2012 QCCQ 575, 2012 QCCQ 575

R. c. St-Martin 2012 QCCQ 575 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF IBERVILLE LOCALITY OF SAINT-JEAN-SUR-RICHELIEU “Criminal and Penal Division” No.: 755-01-028549-100 DATE: February 2, 2012 ______________________________________________________________________ THE HONOURABLE CLAUDE PROVOST, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. ROBERT ST-MARTIN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

INTRODUCTION [ 1 ] Robert Saint-Martin stood trial on eleven counts of having used computer service, fraudulently and without colour of right, in regard to nine women, several members of his family, and himself, contrary to

section 342.1 (

a) of the Criminal Code . 2. ISSUES IN DISPUTE [ 2 ] The issues in dispute pertain to the assessment of the witnesses’ credibility, the application of the doctrine of reasonable doubt, and above all, the

interpretation of the word “fraudulently” used in the provision of the Criminal Code creating the offence. 3.

EVIDENCE [ 3 ] Robert Saint-Martin was a police officer with the Saint-Jean-sur-Richelieu municipal police force for 23 years. [ 4 ] From a patrolling officer at the beginning of his career, he gradually moved up the ranks to sergeant, lieutenant, and eventually captain before being dismissed in March 2008. [ 5 ] The documentary evidence reveals that aside from an incident that occurred on August 7, 1995, he directly obtained the service of the computer of the police force that he worked for on several occasions between November 6, 2002 and November 6, 2006. [ 6 ] More specifically, the evidence reveals that he used the police computer to obtain information on the following persons: - on August 7, 1995, in regard to Sylvie Pinard (count 1); - on November 8, 2002, May 31, 2003, July 16, 2003, January 26, 2004, August 4, 2004, and November 6, 2006, in regard to Mireille Beaubien (count 2);

- on February 22, 2003, in regard to Stéphanie Dumais Rousseau (count 3); - on January 4, 2004, in regard to Johanne Dagenais (count 4); - on January 15, 2004, and May 6, 2004, in regard to Julie Boutin (count 5); - on March 28, 2004, April 17, 2004, April 26, 2004, May 10, 2004, May 11, 2004, and September 22, 2004, in regard to Geneviève Caron (count 6); - on November 1, 2004, in regard to Évelyne Bilodeau (count 7); - on July 30, 2004, and August 7, 2004, in regard to Annick Sénécal (count 8); - on February 16, 2004, and March 28, 2004, in regard to his father (count 10); - on January 24, 2006, in regard to his own son (count 10); - on January 31, 2003, November 29, 2003, January 25, 2004, February 22, 2004, April 10, 2004, May 12, 2004, May 26, 2004, December 1, 2005, and December 6, 2006, in regard to himself (count 11). [ 7 ] The testimonial evidence also reveals that the accused knew each and every one of these persons. [ 8 ] Sylvie Pinard (count 1) was the spouse of a man who played in the same softball league as the accused.

One afternoon in August 1995, he called her at her residence to flirt with her and admitted having taken note of the license plate number of her car and having used his computer to find her telephone number. [ 9 ] Mireille Beaubien (count 2) was the spouse of the accused from 1980 to 1984.

After their breakup, he called her in 1990 and 1995. [ 10 ] Stéphanie Dumais-Rousseau (count 3) was a neighbour of the accused who later became a dispatcher for the Saint-Jean-sur- Richelieu police force and with whom he had occasional conversations. [ 11 ] Johanne Dagenais (count 4) was a friend and colleague of Lucie Hurtubise, an ex-spouse of the accused. She had seen the accused on a few occasions. [ 12 ] Julie Boutin (count 5) worked for the Saint-Jean-sur-Richelieu police force from 1995 to 1997. The accused was her superior. She was romantically involved with him for a year in 1997.

