R. v. Bonney Date:, 2018 BCPC 12

Citation: R. v. Bonney Date: 20180131 2018 BCPC 12 File No: 241881-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN ASHLY GORE BONNEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: David Butcher, Q.C., Anila Srivastava, Lisa Sturgess Counsel for the Defendant: Ian Donaldson, Q.C., Sara Clouston Place of Hearing: Vancouver , B.C. Dates of Hearing: October 12, 2017; January 16, 17, 18, 19, 2018 Date of Judgment: January 31, 2018 [ 1 ] There are many folks in this world who covet the way of life Canadians enjoy in this country. Of course, a great debt is owed to the Indigenous peoples who play such an important

part in building this way of life, and whose land upon which this building continues to take place. [ 2 ] In a free and democratic society, like ours, there is a legitimate and laudable expectation that a professional public service will

diligently work to support and implement the legislatively approved agenda of the government of the day. However, there is an equallylegitimate and laudable expectation that our public service will not work simply to serve a certain political party as opposed to serving allof the citizens who employ them. As other cases have emphasized, public office means serving the public and nobody else. [3] It is this second expectation that Mr. Bonney failed to meet. In doing so, he breached the trust that the citizens of BritishColumbia had placed in him. [4] Mr. Bonney is before the Court for sentencing.

On October 12, 2017, he entered a plea of guilty to the following charge: Brian Ashly Gore BONNEY, from the 16th day of October, 2011, to the 31st day of December, 2012, inclusive, at or near Vancouverand elsewhere, in the Province of British Columbia, being a public officer, did, in connection with the duties of his office, commit abreach of trust, contrary to

Section 122 of the Criminal Code. [5] That charge, contained in Information Number 241884-1, was not sworn until May 17, 2016, after a lengthy investigation bythe RCMP and the engagement of a special prosecutor. [6]

Section 122 of the Criminal Code reads: Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence andliable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it werecommitted in relation to a private person. [7] Chief Justice McLachlin of the Supreme Court of Canada wrote this with respect to the purpose of this offence: The crime of breach of trust by a public officer, embodied in s. 122 of the Criminal Code, R.S.C. 1985, c. C-46, is both ancient andimportant.

It gives concrete expression to the duty of holders of public office to use their offices for the public good. This duty lies at theheart of good governance. It is essential to retaining the confidence of the public in those who exercise state power. (R. v. Boulanger (2006) 2006 SCC 32 , 2 S.C.R. 49 at para. 1). [8] The Court in Boulanger (above) conceded in 2006 that the elements of s. 122, surprisingly, remained uncertain.

That caserequired the Court to clarify those elements so that citizens, police and the courts have a clear idea of what conduct the crimeencompassed. [9] The Chief Justice, at paragraph 58, said: I conclude that the offence of breach of trust by a public officer will be established where the Crown proves beyond a reasonable doubtthe following elements: 1. The accused is an official; 2. The accused was acting in connection with the duties of his or her office; 3. The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; 4.

The conduct of the accused represented a serious and marked departure from the standards expected of an individual in theaccused’s position of public trust; and 5. The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for adishonest, partial, corrupt, or oppressive purpose. [10] It must also be recognized that the determination of whether someone’s conduct falls “so far below acceptable standards as toamount to an abuse of the public's trust in the office holder” is often not an easy one.

As the Court in Boulanger (above) noted, “Publicofficials are therefore made answerable to the public in a way that private actors may not be. This said perfection has never been thestandard for criminal culpability in this domain; "mistakes" and "errors in judgment" have always been excluded” (para. 52). [11] Some activities, for instance, using the company computer for a personal use, may rise to a breach of an employment guidelineor contract but not amount to a breach of the public’s trust. [12] The Crown alleges that the acts constituting Mr.

Bonney’s wrongful conduct were wide-ranging and occurred over the courseof his almost one year employment with government.

They pointed out six categories: i. using his time as a public servant for partisan purposes; ii. directing the work of three community liaisons employed directly or indirectly by the Government caucus or Liberal Party; iii. assisting, or directing that assistance be provided to, particular individuals to prepare their applications for government contractpositions as community outreach workers; iv. directing the work of the proposed community outreach workers; v. in all of these activities, sharing confidential government information with people not authorized to receive it; vi. in all of these activities, targeting ethnic groups for the purpose of garnering their support for Premier Christy Clark and the BCLiberal Party.

