R. v. Hinchey

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.

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.

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.

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.

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.

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.”

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.

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.

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)

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.

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.

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)

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).

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.

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.

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.

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.

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.

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.

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;

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.

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.

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.

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.

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.

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.

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 .

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.

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.

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. 259-61):

It has long been recognized that Parliament's power to legislate with respect to the criminal law must, of necessity, include the power to create new crimes. This was made clear as early as 1931, when the Privy Council upheld the validity of the Combines Investigation Act, R.S.C. 1927, c. 26, in PATA, supra. That legislation criminalized a wide array of commercial activities not hitherto perceived to have an affinity with criminal law concerns. However, Lord Atkin explained that this fact alone was not sufficient to preclude the application of the criminal law power. He stated, at pp. 323-24:

In their Lordships' opinion s. 498 of the Criminal Code and the greater part of the provisions of the Combines Investigation Act fall within the power of the Dominion Parliament to legislate as to matters falling within the class of subjects, "the criminal law including the procedure in criminal matters" (s. 91, head 27). The substance of the Act is by s. 2 to define, and by s. 32 to make criminal, combines which the legislature in the public interest intends to prohibit. The definition is wide, and may cover activities which have not hitherto been considered to be criminal. But only those combines are affected "which have operated or are likely to operate to the detriment or against the interest of the public, whether consumers, producers, or others"; and if Parliament genuinely determines that commercial activities which can be so described are to be suppressed in the public interest, their Lordships see no reason why Parliament should not make them crimes. "Criminal law" means "the criminal law in its widest sense": Attorney-General for Ontario v. Hamilton Street Ry. Co., [1903] A.C. 524. It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. . . . It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of "criminal jurisprudence"; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes. . . . (Emphasis added.)

Soon after that decision, in Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368, the Privy Council adopted similar reasoning to uphold a prohibition on price discrimination under the criminal law power. Later, this Court, following in large part the reasoning employed by the Privy Council in PATA, supra, sustained a prohibition of resale price maintenance under the criminal law power (Campbell v. The Queen, [1965] S.C.R. vii) and a federal law authorizing the courts to make orders prohibiting the continuation of illegal practices or to dissolve illegal mergers; see Goodyear Tire, supra. In the Goodyear Tire case, at p. 311, Rand J. reaffirmed the reasoning in the PATA case and made the following observation:

It is accepted that head 27 of s. 91 of the Confederation statute is to be interpreted in the widest sense, but that breadth of scope contemplates neither a static catalogue of offences nor order of sanctions. The evolving and transforming types and patterns of social and economic activities are constantly calling for new penal controls and limitations and that new modes of enforcement and punishment adapted to the changing conditions are not to be taken as being equally within the ambit of parliamentary power is, in my opinion, not seriously arguable.

In my view, the reasoning in PATA and Goodyear Tire is directly applicable here. The simple fact that neither tobacco consumption nor tobacco advertising have been illegal in the past in no way precludes Parliament from criminalizing either of those activities today.

The notion of criminality, thus, is not a static one, but one which very much changes over time. As society changes, the conception of what types of conduct can properly be considered criminal also evolves. There are a myriad of different activities which at one point in time were considered legal, but which we now consider criminal. The offence of criminal harassment is one obvious example. For many years, it was not recognized as criminal to persistently follow someone and cause them to fear for their safety, so long as no contact was made. Now, that has distinctly changed with the addition of s. 264 of the Code, which makes this conduct a crime. In my view, this principle was expressed well in R. v. Lafrenière, [1994] O.J. No. 437 (Ont. Ct. (Prov. Div.)) by Greco Prov. Div. J., who stated the following with regard to the criminal harassment provisions (at para. 7):

If one analyzes the section closely it becomes apparent that conduct or behaviour by an accused which had previously been viewed as innocent, in the sense that it was not criminal conduct, in certain circumstances and under certain conditions may now become criminal conduct.

See also R. v. Hau, [1994] B.C.J. No. 677 (Prov. Ct.).

In addition, we should not be swayed by the fact that the underlying activity in this case, receiving a benefit or advantage, happens to be quite legal. Such is also the case in a number of criminal provisions. Nevertheless, the law recognizes that in certain circumstances perfectly legal activity can become criminal. As MacDonnell Prov. Div. J. correctly recognized with respect to the criminal harassment provisions:

It is important to recognize that the conduct referred to in the four categories in ss. 264(2) is not per se unlawful. Indeed, if it were, there would have been no need to enact s. 264. It is not per se criminal to follow someone, to communicate with them, or even to watch and beset a place where they are (unless one has the specific intent set out in s. 423(1) of the Code). It is not even an offence to engage in "threatening conduct", unless that conduct falls within one of the specific sections of the Code dealing with threats, such as ss. 264.1, 265(1)(b), 346(1), 423(1)(a) or (b), and 424. In enacting s. 264, Parliament has taken conduct which by itself is lawful and, in certain circumstances, made it criminal. [Emphasis added.]

