence. [61‑67]

Cases Cited

Referred to: Anonymous (1704), 6 Mod. 96, 87 E.R. 853; R. v. Bembridge (1783), 3 Dougl. 327, 99 E.R. 679, 22 How. St. Tr. 1; R. v. Young (1758), 1 Burr. 557, 97 E.R. 447; R. v. Williams (1762), 3 Burr. 1317, 97 E.R. 851; R. v. Borron (1820), 3 B. & Ald. 432, 106 E.R. 721; R. v. Wyat (1705), 1 Salk. 380, 91 E.R. 331; R. v. Kennett (1781), 5 Car. & P. 282, 172 E.R. 976; R. v. Pinney (1832), 5 Car. & P. 254, 172 E.R. 962; R. v. Hollond (1794), 5 T.R. 607, 101 E.R. 340; R. v. Llewellyn‑Jones (1966), 51 Cr. App. R. 4, aff’d (1967), 51 Cr. App. R. 204; R. v. Dytham (1979), 69 Cr. App. R. 387; Shum Kwok Sher v. HKSAR, [2002] 5 HKCFAR 381; R. v. G, [2004] 1 A.C. 1034, [2003] UKHL 50; Attorney General’s Reference (No. 3 of 2003), [2004] 3 W.L.R. 451, [2004] EWCA Crim 868; R. v. Arnoldi (1893), 23 O.R. 201; R. v. McMorran (1948), 1948 CanLII 105 (ON CA), 91 C.C.C. 19; R. v. Campbell (1967), 1967 CanLII 315 (ON CA), 3 C.C.C. 250, aff’d (1967), 2 C.R.N.S. 403; Leblanc v. The Queen, [1979] C.A. 417, aff’d 1982 CanLII 169 (SCC), [1982] 1 S.C.R. 344; R. v. Hébert, [1986] R.J.Q. 236; R. v. Perreault (1992), 1992 CanLII 12782 (QC CA), 75 C.C.C. (3d) 425, leave to appeal refused, [1993] 1 S.C.R. viii; R. v. Fisher (2001), 2001 CanLII 24107 (ON CA), 139 O.A.C. 96; R. v. Power (1993), 1993 NSCA 123, 122 N.S.R. (2d) 110; R. v. Pilarinos (2002), 2002 BCSC 452, 168 C.C.C. (3d) 548; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3; R. v. Rajic (1993), 1993 CanLII 3423 (ON CA), 80 C.C.C. (3d) 533; R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867.

Statutes and Regulations Cited

Code of ethics of Québec police officers, (1990) 122 G.O. 28, 1760, s. 9.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 118 “office”, “official”, 121(1)(c), 122, 139, 220, 221, 334, 346, 380.

Criminal Code, S.C. 1953-54, c. 51, s. 103.

Criminal Code, 1892, S.C. 1892, c. 29, s. 135.

Authors Cited

Burbidge, George Wheelock. A Digest of the Criminal Law of Canada (Crimes and Punishments). Toronto: Carswell, 1890.

Canada. House of Commons. House of Commons Debates, vol. II, 1st Sess., 22nd Parl., January 19, 1954, p. 1274.

Canada. House of Commons. House of Commons Debates, vol. XXXIV, 2nd Sess., 7th Parl., April 12, 1892, p. 1312.

Finn, Paul. “Official Misconduct”, [1978] 2 Crim. L.J. 307.

Great Britain. Royal Commission on the Criminal Code. Report of the Royal Commission on the Criminal Code (Eng.) 1880 and Imperial Criminal Code and criminal bills. London: H.M.S.O., 1888.

Mewett, Alan W. “The Criminal Law, 1867‑1967” (1967), 45 Can. Bar Rev. 726.

New Oxford Dictionary of English. Oxford: Clarendon Press, 1998, “partiality”.

Stephen, Sir James Fitzjames. A Digest of the Criminal Law (Crimes and Punishments), 4th ed. London: MacMillan and Co., 1887.

Stephen, Sir James Fitzjames. A Digest of the Criminal Law (Indictable Offences), 9th ed., by Lewis Frederick Sturge. London: Sweet & Maxwell, 1950.

Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.

APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Dalphond and Doyon JJ.A.) (2005), 29 C.R. (6th) 346, 2005 CarswellQue 622, [2005] Q.J. No. 798 (QL), 2005 QCCA 214, affirming the accused’s conviction, [2003] Q.J. No. 4097 (QL). Appeal allowed.

François Beauvais, for the appellant.

Josée Grandchamp and Henri‑Pierre Labrie, for the respondent.

The judgment of the Court was delivered by

The Chief Justice —

1. Introduction

[1] The crime of breach of trust by a public officer, embodied in s. 122 of the Criminal Code, R.S.C. 1985, c. C-46, is both ancient and important. It gives concrete expression to the duty of holders of public office to use their offices for the public good. This duty lies at the heart of good governance. It is essential to retaining the confidence of the public in those who exercise state power. Yet surprisingly, the elements of this crime remain uncertain. This appeal requires us to clarify those elements so that citizens, police and the courts have a clear idea of what conduct the crime encompasses.