[ 13 ] Mr. Bonney has conceded, through his plea of guilty, that the elements of the offence as set out in Boulanger (above) have been met. There was a dispute about whether Mr. Bonney’s activities under the third subheading fell within the Boulanger test; however, given the breadth of the other activities, I do not find it necessary to resolve that issue in order to determine a fit sentence. [ 14 ] Mr. Donaldson, on Mr. Bonney’s behalf, submits that the context of Mr. Bonney’s activities must be considered.

He submits that in this case the “line” between pure partisan politicking and legitimate activities that further an approved government agenda was often a nebulous one. Mr. Bonney unreservedly admits that that line was crossed in various instances, but that his moral culpability is on the lower end of the scale given how closely those employed by government, by caucus, and by political parties work together at times. BACKGROUND [ 15 ] Mr. Bonney has worked closely with the B.C. Liberal Party for many years. He is a former Regional Director and member of the Executive of the BC Liberal Party.

He supported former premier Christy Clark’s bid for the party leadership. He was once business partners with former Minister of State for Multiculturalism, Harry Bloy. [ 16 ] On October 17, 2011, he was hired as a Communications Director with Government Communications and Public Engagement office (GCPE). He was assigned to the Multiculturalism Communications office. His appointment letter enclosed a copy of the Standards of Conduct for BC Public Service employees. [ 17 ] Those Standards of Conduct set out the ethical boundaries that were to constrain the activities of government employees.

The eight page document points out, among other things, that “… the honesty and integrity of the BC Public Service demands the impartiality of employees in the conduct of their duties”. [ 18 ] Under the heading of “Political Activity” it states: … If engaging in political activities, employees must remain impartial and retain the perception of impartiality in relation to their duties and responsibilities. Employees must not engage in political activities during working hours or use governmental facilities, equipment, or resources in support of these activities. [ 19 ] Mr.

Bonney swore an oath to abide by those Standards of Conduct . [ 20 ] A compelling example of how the often separate interests relating to government and partisan groups were being emulsified by Mr. Bonney is found in an e-mail (using non-governmental e-mail addresses) dated April 23, 2012, at 9:17 a.m. from Mr. Bonney to one of the party’s “community liaisons”, whose activities he was directing. That e-mail is found at p.65 of Exhibit 1 in this hearing. In it, Mr.

Bonney complains that he has a full-time job with government but is being overwhelmed with e-mails from the “Minister’s” office, The BC Liberal Party, “caucus”, and individuals associated to the Premier’s Office. [ 21 ] Prior to that, Mr. Bonney had engaged the services of this particular liaison (November 2011). That services contract is found at p.107 of Exhibit 1. It clearly indicates that the agreement is “private” and stipulates that the worker is “never to say you are working for a government minister, MLA, or government itself, and never say you are working for a political party”.

This begs the obvious question of course. Who was this person working for? Ultimately, it was found that this worker was being paid by a company that Mr. Bonney was a principal of. The BC Liberal Party would then reimburse the company for any monies paid out.

MULTICULTURAL STRATEGIC OUTREACH PLAN [ 22 ] In December 2011, the former Deputy Chief of Staff to the Premier, Kim Haakstad, called a meeting with representatives of the Government of British Columbia, the BC Liberal Party, and the provincial Government Caucus to discuss ways to bring about better coordination of multicultural activities among the three groups. This meeting resulted in the drafting of a document entitled Multicultural Strategic Outreach Plan (“MCOP”). [ 23 ] This plan was leaked in 2013.

Following the leak, the Premier initiated an investigation headed by John Dyble, Deputy Minister to the Premier. On March 14, 2013, Mr. Dyble’s report was released. [ 24 ] The report, which sets out much of the background relating to the MCOP, notes that the plan blurred the lines between government and party work.

"It was unclear to several of the participants whether this was a government meeting or a partisan meeting," the Dyble report states. [ 25 ] This plan, among other things, outlined the benefits for increased sharing of British Columbians’ information between the Government of British Columbia and the BC Liberal Party and directs individuals, including Mr. Bonney, to assist in shoring up the “ethnic” vote, as well as directing him to create lists of possible Liberal Party supporters for the upcoming election.

He was also told to draft a plan and job responsibilities with respect to partisan outreach staff. [ 26 ] The plan was essentially a strategy for “quick wins” among ethnic communities and quickly grew, unsurprisingly, into a significant news story. The Georgia Straight newspaper’s Charlie Smith aptly described it as “ a clumsy and somewhat vicious plan to woo non-white voters relying on government funds to help the party”. [ 27 ] I do not intend to go into depth regarding the details of this plan (it is found at pages 73-90 in Exhibit 1).