(R. v. Johnston, [1995] O.J. No. 3118 (Ont. Ct. (Prov. Div.)), at para. 29.)

This is quite analogous to the situation here. While it is true that in most cases, nothing could be more innocent than accepting a gift or a benefit from someone, under certain circumstances that type of conduct can be considered criminal. There is nothing inherently improper in criminalizing the receipt of benefits.

The importance of this discussion is simply that once we recognize that our conception of criminality is somewhat fluid, it is a factor to consider in determining the proper limits of the criminal sanction. My colleague suggests that a government employee who receives benefits from someone who has dealings with the government does not commit a criminal offence. Essentially, he is saying that Parliament did not mean to enact such a law, because this conduct, without more, could not constitute a criminal act. I disagree. Parliament has identified what it considers an evil against the public, has set out a legitimate objective, and has written a prohibition into the statute which restricts specific actions. In my view, this is a valid exercise of the criminal law power, and as such, the judiciary should not rewrite it to suit its own particular conception of what type of conduct can be considered criminal. As Lamer J. (as he then was) recognized in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1070, adopting Borins Dist. Ct. J. in R. v. Guiller, Ont. Dist. Ct., September 23, 1985, unreported, at p. 15:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment.

I agree with this approach. It should not, however, be taken that I am suggesting that the courts have no role to play in helping to interpret criminal provisions and ensure that they remain carefully tailored to what Parliament intended. As Doherty J.A. describes it in Greenwood, supra, at p. 246:

The courts, however, play a crucial role in the process through the interpretation of the language used by Parliament, and the application of certain common law principles which, in the main, operate to set the necessary fault requirement: see R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299. . . .

Doherty J.A., however, went on to expand upon this by saying that this interpretative role should be informed by certain concerns (at pp. 246-47):

In addition to these specific interpretative aids, the general underlying purpose of the criminal law must inform the interpretation of any provision which creates a crime. The criminal law is essentially a means whereby society seeks to prevent, and, failing that, punish blameworthy conduct which strikes at the fundamental values of the community. The criminal law is, however, a weapon of last resort intended for use only in cases where the conduct is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment: see The Criminal Law in Canadian Society (Government of Canada, 1982), Libman v. R., [1985] 2 S.C.R. 178, . . . 21 C.C.C. (2d) 369, . . . at p. 212 (S.C.R.), p. 231 (C.C.C.). There must be at least a rough equivalence between what judges say is criminal and what the community regards as morally blameworthy. Judicial interpretation of statutory language so as to declare conduct criminal which members of the community view as innocent or morally neutral does a disservice to the overall operation of the criminal law: see Law Reform Commission of Canada, Our Criminal Law (1976); Sayre, “Public Welfare Offences” (1933), 33 Col. L.R. 55; J.L. Edwards, Mens Rea in Statutory Offences (1955) at pp. 244-251. [Emphasis added.]

I agree with this approach, so long as the focus remains upon interpretation. I repeat that judges should not attempt to rewrite a statute under the guise of interpreting it. If Parliament chooses to criminalize conduct which, notwithstanding Charter scrutiny, appears to be outside of what a judge considers “criminal”, there must be a sense of deference to the legislated authority which has specifically written in these elements. In my view, what Doherty J.A. actually recognized when he stated that the judiciary should not declare innocent conduct criminal is a principle of statutory construction which decrees that Parliament does not intend through the criminal law to trap trivial, non-criminal conduct. As Gonthier J. expressed in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at p. 1082:

Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision.

Finally, I would also add that in considering whether the effect of the law conforms to the “underlying purpose of the criminal law” we must not focus narrowly on the impugned provision. Often, a particular provision may seem harsh on its face, but a number of defences exist which reduce its severity. In that sense, a judge in searching to discover the proper meaning of a provision must consider the whole of the law and how it will be applied, as opposed to the section in the abstract, before choosing an interpretation.

In this regard, I would also point out that the section at issue here is like few others in that it offers a simple, complete and exonerating defence to any government employee. Inherent in the reasons of Cory J. is that the section might trap conduct which, although it might appear corrupt on the surface, might truly be quite innocent. Unlike fraud, or bribery offences, however, this section offers an easy solution to any employee concerned about the propriety of his or her conduct. All the employee must do to be completely absolved of responsibility is get the consent of his or her superior in writing. In my view, this does not impose a particularly onerous requirement. Where the employee has any doubts about accepting a gift, Parliament has made it clear that it would rather the person get the consent of his or her superior. At least one commentator has suggested that this defence should be enough to clarify any potential problems with the mens rea of the section: John C. Pearson, Annotation to R. v. Greenwood (1992), 8 C.R. (4th) 236.