[2] The appellant was the director of public security of the municipality of Varennes, Quebec. Following an accident in which his daughter was involved, he asked the police officer in charge of the case to prepare a second, more complete accident report. The supplementary report led to the conclusion that his daughter was not at fault, with the result that the appellant did not have to pay the insurance deductible of $250. The question is whether this conduct supports a conviction for breach of trust by a public officer under s. 122 of the Criminal Code.

[3] The trial judge convicted the appellant on the basis that he had used his office to obtain a personal benefit ([2003] Q.J. No. 4097 (QL)). A majority of the Quebec Court of Appeal confirmed the verdict ((2005), 29 C.R. (6th) 346, 2005 QCCA 214). Dalphond J.A., dissenting, would have ordered an acquittal on the basis that the benefit obtained was not undue and that it had not been established beyond a reasonable doubt that a reasonable person, in full possession of the relevant facts, would necessarily conclude that a breach of trust had occurred.

[4] After analysing the elements of the offence of breach of trust by a public officer, I conclude that the appeal should be allowed and an acquittal entered.

2. Analysis

2.1 The Issue

[5] Section 122 makes it an indictable offence, punishable by up to five years in prison, for an official to commit fraud or a breach of trust:

122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

An “official” is defined in s. 118 as a person who “holds an office” or “is appointed to discharge a public duty”. The term “office” is defined broadly as including “an office or appointment under the government”, “a civil or military commission” and “a position or an employment in a public department”.

[6] It is clear that Mr. Boulanger is an “official” under s. 122. It is also clear that in instructing Constable Stephens to make a more complete accident report, he was acting “in connection with the duties of his office” under s. 122. The question is whether that act constituted a “breach of trust” under s. 122.

[7] Precisely what is required to establish breach of trust under s. 122 is not clear from the Canadian cases. Canada is not alone in this. As we shall see, other countries which have inherited the common law offence of breach of trust by a public officer have also wrestled with this question.

[8] The Criminal Code does not inform us of the elements of the offence. It simply sets out the common law offence of breach of trust by public officers in general terms. The purpose of the offence, the mens rea or guilty mind required for the offence and the actus reus or conduct targeted by the offence remain subject to conflicting decisions and conjecture.

[9] These issues lie at the heart of this appeal. In order to resolve them, we must look to the history of the offence at common law and to how it has developed in Canada and elsewhere.

[10] I conclude that Parliament based s. 122 of the Criminal Code on the offence of misfeasance in public office, as defined by Sir James F. Stephen, in Digest of the Criminal Law (4th ed. 1887), at p. 85, while choosing not to incorporate the different offence, also recognized by Stephen, of neglect in public office. Much of the confusion surrounding s. 122 stems from the failure to recognize the difference between the two offences and from the fact that Parliament adopted only one of them. Interpreting s. 122 as incorporating the common law offence of misfeasance in public office, I conclude that, on the facts found by the trial judge, the appeal should be allowed.

2.2 The Common Law Offence

[11] The modern Canadian offence of breach of trust by a public officer can be traced to the common law offence of “misbehaviour” or “misconduct” in public office. The first mention of the offence, written in an age of judgments shorter than ours, dates back to 1704:

Every publick officer is indictable for misbehaviour.

Per Curiam. If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any publick officer is indictable for misbehaviour in his office.

(Anonymous (1704), 6 Mod. 96, 87 E.R. 853 (K.B.))

[12] Lord Mansfield was to put flesh on the bare bones of this emerging offence in R. v. Bembridge (1783), 3 Dougl. 327, 99 E.R. 679 (K.B.), the case which is often credited as providing the seminal formulation of the offence (P. Finn, “Official Misconduct”, [1978] 2 Crim. L.J. 307, at p. 308). Bembridge, an accountant in the paymaster’s office of the British army, was charged with misbehaviour in his office. The count on which he was convicted charged that he, an officer in a “place and employment of great public trust and confidence” had “wrongfully, unjustly, and fraudulently” contrived to conceal omissions in the records and to cheat and defraud the King.

[13] Bembridge made a motion in arrest of judgment on the ground that the matter was a civil injury that was not indictable and for which there was no criminal precedent. Lord Mansfield dismissed the motion and set out two basic principles which supported the existence of the offence: first, “that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office” (p. 681); and second, that “where there is a breach of trust, fraud, or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable” (p. 681). “Misbehaviour”, “breach of trust”, “fraud” and “imposition” were not defined, however.