However, it does indicate that the Minister of State for Multiculturalism (then Harry Bloy) was responsible for the implementation of the plan. Mr. Bonney was one of the identified “leaders” in the plan. [ 28 ] Mr. Bonney enthusiastically went to work on this plan, much of which was expressly designed to promote only Liberal Party interests, while he was being paid from the public purse. [ 29 ] I was provided several thousand pages of material in this sentencing hearing. A large number of documents were included in

Exhibit 1 and 2, and their purpose is to delineate the frequency and range of Mr. Bonney’s partisan activities. Many of the communications that were provided betray the fact that Mr. Bonney knew that at least some of his conduct and the conduct he was directing others to do, was wrong and he sought to keep that conduct secret. [ 30 ] One of the activities that the liaisons were directed to do was to organize meetings and “roundtables” with Ministers and MLAs. These meetings were to be with “ethnic” community groups and leaders.

One of the criteria often requested was that there had to be something “in it” for the Liberal Party. However, the liaisons were directed by Mr. Bonney not to mention anything to these groups that could be construed as “political” in nature. [ 31 ] Despite that direction, there were some community groups that were wary of the “outreach” that was being directed, in part, by Mr. Bonney. One of the liaisons being directed by Mr. Bonney held the title of “Honourary Community Liaison for Harry Bloy, MLA”. In March of 2012, she forwarded an e-mail to Mr.

Bonney describing an interaction with a community leader who was asking why the Minister was only reaching out now. This community leader felt that the outreach was clearly political in nature and he was not happy that they were trying to take advantage of his community. [ 32 ] Mr. Bonney wrote this to the worker, “Stay positive and remember we are doing this for future generations - for a better BC. If he does not see this, OR, worse, wants a “socialist” union running BC, it is his loss … time to move on ...”. [ 33 ] The only inference to draw from these activities is that Mr.

Bonney was only interested in facilitating access to his Minister (The Honourable John Yap by this time) if the group had “good potential” for the Liberal Party. [ 34 ] After a less than positive meeting with the Tanzanian community, Mr. Bonney was directed by the Minister’s office to “not bother with some demographics that will not likely or absolutely ever support us, e.g. “Homeless people” or “people dependent on social supports”, who tend to be left leaning or outright socialist”. [ 35 ] There were times when Mr.

Bonney would ask the community liaisons under his direction to refrain from contacting Party or government officials directly. In that context, he characterized their activities and relationship as “a VERY tricky game”. [ 36 ] It is difficult to determine just how much time Mr. Bonney was spending on activities that were outside his legitimate government work. However, the BC Liberal Party did eventually pay back to the government about half of what Mr. Bonney earned in the time he was a public servant. [ 37 ] In all of this, it is clear that Mr.

Bonney’s motivations in doing this partisan work were not to gain any personal financial advantage or to gain a particular benefit for himself. He simply believed that the Liberal Party with their “free enterprise” agenda was the only party that could effectively govern and that, essentially, the ends justified the clandestine, partial and dishonest means he was engaged in. [ 38 ] In August of 2013, Opposition Leader Adrian Dix forwarded a complaint about several issues relating to these matters to the RCMP.

A lengthy investigation followed involving interviews with folks ranging from the civil service all the way to the Ministerial level. A Special Prosecutor eventually approved charges under the Election Act . The Information before this Court was sworn on May 17, 2016. [ 39 ] I have attempted to outline the substance of the allegations in as brief a manner as possible, while still acknowledging that the range and breadth of Mr. Bonney’s activities that fall within the Boulanger test set out above were quite extensive.

CASES [ 40 ] It is conceded by the counsel before me that the range of sentences available for breach of trust type sentences vary widely, due to the vastly different kinds of activities that can be caught by this section. [ 41 ] I was provided a number of cases in an effort to assist the Court in placing Mr. Bonney’s offence within some kind of continuum of seriousness. I think it is important in cases such as this one that the public fully understand why the Court has come to the decision it has and for that reason I am setting out a short

summary of some of the cases that were provided to me. Some cases involved public officials and some involved breaches of trust by police officers. Of course, it is never possible to find a case that contains the identical circumstances as another one. PUBLIC OFFICIAL CASES R. v. Basi , 2010 BCSC 1622 [ 42 ] The two accused entered pleas of guilty for breaches of trust. There was a joint submission with respect to the sentence. Mr. Basi and Mr. Virk were ministerial aides and were found to be accepting benefits in exchange for delivering insider information in relation to the sale of BC Rail.

