Breach of Public Trust (Offence)

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Breach of Public Trust
s. 122 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Releaseable by Office-in-Charge or Judge
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to breach of public trust are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 122 [breach of public trust] Indictable Offence(s) N/A Yes

Offences under s. 122 [breach of public trust] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 122, the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515. If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 122 are designated offences eligible for wiretap under s. 183.

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 122), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Breach of trust by public officer
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.
R.S., c. C-34, s. 111.


CCC

Proof of the Offence

Proving breach of public trust under s. 122 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The accused is an official;
  5. The accused was acting in connection with the duties of his or her office;
  6. The accused's 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
  7. 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.
  1. R v Boulanger 2006 SCC 32 (CanLII) at para 58
    R v Yellow Old Woman, 2003 ABCA 342 (CanLII)
    R v Lippé, 1996 CanLII 5780 (QC CA), 111 CCC (3d) 187 (Que. C.A.)

Interpretation of the Offence

The purpose of this offence is to ensure that the public retains "the confidence of the public in those who exercise state power".[1]

The offence is a codification of the common law offence of "misconduct in office".[2]

The offence is an enumerated wiretap offence under s. 183.

  1. R v Boulanger, 2006 SCC 32 (CanLII), [2006] 2 SCR 49 at para 1
  2. Boulanger, ibid.
    R v Moodie and Vranich, 2010 ONSC 4847 (CanLII) at para 20

Actus Reus

A "breach of trust" can include "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."[1]

The prohibited act must cause a personal benefit to the accused and must be contrary to the duties imposed upon them.[2]

The breach does not need to be in respect of trust property.[3]

The offence does not capture mere nonfeasance or neglect of duties.[4]

There must be a marked departure from the standard expected from the official.[5]

  1. R v Campbell, 1967 CanLII 315 (ON CA), (1967), 3 CCC 250 (Ont. C.A.)
  2. R v Perreault, 1992 CanLII 3282 (QC CA), [1992] R.J.Q. 1829
  3. R v Campbell, supra, (aff’d (1967), 2 C.R.N.S. 403 (S.C.C.)) at pp. 250, 255-7
  4. Boulanger at para 48
  5. see R v Cook, 2010 ONSC 4534 (CanLII) at para 29
    Boulanger at para 49

Mens Rea

The mens rea requires a prohibited act that is done intentionally or recklessly, with the knowledge or wilfully blind to the facts making up the offence. There must also be an "subjective foresight of the consequences" (that their actions will result in a benefit).[1] There is no need for an intent to act dishonestly.[2]

The accused need not be aware that he was breaching trust, it only requires that a reasonable person would conclude that there was a breach of trust.[3]

  1. R v Pilarinos, 2002 BCSC 452 (CanLII), R v H(AD), 2013 SCC 28 (CanLII) - requires knowledge of consequences flowing from act
  2. Pilarinos, supra
  3. R v Flamand, 1999 CanLII 13326 (QC CA) leave refused
    Pilarinos, supra ("The official does not have to know that the act is a breach of their duty.")

Other Issues

Kienapple
The offence can be subject to Kienapple with the offence of municipal corruption under s. 123.[1]

Property offences such as theft are not subject to Kienapple.[2]

Constitutionality
Section 122 is not unconstitutionally void for vagueness.[3]

  1. R v Gyles, [2003] O.J. No. 3188 (S.C.J.) aff’d [2005] O.J. No. 5513 (C.A.)
  2. e.g. see R v Cook, 2010 ONSC 4534 (CanLII)
  3. R v Lippé, 1996 CanLII 5780 (QC CA)
    c.f. R c McMorran, 1948 CanLII 105 (ON CA), (1948), 91 CCC 19 (ONCA) per Hogg J.

"Government"

118.
...
"government" means

(a) the Government of Canada,
(b) the government of a province, or
(c) Her Majesty in right of Canada or a province;

...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.


CCC

"Office"

118.
...
"government" means

(a) the Government of Canada,
(b) the government of a province, or
(c) Her Majesty in right of Canada or a province;

...
“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;

...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.


