Frauds on the Government (Offence): Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
m Text replacement - "(R v [A-Z][a-z]+)," to "''$1'',"
m Text replacement - "} at para ([0-9])<" to "}{{at|$1}}<"
Line 162: Line 162:
===Influence Peddling - s. 121(1)(d)===
===Influence Peddling - s. 121(1)(d)===
The purpose of the offence under s. 121(1)(d) is to "preserve both government integrity and the appearance of government integrity".<ref>
The purpose of the offence under s. 121(1)(d) is to "preserve both government integrity and the appearance of government integrity".<ref>
''R v Carson'', [http://canlii.ca/t/hr51s 2018 SCC 12] (CanLII){{perSCC|Karakatsanis J}} at para 1<br>
''R v Carson'', [http://canlii.ca/t/hr51s 2018 SCC 12] (CanLII){{perSCC|Karakatsanis J}}{{at|1}}<br>
</ref>
</ref>


Line 176: Line 176:
'''"relating to the government"'''<br>
'''"relating to the government"'''<br>
A "matter of business" relates to government if its mandate is "facilitated by government".<ref>
A "matter of business" relates to government if its mandate is "facilitated by government".<ref>
Carson{{ibid}} at para 5<br>
Carson{{ibid}}{{at|5}}<br>
</ref>
</ref>
This includes any commercial transaction where the government "could impose or amend terms and conditions that would favour one vendor over others."<ref>
This includes any commercial transaction where the government "could impose or amend terms and conditions that would favour one vendor over others."<ref>

Revision as of 15:12, 13 January 2019


Frauds on the Government
s. 121 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.
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 frauds on the government are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings

Template:PleadingsIndictableList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)

Offences under s. 121 are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Template:ReleaseOICorBail

Publication Bans
For all criminal or regulatory prosecutions, 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. 121 are designated offences eligible for wiretap under s. 183.

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

Offence Wording

Frauds on the government
121. (1) Every one commits an offence who

(a) directly or indirectly
(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(iii) the transaction of business with or any matter of business relating to the government, or
(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,
whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;
(b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place;
(c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official;
(d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including themselves, to an office;
(e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with
(i) anything mentioned in subparagraph (a)(iii) or (iv), or
(ii) the appointment of any person, including themselves, to an office; or
(f) having made a tender to obtain a contract with the government,
(i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
(ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender.

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

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

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

R.S., 1985, c. C-46, s. 121; 2007, c. 13, s. 5.


– CCC

Proof of the Offence

Proving frauds on the government - Participating in Bribery of an Official under s. 121(1)(a) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit did any of the following:
    1. 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
    2. 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
    3. the transaction of business with or any matter of business relating to the government, or
    4. a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow.

Proving frauds on the government - Conferring Benefits on Employee or Official Without Consent under s. 121(1)(b) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit "pays a commission or reward to or confers an advantage or benefit of any kind on" a person;
  5. the person is "an employee or official of the government with which the dealings take place, or to any member of the employee’s or official’s family, or to anyone for the benefit of the employee or official, with respect to those dealings,"
  6. the person does not have "the consent in writing of the head of the branch of government with which the dealings take place"; and
  7. the prohibited conduct occurs while "having dealings of any kind with the government".

Proving frauds on the government - Employee or Official Requesting Benefits Without Consent under s. 121(1)(c) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit is "an official or employee of the government";
  5. the person "has dealings with the government a commission, "
  6. the culprit "directly or indirectly demands, accepts or offers or agrees to accept from a person" a thing;
  7. the thing is a "reward, advantage or benefit of any kind"
  8. the benefit was in favour of "themselves or another person"; and
  9. the person does not "have the consent in writing of the head of the branch of government that employs them or of which they are an official".

Proving frauds on the government - influence peddling under s. 121(1)(d) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit "having or pretending to have influence" over a person;
  5. the person is a "the government or with a minister of the government or an official"
  6. the culprit "directly or indirectly demands, accepts or offers or agrees to accept" a thing;
  7. the thing is "a reward, advantage or benefit of any kind as consideration";
  8. the benefit was in favour of "themselves or another person"; and
  9. the exchange is "for cooperation, assistance, exercise of influence or an act or omission in connection" with either:
    1. anything mentioned in subparagraph (a)(iii) or (iv), or
    2. the appointment of any person, including themselves, to an office.

