Criminal Law 

 

By: David B. Deutscher, B.A. L.L.B. L.L.M (Professor, Faculty of Law University of Manitoba), Member of the Manitoba Bar

XVII: Corruption

Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on WestlawNest Canada

XVII.1: Introduction
See Canadian Abridgment: CRM.VI.25 Criminal law | Offences | Corruption

The Criminal Code sets out numerous offences relating to corruption. These offences contain numerous terms, which are defined in various places in the Criminal Code. Many of these offences can be committed in more than one way.1

XVII.2: Definitions
See Canadian Abridgment: CRM.VI.25 Criminal law | Offences | Corruption

“Act” includes (a) an Act of Parliament; (b) an Act of the legislature of the former Province of Canada; (c) an Act of the legislature of a province; and (d) an Act or ordinance of the legislature of a province, territory or place in force at the time that province, territory or place became a province of Canada.1

“Government” means (a) the Government of Canada; (b) the government of a province; or (c) Her Majesty in right of Canada or a province.2

“Justice” means a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction.3

“Office” includes (a) an office or appointment under the government; (b) a civil or military commission; and (c) a position or an employment in a public department.4

“Official” means a person who holds an office or is appointed to discharge a public duty.5

“Peace officer” includes (a) a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace; (b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in the Corrections and Conditional Release Act;6 (c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process;7 (d) an officer or a person having the powers of a customs or excise officer when performing any duty in the administration of the Customs Act, the Excise Act or the Excise Act 2001;8 (d.1) an officer authorized under the Immigration and Refugee Protection Act;9 (e) a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act, or the Coastal Fisheries Protection Act;10 (f) the pilot in command of an aircraft (i) registered in Canada under regulations made under the Aeronautics Act;11 or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations, while the aircraft is in flight; and (g) officers and non-commissioned members of the Canadian Forces who are (i) appointed for the purposes of the National Defence Act;12 or (ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this clause (g), has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers.13

“Public officer” includes (a) an officer of customs or excise; (b) an officer of the Canadian Forces; (c) an officer of the Royal Canadian Mounted Police; and (d) any officer while the officer is engaged in enforcing the laws of Canada relating to revenue, customs, excise, trade or navigation.14

“Trustee” means a person who is declared by any Act to be a trustee or is, by the law of a province, a trustee, and, without restricting the generality of the foregoing, includes a trustee on an express trust created by deed, will or instrument in writing, or by parol.15

XVII.3(a): Bribery of Officials 
XVII.3(a)(i)A: Accepting or Obtaining – Elements of Offence
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

Every one who, being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, corruptly accepts or obtains, agrees to accept or attempts to obtain any money, valuable consideration, office, place or employment for himself or herself or another person in respect of anything done or omitted or to be done or omitted by him or her in his or her official capacity is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.1

XVII.3(a)(i)B: Accepting or Obtaining – Actus Reus
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

The accused must be the holder of a judicial office, or be a member of Parliament or of the legislature of a province. The accused must accept or obtain, agree to accept or attempt to obtain any money, valuable consideration, office, place or employment for himself or herself or another person. This must be done corruptly, and must relate to anything done or omitted or to be done or omitted by the accused in the accused’s official capacity.1

XVII.3(a)(i)C: Accepting or Obtaining – Mens Rea
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

The only specifically required element that may qualify as a mental element is that the accused act corruptly.1

XVII.3(a)(ii)A: Giving or Offering – Elements of Offence
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

Every one who gives or offers, corruptly, to the holder of a judicial office or a member of Parliament or of the legislature of a province any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by him or her in his or her official capacity for himself or herself or another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.1

XVII.3(a)(ii)B: Giving or Offering – Actus Reus
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

This offence is essentially a mirror image of that outlined above.1 The accused must give or offer any money, valuable consideration, office, place or employment to the holder of a judicial office or a member of Parliament or of the legislature of a province. The accused must do this corruptly. The act must relate to anything done or omitted or to be done or omitted by that person in his or her official capacity. The “gift” may be for any person.2

XVII.3(a)(ii)C: Giving or Offering – Mens Rea
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

The only specifically required element that may qualify as a mental element is that the accused act corruptly.1

XVII.3(a)(iii): Statutory Procedural Provision
See Canadian Abridgment: CRM.VI.25.c Criminal law | Offences | Corruption | Bribery of foreign public official; CRM.VI.25.d Criminal law | Offences | Corruption | Bribery of judicial officers; CRM.VI.25.e Criminal law | Offences | Corruption | Bribery of Member of Parliament or legislature

No proceedings against a person who holds a judicial office shall be instituted under the legislation1 without the consent in writing of the Attorney General of Canada.