It is with this background in mind that I approach the interpretation of this particular section of the Code. There can be no question that this section deals with a serious offence and that Parliament intended to deal with it seriously. Charges must proceed by way of indictment, and there is a maximum penalty of five years’ imprisonment.

Actus Reus of s. 121(1)(c)

The interpretation of the section was recently considered in Greenwood, supra, by the Ontario Court of Appeal. My colleague takes the position that this decision properly defines the approach we should take to this section. While I am in agreement with much of what was said by Doherty J.A. in that case, I ultimately find myself in disagreement with his conclusions.

The language of s. 121(1)(c) consists of three separate elements which can be broken down into the following components:

(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 that "commission, reward, advantage or benefit of any kind" by a government employee; and

(c) the absence of the consent of the government employee's superior to the receipt of the "commission, reward, advantage or benefit of any kind".

Nevertheless, these elements contain many terms which require the clarification of the courts. Without this interpretation, I agree with Cory J. that this section would have a virtually unlimited meaning. Interpretation in this regard is of course a standard feature of the criminal law, and should not be taken as suggesting that a provision does not offer sufficient particularity to the public. In this regard, I substantially agree with Arbour J.A., in R. v. Fisher (1994), 88 C.C.C. (3d) 103 (Ont. C.A.), at pp. 109-10, who in replying to a constitutional challenge to the very section at issue here, made the following remarks:

In its substantive conception, fair notice requires not only that the law be brought home to persons governed by it, but that the law convey in an intelligible way what the proscribed conduct is. The fact that citizens would be surprised to find how broadly the net has been cast by Parliament in criminalizing corruption in the public service does not mean that the law is broad to the point of vagueness.

. . .

The decision of this court in Greenwood, supra, elaborates upon the meaning of the statutory components of s. 121(1)(c). As so interpreted, the enactment provides adequate guidance to government employees who are required to comply with s. 121(1) (c) of the Criminal Code , and it also curtails appropriately discretionary enforcement. The text of that provision, as judicially interpreted, cannot, in my view, be said to be unconstitutionally vague.

See also: Ontario v. Canadian Pacific Ltd., supra; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.

This approach, of course, recognizes that judicial interpretation has a crucial role to play in giving fair notice to the public. It is not merely whether the statute on its plain reading conveys accurate notice, but how it will be read in its proper context which must be considered as well.

In Greenwood, supra, Doherty J.A. concentrated his focus mainly upon the interpretation of the term “commission, reward, advantage or benefit of any kind”. He came to the conclusion that this wording had the potential to trap a large scope of non-criminal conduct and thus it was important to limit it as much as possible. His starting point was that a literal reading of the term “advantage or benefit of any kind” included gifts and all sorts of trivial favours, including the situation where a person having dealings with the government purchases a government employee a cup of coffee. Cory J. has come to the same conclusion.

Doherty J.A. believed that the key to interpreting the rather open-ended term “advantage or benefit” was the concept of profit (at p. 252):

It is noteworthy that the other offences created by s. 121(1) also used the words "advantage or benefit", without any apparent qualification. The offences created by those sections, however, limit the scope of those words by requiring that the advantage or benefit be given or received for a specific purpose, (s. 121(1)(a), (d), (e) and (f)) or in relation to the giver's dealings with the government (s. 121(1)(b)): see R. v. Giguere, supra, at p. 458 (S.C.R.), p. 9 (C.C.C.). Those sections differentiate between criminal benefits and other benefits by reference to the giver's or recipient's state of mind. No such limitation is found in s. 121(1)(c). However, that section creates a crime which is as serious and serves the same purpose as the other offences created by s. 121. It is therefore necessary to choose, from the available definitions, meanings for the words "advantage or benefit" which limit s. 121(1)(c) to its intended purpose.

In my view, the word "profit" found in both the definition of "advantage" and "benefit" sounds the keynote for the meaning of those words in the context of s. 121(1)(c). A government employee receives an advantage or benefit when that employee receives something of value which, in all of the circumstances, the trier of fact concludes constitutes a profit to the employee (or a family member) derived, in part at least, because the employee is a government employee, or because of the nature of the work done by the employee for the government. This definition encompasses not only arrangements involving a quid pro quo but also those more subtle forms of potential corruption whereby an employee gets something from an individual who has dealings with the government because he or she is a government employee, even though the giver expects nothing in return and the employee has done nothing to earn the thing given. [Emphasis added.]

