Welfareville - Notebook - The law: Criminal Code - Breach of trust by public officer

§ Breach of trust by public officer

Offences Against the Administration of Law and Justice
- Corruption and Disobedience
  - Section 119.(1), Bribery of judicial officers, etc.
  - Section 120, Bribery of officers
  - Section 121, Frauds on the government
  - Section 122, Breach of trust by public officer
  - Section 123, Municipal corruption
  - Section 124, Selling or purchasing office
  - Section 125, Influencing or negotiating appointments or dealing in offices
  - Section 126, Disobeying a statute
  - Section 127, Disobeying order of court
  - Section 128, Misconduct of officers executing process
  - Section 129, Offences relating to public or peace officer
  - Section 130, Personating peace officer
- Misleading Justice
- Escapes and Rescues

Place holder.

Breach of trust by public officer

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

R.S., c. C-34, s. 111.

Definitions

118. In this Part,
"office" includes

an office or appointment under the government,
a civil or military commission, and
a position or an employment in a public department;

"official" means a person who

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

R. v. Boulanger, [2006] 2 S.C.R. 49, 2006 SCC 32
I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubt the following elements:
1. The accused is an official;
2. The accused was acting in connection with the duties of his or her office;
3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;
4. The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and
5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.
R v Boulanger, [2006] 2 S.C.R. 49 at para. 58
- actus reus - a “marked” departure from reasonable behaviour (criminal negligence test set down in R v Creighton, [1993] 3 SCR 3)
  - a reasonable public official, not a reasonable person
- mens rea - the accused must have intended to use his office for something other than the public good
  - does not indicate whether the accused needs to intend to act contrary to the public good as the accused himself conceives it, or whether the accused needs to intend to act contrary to some independently defined "public good"
  - R. v. Krdzalic, 2011 ONCJ 793 (CanLII) (rigidly requires an element from the examples given in Boulanger)
    While I cannot say the release of the information by Mr. Krdzalic to his cousin was for the public good, I cannot conclude it was for any dishonest, corrupt, or oppressive purpose. At its highest, it was for a “partial” purpose in that he was doing a favour for his cousin. R. v. Krdzalic, 2011 ONCJ 793 at para. 30
  - R. v. Ramzy, 2014 ONCJ 30 (CanLII)
    Ms. Henein suggests that what occurred here would not be seen by informed members of the public to rise to level of a "serious and marked departure" from the standard of responsibility and conduct demanded of professionals described in R. v. Boulanger, 2006 SCC 32. In these particular circumstances, I tend to agree with this submission. R. v. Ramzy, 2014 ONCJ 30 at para. 11
R. v. S.(E.M.), 2013 ONCJ 773 (CanLII)
R. v. Brown, 2014 BCSC 1689 (CanLII)