She left the city and had no further contact with him, except for one occasion in 1998 when she lent him his car so he could go meet a friend. [ 13 ] Geneviève Caron (count 6) met the accused in a bar and moved in with him. During one of their meetings, the accused admitted having conducted a search in her regard. [ 14 ] Évelyne Bilodeau (count 7) was the spouse of the accused from July 2000 to April 2004. [ 15 ] Annick Sénécal (count 8) was a friend of Geneviève Caron, who was also an ex-spouse of the accused. She met him in the summer of 2004.

They exchanged telephone numbers but never saw each other again after that. [ 16 ] Stéphanie Massé (count 9) met the accused at Doré Beach in Montreal. They exchanged names. The week following their first meeting, the accused showed up at her residence in a police patrol car. He admitted having obtained information on her.

Their relationship was strictly platonic. [ 17 ] The evidence also indicated that the accused knew perfectly well, and he admitted as much in no uncertain terms during his cross-examination, that the information he obtained from the police computer was confidential and that access to the CRPQ was subject to two conditions. [ 18 ] Information obtained was to be used solely for police purposes and only in the performance of police duties. [ 19 ] The accused testified in his defence. His arguments may be summarized as follows. He knew that the information obtained was confidential.

He also knew that he could only use the information in the context of his police work, for police purposes, and that he was not authorized to use the information for personal purposes.

He explained, however, that he did not believe he was doing anything wrong so long as he respected the confidential nature of the information obtained by refraining from disseminating it and so long as, in his words, the information remained between him and the computer. [ 20 ] As for the facts, he confirmed that with respect to Sylvie Pinard, on whom he conducted one search (count 1), Mireille Beaubien, on whom he conducted six searches (count 2), Julie Boutin, on whom he conducted two searches (count 5), Geneviève Caron, on whom he conducted six searches (count 6), and Stéphanie Masse (count 9), on whom he conducted one search, he acted purely out of curiosity. [ 21 ] With respect to Stéphanie Dumais-Rousseau, on whom he conducted one search (count 3), he explained that when he was living on ... street in Saint-Luc, he noticed someone going to pick up their mail at the designated mailboxes by driving against the usual flow of traffic. [ 22 ] He noted the license plate number of the car and conducted a search in the police computer.

He learned that the car belonged to one of his neighbours, who was also a former dispatcher for the Saint-Jean-sur-Richelieu police force.

[ 23 ] He explained that his intention was to warn Ms. Dumais-Rousseau that she had better stop driving that way since [ translation ] "an officer lived nearby". [ 24 ] He never warned the woman, however, nor did he issue any tickets for her numerous infractions. [ 25 ] With respect to Johanne Dagenais (count 4), on whom he conducted one search, he acknowledged that she was a colleague of his ex-spouse Lucie Hurtubise and that she lived not far from him.

He was even her son’s soccer coach. [ 26 ] Although he admitted having consulted the CRPQ in her regard on January 4, 2004, he testified that he did not remember the context and was not in a position to say whether he conducted the search for personal or professional purposes. [ 27 ] With respect to Évelyne Bilodeau, on whom he conducted one search (count 7), he explained that he knew that she did not have a valid driver’s license. One day, after their breakup, he drove past her while he was on patrol.

He noted her license plate number and, upon his return to the police station, consulted the CRPQ in order to confirm the answer to his question. Ms. Bilodeau did in fact have a valid driver’s license. [ 28 ] With respect to Annick Sénécal, on whom he conducted two searches (count 8), he explained that while he was on patrol, he saw an automobile do an incomplete stop at an intersection. Having witnessed the violation, he followed the vehicle. He noticed that a woman was driving. [ 29 ] From his patrol car, he ran the license plate number through the computer. He learned that the car belonged to a Mr.

Hector Molina. [ 30 ] Aware that this man was the spouse of Ms. Sénécal, who was a good friend of his spouse, he decided to let it go. He did not stop the vehicle or issue a ticket to the driver. [ 31 ] With respect to the second search that he conducted in regard to Ms.