The accused were sentenced to conditional sentences of imprisonment for two years. R. v. Bispo , 2004 ONCJ 331 [ 43 ] The accused was convicted of a single count of fraud by a public official. The accused had written fake parking tickets for out of country license plates in order to meet a quota set by his employer. The Court found that Mr. Bispo a cted upon a personal concern that he might lose his job if his legitimate ticket issuance production was consistently below the city’s performance standard. He received a conditional sentence of imprisonment for nine months. R . v.

Briere , 2015 QCCQ 9632 [ 44 ] The accused attempted to reach an agreement with two opposition councilors to avoid holding a municipal election in order to

ensure that his friend, the mayor, retained her position. [ 45 ] The Court determined that even though the crime the accused was convicted of were not one of the most serious crimes in the Criminal Code , subjectively, wanting to deprive a population of the fundamental democratic right to choose their elected representatives is very serious. [ 46 ] The Court concluded, however, that given the circumstances in that case, a jail sentence was not necessary to meet the principles of sentencing and imposed a suspended sentence with a period of probation for two years. R. v. Corbeil , 2010 QCCA 1628 [ 47 ] Mr.

Corbeil pleaded guilty to fraud on the government and fraud over $5,000. The accused had suggested to a citizen that they make a $50,000.00 donation to the party in exchange for a “friendly ear” when it came time to consider a certain land expropriation. He also participated in an embezzlement scheme involving the Liberal Party. Monies that were obtained went to support party ridings. [ 48 ] Noting, in part, that the monies were not obtained for a personal benefit, the original 15 month jail sentence and restitution order were overturned on appeal.

A conditional sentence of 12 months was substituted. [ 49 ] The Court of Appeal stated, at para. 31, that: In public administration, corruption is like gangrene, and the courts must deal severely with it to prevent it from spreading. R. v. Currie (1994), 24 W.C.B. (2d) 290 , 1994 CarswellOnt 2990 (Ct. J. (Gen. Div.)) [ 50 ] Both accused were long standing members of the Hydro Commission. They used their office to assist and promote their personal and financial interest in a corporation which developed "cutting edge" technology for reading meters remotely from a central location.

The accused incorporated a company, in which they were shareholders, for the purpose of promoting this technology and with a view to benefitting financially from any success that might be achieved. [ 51 ] The accused were granted a conditional discharge. The accused were long standing good citizens of the community. The Court found that registering a conviction was against their best interests. Failing to do so was not contrary to public policy. R. v. Harvey , 2006 BCPC 444 [ 52 ] Mr. Harvey was the elected Mayor of Vernon. He submitted false expense claims to the City of Vernon.

The total loss to the City resulting from these false claims was $13,838.60. Mr. Harvey was ordered to pay restitution and was sentenced to a Conditional Sentence of 12 months, and following that, a Probation Order for a period of 1 year. R. v. Morency , 2012 QCCQ 4556 [ 53 ] The accused was the only Crown prosecutor in the community in question. He pleaded guilty to two counts of breach of trust by a public officer, and to one count of bribery of police officers in a scheme to “fix” tickets. [ 54 ] He was sentenced to a global jail sentence of 3 years. R. v.

Singh , 2007 ABPC 119 [ 55 ] The accused, a senior Licensed Provincial Driving Instructor, was found guilty of committing fraud or breach of trust in connection with his duties by providing fraudulent completion Certificates to drivers who did not earn them. Noting the potential harm to the community of allowing substandard drivers onto the road, the Court sentenced the accused to 90 days of actual incarceration. R. v. Sona , 2016 ONCA 452 [ 56 ] Mr. Sona was convicted under the Canada Elections Act for preventing electors from voting in the election.

He was the Communications Director for the local Conservative Party of Canada candidate. In his role, he became a major and active participant in a scheme to call some non-supporters of the CPC and direct them to false polling stations with the intention of preventing them from voting. This scandal became known as the “robo-calls” incident. The trial judge sentenced Mr. Sona to a period of imprisonment of 9 months, followed by a 12 month period of probation. Both Crown and the accused appealed the sentence. [ 57 ] The Ontario Court of Appeal dismissed both appeals and upheld the sentence. R. v.

