R. v. Hinchey

R. v. Hinchey
Collection
Supreme Court Judgments
Date
1996-12-12
Report
[1996] 3 SCR 1128
Case number
24430
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Newfoundland and Labrador
Subjects
Criminal law
Notes
SCC Case Information: 24430
Decision Content
R. v. Hinchey, [1996] 3 S.C.R. 1128
Morgan Francis Hinchey Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Hinchey
File No.: 24430.
1996: April 26; 1996: December 12.
Present: La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for newfoundland
Criminal law -- Corruption -- Elements of offence -- Government official or employee -- Accepting of a “commission, reward, advantage or benefit of any kind” -- Provincial government employee’s wife placed on payroll of company having dealings with government but never asked to do any work -- Whether elements of offence proven -- Criminal Code, R.S.C., 1985, c. C-46, s. 121(1) (c).
Criminal law -- Trial -- Charge to jury -- Conduct of trial -- Whether trial judge’s errors and persistent interference preventing accused from receiving fair trial -- Whether curative proviso applicable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1) (b)(iii).
The appellant was employed as a district engineer by the provincial transportation department. During 1984 the general manager of a company engaged in the construction of roads for the province and various municipalities placed the appellant’s wife on the company’s payroll as a standby flag person. She was never asked to do any work yet she received payments from the company in the amount of some $7,400. The company also provided her with a record of employment confirming that she had been employed for 20 weeks, thereby qualifying for unemployment insurance benefits. The appellant was in charge of overseeing the construction of roads for the province and municipal authorities within the province. He dealt frequently with the company’s general manager, and had the authority to direct, suspend and generally supervise the work done by the company. The appellant was aware that his wife received cheques for 20 weeks from the company and yet had not been called upon to work during that period. He was aware that standby flag persons did not usually get paid when they were not working; that the company was laying off people doing flag work in the period in which she was hired; and that despite this practice his wife had remained on the payroll without working. He was aware that the cheques payable to his wife were put in a special envelope and delivered to himself or his wife. He knew that he had not sought or obtained the consent of his employer to the receipt of any benefit. The appellant and his wife were charged with two counts of fraud and the appellant with a breach of s. 121(1) (c) of the Criminal Code , which makes it an offence for an official or employee of the government to accept from a person who has dealings with the government a benefit of any kind directly or indirectly, by himself or through a member of his family, unless he has the consent in writing of the head of the branch of government that employs him. They were convicted on all three charges following a trial by jury. The Court of Appeal unanimously allowed their appeal against the two fraud convictions, and a new trial was directed on those counts, but it dismissed the appellant’s appeal against his conviction for breach of s. 121(1) (c).
Held: The appeal should be allowed.
Per La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ.: The crucial purpose encompassed by s. 121(1) (c) is not merely to preserve the integrity of government, but to preserve the appearance of integrity as well. Given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe. Damage to the government’s integrity can occur where benefits are received by government employees even where no ill motive existed. It is inefficient for a government to be paralyzed by rumour and innuendo while an inquiry is made into the motivation behind a certain benefit or advantage conferred on an official. The section criminalizes behaviour whereby a government official or employee, under certain circumstances, accepts a benefit from a person who has dealings with the government. The offence created is a “conduct” crime, meaning that it does not require a particular result to flow from the commission of the prohibited act.
Parliament worded s. 121(1) (c) broadly and did not intend to restrict its application solely to situations where the gift was motivated by the recipient’s position in government. The section’s potentially wide application can be limited through statutory interpretation without introducing an additional element. The first component of the section is that a commission, reward, advantage or benefit of any kind be given by a person having “dealings with the government”. The proper interpretation of the term “dealings” is the narrow one, whereby only where persons are in the process of having commercial dealings with the government at the time of the offence is the conduct trapped under the section.
The second element of the actus reus is the receipt of that “commission, reward, advantage or benefit of any kind” by a government employee. The phrase “of any kind” was not meant to widen the scope of the provision’s reach. It was not worded or intended to mean “of whatever amount” or “of any value”, but rather was intended to trap diverse forms of benefits other than those of a strictly monetary nature. Many of the absurd consequences of adopting an unlimited wide meaning of the term “advantage or benefit” can be avoided by a stricter reading of the term, and a recognition that it requires the beneficiary to have secured a material or tangible gain before falling into the confines of the section. It is important to consider the relationship between the parties as well as the scope of the benefit. The closer the relationship, the less likely the gift should be perceived as an advantage or benefit to the recipient. Whether a gift can be seen as a true “benefit” to someone is a question of fact for the jury to determine based on all the evidence in the case.