[14] Lord Mansfield held that two elements had to be made out: “first, that it was an office of trust . . . and, secondly, that the defendant in his office knowingly, and contrary to his duty, concealed” (p. 681). He continued:

If the defendant knew of the omission, he must have applied to Powell for explanation; and if he concealed it, his motive must have been corrupt. That he did know was fully proved, and he was guilty therefore, not of an omission or neglect, but of a gross deceit. The object could only have been to defraud the public of the whole, or of part of the interest. On the whole I have no doubt but that there was sufficient evidence on both grounds. [p. 681]

[15] In his charge to the jury, Lord Mansfield emphasized the need to show corruption or fraud:

From this charge, you see, there are two propositions for you to be satisfied of. The first is, that this place of accountant in the paymaster’s office, is a place of public trust and confidence, relative to the passing the accounts of the paymasters out of office, that is, that it is a check upon those who pass the account of a paymaster out of office, that they should be examined, controlled, and surcharged before the auditor, by the accountant; that is the first proposition of fact necessary for you to be satisfied of. The next proposition in point of fact necessary for you to be satisfied of, is, that these concealments were made by the defendant, Bembridge, corruptly and fraudulently. If you are satisfied of these two facts, you are then warranted to find the defendant guilty of the indictment, in point of fact. [Emphasis added.]

(Reproduced in (1783), 22 How. St. Tr. 1, at p. 74)

[16] This emphasis on a guilty mind in Bembridge is consistent with an earlier pronouncement by Lord Mansfield in R. v. Young (1758), 1 Burr. 557, 97 E.R. 447 (K.B.), which concerned two justices of the peace accused of “arbitrarily, obstinately, and unreasonably” refusing a licence to a tavern owner. In refusing the information, Lord Mansfield underlined the distinction between error and crime:

But if it clearly appears that the justices have been partially, maliciously, or corruptly influenced in the exercise of this discretion, and have (consequently) abused the trust reposed in them, they are liable to prosecution by indictment or information; or even, possibly, by action, if the malice be very gross and injurious.

If their judgment is wrong, yet their heart and intention pure, God forbid that they should be punished! and he declared that he should always lean towards favouring them; unless partiality, corruption, or malice shall clearly appear.

But it must be a clear and apparent partiality, or wilful misbehaviour, to induce the Court to grant an information: not a mere error in judgment. [Emphasis added; p. 450.]

[17] The requirement of corruption was affirmed in R. v. Williams (1762), 3 Burr. 1317, 97 E.R. 851 (K.B.), where justices of the peace were accused of refusing to grant licences to applicants who had voted for certain members of Parliament. According to the case report:

And Lord Mansfield declared, that the Court granted this information against the justices, not for the mere refusing to grant the licences (which they had a discretion to grant or refuse, as they should see to be right and proper;) but for the corrupt motive of such refusal; for their oppressive and unjust refusing to grant them . . . . [Emphasis added; p. 851.]

[18] A half-century later, in R. v. Borron (1820), 3 B. & Ald. 432, 106 E.R. 721 (K.B.), a case concerning the conduct of a magistrate, dishonesty and corruption remained defining characteristics of the offence. Abbott C.J. made a critical distinction between breaches of public duty arising from a dishonest, oppressive or corrupt motive, which fall within the criminal offence, and less serious mistakes or errors, which do not:

They [the Magistrates] are, indeed, like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, whenever they have been challenged upon this head, either by way of indictment, or application to this Court for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. [Emphasis added; pp. 721-22.]

[19] Bembridge, Young, Williams and Borron were concerned with positive misfeasance (or malfeasance) — acts committed with a corrupt, dishonest or oppressive intent. However, around the same time, another branch of misconduct in public office emerged. This branch concerned nonfeasance — the neglect of official duties. In contrast to the offence of misfeasance in public office, the offence of nonfeasance did not require a specific intent or mens rea. R. v. Wyat (1705), 1 Salk. 380, 91 E.R. 331 (K.B.), advanced the proposition that “[w]here an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable” (p. 332 (footnote omitted)). Neglect of duty was also prosecuted in R. v. Kennett (1781), 5 Car. & P. 282, 172 E.R. 976, and R. v. Pinney (1832), 5 Car. & P. 254, 172 E.R. 962, both of which involved failure of officers to suppress a riot. In R. v. Hollond (1794), 5 T.R. 607, 101 E.R. 340 (K.B.), the accused was similarly charged with negligent performance of duties, but as Lord Kenyon noted, the charge emanated from a specific statute which did not make corruption an essential element of the offence.

[20] Recognizing their distinct elements, Sir James F. Stephen in his Digest of the Criminal Law divided these branches into two distinct offences: “Frauds and Breaches of Trust by Officers” and “Neglect of Official Duty”:

Article 121.

FRAUDS AND BREACHES OF TRUST BY OFFICERS.

Every public officer commits a misdemeanor who, in the discharge of the duties of his office commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person.

Article 122.

NEGLECT OF OFFICIAL DUTY.

Every public officer commits a misdemeanor who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter.

[21] Although Bembridge had dealt with deliberate concealment and fraud, the principles referred to by Lord Mansfield in dismissing the motion in arrest of judgment have sometimes been cited as authority for the offence of neglect of official duty. As a result, these two offences have often been treated as one, giving rise to confusion over the distinct elements of each.

