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R. v. Campbell
1 MACKAY, J.A.:— I agree with my brother Wells that this appeal must be allowed and a new trial directed. The learned trial Judge held that to convict there must be a breach of trust in respect of trust property, and there being no trust property involved in this case, acquitted the accused. 2 The offence under s. 103 of the Criminal Code, as has been pointed out by my brother Wells, is breach of trust by an official in connection with the duties of his office, not breach of trust in respect of trust property. 3 The question of whether on the evidence there was a breach of trust by the accused in respect of, or in connection with the duties of his office not having been determined by the learned trial Judge, the case must be retried. McLENNAN, J.A., agrees with MacKAY, J.A. 4 WELLS, J.A.:—This is an appeal by the Crown from the acquittal of one John Hunter Campbell, who was charged and tried in the County Court of the County of York, under count 2 of an indictment preferred against him, by the Attorney-General. The charge as set out in the indictment is as follows: 2. You are futher charged that in the month of July, in the year 1964, at the Municipality of Metropolitan Toronto in the County of York, did, being an official in connection with the duties of your office, namely Director of the Securities Branch Department of the Attorney General for the Province of Ontario, committed a breach of trust contrary to the Criminal Code. The learned Trial Judge, in giving judgment, expressed his opinion of the accused's actions in the following words: We are dealing with the second count in the indictment and I think whether the mode of delivery of Mrs. McMillan's stock and its subsequent return under clandestine circumstances, was a loan or not, there is no question that the conduct of the accused man reflected a singular lack of judgment and demonstrated that he had a personal interest in the outcome of negotiations to the end that the shares of Windfall Oils and Mines Limited be not delisted. There is neither moral nor ethical excuse for his behaviour. He agreed that the Crown had proved that the accused was an official of the Ontario Securities Commission and pointed out that his duties were mainly administrative. It will add, I think, to the understanding of the decision I have reached if I now quote briefly from his judgment at pp. 458 and 459 of the evidence: The trouble, apparently, arose when the Toronto Stock Exchange insisted upon Windfall Oils supplying certain information, the failure of which would precipitate action to have the stock delisted. The charge was laid pursuant to the terms of s. 103 of the Cr. Code which is as follows: 103. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and is liable to imprisonment for 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. This section which, in slightly different form, first appeared in the first version of the Criminal Code which was passed in July of 1892 [c. 29], provided that it should come into force on the first day of July, 1893. The section is one which appeared in some of the later drafts of a proposed Criminal Code generally associated with the name of Sir James Stephen and stems from the famous decision of Lord Mansfield in the case of The King v. Bembridge, which was reported originally in (1783), 3 Dougl. 327, and is more conveniently found in 99 E.R. 679. Bembridge was an accountant in the office and place of the Receiver-General of the Forces and it was said that he had wilfully and fraudulently refused and neglected to disclose any charges upon a former Receiver and Paymaster of the Force which covered certain substantial items which had been omitted from the accounts, although he knew that several sums of money were not included in the said accounts. Lord Mansfield described Bembridge's position as one of an office of trust and on p. 332 Lord Mansfield observed: As to the motion in arrest of judgment the objection is, that this is a civil injury, and not indictable, and it is said that there is no precedent. The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases. Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office; this is true, by whomever and in whatever the way the officer is appointed. In Vidian (Vidian's Entries, p. 213) there is a precedent of an indictment against the custos brevium for losing a record. Secondly, where there is a breach of trust, fraud, or imposition, in a matter concerning the public, though as between individuals it would only be actionable, yet as between the King and the subject it is indictable. That such should be the rule is essential to the existence of the country. Further down, towards the conclusion of his judgment, Lord Mansfield referred to the rule laid down by Mr. Sergeant Hawkins in the following words [p. 332]:The rule is well laid down by Mr. Serj. Hawkins (Book ii, c. 25, s. 4), that all kinds of crimes of a public nature, all misdemeanors whatsoever of a public evil example against the common law, may be indicted; but no injuries of a private nature, unless they some way concern the King. In the result, the application, which was an application in arrest of judgment, was dismissed. The two other Judges sitting, Willes and Buller, JJ., agreed with Lord Mansfield. Lord Mansfield also referred to what is known as an Anonymous Case, which was a decision of the Court of King's Bench in the second year of the reign of Queen Anne. It is found as Case 136 in Mod. Rep., vol. 6, p. 96, and is reported briefly as follows: Per Curiam. If a man be made an officer by act of parliament, and misbehave himself in his office, he is indictable for it at common law, and any publick officer is indictable for misbehaviour in his office. 