With respect to mens rea, since this offence constitutes a “conduct” crime, it requires that to be culpable the accused know of the conduct he or she committed, and have knowledge of the circumstances in which it occurred. In order to prove the offence in s. 121(1) (c), it is thus necessary for the Crown to prove the following fault elements: (a) an employee's conscious decision to accept what in all of the circumstances is found to be a "commission, reward, advantage or benefit of any kind"; and (b) knowledge (or wilful blindness) at the time of the receipt that the giver was having dealings with the government and that the employee's superior had not consented to his or her receipt of the "commission, reward, advantage or benefit of any kind". Since this level of mens rea is recognized as a valid form of criminal culpability, there is no need to add any additional components. The motivation behind a particular benefit is not a completely irrelevant consideration, however, as it is an important factor in determining the appropriate level of culpability. Clearly, where a government employee actually possessed a corrupt intention in accepting a benefit he or she will usually merit a higher sentence than a person lacking such a motive.
A new trial should be ordered in this case. As found by Cory J., the trial judge’s persistent interference, along with the errors committed during the charge to the jury, do not permit the conclusion that the appellant received a fair trial.
Per Sopinka, Cory and Iacobucci JJ.: The important aim of s. 121(1) (c), which is to ensure the integrity of government employees, should be taken into consideration in the interpretation and application of the section. The requisite acts necessary to constitute the offence are the giving of a “commission, reward, advantage or benefit of any kind” by a person having “dealings with the government”, the receipt of the “commission, reward, advantage or benefit of any kind” by a government employee, and the absence of the consent of the government employee’s superior to the receipt of the benefit. The commission, reward, advantage or benefit of any kind must consist of something of value which constituted a profit to the employee and was derived at least in part from the employee’s relation to or position with the government. The mental element of blameworthiness for s. 121(1) (c) should be assessed subjectively and requires proof not only that the accused was aware or knew of the requisite elements of the offence but also that he knew that he received the benefit at least in part because of his position with the government; or that he was wilfully blind to circumstances which would lead to that conclusion; or was reckless as to the consequences of accepting the benefit without the consent and permission of his superior, that is to say he was aware of the risk of his actions breaching the provision but nonetheless took the risk of proceeding in that manner.
The evidence presented in this case indicates that the actus reus of the offence was established and there was strong and cogent evidence upon which a jury properly instructed could find that the accused had the requisite intent or was wilfully blind to the situation or was reckless as to the consequences of his actions. Unfortunately the trial judge did not give the proper instructions as to the requisite intent. He also erred in his directions to the jury on a number of other matters. The issue of credibility was vital to the resolution of the case. The trial judge ought to have given instructions as to the character evidence presented and the use that could be made of it. His failure to do so adversely affected the fairness of the trial. In addition, there was untoward interference with both counsel’s conduct of their respective cases by the judge throughout the trial. The errors made by the trial judge and the whole conduct of the trial have a cumulative effect that makes it readily apparent that no other disposition than that of a new trial would achieve a fair result. The curative provisions of s. 686(1) (b)(iii) are accordingly not applicable.
Cases Cited
By L’Heureux-Dubé J.
Referred to: R. v. Greenwood (1991), 8 C.R. (4th) 235; Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; R. v. Cooper, [1978] 1 S.C.R. 860; United States v. Evans, 572 F.2d 455 (1978); R. v. Zundel, [1992] 2 S.C.R. 731; Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338; R. v. Zelensky, [1978] 2 S.C.R. 940; RJR-MacDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Lafrenière, [1994] O.J. No. 437 (QL); R. v. Hau, [1994] B.C.J. No. 677 (QL); R. v. Johnston, [1995] O.J. No. 3118 (QL); R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Guiller, Ont. Dist. Ct., September 23, 1985, unreported; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; R. v. Fisher (1994), 88 C.C.C. (3d) 103; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Pezzelato v. The Queen, 96 D.T.C. 1285; Vine Estate v. Minister of National Revenue (1989), 29 F.T.R. 59; Hoefele v. The Queen, 94 D.T.C. 1878; R. v. Dubas, [1992] B.C.J. No. 2935 (QL), aff’d (1995), 60 B.C.A.C. 202; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Ruddock (1978), 39 C.C.C. (2d) 65; R. v. Tanguay (1975), 24 C.C.C. (2d) 77; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Lohnes, [1992] 1 S.C.R. 167.