Trudel , 2017 QCCQ 4190 [ 58 ] Mr. Trudel was caught up in providing benefits and illegal political funding in an effort to assist a particular political party to gain a financial edge on other parties. His participation in various schemes was wide-ranging and purposeful. It was clear that he was a very influential and wealthy person who was the architect of the schemes involved.

The Court found, at paragraph 42, that: The illegal funding to which the accused admitted to be involved resulted in an inequality between the financial resources of the PRM and those of the other parties, and clearly gave the PRM an advantage over its influence during the election campaign and its ability to influence the electorate in order to remain in power.

This is an obstacle to the fundamental principle of fairness that underlies electoral laws and directly attacks the foundations of society, which is free and democratic. [ 59 ] The Court imposed a 15-month jail sentence followed by a 3-year probation order with conditions. R. v. Tremblay , 2017 QCCQ 4189

[60] Mr. Tremblay was the director general of a suburb near Montreal. He admitted to participating in an illegal financing systemaimed to benefit a political party. Unreported financing was used to gain an advantage over other candidates. He had extensiveexperience in municipal administration. He assisted in drafting the code of ethics for city employees. He willfully ignored the rulessurrounding election funding. He was not just a city official, he was the main official. He controlled the entire municipal administration.He was sentenced to 12 months in jail followed by a three year probation order.

POLICE OFFICER CASES R. v. Kramp, 2014 ONCJ 780 [61] Ms. Kramp, a police officer, provided confidential police information to her friends and was charged with breach of trust. Dueto the exceptional circumstances, the sentence for the breach of trust was suspended, and Ms. Kramp was placed on probation for aperiod of three years with conditions. R. v. Leblanc, 2003 NBCA 75 [62] The accused, a police officer, responded to a fire in progress, and while simulating involvement with the police investigation,stole various items, and $83.

A Conditional Discharge granted by the trial judge was replaced upon Appeal by a three month jailsentence. R. v. Saini, 1989 CarswellSask 594 (C.A.) [63] Mr. Saini committed a breach of trust in connection with the duties of his office by removing and distributing confidentialinformation. He received a one year suspended sentence with a probation order. R. v. Tompkins, 2013 BCSC 2265 [64] While on duty as a prison guard, the accused watched two women engage in sexual activity on camera monitors.

The accusedpleaded guilty to breach of trust by viewing and/or inviting others to view sexual acts between two prisoners. [65] The Court stated that the offence in this case was serious, and could not be tolerated. However, the mitigating factors led theCourt to conclude that a conditional discharge was appropriate. DEFENCE COUNSEL CASES Fortin v.

R., 2012 QCCQ 883 [66] The accused was a lawyer who pleaded guilty to fabricating false documents, committing obstruction of justice, and two frauds.The Court agreed with the sentencing judge that the crimes were serious, but held that the objectives of denunciation and deterrencecould be met with a sentence served in the community. To that end, the sentence imposed by the trial judge was replaced with a term ofimprisonment of 15 months to be served in the community, subject to conditions. R. v.

Lavigne, 2011 ONSC 2938 [67] The accused was found to have abused his position as a Senator, by using it to obtain further financial benefits by claiming falsetravel expenses, and directing his research assistant to cut trees on his lot while being paid by the Senate. The benefit reaped by theaccused from his fraud and breach of trust was approximately $10,000.00, plus the improvement of his lot. [68] The Court found that Mr. Lavigne held a position of privilege endowed with high public trust, which he breached.

The Courtfound that a conditional sentence would not be sufficient to meet the principles of denunciation and deterrence. The accused wassentenced to six months of imprisonment for Count 1 (fraud), and six months of conditional sentence to be served in the community forCount 2 (breach of trust). R. v. MacEachern, (PE SCAD), 182 Nfld & PEIR 219 [69] The accused was the Deputy Minister of Agriculture and also the President of the World Potato Congress. He benefittedhimself improperly using those positions. He pleaded guilty to two charges of fraud, and one charge of breach of public trust.

The Courtof Appeal varied the sentence imposed by the trial judge by increasing the duration of the conditional sentence order from 12 months to15 months. [70] The Court found that the sentencing judge erred in principle by failing to give sufficient weight to aggravating factors such asthe accused’s previous conviction for a similar type of offence. R. v. Whitney, 2015 BCPC 227 , 2015 BCPC 0227 [71] The accused pleaded guilty to committing a breach of trust by stealing money while acting as a member of the RCMP.