Sénécal on August 7, 2004, he stated that he had no idea why he conducted it. [ 32 ] The accused explained the searches conducted on his family members in various ways. [ 33 ] With respect to his cousins and uncles, he explained that he wanted to update his address book in order to send invitations to certain family members to attend the swearing-in ceremony of his spouse at the time, Évelyne Bilodeau, who was being called to the bar. [ 34 ] The two searches on his father were conducted in the following context: the accused’s father was hospitalized and, afraid that he was dying, asked the accused to verify whether his driver’s license was valid in order to determine how to proceed with the SAAQ if he were to die.

The accused complied with his father’s request and conducted a search in the police computer. [ 35 ] With respect to the searches conducted on his own son, he explained that his son had taken driving lessons. He was wondering if his son had obtained his license.

In the face of his son’s evasive answers, he decided to find out for himself by consulting the CRPQ database. [ 36 ] Finally, with respect to the nine searches that he conducted on himself, he explained that he wanted to know if any arrest warrants had been issued against him, for unpaid fines for example. [ 37 ] When the prosecuting attorney reminded him that he had conducted five searches on himself in five months, he was unable to provide an explanation for the five monthly searches. 4. ANALYSIS [ 38 ] The accused is charged with eleven separate counts, each of which has been brought pursuant to the same

section of the Criminal Code , i.e.

section 342.1(1) ( a ), which provides the following: 342.1

(1) Every one who, fraudulently and without colour of right, (

a) obtains, directly or indirectly, any computer service, [ 39 ] Paragraph two defines the terms “computer system” and “computer service”. [ 40 ] It is not contested that the accused did in fact obtain computer service on the dates specified in the information. [ 41 ] Moreover, the evidence reveals, and the accused admits, that he knew that he was not authorized to use the computer for personal purposes. The accused also admits that he acted without colour of right. His argument is that he did not act fraudulently. A- THE LAW [ 42 ] The term “fraudulently” is used in several sections of the Criminal Code . The most well-known is the

section that criminalizes, fraudulently and without colour of right, taking anything with the intention to temporarily or absolutely deprive the owner of it, i.e.

section 322 of the Criminal Code , which creates the offence of theft.

[ 43 ] It is interesting to note that the offence of fraudulently obtaining computer service set out at

section 342.1 is found in the same part of the Criminal Code as the offence of theft. [ 44 ] It is also worth noting that

section 342.1(1) is found in

Part IX of the Criminal Code entitled “Offences Against Rights of Property”, under the heading “Offences Resembling Theft”, and that the marginal note reads “Unauthorized use of computer”. [ 45 ] The meaning of the word "fraudulently" has changed significantly over the years. [ 46 ] In Working Paper 19, published in 1977 under the title Criminal Law: Theft and Fraud , [1] the Law Reform Commission of Canada made the following comments, at page 44, in regard to the term "fraudulently" as used in English common law: What was meant by “fraudulently” over and above “without claim of right” is difficult to establish.

Indeed “fraudulently” has been termed “the mystery element in theft”. [ 47 ] In regard to Canadian law, the Commission stated the following at page 61 of the same Working Paper: “Fraudulently” has caused difficulties. Commenting on the use of this term in the English Larceny Act 1916, one authority writes: There seems to be no real need for the inclusion of the word ‘fraudulently’, in the definition. The Act does not assign any precise meaning to the word and its use in the old cases is no more definite.

As it cannot be found to connote anything more than dishonestly, it is unnecessary; since, where there is no claim of right, made in good faith, to take the thing, the taking must be done dishonestly and therefore ‘fraudulently’. Yet in the English case of R. v. Williams , [1953] 1 Q.B. 660 , the Court held that the word “fraudulently” did add something to the definition. They held that it meant that the taking must be intentional and deliberate, that is to say, without mistake ... We think that the word ‘fraudulently’ in

Section 1 must mean that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person. [ 48 ] It appears that the Commission was not in agreement with this

interpretation as it wrote: Yet the later words in the

section ‘with intent, at the time of such taking, permanently to deprive the owner thereof’, show the need for both intention and knowledge that the thing taken is the property of another person.