XVII.3(b): Bribery of Officers
XVII.3(b)(i): Elements of Offence
See Canadian Abridgment: CRM.VI.25.f Criminal law | Offences | Corruption | Bribery of officers

Every one who (a) being a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or being employed in the administration of criminal law, corruptly accepts or obtains, agrees to accept or attempts to obtain for himself or herself or any other person any money, valuable consideration, office, place or employment with intent to interfere with the administration of justice, procure or facilitate the commission of an offence or protect from detection or punishment a person who has committed or intends to commit an offence; or (b) gives or offers, corruptly, to a person mentioned above any money, valuable consideration, office, place or employment with intent that the person should interfere with the administration of justice, procure or facilitate the commission of an offence or protect from detection or punishment a person who has committed or who intends to commit an offence, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.1

XVII.3(b)(ii): Actus Reus
See Canadian Abridgment: CRM.VI.25.f Criminal law | Offences | Corruption | Bribery of officers

This offence can be committed in one of two general ways.1 First, the accused must be a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or be employed in the administration of criminal law. The accused must corruptly accept or obtain, agree to accept or attempt to obtain for himself or herself or any other person any money, valuable consideration, office, place or employment. Second, the accused must give or offer, corruptly, to a justice, police commissioner, peace officer, public officer or officer of a juvenile court, or a person employed in the administration of justice,2 any money, valuable consideration, office, place or employment.3

XVII.3(b)(iii): Mens Rea
See Canadian Abridgment: CRM.VI.25.f Criminal law | Offences | Corruption | Bribery of officers

There must be an intention1 that the person involved in the administration of justice will interfere with the administration of justice,2 procure or facilitate the commission of an offence or protect from detection or punishment a person who has committed or who intends to commit an offence.3

XVII.3(c): Frauds on Government
XVII.3(c)(i): Introduction
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The Criminal Code sets out seven different offences relating to fraud on the government. Every one who commits any of these offences is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. A number of required elements are common to more than one way of committing the offence.1
Where the allegation relates to an agreement, there must be proof of an agreement that the accused cooperate, assist or exercise influence.2

“Commission” and “reward” connote compensation for services rendered. “Advantage” and “benefit” have a wider meaning, which includes gifts that do not relate to any service provided by the recipient. A government employee receives an “advantage” or “benefit” when the employee receives something of value that, in all the circumstances, the trier of fact concludes constitutes a profit to the employee (or a family member), derived at least in part because the employee is a government employee, or because of the nature of the work done by the employee for the government.3

“Influence” requires the actual affecting of a decision, such as the awarding of a contract. “Cooperation” and “assistance” are not so limited. The opening of doors or arranging of meetings does not constitute exercise of influence, but does constitute assistance or cooperation.4

Dealings with an arm or agency of the government constitutes dealings with the government.5

XVII.3(c)(ii)A: Giving or Accepting Benefit – Elements of Offence
See Canadian Abridgment: CRM.VI.25.g.i Criminal law | Offences | Corruption | Fraud on government | Elements

Every one commits an offence who, directly or indirectly, gives, offers, or agrees to give or offer to an official or to any member of his or her family, or to any one for the benefit of an official, or, being an official, demands, accepts or offers or agrees to accept from any person for himself or herself 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 the transaction of business with or any matter of business relating to the government or 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.1

XVII.3(c)(ii)B: Giving or Accepting Benefit – Actus Reus
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

Where the accused is an official, the accused must demand, accept or offer or agree to accept from any person for himself or herself or another person a loan, reward, advantage or benefit of any kind. Where the accused is not an official, the accused must give, offer or agree to give or offer to an official or to any member of his or her family, or to any one for the benefit of an official, an item of the same description. In either case, this may be done directly or indirectly, and must be done as consideration for cooperation, assistance, exercise of influence or an act or omission. This must be in connection with the transaction of business with or any matter of business relating to the government or a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow. It does not matter 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.1