TheCourt took into account the substantial amount of public funds that were used to investigate the accused, and stated that the breach oftrust victimized the public’s perception of the justice system. The breach of trust was characterized as serious by the court, and theaccused was sentenced to a suspended sentence of 12 months with conditions. [72] That is a short

summary of some of the cases I have been referred to and have considered in this matter. CROWN POSITION [73] The Crown maintains that an appropriate sentence is one of 12-23 months Conditional Sentence Order with conditions designed

to re-affirm societies condemnation of this kind of activity, while also reflecting the fact that the accused is before the court with nocriminal record and a history of positive contributions to the community. DEFENCE POSITION [74] The Defence says that I should consider suspending the passing of a sentence and place Mr. Bonney on a period of probation. Itis submitted that there are many extrajudicial sanctions that have been suffered by Mr. Bonney and that an informed member of thepublic would appreciate that involvement in any similar activity will bring a whole host of consequences, criminal and otherwise.

It isthe entirety of these consequences that will ensure the required deterrence the Crown is seeking to promote. ANALYSIS [75] The determination of a fit sentence is one of the most difficult tasks a judge must undertake. [76] It is true that denunciation can be met in ways other than lengthy periods of incarceration. In R. v. D.E.S.M. (BC CA), [1993] B.C.J.

No. 702 (B.C.C.A.), a five-member panel of our Court of Appeal in the context of a Crown sentence appeal for ahistorical sex assault said this: [20] There is no suggestion that the accused is a danger to anyone so he need not be isolated in order to protect the public. By convictinghim, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. Quiterecently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminalproceedings.

The Court has been saying what most lawyers and criminologists have known all along, that a public charge, trial andconviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. [77] I recognize that that statement is likely less impactful and relevant vis a vis sexual assault conduct now than it might have beenhistorically. Our views relating to the seriousness of such conduct have, I think it is fair to say, evolved over time.

However, in my mind,that statement is an apt one in circumstances such as this one. [78] Mr. Bonney’s case has drawn significant public scrutiny. His reputation, in the eyes of his community, has been considerablydamaged. [79] It should be noted that Mr.

Bonney’s reputation with respect to the services that he tirelessly and selflessly gave to thecommunity was well-earned. [80] He was presented with both the Diamond and Golden Commemorative Medals on behalf of Her Majesty Queen Elizabeth II forhis community work involving children and youth education initiatives. [81] He has been a Scout leader, an active member of the Rotary Club in Burnaby, and a founding director of the Society for theAdvancement of Excellence in Education.

The esteem with which he was held in the community is clear from the 61 letters of referencethat various members of that community have written on his behalf. They all attest to his good character and volunteer work. They allknow about the charge and express that the charge does not reflect the individual they have come to know. [82] Mr.

Bonney’s personal circumstances and his lack of any history relating to wrongdoing of this kind must be recognized. [83] All of that, of course, plays against the insidious damage caused by offences such as these. [84] Those cynics who disbelieve that government actually works for the benefit of the people and not themselves are richlyrewarded when this type of story emerges. Their ranks increase. That is a serious problem for society.

All citizens have the right to trustthat our public servants are working for all of us and not just for those who check off the “right” box on a ballot. [85] Peter Aucoin, the late political science professor at Dalhousie University, wrote in an essay entitled New Public Managementand New Public Governance: Finding the Balance in 2008: … Canada’s public service has become too subservient to the government of the day in various ways - some of these completelyinappropriate, as in the sponsorship scandal. … As one of Canada’s most respected former deputy ministers, Arthur Kroeger, put it, inthe sponsorship scandal the public service ‘got their marching orders and they marched’.

They failed to exercise their responsibilitieswhen confronted by ministers and their political staffs: they said ‘Yes, Minister’ when they should have said ‘No Minister’, and theyfailed to tell political staff to respect the constitutional system. [86] The Crown submits that if Mr. Bonney was asked to do anything illegal (and there is no concession that he ever was of course)he should have said, ‘No Minister’. The Defence concedes that is technically true.

They submit, in practice, however, it is a very difficultthing to do given the power imbalances. [87] It is noteworthy that many of the cases involving police officers committing, often singular, instances of misconduct result indischarges and suspended sentences, while those types of sentences remain the exception in cases involving misconduct in the politicalsphere. That seems to be some reflection of just how strong the expectations of political neutrality are in the wider community. [88] Is it mitigating that Mr.