In essence, for the purpose of not trapping the recipient of a trivial benefit, Doherty J.A. introduced a new element into the section. With the greatest of respect, it is neither desirable nor necessary to do so. In my view, Parliament worded this section broadly and did not intend to restrict its application solely to situations where the gift was motivated by the recipient’s position in government. I believe it is possible to limit the section’s potentially wide application through statutory interpretation without introducing an additional element.

I propose to examine each component of the actus reus in order to determine whether the section contains adequate safeguards to prevent the recipient of a minor benefit from falling into the criminal system.

(a)the giving of a "commission, reward, advantage or benefit of any kind" by a person having "dealings with the government"

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. I agree with Cory J. that at first glance this section appears to have virtually unlimited application. On a literal interpretation, it is difficult to find a person in modern society who does not have some form of dealings with the government. It cannot have been the intention of Parliament to encompass every person in Canada, and many living abroad, into the section. Given the important purpose of preserving integrity, it would appear to me that the section is not interested in regulating the ordinary dealings which go on between Canadians and the government, but is truly concerned with persons who at the time of the commission of the offence had specific or ongoing business dealings with the government and that the gift was such that it could have an effect on those dealings.

I come to this conclusion for two reasons. First, in the related s. 121(1)(b), the wider term “dealings of any kind” is used as opposed to the present section which merely employs the term “dealings”. It is reasonable to assume that Parliament deliberately chose to omit the additional words “of any kind” and in doing so, intended to ascribe a narrower meaning to “dealings” in s. 121(1)(c).

Second, I would point out that while the English provision of the Criminal Code uses the wide term “dealings”, the French version of the text is expressed in a narrower manner. It states:

étant fonctionnaire ou employé du gouvernement, exige, accepte ou offre ou convient d’accepter d’une personne qui a des relations d’affaires avec le gouvernement une commission, une récompense, un avantage ou un bénéfice de quelque nature. . . . [Emphasis added.]

The French text means, literally, that the giver must be conducting business dealings, or have business relations with the government. Since the two versions are somewhat different, we must attempt to find a shared meaning: R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 223; Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 275. It does not appear that the sections are contradictory; rather, the English version is open to different interpretations while the French version is open to just one. Given the purpose of the statute, which is to preserve the appearance of integrity, I believe the French version is the applicable one. I find it hard to see how the purpose of the statute would be furthered by accepting the broader English meaning. As the French version eliminates any ambiguity in the statute, it is incumbent upon the Court to accept this narrower meaning.

Therefore, I conclude that the proper interpretation of this term 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. I find it unnecessary to expand at length about what would constitute “business dealings” for the purpose of the section. This was not the principal argument before this Court, and there is no doubt that this factor would be satisfied on the facts of this case. I believe the term is easily amenable to judicial interpretation and should not cause any difficulty.

(b)the receipt of that "commission, reward, advantage or benefit of any kind" by a government employee

It is this portion of the provision which would appear to attract the greatest scrutiny of both Doherty J.A. in Greenwood and Cory J. here. The concern appears to be that the words “advantage or benefit” are used without any qualification and seem to be virtually unlimited. Indeed, Cory J. points out that the words “of any kind” would seem to make the section virtually limitless. He concludes by saying (at para. 95):

The section makes it an offence for an employee to accept or agree 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, unless he has the consent in writing of the government that employs him. Thus if a government employee accepts, on a rainy day, a ride downtown from a friend who does business with the government he has received a benefit. That could hold true as well for the cup of coffee or occasional lunch bought by the friend for the government employee. [Emphasis in original.]

I do not agree that the phrase “of any kind” was 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” such that the recipient of a cup of coffee should come within the confines of the section. On the contrary, I believe that Parliament’s true intent in adding the words “of any kind” was to trap diverse forms of benefits, as opposed to indicating that it would be criminal to accept benefits of any value. To the extent that the term could support both interpretations, I once again look at the French version of the Criminal Code , which sets out the section in the following way:

étant fonctionnaire ou employé du gouvernement, exige, accepte ou offre ou convient d’accepter d’une personne qui a des relations d’affaires avec le gouvernment, une commission, une récompense, un avantage ou un bénéfice de quelque nature, directement ou indirectement, par lui-même ou par l’intermédiare d’un membre de sa famille ou de toute personne à son profit, à moins d’avoir obtenu, du chef de la division de gouvernement qui l’emploie ou dont il est fonctionnaire, un consentement écrit dont la preuve lui incombe. [Emphasis added.]