By Cory J.
Referred to: R. v. Greenwood (1991), 8 C.R. (4th) 235; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Giguère, [1983] 2 S.C.R. 448; R. v. Sinasac (1977), 35 C.C.C. (2d) 81; R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R 486; R. v. Vaillancourt, [1987] 2 S.C.R 636; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Gosset, [1993] 3 S.C.R. 76; R. v. Finlay, [1993] 3 S.C.R. 103; R. v. Théroux, [1993] 2 S.C.R. 5; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Jorgensen, [1995] 4 S.C.R. 55; R. v. Rouleau (1984), 14 C.C.C. (3d) 14; R. v. Logiacco (1984), 11 C.C.C. (3d) 374; R. v. Tarrant (1981), 63 C.C.C. (2d) 385; R. v. Pouliot, [1993] 1 S.C.R. 456, rev’g (1992), 74 C.C.C. (3d) 428.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Constitution Act, 1867 .
Criminal Code, R.S.C., 1985, c. C-46, ss. 9 , 119 to 125 , 121(1) , 175(1) (a), 264 [ad. 1993, c. 45, s. 2], 686(1)(b)(iii), 736.
Financial Administration Act, R.S.C., 1985, c. F-11, ss. 80 , 81 .
Authors Cited
Canada. Office of the Prime Minister. Conflict of Interest and Post-Employment Code for Public Office Holders. Ottawa: Office of the Prime Minister, 1994.
Canadian Bar Assocation. Criminal Recodification Task Force. Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada. Ottawa: The Association, 1992.
Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Carswell, 1991.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Gillies, Peter. Criminal Law, 3rd ed. Sydney: Law Book Co., 1993.
Mewett, Alan W., and Morris Manning. Mewett & Manning on Criminal Law, 3rd ed. Toronto: Butterworths, 1994.
Pearson, John C. Annotation to R. v. Greenwood (1992), 8 C.R. (4th) 236.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Williams, Glanville. Criminal Law: The General Part, 2nd ed. London: Stevens & Sons, 1961.
APPEAL from a judgment of the Newfoundland Court of Appeal (1994), 123 Nfld. & P.E.I.R. 222, 382 A.P.R. 222, dismissing the appellant’s appeal from his conviction for breach of s. 121(1) (c) of the Criminal Code . Appeal allowed.
David F. Hurley, for the appellant.
Colin J. Flynn, Q.C., for the respondent.
Robert J. Frater, for the intervener.
\\L’Heureux-Dubé J.\\
The judgment of La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by
1 L’Heureux-Dubé J. -- I have had the advantage of reading the reasons of Justice Cory and I agree with his view that this appeal should be allowed. As he has expressed, the persistent interference of the trial judge, along with the errors committed during the charge to the jury, do not permit the conclusion that the appellant received a fair trial. Where I part company from my colleague, however, is with regard to the proper interpretation of s. 121(1) (c) of the Criminal Code, R.S.C., 1985, c. C-46 . In my view, the conclusion he comes to results in a virtual rewriting of the provision and one contrary to the object and spirit of the law.
2 This appeal is brought on the basis that the trial judge, and subsequently the Court of Appeal, improperly defined the mens rea for this offence. In his address to the jury, the trial judge stated that a conviction should be entered if, inter alia, the Crown had proved that the appellant possessed an “intention to cause the external circumstances of the offence”. According to the appellant, this instruction is problematic in that it, in effect, creates a strict liability offence whereby persons lacking a “criminal intention” can fall within the literal wording of the section.
