Breach of Trust By Public Officer (s. 122) Laws in Canada

What is a breach of trust by public officer?

Breach of trust is an offence under Section 122 of the Criminal Code of Canada. This section makes it a criminal offence for a public officer to intentionally and knowingly commit an act that violates the duties of their office or position of trust, for the purpose of gaining a person benefit or causing harm to another individual or institution.

Section 122 of the Criminal Code states that everyone who:

Every official who, in connection with the duties of their office, commits fraud or a breach of trust, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Section 122 is a dual/hybrid offence, which means the crown prosecutor can proceed by summary or by indictable offence.

Examples of breach of trust

Some examples of the offence of breach of trust may include varying positions of employment within a publicly held position/in public office:

For example, if a police officer uses an information database, such as the Canadian Police Information Centre (CPIC), to conduct a query on a person’s name to seek information, and then provides this information to a third party/person who is not a police officer, and does not have access to CPIC, in exchange of money or advantage, this constitutes a breach of trust. The police officer would not be in the lawful execution of their duties, and by divulging information from a database which they are entrusted to use for a lawful purpose, for their own financial gain, this would meet the elements of the offence described above of breach of trust.

Another example would be if a police officer, without querying a name or information on a database, divulged information to a third party or member of the public, again either in exchange for money, another benefit, or favour. This could be by divulging information which is sensitive, and known to or accessible to police officers only, and compromises the integrity of an investigation as a result. For instance, if a police officer divulged sensitive information of an ongoing criminal investigation without prior authorization to a journalist, who then distributed the information through the media and jeopardized an investigation and the potential prosecution of a criminal offence, and in exchange, the journalist merely paid for the police officer’s meal (or coffee) during the communications, by definition, this would support a charge of breach of trust.

• the sale or distribution of private information/information accessible to a database that the public officer is entrusted to use for lawful purposes only.
• divulging or providing sensitive information which is entrusted to a person in their position to hold in confidence, and providing that information to a third party who would otherwise be unable to obtain that information, in exchange for personal gain

Defences

A strong defence to a charge of breach of trust will vary depending on the circumstances of what occurred.

However, some defences may be:

• the accused mistakenly believed that divulging sensitive information would not compromise the integrity of an investigation
• the accused did not intend to benefit or gain advantage from the
• the accused was acting in good faith for the betterment of their organization, or the public interest, in divulging the information
• the accused made an honest mistake in what was construed to be a benefit or advantage
• if the accused can argue they made an honest mistake in divulging the information which they should not have and did not receive benefit or advantage, they may be able to argue that the latter element of the offence was not committed.

Punishment

The maximum penalty for a conviction under Section 122 is a term of imprisonment of up to five years.

Whether you intend to plead guilty to a charge under section 122, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.

Overview of the Offence 

This section is designed to protect public organizations and institutions from corrupt practices by public officers in the performance of their duties. Breach of trust could be committed by persons in a variety of public service positions, on a spectrum of receiving what may be deemed as more minor circumstances (less sensitive but confidential information, for a minor favour or advantage) to much more serious circumstances (misuse of database(s) in exchange of significant monetary payment).

In order for a person to be convicted of breach of trust in criminal court, the crown is required to prove their case beyond a reasonable doubt. The crown must also prove several elements of the offence, such as that the person the accused provided information to was not able to lawfully access the information or that the person used their position as a public officer to access the information, and that the public officer gained a benefit or advantage. In short, there is a transactional component to the elements of the offence.

The Guilty Act (Actus Reus)

The actus reus for obstructing a peace officer is established by proof, beyond a reasonable doubt, of the following:

• The accused misused their position of trust as a public officer, to divulge information to another person/third party would be or would be unable to access that information,

and

• The accused knew they would benefit from providing that information to the other person/third party, either directly or indirectly

The act of breach of trust requires the crown to clearly prove that the actions of the accused support that the public officer committed breach of trust. As supported by the precedent established in R v Creighton (1993) 3 SCR 3, there must be a marked departure from reasonable behaviour, and that reasonableness is by the standard of a reasonable public official, not a reasonable person.

The Guilty Mind (Mens Rea)

The mens rea for breach of trust is established by proof, beyond a reasonable doubt, of the following:

• The accused intentionally and knowingly, misused their position of trust as a public officer, to divulge information to another person/third party would was or would be unable to access that information,

and

• The accused knew they would benefit from providing that information to the other person/third party, either directly or indirectly

The act of breach of trust, as established in precedent by R v Creighton, requires the crown to clearly prove that the intention of the accused must have been to use his or her office for something other than the public good.