So “fraudulently” adds nothing. [ 49 ] Thus the Commission, for reasons of clarity and simplicity, and to affirm the fundamental value of honesty, suggested replacing the word “fraudulently” with “dishonestly”, which, in its view, is a word that appeals to common sense, is universally understood, and cannot be defined by less obvious synonyms. [ 50 ] The Commission stated the following at page 11 of the document: We all know what it is to take another’s things dishonestly. It means taking them when we know we oughtn’t . [ 51 ] It is also interesting to note that in R. v.

Lafrance , [2] the majority of the Supreme Court of Canada held that: The taking was intentional, under no mistake and with knowledge that the motor vehicle was the property of another. In my opinion this made the taking fraudulent. ... The appellant took the vehicle without colour of right and deprived the owner of it temporarily. [ 52 ] In R. v. Skalbenia , [3] the Supreme Court referred to R. v. Lafrance and R. v.

Williams and stated the following: We agree … that an intentional misappropriation, without mistake, suffices to establish mens rea under s. 332(1) … The word “fraudulently”, as used in this section, connotes no more than this. The dishonesty inherent in the offence lies in the intentional and unmistaken application of funds to an improper purpose. [ 53 ] Finally, in R. v. Neve , [4] the Alberta Court of Appeal explained that: … for property to be taken “fraudulently”, it is enough that the taking be done intentionally, under no mistake, and with knowledge that the thing taken is the property of another person.

This will suffice to characterize the taking as fraudulent. [ 54 ] Certain judgments have been interpreted as requiring evidence of some form of moral turpitude in the taking of the thing in order to constitute theft. [5] [ 55 ] In R. v. Feely , [6] the U.K. Court of Appeal confirmed this approach, holding that: … a taking to which no moral obloquy can reasonably attach is not within the concept of stealing either at common law or under the Theft Act of 1968. [ 56 ] In Quebec, the

interpretation of the word “fraudulently” was established in the Court of Appeal’s decision in R. v. Bogner. [7] The accused was found guilty of theft for having taken a rocking chair from the balcony of a hotel in the country. He claimed that he and his drinking buddies wanted to play a prank and intended to return the chair the next day. [ 57 ] The Honourable Bélanger J., for the majority, wrote the following at page 353:

[ translation ] It remains to be determined whether the offence of theft was committed. Each of the elements of the offence may be found in the evidence: the chair was taken fraudulently and without colour of right in the sense that the removal was done intentionally, without mistake or belief of a state of affairs that could justify it, but the group was well aware that the thing thus taken was the property of the hotel owner. The thing was removed with the intention of temporarily depriving its owner of it. [ 58 ] After citing with approval from the U.K. case R. v.

Williams , Bélanger J. continued, at page 356: [ translation] It thus seems that the term fraudulently is linked to the deliberate taking of the thing by the defendant, knowing that it does not belong to him or her, fully aware of a state of affairs that does not give him or her the right to take it ... In

summary, for a deprivation to be fraudulent, it is sufficient that it be done intentionally, without error and with the knowledge that the property taken belongs to someone else. Taking property voluntarily, knowing that it belongs to someone else, and knowing that one does not have the right to take it, is dishonest and fraudulent behaviour. If, in addition, the accused intends to deprive the owner of the property, either temporarily or permanently, this fraudulent and dishonest behaviour becomes theft. [ 59 ] Today, the judges of the Superior Court, Criminal Division, use the

definitions below of the word “fraudulently” when addressing jurors. [ 60 ] In Ontario, judges presiding over jury trials explain the term “fraudulently” as follows: A person takes (convert) property "fraudulently and without colour of right" if they take the property intentionally, knowing that it was the property of another person, and knowing that they were not legally entitled to take (convert) the property. [8] [ 61 ] In British Columbia, it is recommended that judges proceed in two steps and first explain the meaning of the word “fraudulently” and then explain the meaning of the expression “without colour of right”: The word "fraudulently" means dishonestly, deceitfully or immorally.

