Thursday, July 13, 2006

Boulanger--Case Comment--Thumbs Up

Those quibblers working in the cottage industry caused by the fallout from Adscam and Gomery will be busy today. The Chief Justice released a decision setting out the elements of criminal breach of trust by a public officer. The result is good news for those public officials who have done something mildly dodgy, but without dishonest intent.

Denis Boulanger, the directeur de la sécurité publique for Varennes, faced a problem everyone with teenage children will be sympathetic to. His daughter got in an accident. The investigating officer's original report wasn't clear about who was at fault. So M. Boulanger suggested that another "more complete" report be done. His suggestion may have had more force than that of most concerned fathers in that he was the officer's supervisor. In any event, a "supplementary" report was drawn up which cleared Mademoiselle Boulanger of any fault in the accident.

M. Boulanger was not acting in accordance with the stringent demands of the police ethics. But did he commit a criminal breach of trust? The trial judge found that his actions were an "error in judgment." For the most part, the criminal law doesn't concern itself with errors in judgment, but this particular offence has been a bit confused on the subject, no doubt to the delight of special prosecutors everywhere.

McLachlin, after an apparently learned discussion of the common law roots of the offence, set out a crisp 5-point test for when the offence is made out. The key points are that the departure from the standard of conduct that the public official is supposed to engage in has to be marked, and the public official has to have acted with the intention of using the public office for a dishonest, partial, corrupt or oppressive purpose.

The effect will be to make the prosecution of this offence more difficult. But that's appropriate since the criminal law should be confined to really, really bad, intentionally bad, stuff. Also, everyone should feel free to make stringent civil ethical rules without criminalizing everybody.

I'm still not sure I want to drive in Varennes, though.

Case Comment of R. v. Boulanger, 2006 SCC 32

Update: Fred Litwin gives the thumbs down, as does Alex at

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