[22] In particular, the failure to separate these two offences has created uncertainty as to when the mens rea of corruption, oppression or dishonesty must be made out. The English Court of Appeal (Criminal Division) was faced with this question in R. v. Llewellyn‑Jones (1967), 51 Cr. App. R. 204. Llewellyn-Jones argued that a count charging misbehaviour in public office had to specifically allege fraud, dishonesty or corruption, as these were essential elements of the offence at common law. The court declined to answer the question, holding that dishonesty was implicit in the facts as alleged.

[23] This uncertainty soon resurfaced in R. v. Dytham (1979), 69 Cr. App. R. 387 (C.A.). Dytham, a police officer in uniform, was charged with misconduct of an officer of Justice after having watched as an individual was kicked to death outside a night club. He had done nothing to intervene, and had left the scene of the crime. No dishonesty, corruption or oppression was alleged or implied.

[24] Relying on Wyat and referring specifically to Stephen’s offence of “neglect of official duty” (art. 145 in the 9th ed. (1950)), Widgery L.C.J. concluded that Dytham could be convicted for neglect of duty. However, presumably concerned to maintain a mens rea appropriate to criminal sanction, he specified that the neglect had to be wilful and not merely inadvertent. He continued as follows:

This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. [p. 394]

Widgery L.C.J. did not specify whether the above characterization was restricted to the “neglect of duty” line of cases upon which he relied or whether his comments also applied to the cases dealing with misfeasance in office, where corruption, dishonesty or oppression had typically been required.

[25] The confusion extended beyond England to other parts of the Commonwealth. In Shum Kwok Sher v. HKSAR, [2002] 5 HKCFAR 381, the Court of Final Appeal of Hong Kong was called upon to establish the elements of the common law offence of misconduct in public office in order to determine whether it was consistent with the rights guaranteed by the Basic Law. Sir Anthony Mason, formerly Chief Justice of Australia, reviewed the history of the offence of misconduct in office and determined that it comprised different types of conduct, each of which required a different mental element: paras. 81-82. He then went on to impose, in all instances, an overriding requirement of seriousness:

The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. [para. 86]

[26] Shortly thereafter, in light of the unsatisfactory state of the law after Dytham and the reconsideration of the concepts of “recklessness” and “wilful neglect” by the House of the Lords in R. v. G, [2004] 1 A.C. 1034, [2003] UKHL 50, a reference was directed to the English Court of Appeal (Criminal Division) asking for clarification of the elements of the offence of misconduct in a public office (Attorney General’s Reference (No. 3 of 2003), [2004] 3 W.L.R. 451, 2004 EWCA Crim 868 (“Attorney General’s Reference”)).

[27] After reviewing Bembridge, Borron, Llewellyn-Jones and Dytham, as well as Shum Kwok Sher, the Court of Appeal held that misconduct in public office required a breach of duty by the officer, consisting either in an act of commission or one of omission, but that in either case, the conduct must be wilful. Wilful misconduct was held to mean “deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not” (para. 28), and recklessness to mean “an awareness of the duty to act or a subjective recklessness as to the existence of the duty” (para. 30). The recklessness test was said to apply to the determination of whether a duty arises in the circumstances, as well as to the conduct of the defendant if it does. The subjective test would apply both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission: para. 30. The result was a unified offence that incorporated both the former offences of public misfeasance and neglect of official duty. However, in keeping with the development in recent cases of the requirements of a criminal state of mind, simple neglect, in itself, would no longer suffice. At a minimum, reckless indifference was required.

[28] Over and above these basic requirements, the Court of Appeal endorsed the condition imposed in Shum Kwok Sher that the misconduct at issue be serious misconduct:

[T]here must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. [para. 56]

[29] In this way, the Court of Appeal sought to ensure that the offence would apply only to truly criminal conduct.

2.3 History of the Offence in Canada

[30] The failure to recognize the distinction between the offences of misfeasance in public office and neglect of official duty has also led to confusion in Canada. This confusion first surfaced in R. v. Arnoldi (1893), 23 O.R. 201 (Ch. D.). Arnoldi was the Chief Mechanical Engineer of the Department of Public Works of Canada and was in charge of public dredging. His duties included auditing accounts payable. Arnoldi hired his yacht and storehouse for public purposes, registering them in the names of friends to conceal the fact that he was the one being paid under the contract. As auditor, he falsely certified that the accounts were correct.

[31] There was no suggestion that Arnoldi was paid more than the fair price. It was therefore argued that no offence had occurred because the public had not suffered any damage. Chancellor Boyd rejected this argument:

. . . in my opinion the gravity of this administrative transgression is not to be measured by mere ascertained pecuniary results. The defendant was tempted to do what he did by the prospect of gain, — he profited by his own dereliction of duty, and to accomplish his purpose it was necessary to conceal the actual transaction. This was misbehaviour in office, which is an indictable offence at common law. [p. 209]

Boyd C. further emphasized that Arnoldi had placed himself in a conflict of interest by deliberately certifying an account he knew to be false. He reiterated his earlier comment:

The gravity of the matter is not so much in its merely profitable aspect as in the misuse of power entrusted to the defendant for the public benefit, for the furtherance of personal ends. Public example requires the infliction of punishment when public confidence has thus been abused . . . . [p. 212]

[32] Although Arnoldi was a clear case of deliberate dishonesty, Boyd C. cited some of the cases dealing with neglect of duty. This was the beginning of a gradual erosion of the mental element of the modern offence of breach of trust under s. 122 of the Criminal Code.