Once again, this wording of the provision sheds some light on the latent ambiguity. The term “de quelque nature” operates somewhat differently from “of any kind” and strongly supports the interpretation I have suggested above. It indicates that what Parliament was truly intending by the section was to attract diverse forms of benefits. Thus, a government employee who receives a house at no cost is in the same position as one who happens to receive cash compensation.

I believe that the approach taken in Pezzelato v. The Queen, 96 D.T.C. 1285 (T.C.C.), in this regard is quite instructive. The decision deals with s. 6(1)(a) of the Income Tax Act, which is concerned with whether a person receives a benefit “of any kind whatever received or enjoyed . . . in the year in respect of, in the course of, or by virtue of an office or employment”.

While the specific facts of Pezzelato are not particularly helpful as the main question was whether it was a benefit received by virtue of the appellant’s employment, the pragmatic approach taken to the term “benefit of any kind” by Bowman T.C.C.J. merits consideration. I recognize of course that as a taxation case, this decision deals with markedly different principles; however it is interesting in that it states clearly that the term “benefit of any kind” is not unlimited in scope (at p. 1288):

The sole question is: was it a benefit? The word in the French version is "avantage".

The matter has been much litigated in this court and in higher courts. Before I deal with the cases, I should like to approach the problem simply as a matter of principle and of common sense. Notwithstanding the breadth of its wording section 6 is not intended to create an artificial concept of income from employment. Rather, it is designed to recognize the numerous and varied ways in which an employee may be remunerated for his or her services and to bring them within the net of taxation. It is not intended to expand beyond the ordinary understanding of the word benefit (avantage) things that are not benefits at all. In other words, the wide net that section 6 casts relates to the manner in which the benefit is conferred, not to the definition of the benefit.2

2 The words "of any kind whatever" do not appear to add anything to or extend the ordinary meaning of benefit. A benefit is, after all, a benefit. If something is not a benefit it does not become one by adding the words "of any kind whatever". I can only assume that the additional words are not intended to add to the meaning of benefit, but to prevent the meaning of the word from being restricted by being interpreted as (ejusdem) generis with board and lodging.

See also Vine Estate v. Minister of National Revenue (1989), 29 F.T.R. 59, at p. 67.

I come to a similar conclusion here. In my view, the words “of any kind” do not add to the term “benefit” in any way other than to suggest that Parliament intended to trap benefits other than those of a strict monetary nature.

This of course does not completely address the question of what exactly Parliament did intend to encompass through the terms it used. The words “benefit” and “advantage” by themselves can still be understood to capture a wide variety of conduct. My colleague is rightly concerned about this section imposing a criminal sanction for a benefit received which is so minimal it clearly does not warrant such a harsh reprisal. I agree that such an interpretation would be clearly absurd, and as such is not one which should be followed. As stated in Driedger, supra, at p. 79:

Where it appears that the consequences of adopting an interpretation would be absurd, the courts are entitled to reject it in favour of a plausible alternative that avoids the absurdity.

Given the absurd consequences of adopting an unlimited wide meaning of the term “advantage or benefit” it is incumbent to search out an interpretation which avoids these consequences. In my view, many of these 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. In this regard, I have no difficulty with the description of this as a “profit” by Doherty J.A. I merely differ from him in the conclusion that this profit must have come from the accused’s position in government.

Cory J., however, concludes that without this strict confining on the term, the provision will attract too wide a scope of conduct. He cites, inter alia, a government employee who accepts an innocent cup of coffee or occasional lunch from a friend, or receives a lift from someone when caught in the rain, and points out that these people could be caught by a literal reading of benefit, or even profit. I would note that he has in fact gone farther than Doherty J.A. in Greenwood, supra, and required a subjective awareness of the motivation behind the gift as well.

This is not the first time our Court has been faced with a Criminal Code section with potentially wide application, nor is it the only section in the Code which, if literally interpreted, could capture innocent activity. While I agree with my colleague that we do not want to capture the recipient of a cup of coffee, his reasons have done much more than that. Cory J.’s definition would exclude anyone who did not intend to receive this benefit because of his or her position in government. This seems to be completely contrary to the section’s role in preserving the appearance of integrity in government.

I cite, as an example, the hypothetical situation of a government employee who has business dealings with a lifelong friend who has construction contracts with the government. Suppose this friend, out of genuine friendship, decides to build his friend a $200,000 house at no cost. According to Cory J., this type of situation would not fall within the scope of the section if the government employee had a genuine belief that this gift was strictly out of friendship. In my view, this is exactly the type of situation the section was designed to capture.