5 In the more recent case of R. v. McMorran, [1948] O.R. 384, 91 C.C.C. 19, 5 C.R. 338, the late Hogg, J.A., dealt with s. 103, which was then s. 160 of the Cr. Code, R.S.C. 1927, c. 36. He described the charge in that case as follows [p. 391 O.R., p. 24 C.C.C.]: The indictment presented to the Court charged that the accused McMorran was guilty on three counts of criminal misconduct in the use he made of his functions as Allocations Officer of the Wool Administration of the Wartime Prices and Trade Board. It is quite clear, from reading the balance of Hogg, J.A.'s judgment that he regarded what is now s. 103 of the Cr. Code as derived from Lord Mansfield's decision in the Bembridge case which, in turn, partly rested on the decision of the Court of King's Bench in the Anonymous Case, which I have already referred to. 6 Earlier in Ontario, a similar problem was faced and dealt with in the case of R. v. Arnoldi (1892), 23 O.R. 201. It was a trial at Ottawa by Chief Justice Armour. The facts are summarized in the headnote: An officer in the public service of Canada having charge of the public dredging and whose duty it was to audit the expenditure therefor, used property of his own in connection with the dredging, having first placed it in the name of a third party, in whose name also he made out the accounts. No undue gains were made by him, but as such public officer he certified to the correctness of the accounts respecting the use of his said property as though for services rendered by contractors with the Government, and thereby received for himself a payment for those services. This case was reserved by Chief Justice Armour sitting on Assizes at Ottawa. It is to be noted that the Criminal Code which contained the original form of s. 103 did not come into force until the first of July, 1893, and that, consequently, the matter was decided under the common law. The Code, however, was put forward substantially as a codification of the common law. The Chancellor's views as expresssed after the Code had been passed but was not yet in force are, in my opinion, of considerable weight and authority as to the meaning of what was then s. 135 of that statute, that is the precursor of the present s. 103. 7 The case was reserved by the Chief Justice because he had directed the jury that they should find a verdict of "not guilty" in respect of certain counts in the indictment charging the accused with obtaining money under false pretences, but that they should find a verdict of "guilty" against the defendant on the counts in the indictment charging him with misbehaviour in office. These were the first three counts in the indictment and, before passing sentence, he reserved the question for the opinion of the Chancery Division of the High Court of Justice, whether the finding upon the first three counts could be sustained in point of law. 8 The reserved case came on for argument before Chancellor Boyd and Meredith, J., on December 10, 1892, and it was argued that no criminal offence existed, because it was essential that pecuniary damage must result to the public by reason of the irregular conduct of the officer. The Chancellor rejected this argument and apparently proceeded on the theory that, by charging a reasonable price for the service of the dredge, the accused had profited by his own dereliction of duty. The duty of the accused had profited by his own dereliction of duty. The duty of the accused was to audit certain accounts of which he had personal cognizance as a government official and to verify their propriety and correctness. In his judgment he dealt with a number of ancient authorities dealing with misbehaviour and misfeasance in public office. He came to the conclusion that the element of profit which had not been excessive, was immaterial, except possibly as an element of mitigation of the accused's conduct. At p. 212 in the concluding paragraph he set the matter out as follows: The gravity of the matter is not so much in its merely profitable aspect as in the misuse of power entrusted to the defendant for the public benefit, for the furtherance of personal ends. Public example requires the infliction of punishment when public confidence has thus been abused, and my judgment is, that the conviction should be sustained. 9 In the case before us, it is apparent from the judgment of the learned trial Judge, which I have already set out, that he regarded the existence of a trust property and a breach of trust in relation thereto, as necessary to bring the accused under s. 103. 