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Prison, procurement and the public trust
Denis Chamberland
Public officials may be forgiven for not being well versed in the details of section 122 of the Criminal Code, which targets every official who commits fraud or a breach of trust. Section 122 states: "Every official who, in connection with the duties of his office, commits fraud or 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."
What does this provision have to do with procurement, you may wonder Sometimes, a lot. Section 122 applies to elected representatives and to employees of public organizations.
Pave my driveway
In the 1990 Quebec Court of Appeal decision in R. c. Chrétien, a procurement professional, who was considered a 'public office holder' under the Criminal Code, was responsible for awarding the municipality's contracts for road construction and maintenance, and for supervising the work of successful suppliers.
On one particular re-surfacing project, as an expression of gratitude for being awarded a contract, the successful bidder paved the entrance to the municipal employee's driveway at home. There was no evidence the municipality had paid for the benefit, or that the employee had made it a condition of contract award.
At trial, the municipal employee was acquitted, but on appeal, the higher court held the employee guilty because there was a direct connection between the professional duties of the employee and the benefit received.
The Court of Appeal found the employee's action breached the standard of conduct expected of a public office holder. It also said section 122 applies, whether or not there’s any intent on the part of the public office holder to commit fraud or to breach the public trust. In other words, even good intentions can lead to a guilty verdict.
Buy my property
Another case involved an elected official. In the 1983 decision of the Supreme Court of the Northwest Territories in R. v. Fraser, a member of the Legislative Assembly pleaded guilty to breach of trust for using his influence to promote the sale of property in which he had an interest.
Here the accused had risen to the position of Deputy Speaker of the Legislative Assembly and was clearly in a position of influence within the community. As the Court rightly acknowledged, the influence of the accused might have been especially extensive, given the pervasiveness of government in the northern parts of the country.
The Court took a hard line on breaches of trust by public officials, which it compared to a "rabid animal" or a "disease" that "must be destroyed," and went on to make strong arguments in favour of a jail term. But despite the Court’s remonstrations on the need for a jail term, the accused stayed out of jail, but was fined a substantial amount.
The severity of section 122 has little to do with any profit that may have been generated by the accused, or even any pecuniary damage that may have been suffered by the public buyer. What matters is the public's confidence has been abused, a condition that amounts to a crime "against our country," as the court said in Fraser.
British judicial notable, Lord Mansfield, was also of the view that breach of trust by a public official should be considered an indictable offence.
"That such should be the rule is essential to the existence of the country," he said, as early as 1793. Clearly, the Canadian courts are of the same view.
Denis Chamberland is a procurement specialist and partner with the law firm Aird & Berlis LLP. He can be reached at (416) 865-3078 or at dchamberland@airdberlis.com.
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