3 I have great difficulty with this particular submission. Quite simply, this offence cannot be one of strict liability as it requires a bona fide mental element. At a minimum, the charge given to the jury required they find that the appellant possessed an intention to commit a prohibited act, while having subjective knowledge of the circumstances. As Doherty J.A. recognized when dealing with this very offence in R. v. Greenwood (1991), 8 C.R. (4th) 235 (Ont. C.A.), at pp. 255-56:
A conscious choice to perform a prohibited act, combined with knowledge that all or at least some of the relevant circumstances exist, is a well-recognized form of criminal culpability: see R. v. Sault Ste. Marie (City), supra, at p. 1324 (S.C.R.), pp. 373‑374 (C.C.C.), (pp. 52-54 C.R.); A. W. Mewett and M. Manning, Criminal Law -- 2d. ed. (Toronto: Butterworths, 1985), pp. 116‑120; Law Reform Commission of Canada, Criminal Law -- The General Part (Working Paper 29) (1982), pp. 24‑26. Knowledge combined with a volitional act may be seen as a minimum level of culpability. However, for many crimes which do not require proof that any consequence flowed or was intended to flow from the doing of the prohibited act in the relevant circumstances, a volitional act combined with knowledge of the relevant circumstances generally constitutes the only culpability requirement. Indeed, in its recent work, Recodifying the Criminal Law (Working Paper No. 31) (1987), at pp. 21‑23, the Law Reform Commission of Canada, in its proposed General Part for a new Criminal Code , recommends, where the definition of a crime does not require proof of a particular consequence, that the culpability or fault requirement consist of a volitional act done with knowledge of, or recklessness as to, the existence of the circumstances set out in the statutory definition. The Crown's submission is firmly rooted in contemporary notions of criminal culpability.
4 I agree. Clearly, what the appellant takes issue with is not that s. 121(1) (c) lacks a fault requirement, but that the offence, as it was set out by the trial judge, has the potential to trap conduct which should not be considered criminal, and thus punish offenders undeserving of sanction. This is the thrust of the reasons of my colleague, and it is this issue which I propose to address.
5 The provision of the Code at issue here reads as follows:
121. (1) Every one commits an offence who
. . .
(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.
6 After an examination of the provision, Cory J. concludes (at para. 116) that this offence encompasses the following elements. To constitute the actus reus, the conduct must include:
(a) the giving of a “commission, reward, advantage or benefit of any kind” by a person having “dealings with the government”;
(b) the receipt of the “commission, reward, advantage or benefit of any kind” by a government employee;
(c) the absence of the consent of the government employee’s superior to the receipt of the benefit; and
(d) that the “commission, reward, advantage or benefit of any kind must consist of something of value which constituted a profit to the employee derived at least in part from the employee’s relation to or position with the government.”
7 As to the mental element, the accused must have knowledge of the elements set out in (a), (b) and (c) and also must know that he was receiving the benefit at least in part because of his position in government.
8 I have no difficulty with the elements (a), (b) and (c) as detailed by Cory J. In my view, however, the effect of component (d) is to add an additional physical and mental element to the provision. I would note that this element is not a feature of Parliament’s drafting, but was read into the section by my colleague. He has added these requirements in order to limit what is, in his view, an otherwise overly broad section.
9 This conclusion is, in my view, quite unnecessary. The section, properly read, captures no more conduct than is strictly necessary to achieve its purpose. Accordingly, I come to a considerably different result with regard to the essential elements of this provision.
Interpretation of s. 121(1) (c)
10 My colleague, Cory J. begins his analysis of the section with the following proposition (at para. 95):
Before considering the acts which form an integral part of the crime and the element of blameworthiness, it is necessary to consider the possible scope or breadth of application of the section.
11 Essentially, his approach to this case follows this very guideline. Rather than attempting to interpret the applicable section by analyzing its intent and the objective of Parliament in enacting it, my colleague begins from the position that we must tailor the breadth first. In my view, this is a backward manner of interpretation. I suggest that it is improper that the breadth of a section’s potential application should be our guiding principle.
12 In interpreting any section of the Criminal Code , or indeed, of any statute, it is always crucial to begin by considering the section itself and the rationale which is underlying it. This is in accordance with the contextual approach I have discussed recently in Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550, and 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919. It follows that a proper understanding of the provision must begin with an examination of all relevant and admissible indicators of legislative meaning in an attempt to discern the section’s purpose. Therefore, I propose to begin with this analysis.