In other words, you must be satisfied that the accused knew he was doing something wrong when he took the property. A person acts without colour of right if he or she takes something, knowing that he or she does not have a legal right to take it. [9] [ 62 ] In Quebec, five judgments specifically address this issue. In R. v. Paré , [10] the trial judge stated the following: [ translation ] Pursuant to

section 342.1 , the prosecution must demonstrate that the accused not only without colour of right, but also fraudulently, obtained computer service. The absence of any colour of right has been admitted. The prosecution must, however, prove that computer service was obtained fraudulently. The accused’s behaviour is not fraudulent simply because it was not authorized. Elements of dishonesty and moral wrongfulness must also be present. [ 63 ] In R. v.

Coulombe , [11] the trial judge cited with approval the Paré decision and held, at page 43 of the judgment, which was rendered orally, that: [ translation ] ... something fraudulent is something dishonest and morally wrong. There must be elements of dishonesty and moral wrongfulness present in the accused’s conduct to constitute fraudulent conduct. [ 64 ] In R. v. Hippolyte , [12] the trial judge also accepted the approach set out in Paré . He characterized the element of moral wrongfulness as moral turpitude. [ 65 ] In R. v.

Parent , [13] currently under appeal, the trial judge also accepted the definition set out in Paré . [ 66 ] His analysis of the facts, however, led him to acquit the accused, whereas guilty verdicts were rendered in the three other cases. [ 67 ] Finally, the decision in R. v. Hamel has no direct application to the case at bar as the trial judge in that case concluded that the accused did not obtain computer service within the meaning of

section 342.1 of the Criminal Code . The judge did not rule on the

interpretation of the word “fraudulently”. She however explained, at paragraph 24, that: [ translation ] The offence of directly obtaining computer service is similar to theft because it is done without the authorization of the owner, or a person having some special property right, and deprives this person of his or her property, at least temporarily. [14] [ 68 ] Certain authors have also written on this issue. [ 69 ] The author George S. Takach makes the following comments in his book Computer Law , at pages 238 and following, after

explaining that

section 342.1 of the Criminal Code constitutes the Canadian Parliament’s response to the Supreme Court of Canada’sdecision in R. v. McLaughlin: This provision, often referred to as the "computer abuse" offence, is aimed at several potential harms: paragraph 342.1 (

a) protectsagainst the theft of computers services … And later: Thus, this provision is continuing the concern of the Criminal Code with the preservation of privacy and secrecy, just as the CriminalCode has provisions making it illegal to open a person's correspondence, the low-tech equivalent to computer-related communications. With respect to the mens rea of the offence, he states, at pages 240 and 241: The key limitation on the expansive scope of the abuse of computer

section is provided by the mens rea required by the provision,namely that the perpetrator effect one of the activities enumerated in paragraphs 342.1(a), (b), (

c) or (d) "fraudulently and without colourof right". Interestingly, these words are also found in the definition of theft in

section 322 of the Criminal Code. Fraudulently essentially means dishonestly and unscrupulously, and with an intent to cause deprivation to another person. The phrasewithout colour of right means without an honest belief that one had the right to carry out the particular action. To establish a colour ofright, one would have to have an honest belief in a state of facts that, if they existed, would be a legal justification or excuse.

Thus, the computer abuse provision should not apply where a person accidentally did one of the enumerated acts, or mistakenly believedshe was authorized to do so… [70] For their part, Davis and Hutchison, the authors of Computer Crime in Canada, refer to the decisions of the Supreme Court ofCanada in R. v. Zlatic and R. v. Théroux and make the following comments as to the meaning of the word “fraudulently” at page 163: First, the accused must act fraudulently.

