R. v. Boulanger (D.), (2006) 350 N.R. 326 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 16, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2006), 350 N.R. 326 (SCC);2006 SCC 32;350 NR 326;268 DLR (4th) 385;210 CCC (3d) 1;[2006] 2 SCR 49;39 CR (6th) 1

R. v. Boulanger (D.) (2006), 350 N.R. 326 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.R. TBEd. JL.028

Denis Boulanger (appellant) v. Her Majesty the Queen (respondent)

(30853; 2006 SCC 32; 2006 CSC 32)

Indexed As: R. v. Boulanger (D.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Charron, JJ.

July 13, 2006.

Summary:

The accused was the director of public se­curity of the municipality of Varennes, Quebec. After his daughter was involved in an accident, the accused asked the police officer in charge of the case to prepare a second, more complete accident report. The supplementary report led to the conclusion that the accused's daughter was not at fault, with the result that the accused did not have to pay the $250 insurance deductible. The ac­cused was charged with the offence of breach of trust by a public officer under s. 122 of the Criminal Code. The trial judge convicted the accused on the basis that he had used his office to obtain a personal bene­fit. The accused appealed.

The Quebec Court of Appeal, Dalphond, J.A., dissenting, dismissed the appeal (29 C.R.(6th) 346; 2005 QCCA 214). The ac­cused appealed.

The Supreme Court of Canada allowed the ap­peal, overturned the conviction and entered an acquittal.

Criminal Law - Topic 414

Offences against the administration of law and justice - Corruption of officials - Breach of trust - What constitutes - The ac­cused was the director of public security of the municipality of Varennes, Quebec - After his daughter was involved in an ac­cident, the accused asked the police officer in charge of the case to prepare a second, more complete accident report - The sup­plementary report led to the con­clusion that the accused's daughter was not at fault, with the result that the accused did not have to pay the $250 insurance deduct­ible - The accused was convicted of breach of trust by a public officer under s. 122 of the Criminal Code - The Supreme Court of Can­ada overturned the conviction and en­tered an acquittal - The facts as found by the trial judge did not establish the mens rea for the offence - The trial judge found that the accident report accorded with the pre­ponderance of the evidence relating to the accident, that it was not falsified, and that the accused did not ask for a supple­mentary report with the intent of mislead­ing the insurance company - While the ac­cused knew he would benefit from the of­fi­cer's report, that did not establish a cul­pable state of mind - The accused's private purpose did not seek to undermine the pub­lic good - His intention was to have the officer make a complete report, not to skew it in one direction - He did not act for a dishonest, partial, corrupt or oppres­sive purpose - The actus reus was also not made out on the facts - The ac­cused's course of action could not be said to repre­sent a marked departure from the course of action he should have taken - Rather, it was simply an error in judgment - See para­graphs 63 to 67.

Criminal Law - Topic 415

Offences against the administration of law and justice - Corruption of officials - Breach of trust - Elements - The Supreme Court of Canada discussed the actus reus and mens rea elements of the offence of breach of trust by a public officer em­bod­ied in s. 122 of the Criminal Code - The court concluded 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" - See paragraph 58.

Cases Noticed:

Case 136, Anonymous (1704), 6 Mod. Rep. 96; 87 E.R. 853, refd to. [para. 11].

R. v. Bembridge (1783), 3 Doug. K.B. 327; 99 E.R. 679; 22 Howell's State Trials (K.B.), refd to. [para. 12].

R. v. Young (1758), 1 Burr. 557; 97 E.R. 447 (K.B.), refd to. [para. 16].

R. v. Williams (1762), 3 Burr. 1317; 97 E.R. 851, refd to. [para. 17].

R. v. Borron (1820), 3 B. & Ald. 432; 106 E.R. 721 (K.B.), refd to. [para. 18].

R. v. Wyat (1705), 1 Salk. 380; 91 E.R. 331 (K.B.), refd to. [para. 19].

R. v. Kennett (1781), 5 Car. & P. 282; 172 E.R. 976, refd to. [para. 19].

R. v. Pinney (1832), 5 Car. & P. 254; 172 E.R. 962, refd to. [para. 19].

R. v. Hollond (1794), 5 T.R. 607; 101 E.R. 340 (K.B.), refd to. [para. 19].

R. v. Llewellyn-Jones (1967), 51 Cr. App. Rep. 204 (C.C.A.), refd to. [para. 22].

R. v. Dytham (1979), 69 Cr. App. Rep. 387 (C.A.), refd to. [para. 23].

Shum Kwok Sher v. HKSAR, [2002] 5 HKCFAR 381 (Hong Kong Final App. Ct.), refd to. [para. 25].