Purpose of s. 121(1) (c)
13 There is little doubt that s. 121 was enacted for the important goal of preserving the integrity of government. This section of the Criminal Code is one of the myriad ways in which the government seeks to achieve this purpose. For example, a glance at the surrounding Criminal Code ss. 119 to 125 reveals different methods by which the law attempts to deter conduct by persons dealing with or employed by government. Obviously, the criminal law is not the only method utilized; a variety of other statutes contain provisions which deal with corrupt or fraudulent practices, while there are also conflict of interest and ethical guidelines to regulate behaviour. See for example Financial Administration Act, R.S.C., 1985, c. F-11, ss. 80 and 81 ; Conflict of Interest and Post-Employment Code for Public Office Holders (1994).
14 It is hardly necessary for me to expand on the importance of having a government which demonstrates integrity. Suffice it to say that our democratic system would have great difficulty functioning efficiently if its integrity was constantly in question. While this has not traditionally been a major problem in Canada, we are not immune to seeing officials fall from grace as the result of a violation of the important trust we place in their integrity. See, for example, R. v. Cooper, [1978] 1 S.C.R. 860. I would merely add that the importance of preserving integrity in the government has arguably increased given the need to maintain the public’s confidence in government in an age where it continues to play an ever increasing role in the quality of everyday people’s lives. As the U.S. Congress has stated about its own anti-corruption measures:
The necessity for maintaining high ethical standards of behaviour in the Government becomes greater as its activities become more complex and bring it into closer and closer contact with the private sector of the Nation’s economy.
As quoted in United States v. Evans, 572 F.2d 455 (5th Cir. 1978), at p. 480.
15 It is quite accepted that criminal law has a role to play in this area. Protecting the integrity of government is crucial to the proper functioning of a democratic system. Criminal law has a historic and well-established role in helping to preserve that integrity.
16 Section 121(1)(c) has a special role to play in this regard. This Court has decided on several occasions that the crucial purpose encompassed by this section is not merely to preserve the integrity of government, but to preserve the appearance of the integrity as well. In Greenwood, supra, at pp. 250-51, Doherty J.A. made several remarks in this respect regarding the purpose of s. 121(1) (c):
Canadian courts have repeatedly recognized that s. 121(1) (c) exists to preserve both the integrity of the public service and the appearance of integrity of the public service. The government's business must be free from any suggestion of "under‑the‑table" rewards or benefits made to those who conduct business on behalf of the government by those who stand to gain from those dealings: see, e.g., R. v. Cooper, supra, at p. 875 (S.C.R.), p. 29 (C.C.C.); Giguere, supra, at p. 462 (S.C.R.), p. 12 (C.C.C.) (pp. 12-13 C.R.); R. v. Cooper (No. 2) (1977), 4 C.R. (3d) S-10, 35 C.C.C. (2d) 35 (Ont. C.A.), at p. 36 (C.C.C.) (p. S-11 C.R.); R. v. Sinasac (1977), 35 C.C.C. (2d) 81 (Ont. C.A.), at p. 84.
That integrity is compromised not only by bribery and corruption in their crassest forms, but by other insidious arrangements whereby a government employee profits from his or her position or employment by way of a private benefit or advantage received from a person having dealings with the government. Such advantages or benefits can create the appearance of impropriety and suggest that the loyalty of the employee has been divided between his or her government employer and the private benefactor. I adopt the comments of Judge Lyon of the Ontario District Court, who on imposing sentence on one Gerald McKendry (the government employee who received the benefits referred to in R. v. Cooper, supra) said, in a passage quoted with approval in R. v. Ruddock (1978), 25 N.S.R. (2d) 77, 36 A.P.R. 77, 39 C.C.C. (2d) 65 (C.A.), at p. 71 (C.C.C.):
“It is obvious in my view that altogether apart from s. 110(1)(c) (now s. 121(1) (c)) that the appearance of objective, uncorrupted impartiality must be of the highest importance. This indeed is an ethic which has been given the full support of the criminal law in the section that I have made reference to, and the reason for that, I think, is obvious because the appearance of justice is equally important as justice itself. And the appearance of honesty and integrity in dealings by Government employees particularly where large sums of public money is (sic) involved must be at all costs preserved lest the failure to do so could result in de facto corruption, one perhaps sliding imperceptibly into the other. It is clearly for this reason that s. 110(c) has been enacted.”
The need to preserve the appearance of integrity within the public service requires that the words "advantage or benefit" include all gifts which can potentially compromise that appearance of integrity.