In establishing actus reus and mens rea, as established in precedent by the courts in R v Boulanger (2006) S.C.R. 49 at para. 58: the crown must prove that the public officer was an official/public officer, acting in connection with the duties of his or her office, breached the standard of responsibility or conduct demanded of him or her by the nature of the office, represented a serious and marked departure from the standards expected of an individual in the accused’s position of trust, and accused with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose.

Defences

How to beat a Breach of Trust charge

Each circumstance is different, and the best defence available is contextual based on the details. However, the following are some common defences that may be used against a charge of breach of trust:

Whistleblower/ Public Interest

The public interest component may often apply to persons commonly referred to as “whistleblowers” who observe what they perceive ethically as wrongdoing and feel morally obliged to publicize or divulge information in the public interest. This may be raised as a defence to a charge of breach of trust under Section 122 if the accused can prove that their actions were necessary to protect themselves or members of the public/community from immediate harm or danger. This may apply to circumstances where a person feared harm to themselves, and the public if they did not divulge information to the third party or public.A vital part of this defence would be whether or not the whistleblower receives financial compensation, benefit, or advantage for their actions, or proving the absence of such.

Lack of Knowledge/Honest Mistake/No Mens Rea or Mental Intent:

Lack of knowledge may also be raised as a defence if the accused can prove that they did not know that the information they were divulged was sensitive or exclusively known in their position as a public officer. This is more likely to be a suitable defence in the absence of the use of a secure database which is exclusive to the public officer’s position.

Execution of the Public Officers duties

In order for guilt to be established, the crown must provide that there was a marked departure from the reasonableness of the public officer’s duties. This was supported in precedent in the decision R v Ramzy 2014 ONCJ 30 (CanLii), where, if a public officer was directed by a supervising public officer, or supervisor, to divulge the information, and it was commonplace for them to receive instruction in this regard, this may constitute a defence.

Punishments

The maximum penalty for a conviction under Section 122 is a term of imprisonment of up to five years.

If prosecuted by indictment, the maximum penalty is five years of incarceration.

Whether you intend to plead guilty to a charge under section 122, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.

Frequently Asked Questions

Is breach of trust an indictable offence?

Breach of trust under section 122 is a hybrid offence. This means that the Crown prosecutor can choose to prosecute someone charged with breach of trust either summarily or by indictment. If the Crown chooses to prosecute an accused by indictment, then the accused is found guilty, and they will be convicted of an indictable offence.

Published Decisions

R v Boulanger (2006) 2 S.C.R. 49, 2006 SCC 32

The accused was a police officer, and his child was involved in a motor vehicle accident. The accused asked another police officer to submit a report on the incident, which resulted in absolving his child of fault in the collision. The courts ultimately deemed the charge lacked the mens rea for conviction. This was due to the fact that, although the accused (Boulanger) had directed another police officer to submit a report on the matter, he did not exercise any influence over the content of the report, and the judge concluded the report was accurate. Therefore, Boulanger’s actions were not deemed to be a marked departure from reasonable behaviour.

You can read the full decision here.

R v Duffy (2016) ONCJ 220

The accused (Duffy) was a prominent public figure and a well-known politician. R v. Duffy is one of the most notable cases of breach of trust in Canada. In 2013, it was discovered that the accused had claimed over $90,000 in questionable expenses, including expenses for his primary residence in Ottawa, which was outside of his designated residency in Prince Edward Island. Duffy was charged with breach of trust, amongst other offences. The accused raised a defence that he had not intentionally committed any wrongdoing and that he had acted in good faith by relying on the advice of his superiors in the Senate. Although the trial judge initially found the accused guilty of breach of trust, he was later acquitted on appeal. The Ontario Court of Justice found that the Crown had not proved either the actus reus, or the mens rea, and accepted that the accused reasonably believed he was acting appropriately and consistent with the common practice and standards of the senate.

You can read the full decision here.

R c. Thibault, 2015 QCCQ 8910 (CanLII)

The circumstances resulting in the charge of former Quebec lieutenant-governor Lise Thibault is another example of a high-profile case of breach of trust. The accused (Thibault) was accused of using public funds for personal expenses, including vacations, gifts, and renovations to her private residence. She was charged with several criminal offences, including breach of trust. The accused raised a defence arguing that she had acted in good faith, and that she had honestly believed that the expenses were legitimate. However, the judge found her guilty of multiple charges, including breach of trust, and she was sentenced to 18 months in prison.

You can read the full decision here.