[33] In 1892, Canada enacted the Bill Respecting the Criminal Law, which came into force on July 1, 1893 as Canada’s first Criminal Code (S.C. 1892, c. 29). Sir John Thompson, who was then the Minister of Justice, explained that the Bill was founded on Stephen’s Digest of the Criminal Law, Burbidge’s Digest of the Criminal Law of Canada (1889), and the Draft Code prepared by the Royal Commission on the Criminal Code in Great Britain in 1880 (Debates of the House of Commons, vol. XXXIV, 2nd Sess., 7th Parl., April 12, 1892, at p. 1312; A. W. Mewett, “The Criminal Law, 1867-1967” (1967), 45 Can. Bar Rev. 726, at p. 727; D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 2). Burbidge’s Digest and the Draft Code were themselves heavily based on the work of Sir James F. Stephen.

[34] It is clear that Stephen’s s. 121, “Frauds and Breaches of Trust by Officers” was included as s. 135. The language is virtually identical:

Criminal Code, 1892

135. Every public officer is guilty of an indictable offence and liable to five years’ imprisonment who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person.

Stephen’s Digest of the Criminal Law

121. Every public officer commits a misdemeanor who, in the discharge of the duties of his office commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person.

Stephen’s s. 122, “Neglect of Official Duty” was not, however, included in the new Criminal Code.

[35] The failure to recognize and give meaning to this parliamentary choice has led to confusion in the jurisprudence. Cases under the Criminal Code have continued to conflate the common law offences, notwithstanding Parliament’s decision not to include the offence of neglect of official duty in the Criminal Code, 1892. For example, in R. v. McMorran (1948), 1948 CanLII 105 (ON CA), 91 C.C.C. 19 (Ont. C.A.), the court based a conviction on the fact that the acts of the accused were “premeditated, deliberate and intentional” (p. 28). Hogg J.A. went on to state, however, that the offence could be based on ordinary negligence.

[36] In 1954, the section was amended to assume its present form. The amendment produced two changes: first, the words “in the discharge of the duties of his office” were changed to “in connection with the duties of his office”; and second, the words “affecting the public” were removed (S.C. 1953-54, c. 51, s. 103). This amendment, which was part of a larger package of revisions to the Criminal Code in 1954, was not discussed either in the Report of the Royal Commission on the Revision of the Criminal Code or in the House of Commons Debates, vol. II, 1st Sess., 22nd Parl., January 19, 1954. The only reference in the Debates states simply: “Sections 103 to 113 inclusive agreed to” (p. 1274).

[37] Arnoldi and McMorran were applied in R. v. Campbell (1967), 1967 CanLII 315 (ON CA), 3 C.C.C. 250 (Ont. C.A.), aff’d (1967), 2 C.R.N.S. 403 (S.C.C.). Campbell, an official of the Ontario Securities Commission, was charged with breach of trust for using his position to prevent the delisting of a company in which he had a personal interest.

[38] Relying on Arnoldi and McMorran to overturn the trial judge’s ruling that the offence had to be committed in relation to a trust property, Wells J.A. simply stated that s. 103 of the Criminal Code was “wide enough to cover any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office as a senior civil servant of the Crown” (p. 255). The relevant inquiry was simply “whether Campbell by reason of his dealings and actions abused the public trust and confidence which had been placed in him by his appointment as a servant of the Crown and thereby did he or did he not commit a breach of trust in relation to his office?” (p. 256). Although this was clearly a case of positive malfeasance, no more was said as to what kind of acts and what kind of mental state were required to establish breach of trust by a public officer.

[39] The conflation of the two common law offences culminated in Leblanc v. The Queen, [1979] C.A. 417, aff’d 1982 CanLII 169 (SCC), [1982] 1 S.C.R. 344, where Lamer J.A. (as he then was) held that the Criminal Code offence of breach of trust did not require that the accused [translation] “act dishonestly or corruptly or do something illegal” (p. 419). Lamer J.A. also concluded that the 1954 change to the Criminal Code confirmed that public harm need not be shown.

[40] In support of the proposition that no dishonesty, corruption or illegal act was required, Lamer J.A. cited Arnoldi as well as a passage from Sir W. O. Russell’s Treatise on Crimes and Misdemeanors (7th ed. 1910). The quoted passage from Russell also cited Arnoldi (at p. 618b). No mention was made of the origins of the Criminal Code offence in Stephen’s Digest of the Criminal Law, or of Parliament’s decision to enact only the offence of misfeasance in public office, which required a mens rea of dishonesty, corruption or oppression.