This means that the action must be dishonest in the sense that reasonable people familiar withthe normal business dealing in such things would find it to be dishonest.[15] [71] On another issue, and before concluding on the meaning of the word “fraudulently”, it is important not to confuse intention andmotive. As noted by the Supreme Court of Canada in R. v.

Hamilton: The distinction between motive and intent has been well understood by Canadian courts since at least 1979, when Dickson J. stated: In ordinary parlance, the words “intent” and “motive” are frequently used interchangeably, but in the criminal law they are distinct. Inmost criminal trials, the mental element, the mens rea with which the court is concerned, relates to “intent”, i.e. the exercise of a freewill to use particular means to produce a particular result, rather than with “motive”, i.e. that which precedes and induces the exercise ofthe will.

The mental element of a crime ordinarily involves no reference to motive … (Lewis v. The Queen, (SCC),[1979] 2 S.C.R. 821, at p. 831). [72] As set out in the text of

section 342.1(

a) of the Criminal Code, the word “fraudulently” relates to the obtaining of computerservice, not the motive underlying such conduct. [73] In conclusion, a person fraudulently obtains computer service when he or she, consciously, intentionally, without error oraccident, obtains the service, knowing that he or she does not have the right to do so. [74] Obtaining such services is, obviously, dishonest and morally wrong. B- APPLICATION [75] Let us first dispose of the issue of the assessment of the accused’s credibility.

When he claims to have verified the coordinatesof Sylvie Pinard (count 1), Mireille Beaubien (count 2), Julie Boutin (count 5), Geneviève Caron (count 6), and Stéphanie Masse (count9) out of simple curiosity, he is not telling the whole truth. [76] It is true that with respect to Sylvie Pinard and Stéphanie Masse, he performed only one search on each. [77] He performed only two searches on Julie Boutin. [78] But his curiosity was clearly insatiable in regard to Mireille Beaubien and Geneviève Caron, on whom he conducted sixsearches each. [79] In any event, he admits that in regard to these five young women, he used the police computer for personal purposes. [80] The explanation that he gave in regard to Stéphanie Dumais-Rousseau is childish and does not hold water. [81] After noting that someone was repeatedly committing a Highway Safety Code violation by driving against the flow of traffic inorder to pick up her mail, he queried the police computer to obtain the identity of the guilty party. [82] When he realized that it was one of his neighbours and that she was also the former dispatcher for the Saint-Jean-sur-Richelieupolice force, not only did he decide not to issue her a ticket, but he also abandoned his initial idea of warning her that a police officer

lived nearby. [ 83 ] He gave a similar explanation in regard to the searches conducted on Ms. Sénécal. He saw her commit a Highway Safety Code violation. When he realized that this woman was a good friend of his spouse, he let it go.

He did not stop her or issue her a ticket, but he conducted a second search on her a week later for which he was unable to provide an explanation. [ 84 ] In regard to the search he conducted on Johanne Dagenais, he was unable to explain if it was done for personal or professional purposes. [ 85 ] His explanation for the search he conducted on his ex-spouse Évelyne Bilodeau is disturbing and makes no sense. She had been his spouse. According to the accused, their breakup was amicable.

And then, by chance, he ran into her in town. [ 86 ] Despite their harmonious relationship, he conducted a computer search to find out whether she had a valid driver’s license.

Such behaviour contradicts the purported feelings he claims to have towards his ex-spouse. [ 87 ] Regarding the explanations that the accused gave for the searches he conducted on his cousins, uncles, stepbrother, father, and son, the Court is not convinced of their truthfulness. [ 88 ] But these explanations may be true, even if the Court concludes that the accused may have conducted these searches for personal purposes. [ 89 ] The same can be said in regard to the searches he conducted on himself. The accused was rather consistent in verifying whether any arrest warrants had been issued in his regard.

He checked twice in 2003, five times in 2004, once in 2005, and once in 2006.