Bonney did not go along with this scheme that was developed by people up the chain of command forfinancial benefit, but did so only for political benefit? I suppose the answer to that lies in how much importance you place on the idea ofa level and fair playing field when it comes to the democratic process. [89] I find that the misuse of government power or resources for other purposes, such as the gaining an unfair advantage on politicalopponents is properly characterized as a kind of political corruption.

[ 90 ] That being said I recognize the position that Mr. Bonney was in. He was not the architect of the scheme being implemented. He has admitted, however, to going well beyond what he was entitled to do while he was working as a public servant. He did so knowing that it was wrong. [ 91 ] I have considered all of these submissions carefully and find that Mr. Bonney’s case falls somewhere between that of Mr. Briere’s case (above) and Mr. Trudel’s case (above). On the one hand Mr. Bonney did not benefit financially. On the other hand, however, there were certain non-monetary benefits being sought.

He desperately wished his party to succeed in the next election and he enthusiastically, albeit illegally, employed his position to help that happen. CONCLUSION [ 92 ] The case law all seems clear. A sentence in these kinds of cases must express how important it is to maintain plain boundaries between partisan politicking and public service. I find that the appropriate sentence here is a jail sentence to be served in the community by way of a Conditional Sentence Order of nine months duration.

The terms of this sentence take into account, in my mind, the varying interests and factors relating to the very difficult task of determining a proper sentence. [ 93 ] The Conditional Sentence Order will contain the following terms: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Report to a supervisor within two working days and, thereafter, when required by the supervisor and in the manner directed by the supervisor. 4.

Remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor. 5. Provide your residential address and phone number to the supervisor and notify the supervisor of any change in your address or phone number. 6. You shall perform 60 hours of community work service at the direction of and to the satisfaction of the supervisor within the term of this Order. 7. For the term of this Order you shall be subject to a curfew at your residence or its grounds between the hours of 10 p.m. - 6 a.m. seven days a week except: a.

If you are at your place of employment for purposes of work or traveling to and from that employment. If you are outside your residence for this specific purpose, you must provide a

schedule and means of contacting you to your supervisor; or b. If you have the written permission of your supervisor to be absent from your residence during those hours; or c. For any medical emergency relating to yourself or someone in your immediate family. 8.

During those times that you are required by the Order to be in your residence and are not excused in accordance with the terms of this Order from being in your residence, you shall facilitate supervision of compliance with the terms of this Order by presenting yourself to the door of your residence when required to do so and by personally answering your phone when it is called. 9.

You shall not possess or consume any alcohol or any drugs defined by the Controlled Drugs and Substances Act for which you do not have a prescription. [ 94 ] I have considered the imposition of a probation order following this jail sentence in the community; however, it seems to me that the primary purpose of a probation order (according to the Proulx case) is to protect society and to facilitate the offender's successful reintegration into the community.

I find that that is not necessary in this case given the circumstances. [ 95 ] There is a $200.00 Victim Surcharge that will be payable within 60 days. [ 96 ] Finally, much has been said in this case regarding the “blurred lines” between the duties and activities of government, caucus, and party staffers. This is not a case of confusion in where those lines should be drawn. The conduct that Mr. Bonney is being sentenced for was clearly, by any standard, “offside” to use Mr.

Donaldson’s term. [ 97 ] That being said, efforts have been made recently to examine the effectiveness of the framework that has been established for ethical conduct within the public service, most notably the work contained in the Audit of BC Public Service Ethics Management. The findings and recommendations from that report provide some guidance as to how these kinds of instances might be prevented in the future. [ 98 ] In this case there is agreement that while the “plan” being implemented by Mr.

Bonney came from those higher up the chain of command, he was never instructed to break the law in taking on the task. Ultimately, we reasonably expect all citizens, including, and especially, public servants, to choose legal paths in giving effect to job instructions. Mr. Bonney made certain choices on his own that have led him to this juncture in his life. I sincerely hope that he will find some redemption by getting back to the commendable community work he has been involved in.

The message to be passed on to other public servants in similar situations is that while there may be unfair and undeserved employment consequences for saying, ‘No Minister’, these consequences pale in comparison to the ones being experienced by Mr. Bonney right now. _____________________________

The Honourable Judge D. St. Pierre Provincial Court of British Columbia