[41] The court in Leblanc, like some of the historic sources it relied on, failed to distinguish between the common law offences of misfeasance in office and neglect of official duty. As we have seen, the first required dishonesty, corruption or oppression, the second only neglect. The first was incorporated into the Canadian Criminal Code; the second was not. The result was to effectively remove the mens rea required for misfeasance at common law, the only one of these offences to be included in the Criminal Code. The Quebec Court of Appeal applied Leblanc in R. v. Hébert, [1986] R.J.Q. 236 (per Chevalier J. (ad hoc)).

[42] The cumulative effect of these decisions was an offence of breach of trust that required neither injury to the public nor mens rea, and was “wide enough to cover any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office” (Campbell, at p. 255).

[43] This brings us to R. v. Perreault (1992), 1992 CanLII 12782 (QC CA), 75 C.C.C. (3d) 425, leave to appeal dismissed, [1993] 1 S.C.R. viii, the decision of the Quebec Court of Appeal applied in the case at bar. Writing for the majority, Baudouin J.A. recognized the potentially vast application of the offence as it had been interpreted, and stressed the need for a meaningful distinction between administrative fault and criminal behaviour. He reviewed the history of the offence in an attempt to discern the elements of breach of trust. He found that the British jurisprudence was broad, but that it only prohibited conduct on the part of the official that contained that element of “blameworthiness” or “dishonesty” (p. 436). In his view, however, this jurisprudence was of limited assistance. Baudouin J.A. then attempted to make sense of the post-codification Canadian jurisprudence. As discussed, the courts had erroneously imported the broader parameters of the common law offence of neglect of official duty into the Criminal Code offence of breach of trust by a public officer. This led Baudouin J.A. to conclude that breach of trust under s. 122 did not require corruption. The essence of the offence, he held, lay in obtaining a benefit, either directly or indirectly, from a breach of public duty. Baudouin J.A. thus defined the elements of the offence as follows:

(1) The accused is an official

(2) who commits an act or omission in connection with the performance of his or her duties, and that act or omission

(a) is contrary to a duty imposed by law or regulation, by the accused’s contract of employment or by a guideline connected with the accused’s duties; and

(b) results, directly or indirectly, in a personal benefit or a derivative benefit.

[44] He defined “benefit” broadly to include virtually any advantage to the office-holder or family members:

[translation] The act done must give him a personal benefit directly (for example: pecuniary compensation, an advantage in kind, in services, etc.) or indirectly (for example: an advantage to his spouse, a member of his family, or even in certain cases third person). This benefit may be direct (for example: the payment of an amount of money) or indirect (for example: the hope of a promotion, the desire to please a superior). [p. 442]

[45] The benefit requirement proposed in Perreault has not been uniformly accepted: see R. v. Fisher (2001), 2001 CanLII 24107 (ON CA), 139 O.A.C. 96, where the Court of Appeal declined to pronounce on the issue. Where it has been applied, difficulties have arisen. Uncertainty also persists as to whether the benefit need actually be obtained or merely pursued, and the dissenting opinion of Dalphond J.A. in the instant case raises the issues of whether every benefit, no matter how small, brings a public official within s. 122.

[46] The main area of uncertainty since Perreault, however, concerns the mens rea of the offence. The mens rea was not addressed in Perreault. In R. v. Power (1993), 1993 NSCA 123, 122 N.S.R. (2d) 110, the Nova Scotia Court of Appeal held that whether the offence has been committed must be determined objectively: “would the acts under examination appear wrongful in the eyes of reasonable persons in full possession of the facts?” (para. 13). In R. v. Pilarinos (2002), 2002 BCSC 452, 168 C.C.C. (3d) 548 (B.C.S.C.), however, Bennett J. rejected the reasonable person standard as being too low for criminal sanction, suggesting that the mens rea of the offence must at a minimum be subjective foresight of the receipt of the benefit.

2.4 The Canadian Offence of Breach of Trust Revisited

[47] We are faced with the task of defining the mens rea and the actus reus of the Canadian offence of breach of trust by a public officer as set out in s. 122. The matter is important. Charges that public officials have misconducted themselves are not uncommon. This is an offence that carries serious consequences upon conviction including loss of reputation and the risk of lengthy imprisonment. Public officers, like other members of the public, are entitled to know where the line lies that distinguishes administrative fault from criminal culpability.

[48] The point of departure for defining the Canadian offence is a recognition that two distinct offences existed at common law — misfeasance in office and neglect of official duty — and that only the first, misfeasance in office as set out by Stephen, was incorporated into the Criminal Code in 1893. It follows that the mens rea and the actus reus of s. 122 must be determined by reference to the common law authorities on misfeasance in public office, not those relating to the different offence of neglect of official duty.

2.4.1 Actus Reus

[49] As the early cases make clear, the actus reus of the offence of breach of trust defies precise definition because of the range of conduct that it is designed to cover. In Perreault, Baudouin J.A. held that, subject to the benefit requirement, s. 122 of the Criminal Code could be triggered by any act or omission contrary to a duty imposed by law or regulation, by the accused’s contract of employment or by a guideline connected with the accused’s duties. This echoes the earlier decision in Campbell to the effect that the offence was “wide enough to cover any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office as a senior civil servant of the Crown” (p. 255).

