R. v. Hinchey, [1996] 3 S.C.R. 1128 (1996)

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 de...

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