Breach of Public Trust (Offence): Difference between revisions
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===''Actus Reus''=== | ===''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."<ref> | 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."<ref> | ||
{{CanLIIRP|Campbell|g14qd|1967 CanLII 315 ( | {{CanLIIRP|Campbell|g14qd|1967 CanLII 315 (ONCA)|, 3 CCC 250 (Ont. C.A.)}}{{perONCA|Wells JA}} aff'd (1967) 2 CRNS 403 (SCC)<br> | ||
</ref> | </ref> | ||
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Section 122 is not unconstitutionally void for vagueness.<ref> | Section 122 is not unconstitutionally void for vagueness.<ref> | ||
{{CanLIIR|Lippé|1ngfw|1996 CanLII 5780 (QC CA)}}{{perQCCA|Baudouin JA}}<br> | {{CanLIIR|Lippé|1ngfw|1996 CanLII 5780 (QC CA)}}{{perQCCA|Baudouin JA}}<br> | ||
cf. {{CanLIIRP|McMorran|g164k|1948 CanLII 105 ( | cf. {{CanLIIRP|McMorran|g164k|1948 CanLII 105 (ONCA)|, 91 CCC 19 (ONCA)}}{{perONCA|Hogg J}}<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
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{{CanLIIR|Yellow Old Woman|1g0jf|2003 ABCA 342 (CanLII)}}{{perABCA|Berger JA}}{{atL|1g0jf|14}}<br> | {{CanLIIR|Yellow Old Woman|1g0jf|2003 ABCA 342 (CanLII)}}{{perABCA|Berger JA}}{{atL|1g0jf|14}}<br> | ||
{{supra1|Sheets}}{{atp|620}}<br> | {{supra1|Sheets}}{{atp|620}}<br> | ||
{{CanLIIRP|Campbell|g14qd|1967 CanLII 315 ( | {{CanLIIRP|Campbell|g14qd|1967 CanLII 315 (ONCA)|, 3 CCC 250 (Ont. C.A.)}}{{perONCA|MacKay JA}}<br> | ||
{{CanLIIR-N|Cyr|, (1985), 44 CR (3d) 87 (Que. S.C.)}}<br> | {{CanLIIR-N|Cyr|, (1985), 44 CR (3d) 87 (Que. S.C.)}}<br> | ||
</ref> | </ref> | ||
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* a municipal official or counselor<ref> | * a municipal official or counselor<ref> | ||
Sheets<br> | Sheets<br> | ||
{{CanLIIR-N|Gyles|, [2003] OJ No 3188 (SCJ)}} aff’d at [http://canlii.ca/t/1m7vx 2005 CanLII 47588] ( | {{CanLIIR-N|Gyles|, [2003] OJ No 3188 (SCJ)}} aff’d at [http://canlii.ca/t/1m7vx 2005 CanLII 47588] (ONCA), [2005] OJ No 5513 (C.A.){{TheCourtONCA}} - municipal counselor | ||
</ref> | </ref> | ||
* mayor<ref> | * mayor<ref> | ||
| Line 270: | Line 270: | ||
</ref> | </ref> | ||
* a peace officer<ref> | * a peace officer<ref> | ||
{{CanLIIRP|Fisher|1fblg|2001 CanLII 24107 ( | {{CanLIIRP|Fisher|1fblg|2001 CanLII 24107 (ONCA)|, [2001] OJ No 116 (C.A.)}}{{TheCourtONCA}}<br> | ||
{{CanLIIR|Ryan|1hzbn|2004 NSCA 115 (CanLII)}}{{perNSCA|Saunders JA}}<br> | {{CanLIIR|Ryan|1hzbn|2004 NSCA 115 (CanLII)}}{{perNSCA|Saunders JA}}<br> | ||
</ref> | </ref> | ||
| Line 277: | Line 277: | ||
</ref> | </ref> | ||
* Passport Office Canada employee<ref> | * Passport Office Canada employee<ref> | ||
{{CanLIIRP|Blanas|1mh80|2006 CanLII 2610 ( | {{CanLIIRP|Blanas|1mh80|2006 CanLII 2610 (ONCA)|, [2006] OJ No 364 (C.A.)}}{{TheCourtONCA}}</ref> | ||
* Canada Customs inspector<ref> | * Canada Customs inspector<ref> | ||
{{CanLIIRP|Scott|1fbnf|2001 CanLII 24184 ( | {{CanLIIRP|Scott|1fbnf|2001 CanLII 24184 (ONCA)|, 153 CCC (3d) 87}}{{TheCourtONCA}} | ||
</ref> | </ref> | ||
Revision as of 14:36, 21 March 2021
| Breach of Public Trust | |
|---|---|
| s. 122 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Indictment |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Indictable Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| 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) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 122 [breach of public trust][1] | Hybrid Offence(s) |  |
|
 (under 14 years max)
|
Offences under s. 122 [breach of public trust] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
- Release
| Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
|---|---|---|---|---|---|
| s. 122 [breach of public trust] | |
|
|
|
|
When charged under s. 122 [breach of public trust] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 122 [breach of public trust] | |
|
(under 10 years max) |
|
|
Offences under s. 122 [breach of public trust] 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 [breach of public trust]), 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.