[50] Any attempt to limit the offence to specific acts or omissions would undoubtedly fail to foresee all the circumstances in which an official might breach the public’s trust. That being said, it cannot be that every breach of the appropriate standard of conduct, no matter how minor, will engender a breach of the public’s trust. For example, the personal use of an office computer might be contrary to an employment guideline yet not rise to the level of a breach of trust by a public officer. Such a low threshold would denude the concept of breach of trust of its meaning. It would also overlook the range of regulations, guidelines and codes of ethics to which officials are subject, many of which provide for serious disciplinary sanctions.

[51] It is also important to keep in mind that breach of trust is not the only criminal offence to which public officials are subject. For example, s. 121(1)(c) makes it a crime for an official or employee of the government to accept a commission, reward, advantage or benefit from anyone who has dealings with the government. A public official can be prosecuted for fraud under s. 122 as well as under s. 380. Moreover, like all members of the public, a public official can be prosecuted for any criminal offence, including theft (s. 334), extortion (s. 346), obstruction of justice (s. 139) and, in situations like Dytham, criminal negligence causing death (s. 220) or bodily harm (s. 221). What purpose, beyond these offences, is s. 122 of the Criminal Code intended to serve?

[52] The purpose of the offence of misfeasance in public office, now known as the s. 122 offence of breach of trust by a public officer, can be traced back to the early authorities that recognize that public officers are entrusted with powers and duties for the public benefit. The public is entitled to expect that public officials entrusted with these powers and responsibilities exercise them for the public benefit. Public officials are therefore made answerable to the public in a way that private actors may not be. This said, perfection has never been the standard for criminal culpability in this domain; “mistakes” and “errors in judgment” have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required. The conduct at issue, in addition to being carried out with the requisite mens rea, must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour. This concern is clearly reflected in the seriousness requirement of Shum Kwok Sher and the Attorney General’s Reference. What is required is “conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder” (Attorney General’s Reference, at para. 56). As stated in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, “[t]he law does not lightly brand a person as a criminal” (p. 59).

[53] The questions posed by Sir Anthony Mason of the Court of Final Appeal of Hong Kong in Shum Kwok Sher provide a sound definition of the parameters of the inquiry into whether the conduct constitutes a marked departure from accepted standards. The inquiry must take place against the background of the responsibilities of the office and the importance of the public objects they serve:

Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities. [Emphasis added; para. 86.]

[54] The test to be met in the inquiry is analogous to the test for criminal negligence. As in cases of breach of trust by a public officer, it became necessary in criminal negligence cases to distinguish conduct sufficient to attract criminal sanction from less serious forms of conduct meriting civil or administrative sanction. To make this distinction, the Ontario Court of Appeal held in R. v. Rajic (1993), 1993 CanLII 3423 (ON CA), 80 C.C.C. (3d) 533, that the conduct must represent a “marked” departure from prudent conduct. The Supreme Court of Canada confirmed this approach in cases involving dangerous driving of a motor vehicle, stating that the conduct must represent a “marked” departure from the standard of care of a reasonable person in all the circumstances of the case: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. Similarly, the public official’s conduct must represent a “marked” departure from the standards expected of an individual in the accused’s position of public trust. However, unlike criminal negligence, the offence of breach of trust by a public officer also has a subjective mental element, to which I now turn.

2.4.2 Mens Rea

[55] In the early common law cases, the mental element of misfeasance in public office was imprecise and varied from case to case. However, common law judges consistently insisted on the presence of some variant of nefarious or dishonest intent. This was described using different terms: dishonesty, corruption, partiality and oppression. All reflected a central concern: that public officials, entrusted with duties for the benefit of the public, carry out those duties honestly and for the benefit of the public, and that they not abuse their offices for corrupt or improper purposes.

[56] Consistent with fundamental criminal law principles, the bar for mental culpability for the offence of public misfeasance was an elevated one. Mistakes did not suffice. Nor did errors of judgment. To quote Abbott C.J. in Borron:

. . . the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment. [pp. 721-22]

In principle, the mens rea of the offence lies in the intention to use one’s public office for purposes other than the benefit of the public. In practice, this has been associated historically with using one’s public office for a dishonest, partial, corrupt or oppressive purpose, each of which embodies the non-public purpose with which the offence is concerned.

[57] As with any offence, the mens rea is inferred from the circumstances. An attempt by the accused to conceal his or her actions may often provide evidence of an improper intent: Arnoldi. Similarly, the receipt of a significant personal benefit may provide evidence that the accused acted in his or her own interest rather than that of the public. However, the fact that a public officer obtains a benefit is not conclusive of a culpable mens rea. Many legitimate exercises of public authority or power by a public servant confer incidental advantages on the actor. As Widgery J. (as he then was) stated in R. v. Llewellyn‑Jones (1966), 51 Cr. App. R. 4, at p. 7:

. . . I would not be prepared to say that it would be misconduct for this purpose for a registrar to make a decision which did affect his personal interests, merely because he knew that his interests were so involved, if the decision was made honestly and in a genuine belief that it was a proper exercise of his jurisdiction so far as the beneficiaries and other persons concerned came into it. [Cited by Widgery L.C.J. in Dytham, at p. 394.]

