December 18, 2018
Bich, Mainville, Healy
Appeal from an acquittal. Allowed; a new trial is ordered.
Following a jury trial, the respondent was acquitted of the charges of breach of trust and conspiracy. He had been accused of helping the co-accused, an official of the Ville de Montréal, use his position to obtain commissions from companies who provided computer services to the Ville and to embezzle funds. Although he does not deny that his actions might have helped the co-accused commit offences, the respondent argues that he was not aware of his co-accused’s fraudulent intent and that his co-accused did not commit breach of trust.
The appellant appeals the verdict, arguing that the judge’s instructions to the jury were tainted by several errors of law regarding in particular the mental element of the offence of breach of trust and aiding under s. 21(1)(b) of the Criminal Code (R.S.C. 1985, c. C-46).
The essential elements of the offence of breach of trust are summarized in R. v. Boulanger (S.C. Can., 2006-07-13), 2006 SCC 32, SOQUIJ AZ-50382814, J.E. 2006-1421,  2 S.C.R. 49: (1) the accused is an official; (2) he was acting in connection with the duties of his office; (3) he breached the standard of responsibility and conduct demanded of him by the nature of the office; (4) his conduct represented a serious and marked departure from the standards expected of an individual in his position of public trust; and (5) he acted with the intention to use his public office for a purpose other than the public good.
The instructions to the jury were not consistent with the conclusions in Boulanger regarding the actus reus of the offence of breach of trust. The judge neglected to include the requirement that the conduct represent a serious and marked departure from the standards expected of a reasonable person in such a position of trust. Moreover, he told the jury that the prosecution had the burden of proving that a benefit was received, whereas the Supreme Court explicitly decided that this was not an essential element of the offence.
What is more, in his instructions and the decision tree given to the jury, the judge stated that the prosecution had to establish that the co-accused had committed acts that were inconsistent with the duties of his public office, but he failed to specify that the intention to commit these acts must be accompanied by evidence of an objective inconsistent with the public good, in accordance with the principles set out in Boulanger, although the intention need not be characterized as general or specific. This significant error with respect to the mens rea was repeated in the instructions regarding the respondent as the alleged accomplice, since the judge told the jury that the respondent had to have been aware of his co-accused’s intention to breach public trust through his actions, whereas such knowledge could have been established by proof of wilful blindness.
An RSS feed allows you to keep up to date with any recent updates published on a website. By subcribing to our RSS feed, you will automatically receive the latest news related to your RSS feed and view them at any time.