While the occasional free lunch or dinner might not concern the public, the conclusion may well be different in a situation where the friend purchases lunch or dinner every day, or for a sustained period of time. What may cast a shadow upon the appearance of integrity will likely depend on a number of different factors. I wish to point out that to impose a restriction, as I believe my colleague has done, which puts all of these transactions out of reach is a virtual rewriting of the section; it is to do what Parliament has specifically restrained from doing. In my view, as much as is possible within the valid corners of the law, and absent constitutional considerations which mandate otherwise, we should respect Parliament’s wishes on these matters and not impose unwanted hindrances.

I believe the term “advantage or benefit” can be interpreted in a manner which does not include the recipient of a cup of coffee. In Hoefele v. The Queen, 94 D.T.C. 1878 (T.C.C.), the court found that to constitute a benefit worthy of measurement, it needed to be a “material economic advantage” (p. 1880). It was recognized, therefore, that trivial advantages did not satisfy the confines of the law. In a taxation sense, a benefit does not occur when the payment is a reimbursement or does not advance the recipient’s position in any material sense.

The decision of R. v. Dubas, [1992] B.C.J. No. 2935 (S.C.), aff’d without reference to this point (1995), 60 B.C.A.C. 202, is also instructive in narrowing the section’s application. In that decision, the Deputy Minister of Health for British Columbia was charged after it became known that he had accepted a hotel room and hotel expenses from a company which manufactured high technology hospital equipment and often sold this equipment to agents of the ministry. MacDonell J. utilized the following approach in deciding the case (at paras. 29-30):

It is apparent from the authorities that all of the circumstances must be considered in deciding whether Mr. Dubas received a benefit or not. In deciding that, the purpose of the trip has to be considered: whether it was essentially on government business and, if so, what advantage was there to Mr. Dubas to receive free accommodation. Was it the government, or the taxpayers of British Columbia, who received the benefit by not having to pay for the trips which would otherwise be paid for by the Ministry, or was the benefit for Siemens? . . .

With respect to Count 1, I am of the view that no benefit was received by Mr. Dubas from Siemens Electric Ltd. with respect to the February/March, 1986 trip. All that was provided was accommodation of which the Minister was aware and approved. Mr. Dubas was there on government business and, if the trip were authorized and had the accommodation not been offered, he would be entitled to charge out the expenses for it. In neither case does he personally benefit. Accordingly, I conclude that the Crown has failed to prove beyond a reasonable doubt the guilt of the accused under Count 1.

In my view, this reasoning is quite appropriate. While conduct similar to that in the Dubas case might attract sanction under a government’s conflict of interest guidelines, it does not fall within the purpose or wording of s. 121(1)(c). It is true that the appearance of integrity may be harmed by such conduct, but it is not because the government employee personally benefits. This particular section is designed to prevent an employee from actually benefiting. Where this does not occur, the criminal sanction is not warranted.

This would also address many of the situations suggested by Cory J. Where friends take each other to dinner on a reciprocating basis, it is unfair to suggest that one “benefits” by receiving a dinner on an isolated occasion. It would be acceptable for an accused in such a situation to raise evidence which showed that this was part of an ongoing relationship between friends who periodically exchanged dinners. Where the benefits, however, were obviously one-sided, it might lead to a different conclusion. This would be a matter for the trier of fact to consider on all the facts of the case, and its unique circumstances.

In this regard, it is important to consider the relationship between the parties as well as the scope of the benefit. Obviously, the closer the relationship, the less likely the gift should be perceived as an advantage or benefit to the recipient. The size of the gift is also a crucial indicator. Where a gift is trivial, like a cup of coffee, I fail to see how it could ever be seen as a true “benefit” to someone. The same situation is not apparent when the gift is a car, a large sum of money, or a house. In these cases, a trier of fact might well find that the person has benefited from the gift well beyond anything he or she has contributed. Simply stated, it is a question of fact for the jury to determine based on all the evidence in the case. In most instances, this determination should not be a difficult one. In fact, while this case deals with the potential application of the section, the appellant was unable to cite one reported case where the Crown actually pursued someone for the receipt of a “trivial” benefit. Where it would be difficult, however, it would still not require a finding that it was conferred because of the person’s role in government.

In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that “the law does not concern itself with trifles”. This type of solution to cases where an accused has “technically” violated a Code section has been proposed by the Canadian Bar Assocation, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle’s potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.

In summary, the actus reus of the offence provides adequate safeguards to prevent an overly broad application. This in itself is sufficient to dispose of this appeal. However, as Cory J. discussed the mens rea of the offence at length in his reasons, I propose to make some comments on this issue as well.