Yet he had to have been aware if he had received any statements of offence, and there was no point in performing this search on such a regular basis. [ 90 ] The accused did not tell the truth, nor did he reveal the real reason why he conducted the searches on himself, which, it should be noted, started at and continued over the same time period as the searches he conducted on the nine young women and certain members of his family, which he claims to have done out of curiosity,. [ 91 ] On the whole, the accused’s testimony is baffling, disconcerting, easy to see through, and at times imbued with feigned naivety and artificial candour, which did not succeed in concealing the lies and dishonesty underlying it. [ 92 ] [ 93 ] In conclusion, on the issue of the accused’s credibility, the Court dismisses the explanations that he provided as to why he conducted the searches on Ms.

Sénécal, Ms. Rousseau, and Ms. Bilodeau. [ 94 ] The Court does not believe his explanations, and they raise no reasonable doubt. [ 95 ] As for the testimonies of Ms. Pinard, Ms. Dagenais, Ms. Sénécal, and Ms. Beaubien, there is no reason for the Court to dismiss them.

They are credible witnesses, and their testimonies are reliable. [ 96 ] On the basis of the evidence as a whole, the Court concludes that it has been demonstrated, beyond a reasonable doubt, that over a four-year period (excluding the August 1995 event), the accused consulted, on thirty-five occasions, personal information on nineteen people that he knew, nine of whom were young women. [ 97 ] Moreover, it has been demonstrated, beyond a reasonable doubt, that the accused knew that using the police computer to perform searches for personal purposes, outside the police context and for purposes other than police business, was strictly prohibited. [ 98 ] Finally, the Court is convinced that the accused acted fraudulently and without colour of right.

The accused was a police officer. He was not only an officer, but also a high-ranking one. [ 99 ] At the time of his dismissal, he was police captain. He was responsible for the supervision of other officers and assumed management duties. He knew the rules.

He knew perfectly well that access to citizens’ personal information contained in the CRPQ was subject to certain conditions. [ 100 ] The accused knowingly breached these conditions to satisfy his strictly personal, undisclosed interests. [ 101 ] Before concluding, two comments are in order with respect to two of the accused’s arguments. [ 102 ] Contrary to his attorney’s assertion, there is no such thing as partially dishonest conduct. Conduct is either dishonest or it is not.

Dishonest conduct can have consequences that are significant or minimal, but regardless of the significance of its consequences, the conduct at issue remains dishonest. [ 103 ] Thus, the fact that an accused does not transmit to others the information that he or she unlawfully obtains from a computer that does not belong to him or her, or the fact that he or she is not paid to do so and does not receive any other form of consideration in exchange, does not mean that the computer service is not obtained fraudulently or dishonestly. [ 104 ] Finally, even if the accused’s conduct may constitute a breach of the rules of professional conduct, it may nevertheless also constitute a crime.

The sanction of a breach of professional ethics is not a bar to a guilty verdict, and vice versa.

5. CONCLUSION [105] In conclusion, and for these reasons, the Court finds Robert Saint-Martin guilty on all eleven counts. (S)________________________________ CLAUDE PROVOST, J.C.Q. Mtre Julie Beauchesne For the prosecution Mtre Pierre Dupras For the accused Date of hearing: February 2, 2012 , Saint-Jean-sur-Richelieu [1] Canada, Law Reform Commision, Working Paper 19. Criminal Law: Theft and Fraud (Ottawa: Minister of Supply and ServicesCanada, 1977). [3] R. v. Skalbenia, (SCC), [1997] 3 S.C.R. 995 at para. 6. [5] R. v. Wolfe, (1961), (MB CA), 132 C.C.C. 130 (Man. C.A.); R. v.

Pidlubny, (1978), (ON CA), 2C.R. (3d) 35 (Ont. C.A.); R. v. de Marco, (1973), (ON CA), 13 C.C.C. (2d) 369 (Ont. C.A.). [6] R. v. Feely, [1973] 1 All E.R. 341.