XVII.3(c)(ii)C: Giving or Accepting Benefit – Mens Rea
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The accused must intentionally commit the prohibited act with a knowledge of the circumstances that are necessary elements of the offence. The mens rea for the offence requires that the accused know he or she is an official; he or she must intentionally demand or accept a loan, reward, advantage or benefit of any kind for himself, herself or another person; and the accused must know that the reward is in consideration for cooperation, assistance or exercise of influence in connection with the transaction of business with or in relation to the government.1

XVII.3(c)(iii)A: Commissions or Rewards – Elements of Offence
See Canadian Abridgment: CRM.VI.25.g.i Criminal law | Offences | Corruption | Fraud on government | Elements

Every one commits an offence who, having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he or she deals, or to any member of his or her family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he or she has the consent in writing of the head of the branch of government with which he or she deals, the proof of which lies on him or her.1

XVII.3(c)(iii)B: Commissions or Rewards – Actus Reus
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The accused must have dealings with the government, and must pay a commission or reward to or confer an advantage or benefit of any kind on a person. That person must be an employee or official of the government with which the accused deals, or any member of his or her family, or any one whose involvement will benefit the employee or official. This must relate to the dealing that the accused has with the government.1

Where the accused proves that the head of the branch of government with which the accused deals consented in writing, there is no offence.2

XVII.3(c)(iii)C: Commissions or Rewards – Mens Rea
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

No mental element is specified.1 However, the courts have held that the accused must intend to confer a benefit with respect to the dealings with government.2

XVII.3(c)(iv)A: Officials and Employees – Elements of Offence
See Canadian Abridgment: CRM.VI.25.g.i Criminal law | Offences | Corruption | Fraud on government | Elements

Every one commits an offence who, 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 herself or through a member of his or her family or through any one for his or her benefit, unless he or she has the consent in writing of the head of the branch of government that employs him or her or of which he or she is an official, the proof of which lies on him or her.1

XVII.3(c)(iv)B: Officials and Employees – Actus Reus
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The accused must be an official or employee of the government, and must demand, accept or offer or agree to accept something from a person who has dealings with the government. That thing must be a commission, reward, advantage or benefit. This may be done directly or indirectly by the accused or through a member of the accused’s family, or through any one for the benefit of the accused.1

XVII.3(c)(iv)C: Officials and Employees – Mens Rea
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

No mental element is specified.1

XVII.3(c)(v)A: Offer of Influence – Elements of Offence
See Canadian Abridgment: CRM.VI.25.g.i Criminal law | Offences | Corruption | Fraud on government | Elements

Every one commits an offence who, having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself or herself or another person a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the government, a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, or the appointment of any person, including himself or herself, to an office.1

XVII.3(c)(v)B: Offer of Influence – Actus Reus
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The accused must have or pretend to have influence with the government or an official, and must demand, accept or offer or agree to accept something for himself or herself or another person. That thing must be a reward, advantage or benefit of any kind. This must be done as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the government, a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, or the appointment of any person, including the accused, to an office.1

XVII.3(c)(v)C: Offer of Influence – Mens Rea
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

No mental element is specified.1

XVII.3(c)(vi)A: Providing Reward – Elements of Offence
See Canadian Abridgment: CRM.VI.25.g.i Criminal law | Offences | Corruption | Fraud on government | Elements

Every one commits an offence who gives, offers, or agrees to give or offer to a minister of the government or an official a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the government, a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, or the appointment of any person, including himself or herself, to an office.1

XVII.3(c)(vi)B: Providing Reward – Actus Reus
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

The accused must give, offer or agree to give or offer a reward, advantage or benefit of any kind to a minister of the government or an official. This must be done as consideration for cooperation, assistance, exercise of influence or an act or omission. This, in turn, must be in connection with the transaction of business with or any matter of business relating to the government, a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, or the appointment of any person, including the accused, to an office.1

XVII.3(c)(vi)C: Providing Reward – Mens Rea
See Canadian Abridgment: CRM.VI.25.g Criminal law | Offences | Corruption | Fraud on government

No mental element is specified.1

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