Valeri’s Big Deal III

Well the PM is defending Valeri stating in yesterday’s Hamilton Spectator:

“Tony Valeria bought a house. Tony Valeri sold a house. Literally thousands of Canadians do that”.

For didactic purposes, let’s go over section 122 of the Criminal Code title ‘Breach of Trust by a Public Officer’. I’m posting the full section in Martin’s Criminal Code, 2002, as I know that not all public libraries have a copy.

122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offense 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. R.S., c. C-34, s. 111.

Thousands of Canadians are not public officials Mr. PM.

CROSS-REFERENCES
The term “official” is defined in s. 118. The term “office” is defined, in part, in s. 118; see notes of that term under that section. Breach of trust by a trustee is an offense under s. 336. The secret commission offence is found in s. 426.

This offense may be the basis for an application for an authorization to intercept private communications by reason of s. 183 and falls within the definition of “enterprise crime offense” in s. 426.3 for the purposes of Part XII.2.

The accused has an election as to mode of trial pursuant to s. 536(2). Release pending trial is determined by s. 515, although the accused is eligible for release by the officer in charge under s. 498.

SYNOPSIS
Section 122 creates offences relating to fraud or breach of trust by a public officer. The offences are limited to activities in connection with the duties of the public office-holder. This section specifically imposes broader liability upon public officials than that which would apply to private persons who were involved in the same activities. This indictable offence is punishable by a maximum period of imprisonment of five years.

ANNOTATIONS
Breach of Trust – In R. v. Campbell, [1967] 3 C.C.C. 250, 50 C.R. 270 (Ont. C.A.), affd [1967] S.C.R. v, 2 C.R.N.S. 403, it was held that breach of trust under this section is not to be confused with any necessity of breach of trust in respect to trust property, as it merely relates to an abuse of public trust.

The use of the phrase “breach of trust” does not render this provision unconstitutionally vague. Breach of trust can be interpreted by courts in part as a function of social norms of tolerance and community standards: R. v. Lippe (1996), 111 C.C.C. (3d) 187, 2 C.R. (5th) 32, 142 D.L.R. (4th) 166 (Que. C.A.).

This offence requires proof that the accused is an official, that the impugned acts were committed in the general context of the execution of his duties and that the acts constituted a fraud or a breach of trust.

Where the allegation is that the acts constituted a breach of trust, while it is not necessary to prove corruption, it must be shown that the accused did an act or failed to do an act contrary to the duty imposed upon him by statute, regulation, his contract of employment or directive in connection with his office and that the act gave him some personal benefit either directly or indirectly.

The benefit could be payment of money or merely the hope of a promotion or a desire to please a superior.

The criminal law should not be used as a sanction to punish mere technical breaches of conduct or acts of administrative indiscipline or administrative fault.

What the law prohibits is some act done in furtherance of personal ends, the use of one’s office in a public service for the promotion of private ends or to obtain directly or indirectly some benefit: R. v. Perreault (1992), 75 C.C.C. (3d) 445, 48 Q.A.C. 303 (C.A.).

Breach of trust is a crime of general intent and accordingly, it is sufficient for the Crown to prove that a reasonable person would conclude there was a breach of trust: R. v. Flamand (1999), 141 C.C.C. (3d) 169, [1999] R.J.Q. 2543 (C.A.).

The accused, the town’s mayor, was properly convicted upon evidence that he mislead a constituent as to the value of the constituent’s land and endeavored to procure it for himself for personal profit.

The work of a public servant must be a real service in which no concealed pecuniary self-interest should bias the judgement of the officer and in which the substantial truth of every transaction should be made to appear: R. v. McKitka (1982), 66 C.C.C. (2d) 164, 35 B.C.L.R. 116 (C.A.), citing R. v. Arnoldi (1892), 23 O.R. 201 (H.C.J.).

“Official” / Also see not under s. 118 - Despite s. 123 an elected municipal official is an official holding office under this section: R. v. Sheets, [1971] S.C.R. 614, 1 C.C.C. (2d) 508, 15 C.R.N.S. 232 (9:0).

The Spec also quoted CTV’s Mike Duffy’s on air commentary that Valeri’s staff had provided an explanation that didn’t match information contained in public documents.

The Spec explained that one reporter who had learned about the land transaction from documents posted to Bourque Newswatch bog says she was told by Valeri spokesman Al Toulin that Valeri had owned the property for years.

“He said that this was part of a bigger piece of property Valeri had owned and lived on for as long as Toulin had been working for him – since the Liberals came into power, at least that long, but probably longer”

Let’s go over the definition of fraud shall we? (I like to use Webster's Fifth edition)

fraud Law. An intentional perversion of truth to induce another to part with some valuable thing belonging to him, or to surrender a legal right. – Syn. Deception, guile, subtlety, craft; wile, sham, fake.

fraudulence n. Quality or state of being fraudulent; deliberate deceit.

fraudulent [OR., fr. L. fraudulentus] 1. using fraud; deceitful. 2. Characterized by or founded on fraud; the nature of fraud. 3. Obtained or performed by artifice. – Syn. Deceiving, cheating, deceptive. See FALLACIOUS. – Ant. Honest, aboveboard, straightforward.

A real estate agent that wished to remain anonymous told the Spec that the $225,000 Valeri bought the property for is “ridiculously low” considering it’s on the Mountainbrow overlooking the escarpment and Hamilton Bay and “extremely valuable”.

The Spec also noted that their lawyers through a private deal handled the sale between Valeri and Ng.

Valeri has confirmed that his lawyer has instructed him to commence a defamation lawsuit against Bourque Newswatch.

I can’t imagine posting documents that would have been perfectly ok in other investigative media organs that becomes evidence of something shady is defamation.

Perhaps those political science professors that are quoted by the Spec should pick up and read a copy of Part IV of the Criminal Code of Canada – and see whether or not they understand the importance of a special kind of integrity that public officials must bear within our society.