17 I substantially agree with this statement. In particular, I believe Lyon J.A. was correct when he indicated that preserving the appearance of integrity, and the fact that the government is fairly dispensing justice, are, in this context, as important as the fact that the government possesses actual integrity and dispenses actual justice. The two concepts are, however, analytically distinct. For a government, actual integrity is achieved when its employees remain free of any type of corruption. On the other hand, it is not necessary for a corrupt practice to take place in order for the appearance of integrity to be harmed. Protecting these appearances is more than a trivial concern. This section recognizes that the democratic process can be harmed just as easily by the appearance of impropriety as with actual impropriety itself.
18 In my view, given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe. For the public, who is the ultimate beneficiary of honest government, it is not so easy to sort out which benefits are legitimate and which are laden with a sinister motivation. Moreover, it is inefficient for a government to be paralyzed by rumour and innuendo while an inquiry is made into the motivation behind a certain benefit or advantage conferred on an official. What Parliament is saying through this provision is that the damage sought to be prevented is actually done once the benefit is conferred, and not after an ex post facto analysis which demonstrates that no harm was intended. It is from the point of the conferral of the benefit forward that the appearance of integrity has been slighted.
19 It follows, therefore, that I do not share the view of Cory J., at para. 94, where he sets out the purpose of the section as follows:
If government contracts can be bought by benefits paid to government employees the entire civil service becomes suspect and is dishonoured. The fundamental importance of the subsection must be apparent to all. Its aim is to ensure the integrity of government employees. This vitally important aim and purpose should be taken into consideration in the interpretation and application of the section. [Emphasis added.]
Upon finding this purpose, my colleague goes on to find that there must be actual misconduct for there to be damage done to the government’s integrity. I do not share this view. Rather, Parliament has explicitly stated that such damage can also occur where benefits are received by government employees even where no ill motive existed. It is for this reason that the net in s. 121(1) (c) was cast so wide.
20 I find support for this conclusion through a comparison of the surrounding provisions in s. 121. If preventing the actual corruption of government employees were the purpose of s. 121(1) (c), there would be little need for s. 121(1) (a), as the two provisions would be virtually identical. This section reads as follows:
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;
21 This section clearly tries to preserve the actual integrity of government employees by deterring them from taking benefits in return for giving or promising some sort of reward to the benefactor. It is noteworthy that no actual return need be made to be trapped under the section. It is sufficient for culpability if the gift was given for an ulterior purpose, in that it was designed to compromise the integrity of the employee. The purpose behind the section recognizes that the integrity of government employees can be compromised when they accept rewards because of their position in government. This is in stark contrast, however, to s. 121(1) (c) which does not explicitly require the reward to come as a result of the employee’s position. It does not have to. This is not the evil the section is designed to prevent.
22 Furthermore, the very nature of the offence that Parliament has enacted supports this notion. In Greenwood, supra, at p. 247, Doherty J.A. characterized this offence as a “conduct” crime, meaning that it does not require a particular result to flow from the commission of the prohibited act. I agree with this assessment, and, furthermore, find it quite useful in illustrating the difference between my position and that of Cory J. In his text Criminal Law (3rd ed. 1993), at pp. 30-31, Professor Gillies draws a distinction between “conduct” crimes and “result” crimes:
The so-called “conduct” crime is one in which the behaviour which is personal to D is itself the mischief the crime is aimed at discouraging, viz., the actus reus does not extend to proof of substantive harm caused by this personal activity. The “result” crime is one the actus reus of which consists of conduct personal to D, and the causation of substantive harm by this conduct.
. . .
The conduct crime is aimed at deterring behaviour which has the potential to inflict substantive harm. The result crime penalises the actual infliction of this harm, and in so doing deters its infliction.
The actual wording of s. 121(1) (c) clearly requires no consequence, as it is designed to deter behaviour which has the potential to inflict serious harm. In my view, the interpretation suggested by Cory J. has transformed this offence into a “result” crime. According to his view, before a conviction can be entered, the Crown must prove that the benefit was the result of some corrupt purpose. I cannot agree with this conclusion. In my view, it is clear that no “result” is required by the provision.
23 In summary, the purpose of s. 121(1) (c) is to protect and preserve the appearance of the government’s integrity. The section accomplishes this task by criminalizing behaviour whereby a government official or employee, under certain circumstances, accepts a benefit by a person who has dealings with the government.