Conversely, the offence may be made out where no personal benefit is involved.

2.4.3 Summary of the Offence

[58] I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:

1. The accused is an official;

2. The accused was acting in connection with the duties of his or her office;

3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;

4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and

5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

3. Application

[59] Mr. Boulanger, director of public security, was charged with the offence of breach of trust by a public officer under s. 122 of the Criminal Code for using his authority to order a subordinate officer to prepare a supplementary accident report on an accident involving his daughter which, when forwarded to his insurance company, resulted in cancellation of an insurance deductible of $250.

[60] Relying on Perreault, both the trial judge and the majority of the Court of Appeal determined the matter based simply on the receipt of a benefit and did not inquire further into the accused’s mens rea or into the seriousness of the accused’s conduct.

[61] As noted at the outset, it is clear that Mr. Boulanger is an official. In asking Constable Stephens, a subordinate officer, to prepare a supplementary report, he was acting in connection with the duties of his office. He was also pursuing a personal interest contrary to s. 9 of the Code of ethics of Québec police officers, (1990) 122 G.O. 28, 1760, which required him to perform his duties disinterestedly.

[62] While this may be enough to bring Mr. Boulanger within the ambit of disciplinary action, as we have seen, the criminal offence of breach of trust by a public officer requires more. Specifically, it requires Mr. Boulanger to have acted with the intention to use his public office for a purpose other than the public good, for example for a dishonest, partial, corrupt or oppressive purpose which, along with his actions, represents a serious and marked departure from the standards expected of an individual in his position.

[63] I turn first to mens rea. The question is whether the evidence establishes an intention to use his public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt or oppressive purpose. The trial judge found that the evidence supported the good faith of both Mr. Boulanger and Constable Stephens (para. 100). Specifically, she concluded that the report accorded with the preponderance of evidence relating to the accident, that it was not falsified, and that the accused did not ask or obtain a supplementary report with the intent of misleading the insurance company (paras. 97-99). Indeed, she expressly labelled Mr. Boulanger’s conduct as an error in judgment (para. 108). Moreover, as Dalphond J.A. noted, the facts as found demonstrate no attempt whatsoever to conceal.

[64] It is true that Mr. Boulanger knew that he would benefit from Constable Stephens’ report. This alone does not, however, establish a culpable state of mind. For example, as discussed, it is not misconduct to make a decision knowing it furthers one’s personal interests, if the decision is made honestly and in the belief that it is a proper exercise of the public power the official enjoys: Dytham. Mr. Boulanger’s private purpose did not seek to undermine the public good. Had Mr. Boulanger instructed Constable Stephens to put a particular content into the report, that might have amounted to using his office in a way that betrayed the public trust. But Mr. Boulanger did not do this. Constable Stephens testified that the report contained his own opinion about the responsibility of Alexandra Boulanger for the accident (trial judgment, at para. 51). He further testified that he never felt any pressure or obligation to write the report (trial judgment, at para. 52). As noted, the trial judge concluded that the report accorded with the preponderance of evidence relating to the accident, that it was not falsified, and that Mr. Boulanger did not ask or obtain a supplementary report with the intent of misleading the insurance company (paras. 97‑99). In these circumstances, it is not clear that Mr. Boulanger’s intention was to betray the public trust reposed in him.

[65] As a check, it may be asked whether Mr. Boulanger’s intention rose to the level of culpability traditionally required by the common law for the offence of breach of trust — for example, whether he acted for a dishonest, partial, corrupt or oppressive purpose. Dishonesty, corruption and oppression were clearly not made out. Nor, arguably, was partiality. “Partiality” denotes an “unfair bias in favour of one thing . . . compared with another”: The New Oxford Dictionary of English (1998), at p. 1352. Mr. Boulanger’s intention was to have Constable Stephens make a complete report, not to skew it in one direction or another.

[66] I conclude that the facts as found raise a reasonable doubt that the mens rea necessary for conviction under s. 122 of the Criminal Code was established.

[67] What is clear is that the actus reus was not made out on the facts as found by the trial judge. The majority of the Court of Appeal held that the proper course of conduct in this case would have been for the accused to have his insurer communicate directly with Constable Stephens (para. 70). Nevertheless, the course of action chosen by the accused cannot be said to represent a marked departure from the course of action he should have taken. Rather, as the trial judge put it, Mr. Boulanger’s conduct was simply an error in judgment (para. 108). Considering all of the circumstances of this case, I conclude that Mr. Boulanger’s actions do no rise to the level of seriousness required to establish the actus reus of the offence of breach of trust by a public officer.

4. Conclusion

[68] I conclude that the appeal should be allowed, the conviction overturned and an acquittal entered.

Appeal allowed.

Solicitors for the appellant: Rochefort & Associés, Montréal.

Solicitor for the respondent: Attorney General’s Prosecutor of Quebec, Longueuil.