Mens rea of s. 121(1)(c)

As aforementioned, this offence constitutes a “conduct” crime, and as such, requires that the accused, to be culpable, know of the conduct he or she committed, and have knowledge of the circumstances in which it occurred. As such, in order to prove the offence in s. 121(1)(c), it is necessary for the Crown to prove the following fault elements. For the purposes of the present case, I will ignore the question of the onus of proving a superior’s consent in setting out the necessary requirements, which are:

(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".

As I stated at the outset, this level of mens rea is recognized as a valid form of criminal culpability, and thus there is no need to add any additional components.

I do not wish to be misunderstood, however, as suggesting that the motivation behind a particular benefit is a completely irrelevant consideration. On the contrary, it is an important factor in determining the appropriate level of culpability. Where a corrupt intention actually exists on the part of the employee receiving the benefit, it is a factor to consider in determining an appropriate punishment. As Lamer C.J. recognized in R. v. Martineau, [1990] 2 S.C.R. 633, at pp. 645-46:

The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. [Emphasis added.]

This approach was applied by the Nova Scotia Court of Appeal in sentencing an accused for this very offence in R. v. Ruddock (1978), 39 C.C.C. (2d) 65, at p. 72:

In my opinion, there are varying degrees of culpability envisaged by s. 110(c). By that I mean that it seems to me that a Government official who directly demands a commission, etc., from some one who has dealings with the Government on the pretext that unless such commission is forthcoming he will sidetrack such dealings, has committed a more serious breach of the section than say, Mr. Tanguay (R. v. Tanguay (1975), 24 C.C.C. (2d) 77) who accepted a colour television set valued at $305 from a contractor doing business with Central Mortgage and Housing Corporation (of which Mr. Tanguay was assistant director). In his case the Quebec Court of Appeal substituted an absolute discharge for the suspension of sentence ordered by the trial Court.

The decision in R. v. Tanguay (1975), 24 C.C.C. (2d) 77 (Que. C.A.), is an excellent example of this point. In that case, no corrupt motive appears to have been alleged by the Crown against the accused; nevertheless, he accepted what was at that time a rather expensive television set from someone with whom he regularly had business dealings. On a comparative scale, however, given the lack of ill motive and relatively small nature of the benefit, an absolute discharge was an appropriate resolution.

Clearly, where a government employee actually possessed a corrupt intention in accepting a benefit it will usually merit a higher sentence than the person lacking such a motive. Similarly, persons accepting smaller benefits which are less likely to impact on the actual integrity of the government can be dealt with through the discharge provisions in s. 736 of the Criminal Code : Pearson, Annotation to R. v. Greenwood, supra.

While I feel this is sufficient to satisfy the demands of this case, I wish to briefly address the particular manner in which my colleague has dealt with the fault element of this offence. Although I differed with the manner in which Doherty J.A., in Greenwood, supra, defined the actus reus of s. 121(1)(c), had I accepted his definition of the physical elements, I would also have agreed with his position regarding the corresponding mens rea elements rather than that proposed by Cory J.

After a thorough analysis, Doherty J.A., at pp. 252-53, concluded that the crucial question of whether a gift received by a government official constituted a benefit or advantage depended on an objective appraisal of the circumstances:

In considering whether the gift constituted a benefit or advantage, the nature of the gift, the prior relationship if any, between the giver and the recipient, the manner in which the gift was made, the employee's function with the government, the nature of the giver's dealings with the government, the connection, if any, between the employee's job and the giver's dealings, and the state of mind of the giver and the receiver would all have evidentiary significance, as no doubt would other factors which may arise in any given case. [Emphasis added.]

He went on to add that while this conclusion depended, to a certain extent, upon the accused’s state of mind, it was solely a matter of determining whether the actus reus had been proved (at pp. 253-54):

It must be stressed that in deciding whether the thing given to the employee constitutes a benefit or advantage for the purposes of s. 121(1)(c), one is concerned with an aspect of the conduct requirement (actus reus) of the offence and not with the fault requirement (mens rea). The question is settled by an objective assessment of all of the relevant evidence and not exclusively by reference to the recipient's subjective state of mind. The fact that the employee did or did not regard a gift as a profit by him from his employment is but one factor to be considered in deciding whether the gift amounts to an "advantage or benefit" for the purposes of s. 121(1)(c).

This objective approach to the elements of the conduct requirement is typified by R. v. Chase, [1987] 2 S.C.R. 293, . . . 37 C.C.C. (3d) 97, . . . where McIntyre J., for the court, in defining the conduct requirement for the crime of sexual assault, said at p. 302 (S.C.R.), p. 103 (C.C.C.):

“Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?" (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S.J. Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204). The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.” [Emphasis added by Doherty J.A.]