24 My colleague, however, appears to have rejected this as a valid criminal law purpose. In his reasons, he expresses concern about situations where benefits might be accepted absent a corrupt intention. It would seem that at the heart of this analysis is the assumption that Parliament did not intend to criminalize this action, as “no reasonable member of the community would regard [it] as blameworthy” (para. 97). In “tailoring” the provision to avoid capturing violators who lack a corrupt intention, Cory J. is essentially finding that the criminal law should not be involved in these types of situations.
25 It is necessary, therefore, to do an examination into the proper limitations of the criminal law. Before coming to the conclusion that certain conduct should or should not be considered “criminal”, I believe that we must examine whether Parliament has the authority to attach sanctions to such conduct. For the purposes of this appeal, it is not necessary for me to exhaustively define the exact limits of the criminal law; however, a look at some of the underlying principles in this area would be helpful in resolving the difficult issues raised here.
26 The question of the proper scope of the criminal law has been oft considered by both academics and jurists. Mewett & Manning on Criminal Law (3rd ed. 1994), at pp. 16-17, have set out the issue in the following way:
How does one determine what acts ought to be subject to criminal sanctions? Some acts, such as a breach of contract or negligent behaviour, may cause untold damage and yet not be criminally punishable while others, such as the theft of a piece of garbage or a minor assault, may cause little or no damage and yet be subject to criminal sanctions. In fact, the harm caused, while one element to be considered, is only one element. Indeed, in some crimes such as conspiracy or attempt, no harm at all may actually materialize. . . .
Criminal law is premised on the belief that there are some acts that ought to be prevented and on the belief that a criminal process is the best way to achieve this . . .
. . . the essence of criminal law is its public nature. A crime is, in fact, not a wrong against the actual person harmed, if there is one -- the victim as he may be called (although it may also and coincidentally be a civil wrong against him) -- but a wrong against the community as a whole. The prevention -- or lessening, since total prevention is not possible -- of crime cannot be left to an individual’s choice but is the responsibility of any member of the community and, in particular, those who represent the state -- the police or the prosecuting authorities.
27 Given this public nature, it is fitting that Parliament has consistently played the major role in defining exactly what type of conduct can be considered criminal in nature. This power is outlined in the Constitution Act, 1867 , where the federal government is given the exclusive power to set out and regulate the criminal law. It is not just the provinces who are prevented from establishing criminal offences; the judiciary is also prevented from re-enacting or creating sanctions pursuant to the common law as a result of s. 9 of the Criminal Code .
28 Since 1982, however, the major limitation upon parliamentary supremacy with respect to the criminal law has been the Canadian Charter of Rights and Freedoms . All legislative provisions of Parliament are now subject to review under the Charter , and where a statute conflicts with the fundamental values expressed therein, the provision cannot stand if it was not enacted for a pressing objective and tailored to suit this need. In fact, as was exemplified in R. v. Zundel, [1992] 2 S.C.R. 731, where this Court struck down the criminal prohibition against publishing false news, it will occasionally come to pass that an entire section of the Code will be invalidated because it simply cannot be rationalized with the Charter . Nevertheless, where, as is the case here, the values of the Charter do not come into play, Parliament generally must be left to its role of asserting the public good through the criminal law.
29 Cory J. recently addressed the proper scope of the criminal law in Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338, at p. 348, and stated:
A very helpful definition of criminal law can be found in the Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference), [1949] S.C.R. 1. In that case Rand J. stated at p. 49:
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
Dickson J., as he then was, in dissenting reasons in R. v. Hauser, [1979] 1 S.C.R. 984, defined the subject in this way at p. 1026:
Head 27 of s. 91 of the British North America Act empowers Parliament to make substantive laws prohibiting, with penal consequences, acts or omissions considered to be harmful to the State, or to persons or property within the State.
30 I agree with this description. Parliament, therefore, retains the power to designate the specific acts which it considers harmful to the State. The criminal law is not “frozen as of some particular time”: R. v. Zelensky, [1978] 2 S.C.R. 940, at p. 951. This principle was expressed in greater detail in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, where the appellants argued that legislation controlling the advertisement of tobacco products, the Tobacco Products Control Act, was not validly enacted by the federal government as it did not have “an affinity with a traditional criminal law concern” (p. 259). La Forest J., for a majority of the Court on this issue, dismissed this ground of appeal for the following reasons (at pp. 2