- ↑ Prior to September 19, 2019 the offence was straight indictable
Offence Wording
- Breach of trust by public officer
122 Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
- (b) an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 122; 2019, c. 25, s. 35.
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| 122 | breach of trust by public officer | "..., being an official [describe position], did commit [fraud/breach of trust] in connection with the duties of his office by [describe breaching offence] contrary to section 122 of the Criminal Code." [1] |
Proof of the Offence
|
Proving breach of public trust under s. 122 should include:[1]
|
- ↑
R v Boulanger, 2006 SCC 32 (CanLII), per McLachlin CJ, at para 58
R v Yellow Old Woman, 2003 ABCA 342 (CanLII), , 181 CCC (3d) 439, per Berger JA
R v Lippé, 1996 CanLII 5780 (QC CA), , 111 CCC (3d) 187 (Que. C.A.), per Baudouin JA
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.
- ↑
R v Boulanger, 2006 SCC 32 (CanLII), per McLachlin CJ, at para 1
- ↑
Boulanger, ibid.
R v Moodie and Vranich, 2010 ONSC 4847 (CanLII), per Ramsay J, 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]
- Law Enforcement
There must be more than "neglect of official duty" to be crminal breach of trust. There must be an "improper purpose".[6]
- ↑
R v Campbell, 1967 CanLII 315 (ONCA), , 3 CCC 250 (Ont. C.A.), per Wells JA aff'd (1967) 2 CRNS 403 (SCC)
- ↑ R v Perreault, 1992 CanLII 3282 (QC CA), , [1992] R.J.Q. 1829, per Baudouin JA
- ↑ Campbell, supra at pp. 250, 255-7
- ↑ R v Boulanger, 2006 SCC 32 (CanLII), per McLachlin CJ, at para 48
- ↑
see R v Cook, 2010 ONSC 4534 (CanLII), per Hill J, at para 29
Boulanger, supra, at para 49
- ↑ R v Upjohn, 2018 ONCA 1059 (CanLII), , 371 CCC (3d) 75, per Rouleau JA, at para 15
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 a "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]
- ↑
R v Pilarinos, 2002 BCSC 452 (CanLII), per Bennett J
R v H(AD), 2013 SCC 28 (CanLII), per Cromwell J - requires knowledge of consequences flowing from act
- ↑ Pilarinos, supra
- ↑
R v Flamand, 1999 CanLII 13326 (QC CA), per Letarte JA 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]
- ↑ R v Gyles, 2003 CanLII 53665 (ON SC), , [2003] OJ No 3188 (SCJ), per Wein J aff’d [2005] OJ No 5513 (C.A.)
- ↑ e.g. see R v Cook, 2010 ONSC 4534 (CanLII), per Hill J
- ↑
R v Lippé, 1996 CanLII 5780 (QC CA), per Baudouin JA
cf. R v McMorran, 1948 CanLII 105 (ONCA), , 91 CCC 19 (ONCA), per Hogg J
"Government"
118 In this Part [Pt. IV – Offences Against the Administration of Law and Justice (ss. 118 to 149)],
...
"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.
[annotation(s) added]
"Office"
118 In this Part [Pt. IV – Offences Against the Administration of Law and Justice (ss. 118 to 149)],
...
"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.
[annotation(s) added]
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]
- ↑
Belzberg v The Queen, 1961 CanLII 98 (SCC), , [1962] SCR 254, per Ritchie J
R v Sheets, 1971 CanLII 130 (SCC), , [1971] SCR 614, per Fauteux CJ
R v Moodie and Vranich, 2010 ONSC 4847 (CanLII), per Ramsay J - citing dictionary definitions
- ↑
R v Yellow Old Woman, 2003 ABCA 342 (CanLII), per Berger JA, at para 14
Sheets, supra, at p. 620
R v Campbell, 1967 CanLII 315 (ONCA), , 3 CCC 250 (Ont. C.A.), per MacKay JA
R v Cyr, (1985), 44 CR (3d) 87 (Que. S.C.)(*no CanLII links)
"Official"
118 In this Part [Pt. IV – Offences Against the Administration of Law and Justice (ss. 118 to 149)],
...