10 With respect, we are unable to agree with this conclusion. In our opinion s. 103 is wide enough to cover any breach of the appropriate standard of responsibility and conduct demanded of the accused by the nature of his office as a senior civil servant of the Crown, acting as he was, as Director of the Ontario Securities Commission. In consequence, the learned trial Judge did not consider the propriety or lack of propriety in Campbell's actions in borrowing Windfall stock from Mrs. Viola MacMillan, who with her husband had a substantial interest in Windfall. He also did not consider Campbell's relations with General Graham as head of the Toronto Stock Exchange and what passed between them when the Exchange indicated the possibility of delisting the stock. If the stock had been delisted Mr. Campbell would have had to deal with Windfall under s. 8 of the Securities Act, R.S.O. 1960, c. 363, and the Judge should have considered his actions in respect to this, and his relations with both Mr. and Mrs. MacMillan. There may be other matters disclosed by the evidence which he also did not consider, but as the Court is of the opinion that there must be a new trial I do not express any opinion about this evidence, but it would be proper for the Judge conducting the new trial to see whether Campbell's actions in connection with all these matters, did or did not constitute a breach of trust in relation to his office. The question which will have to be determined and which has not been considered is whether Campbell by reason of his dealings and actions abused the public trust and confidence which had been placed in him by his appointment as a servant of the Crown and thereby did he or did he not commit a breach of trust in relation to his office? 11 In the case of R. v. McMorran, which I have already referred to, at p. 395 O.R., p. 28 C.C.C., Hogg, J.A., said: Section 160 of the Code provides, as was established long ago by the judgment of Lord Mansfield, that even although the breach of trust is caused by ordinary negligence, which would be ground, between individuals, only for an action for damages, nevertheless a breach of such character is sufficient to constitute a criminal offence if committed by one in an office of trust concerning the public -- in other words, a public officer -- and is in connection with a matter concerning or affecting the public. It is interesting to note the observations of Fauteux, J., in the case of Wright, McDermott and Feeley v. The Queen, [1964] S.C.R. 192, [1964] 2 C.C.C. 201, 43 D.L.R. (2d) 597, when dealing with common law conspiracy, which was a common law offence preserved by the 1954 provision of the Criminal Code, had this to say as to what had taken place. It had been argued that s. 408(2)(a) did not cover matters which were not included in the Criminal Code. The Court did not agree and at p. 194 S.C.R., pp. 202-3 C.C.C., Fauteux, J., said: ... The Law of Conspiracy, encompasses more than criminal offences, sufficient it is to say, for the purpose of this case, that the purpose alleged in the charge, to wit, the obtention from a constable of information which it is his duty not to divulge, is an unlawful purpose. In the language of Lord Mansfield, in Rex v. Bembridge [supra]:A man accepting an office of trust concerning the public, especially if attended by profit, is answerable criminally to the King for misbehaviour in his office. The situation has been very tersely summed up in the United States, for example, in the American Words and Phrases, Permanent Edition, vol. 29, p. 250, there is the following note: An "office" has been defined as "a special trust or charge created by competent authority"; more tersely still "a public office is a public trust. ... Gracey v. City of St. Louis, Mo. 111 S.W. 1159, 1163. 12 The respondent suggests that the possible use of the word "trust" to indicate "confidence" is a colloquial usage. While it is perfectly true that the term "trust" is a term of art in the legal field of equity, the Shorter Oxford Dictionary at p. 1362, gives the following meaning for the word "office": 4. A position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority, M.E. e.g. The Office of Coroner. 13 It is argued that while s. 103 covers part of the rules laid down in The King v. Bembridge, supra, that the offence of misbehaviour or malfeasance in office was a separate common law offence to that which s. 103 purported to deal and was abolished by s. 8 of the present Cr. Code. In my opinion this is not so. Section 103, in my opinion, is wide enough to cover what the Crown alleged happened in the present case, if that can be proved. It is inconceivable that Parliament, when it was considering the new Criminal Code, would have omitted to cover malfeasance in office and in my opinion, the meaning of the words in s. 103, when taken along with the case law, are amply wide enough to cover such a case as is alleged here. 14 In having drawn attention to the various acts which the evidence in the trial before us discloses, as to Campbell's conduct, it must be understood that I am expressing no opinion on these matters, as I have come to the conclusion that a new trial should be ordered. It is for the Judge hearing the trial to decide whether these actions of Campbell's, if they are proved before him, constitute a breach of trust in connection with his office under the Crown. I have only set them out to illustrate that the very narrow view taken by the trial Judge precluded any examination on his part as to Campbell's conduct. Because of the wider scope which I attribute to s. 103 these matters should be considered, if they are adduced in evidence before the Judge hearing the new trial, along with any other facts which may appear in the evidence before him. I have no comment to make on Campbell's guilt or innocence, that is entirely for the trial Judge hearing the retrial. Accordingly, I would allow the Crown's appeal and direct a new trial, the acquittal at the first trial will be set aside accordingly. Appeal allowed.
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