CCC

An "office" can include any "position which involved such authority, responsibility and public trust"[1] The office does not have to be any provincial or federal office. It is any position of trust, duty, or authority, especially "those in the public service or in some corporation, society or the like", or where certain duties attach, such as those in a "place of trust, authority or service under constituted authority".[2]

  1. Belzberg v The Queen, 1961 CanLII 98 (SCC), [1962] SCR 254
    R v Sheets, 1971 CanLII 130 (SCC), [1971] SCR 614
    R v Moodie and Vranich, 2010 ONSC 4847 (CanLII) - citing dictionary definitions
  2. R v Yellow Old Woman, 2003 ABCA 342 (CanLII) at para 14
    R v Sheets at p. 620
    R v Campbell, 1967 CanLII 315 (ON CA), (1967), 3 CCC 250 (Ont. C.A.)
    R v Cyr, (1985), 44 C.R. (3d) 87 (Que. S.C.) (*no link)

"Official"

118.
...
“official” means a person who

(a) holds an office, or
(b) is appointed or elected to discharge a public duty;


...
R.S., 1985, c. C-46, s. 118; R.S., 1985, c. 27 (1st Supp.), ss. 15, 203; 2007, c. 13, s. 2.


CCC

It does not matter whether the person is elected, hired, appointed or under contract.[1]

There is some suggestion that an oath of office would be expected for an appointment.[2]

An "official" has been found to include:

  • a municipal official or counselor[3]
  • mayor[4]
  • member of legislative counsel[5]
  • Chief of an Aboriginal Nation[6]
  • Health Director of an Aboriginal Nation[7]
  • director of public security[8]
  • ministers of the Crown[9]
  • provinical deputy ministers[10]
  • a military accountant [11]
  • a peace officer[12]
  • an air break inspector[13]
  • Passport Office Canada employee[14]
  • Canada Customs inspector[15]

An official does not include persons providing public services that are contracted out to private companies.[16]

  1. R v Power, 1993 CanLII 3223 (NS CA)
    R v Cyr, (1985), 44 C.R. (3d) 87 (Que. S.C.)(*no link)
  2. e.g. R v Bell, 2005 ONCJ 437 (CanLII) at paras 7 to 10
  3. Sheets
    R v Gyles, [2003] O.J. No. 3188 (S.C.J.) aff’d at 2005 CanLII 47588 (ON CA), [2005] O.J. No. 5513 (C.A.) - municipal counselor
  4. R v McKitka, 1982 CanLII 425 (BC CA) at para 21
  5. Martineau c La Reine, 1965 CanLII 85 (CSC), [1966] RCS 103
  6. Yellow Old Woman, supra
  7. Yellow Old Woman, supra
  8. R v Boulanger, 2006 SCC 32 (CanLII), [2006] 2 SCR 49
  9. Sommers and Gray v The Queen, 1959 CanLII 43 (SCC), [1959] SCR 678
  10. R v MacEachern, 1999 CanLII 7062 (PE SCAD), (1999), 182 Nfld. & P.E.I.R. 219 (P.E.I.C.A.) - Deputy Minister of Agriculture
  11. Boulanger, supra at para 12 citing the original UK common law offence
  12. R v Fisher, 2001 CanLII 24107 (ON CA), [2001] O.J. No. 116 (C.A.)
    R v Ryan, 2004 NSCA 115 (CanLII)
  13. R v Singh, 2008 ABCA 79 (CanLII)
  14. R v Blanas, 2006 CanLII 2610 (ON CA), [2006] O.J. No. 364 (C.A.)
  15. R v Scott, 2001 CanLII 24184 (ON CA), (2001), 153 CCC (3d) 87 (Ont. C.A.)
  16. R v Cosh, NSCA 76 (CanLII)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Sentencing Profile

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 122 [breach public trust] N/A 5 years custody

Offences under s. 122 are straight indictable. The maximum penalty is 5 years incarceration.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 122 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Breach of Public Trust (Sentencing Cases)

In New Brunswick, it is suggested that a discharge will only be imposed in "exceptional circumstances" when it concerns a position such as a peace officer.[1]

  1. R v Leblanc, 2003 NBCA 75 (CanLII) at para 33 ("only the most exceptional circumstances can justify a discharge, absolute or conditional, for breach of trust by a police officer in the execution of his duties")

Ancillary Sentencing Orders

Offence-specific Offences

Order Conviction Description
DNA Orders s. 122

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

Related Offences

Pre-Trial and Trial Issues