Proving frauds on the government - Bribery of a Minister under s. 121(1)(e) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit "directly or indirectly gives or offers, or agrees to give or offer," to a person;
  5. the person is "a minister of the government or an official, or to anyone for the benefit of a minister or an official,"
  6. the subject is "a reward, advantage or benefit of any kind as consideration"
  7. the exchange is "for cooperation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with"
  8. either:
    1. anything mentioned in subparagraph (a)(iii) or (iv), or
    2. the appointment of any person, including themselves, to an office

Proving frauds on the government - Participating in Bribery Relating to Tenders under s. 121(1)(f) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit "made a tender to obtain a contract with the government",
  5. the culprit either:
    1. "directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person’s family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or
    2. "directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender."

Proving Contractor subscribing to election fund under s. 121(2) should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit "directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person" a thing;
  5. the thing is "any valuable consideration";
  6. the prohibited conduct was "in order to obtain or retain a contract with the government";
  7. the prohibited conduct was either:
    1. "for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province"; or
    2. "with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province."

Interpretation of the Offence

Participating in Bribery of an Official - s. 121(1)(a)

Conferring Benefits on Employee or Official Without Consent - s. 121(1)(b)

Employee or Official Requesting Benefits Without Consent - s. 121(1)(c)

Completion of Offence Under s. 121(1)(c)
Fraud under s. 121(1)(c) is complete once the benefit is paid to a family member.[1]

  1. ↑ R v Mathur, 2010 ONCA 311 (CanLII), per Weiler and MacFarland JJA

Influence Peddling - s. 121(1)(d)

The purpose of the offence under s. 121(1)(d) is to "preserve both government integrity and the appearance of government integrity".[1]

"in connection with a matter of business"
It is an essential element that the subject-matter of influence "actually" be connected to government.[2]

The terms found in should not be interpreted strictly.[3]

"relating to the government"
A "matter of business" relates to government if its mandate is "facilitated by government".[4] This includes any commercial transaction where the government "could impose or amend terms and conditions that would favour one vendor over others."[5]

Where an accused subjectively believes the promised influence is connected to a matter of business that relates to the government, but the connection cannot be proven as a fact, then the accused is guilty of attempting to commit the offence.[6]

The meaning of "government" does not "depend on some government action or can be facilitated by government under its existing operational structure".[7]

  1. ↑ R v Carson, 2018 SCC 12 (CanLII), per Karakatsanis J, at para 1
  2. ↑ Carson, ibid. at para 26
  3. ↑ Carson, ibid. at para 5, 24
  4. ↑ Carson, ibid., at para 5
  5. ↑ Carson, ibid. at para 5
  6. ↑ Carson, ibid. at para 29
  7. ↑ Carson, ibid. at para 41

=Bribery of a Minister - s. 121(1)(e)

Participating in Bribery Relating to Tenders - s. 121(1)(f)

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 121), 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)).

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

Maximum Penalties

Offence(s) Crown
Election		 Maximum Penalty
s. 121 [frauds on the government] N/A 5 years custody

Offences under s. 121 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. 121 N/A

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.

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 121

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

History

See also: List of Criminal Code Amendments

1985 to 2007

Frauds on the government
121. (1) Every one commits an offence who

(a) directly or indirectly
(i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or
(ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

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

(iii) the transaction of business with or any matter of business relating to the government, or
(iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

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

(b) having dealings of any kind with the government, 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.

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

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

Punishment
(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 110.


– CCC

See Also

References

v • e
 
Property and Financial Offences
Offences / Sentencing
Fraud on the Government (121), Theft (322, 334), Motor Vehicle Theft (333.1), Breach of Trust (336), Unauthorized Use of Computer (342.1), Robbery (343, 344), Break and Enter (348), Unlawfully in a Dwelling (349), Possession of Break-in Instruments (351), Possession of Stolen Property (354, 355), Trafficking in Stolen Property (355.2, 355.4), Obtaining Property by False Pretences (362), Forgery (366, 367, 368), Fraud (380), Mischief (430), Arson (433, 434), Animal Cruelty (444, 445, 445.1 and 446), Counterfeiting (449, 450, 452)
Retrieved from "https://criminalnotebook.ca/index.php?title=Frauds_on_the_Government_(Offence)&oldid=17641"