R. v. G. et al., [2003] N.R. Uned. 241; [2004] 1 A.C. 1034; [2003] UKHL 50, refd to. [para. 26].

Attorney General's Reference (No. 3 of 2003), [2004] 3 W.L.R. 451; 2004 EWCA Crim 868 (C.C.A.), refd to. [para. 26].

R. v. Arnoldi (1893), 23 O.R. 201 (Ch. D.), refd to. [para. 30].

R. v. McMorran (1948), 91 C.C.C. 19 (Ont. C.A.), refd to. [para. 35].

R. v. Campbell, [1967] 3 C.C.C. 250 (Ont. C.A.), affd. (1967), 2 C.R.N.S. 403 (S.C.C.), refd to. [para. 37].

R. v. Leblanc, [1974] C.A. 417 (Que.), affd. [1982] 1 S.C.R. 344; 44 N.R. 150, refd to. [para. 39].

R. v. Hébert, [1986] R.J.Q. 236 (C.A.), refd to. [para. 41].

R. v. Perreault (J.) (1992), 48 Q.A.C. 303; 75 C.C.C.(3d) 425 (C.A.), leave to appeal refused [1993] 1 S.C.R. viii; 149 N.R. 239; 55 Q.A.C. 75, refd to. [para. 43].

R. v. Fisher (M.) (2001), 139 O.A.C. 96 (C.A.), refd to. [para. 45].

R. v. Power (1993), 122 N.S.R.(2d) 110; 338 A.P.R. 110 (C.A.), refd to. [para. 46].

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 452; 168 C.C.C.(3d) 548 (S.C.), refd to. [para. 46].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 52].

R. v. Rajic (G.) (1993), 61 O.A.C. 155; 80 C.C.C.(3d) 533 (C.A.), refd to. [para. 54].

R. v. Hundal (S.), [1993] 1 S.C.R. 867; 149 N.R. 189; 22 B.C.A.C. 241; 38 W.A.C. 241, refd to. [para. 54].

Llewellyn-Jones and Lougher, Re (1966), 51 Cr. App. Rep. 4, refd to. [para. 57].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1985, c. C-46, sect. 122 [para. 5].

Authors and Works Noticed:

Burbidge, George Wheelock, A Digest of the Criminal Law of Canada (Crimes and Punishments (1890), generally [para. 33].

Canada, Senate and House of Commons Debates, Bill No. 7, An Act respecting the Criminal Law, 2nd Sess., 7th Parlia­ment (1982) (2nd reading, March 9, 1892), generally [para. 33].

Canada, Hansard, House of Commons Debates, vol. 2, 1st Sess., 32nd Parlia­ment (January 19, 1954), p. 1274 [para. 36].

Canada, Hansard, House of Commons De­bates, vol. 34, 2nd Sess., 7th Parlia­ment (April 12, 1892), p. 1312 [para. 33].

Finn, Paul, Official Misconduct (1978), 2 Crim. L.J. 307, p. 308 [para. 12].

Great Britain, Royal Commission on the Criminal Code, Report of the Royal Commission on the Criminal Code (Eng.) 1880 and Imperial Criminal Code and criminal bills (1888), generally [para. 33].

Hansard - see Canada, Hansard, House of Commons Debates.

Mewett, Alan W., The Criminal Law, 1867-1967 (1967), 45 Can. Bar Rev. 726, p. 727 [para. 33].

Russell, W.O., A Treatise on Crimes and Misdemeanors (7th Ed. 1910), p. 618b [para. 40].

Stephen, James Fitzjames, A Digest of the Criminal Law (4th Ed. 1887), generally [paras. 20, 33]; p. 85 [para. 10].

Stephen, James Fitzjames, A Digest of the Criminal Law (9th Ed. 1950), art. 145 [para. 24]; ss. 121, 122, 135 [para. 34].

Stuart, Donald, Canadian Criminal Law: A Treatise (4th Ed. 2001), p. 2 [para. 33].

Counsel:

François Beauvais, for the appellant;

Josée Grandchamp and Henri-Pierre Lab­rie, for the respondent.

Solicitors of Record:

Rochefort & Associés, Montréal, Quebec, for the appellant.

Attorney General's Prosecutor of Quebec, Longueuil, Quebec, for the respondent.

This appeal was heard on December 16, 2005, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Abella and Char­ron, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court of Canada was delivered by McLach­lin, C.J.C., in both official languages on July 13, 2006.