"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.
[annotation(s) added]
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 does not include persons providing public services that are contracted out to private companies.[3]
An "official" has been found to include:
- a municipal official or counselor[4]
- mayor[5]
- member of legislative counsel[6]
- Chief of an Aboriginal Nation[7]
- Health Director of an Aboriginal Nation[8]
- director of public security[9]
- ministers of the Crown[10]
- provinical deputy ministers[11]
- a military accountant [12]
- a peace officer[13]
- an air break inspector[14]
- Passport Office Canada employee[15]
- Canada Customs inspector[16]
An "official" has been found not to include:
- paramedic contracted through a private company[17]
- ↑
R v Power, 1993 CanLII 3223 (NSCA), per Freeman JA
R v Cyr, (1985), 44 CR (3d) 87 (Que. S.C.)(*no CanLII links)
- ↑
e.g. R v Bell, 2005 ONCJ 437 (CanLII), per Harris J, at paras 7 to 10
- ↑ R v Cosh, 2015 NSCA 76 (CanLII), per Beveridge JA
- ↑
Sheets
R v Gyles, [2003] OJ No 3188 (SCJ)(*no CanLII links) aff’d at 2005 CanLII 47588 (ONCA), [2005] OJ No 5513 (C.A.), per curiam - municipal counselor - ↑
R v McKitka, 1982 CanLII 425 (BCCA), per curiam, at para 21
- ↑ Martineau c La Reine, 1965 CanLII 85 (CSC), , [1966] RCS 103, per Fauteux J
- ↑ Yellow Old Woman, supra
- ↑ Yellow Old Woman, supra
- ↑ R v Boulanger, 2006 SCC 32 (CanLII), per McLachlin CJ
- ↑ Sommers and Gray v The Queen, 1959 CanLII 43 (SCC), , [1959] SCR 678, per Fauteux J
- ↑ R v MacEachern, 1999 CanLII 7062 (PE SCAD), , (1999), 182 Nfld. & P.E.I.R. 219 (P.E.I.C.A.), per Mitchell JA - Deputy Minister of Agriculture
- ↑
Boulanger, supra, at para 12 citing the original UK common law offence
- ↑
R v Fisher, 2001 CanLII 24107 (ONCA), , [2001] OJ No 116 (C.A.), per curiam
R v Ryan, 2004 NSCA 115 (CanLII), per Saunders JA
- ↑ R v Singh, 2008 ABCA 79 (CanLII), per Berger JA
- ↑ R v Blanas, 2006 CanLII 2610 (ONCA), , [2006] OJ No 364 (C.A.), per curiam
- ↑ R v Scott, 2001 CanLII 24184 (ONCA), , 153 CCC (3d) 87, per curiam
- ↑ Cosh, supra
Participation of Third Parties
- 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
| Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
|---|---|---|---|---|
| s. 122 [breach of public trust] |
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
Sentencing Profile
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 122 [breach of public trust] | summary election[1] | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| s. 122 [breach of public trust] | indictable election | 5 years incarceration |
Offences under s. 122 [breach of public trust] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- 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 [breach of public trust] | 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.
- ↑ Prior to September 19, 2019 the offence was straight indictable
Principles
Ranges
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]
- ↑
R v Leblanc, 2003 NBCA 75 (CanLII), per Drapeau CJ, 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 [breach of public trust] |
|
- 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. |
Record Suspensions and Pardons
Convictions under s. 122 [breach of public trust] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
History
- Criminal Code, 1985
- 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.
– N/A
- Criminal Code, 1953-54
- Breach of trust by public officer
103 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 is liable to imprisonment for 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.
– N/A
- Criminal Code, 1906
Section 135 was changed to s. 160.
- Criminal Code, 1892
- Breach of trust by public officer
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.
– N/A
See Also
- Related Offences
- Pre-Trial and Trial Issues
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Wiretap Eligible Offences
- Notice of Settlement to Victim
- 1985, c. C-46
- 2019, c. 25
- 1985, c. 27 (1st Supp.)
- 2007, c. 13
- Offences Requiring Notice to Victim
- Offences Punishable on Summary Conviction
- Offences with Maximum Penalty of 2 Years Less a Day
- Offences with Maximum Penalty of 5 Years
- Hybrid Offences
- Offences with No Mandatory Minimum
- Secondary Designated Offences for DNA Orders