Doherty J.A. felt that once the Crown had proved this element of the actus reus, it was unnecessary to go farther and prove that the accused knew exactly why the benefit had been conferred. He rejected the need for a “corrupt” or “dishonest” motive to ground a conviction. He came to this conclusion based on the clear statutory language to this effect, and because of the important purpose behind s. 121(1)(c). Cory J. found this approach unacceptable and found that a corrupt intention needed to be established, despite the explicit absence of such a requirement in the statute. In his view, whenever the mental element of an offence must be established subjectively, each aspect of the actus reus requires a corresponding subjective mental awareness.

With respect, I prefer the approach of Doherty J.A. in this regard. Several decisions of this Court have established that subjective mental awareness need not attach to every part of the conduct requirement of a particular crime: 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. The analogy to Chase in particular is quite appropriate. While the Crown must prove that an actor knew that he had received some form of benefit, it is not necessary to prove as an essential element that the accused knew the benefit was received because of his position in government.

I also have some concern with the phraseology that my colleague has adopted with regard to the necessary mental elements of criminal offences. Specifically, he states, in discussing whether an objective or subjective mens rea should be adopted for an offence (at para. 106):

In some circumstances the mental element should be assessed on an objective basis. For example, in regulatory offences the mental element of blameworthiness may be assessed objectively. See R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. The same holds true for dangerous driving; see R. v. Hundal, [1993] 1 S.C.R. 867. Similarly R. v. Gosset, [1993] 3 S.C.R. 76, dealt with the careless use of a firearm in a charge of manslaughter and the mental element was assessed objectively. The same approach was taken in R. v. Finlay, [1993] 3 S.C.R. 103, where the accused was charged with careless storage of a firearm. However, unless the wording of the section creating the crime indicates otherwise or the nature of the crime itself dictates a different approach, then the mens rea or blameworthy aspect must be assessed subjectively.

At another point, he cites from Professor Stuart, who in his text Canadian Criminal Law supra, at p. 194, states:

Where the definition of the crime contains no mens rea words, and cannot be interpreted as a crime of objective negligence, it should be interpreted as an offence of subjective mens rea. . . .

The only authority to the contrary is the Supreme Court in DeSousa, Creighton and Godin reading in an objective rather than a subjective substantive standard in interpreting crimes relying on so-called predicate offences. This must surely be confined to that special category of offence. The approach of our courts to unlawful act manslaughter has long been objective at a time when the established tradition has been to interpret other Criminal Code offences as requiring the subjective standard.

In my view, both of these excerpts appear to suggest that the mens rea of an offence is simply the assessing of the “blameworthy aspect” which is either subjective or objective. I am somewhat uncomfortable with the way Professor Stuart refers to “an offence of subjective mens rea”, suggesting that an offence must be either subjective or objective with no possible middle ground. In fact, quite often the mens rea of an offence will be comprised of both objective and subjective elements. This has been recognized by this Court on more than one occasion: Nova Scotia Pharmaceutical Society, supra; Lohnes, supra. In order to avoid confusion, I prefer to clearly state that the mens rea of a particular offence is composed of the totality of its component fault elements. The mere fact that most criminal offences require some subjective component does not mean that every element of the offence requires such a state of mind. See also Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 55.

I also disagree with the statement of Professor Stuart which would appear to confine objective fault standards to offences which have such a component specifically written into the statute, or to so-called “predicate offences” like unlawful act manslaughter. This approach is simply not consistent with the way in which this Court has defined standards of fault. One good example is the unanimous decision of Lohnes, supra. On that occasion, this Court read an objective fault element into the offence of “causing a disturbance” under s. 175(1)(a). The section reads as follows:

175. (1) Every one who

(a) not being in a dwelling‑house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

. . .

is guilty of an offence punishable on summary conviction.

Much like the scenario I suggested above, this offence actually possesses both a subjective and an objective fault element. In order to be convicted, an accused must first subjectively intend to cause the underlying act which leads to the disturbance, i.e. fighting, swearing, etc. Once that occurs, the remaining element is determined on an objective standard. Whether the accused intended a disturbance to result or not is of no consequence. As McLachlin J. wrote (at p. 182), what is necessary for a finding of guilt is that “the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place”.

I believe Lohnes is quite instructive in this regard. Nevertheless, I feel it is wise to refrain from making bold pronouncements on the question of which crimes can legitimately possess objective fault elements; see Martineau, supra, at p. 682 per Sopinka J. In my view, this will often depend on the wording of a particular section as well as its legislative purpose and context. Many of the issues raised by Cory J. have not been firmly decided by this Court and I feel it should be left to an appropriate case to resolve them.

Disposition