2012 QCCQ 4556, 2012 QCCQ 4556

Unofficial English Translation R. c. Morency 2012 QCCQ 4556 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC "Criminal and Penal Division" No.: 160-01-000042-093 DATE: June 8, 2012 ______________________________________________________________________ THE HONOURABLE ALAIN MORAND, J.C.Q., PRESIDING THE QUEEN Prosecutrix v.

JEAN-FRANÇOIS MORENCY Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ I - The Offences [ 1 ] The accused pleaded guilty to two counts of breach of trust by a public officer (section 122 Cr. C. ) and to one count of bribery of officers (paragraph 120(

a) Cr. C. ) committed between September 24, 2004, and May 22, 2008, while in the performance of his duties as a criminal and penal prosecutor for the District of Alma. II - The Facts [ 2 ] For a greater understanding of the evidence relating to the offences, we will first present an overview of the general context, of certain portions of the police investigation, and of the procedure at the sentencing hearing.

A- The general context and the police investigation [ 3 ] From January 1, 2003, to May 22, 2008, Mtre Jean-François Morency was the District of Alma's only Attorney General's Prosecutor of Quebec, referred to as a [ translation ] "criminal and penal prosecutor" since February 1, 2006. [ 4 ] On September 18, 2006, the Saguenay Joint Regional Taskforce began the Cabotin operation to break-up a cocaine trafficking network that was active in the Alma region, amongst others.

Pierre Deschênes controlled the activities there on behalf of a criminal organization. [ 5 ] On April 26, 2007, a wiretap authorization valid for one year was granted for the purposes of this operation to allow the interception of the private conversations of eighteen persons, including Deschênes. [ 6 ] On August 12, 2007, in the course of this investigation, two undercover agents wired with portable recording devices overheard Deschênes's spontaneous confidences about bribing the crown prosecutor, Morency, a friend who had helped him avoid getting a criminal record following an arrest for impaired driving and driving with a high blood alcohol level. [ 7 ] In his own words, he explained that since the police officers had not given him a ticket when they initially stopped him for speeding, the prosecutor asked for a supplementary report, which was given verbally and was therefore without consequence, as he understood it.

He stated that he [ translation ] "went in a roundabout way", that [ translation ] "it's good to have friends everywhere" and that he was telling nothing but the [ translation ] "truth". [ 8 ] On August 16, 2007, the Denier operation was set up to investigate the dubious practices of Morency, who had been under suspicion since May of 2006, following information provided by several reliable police informants.

[ 9 ] On August 20, 2007, under the Cabotin operation’s wiretap authorization, the two undercover agents met with Deschênes once again, with the added objective of obtaining more information with respect to his relationship with the local Crown prosecutor. In more general terms, he repeated that he had paid for his impaired driving case to go away.

He added that it wasn't [ translation ] "how much money you have" but [ translation ] "who you know" that counts. [ 10 ] As the Denier operation progressed, a wiretap authorization was ordered on March 26, 2008, which was to last until May 25, 2008, to allow the interception of the private communications between Morency and Deschênes, as well as others. [ 11 ] The action plan prepared and presented to the authorizing judge provided that, during the electronic surveillance, an undercover agent who was already involved in the investigation would spend a few hours drinking alcohol with Deschênes so that he would believe that she was driving off in an impaired state.

The next day, following a simulated arrest and the preparation of a report based on fictitious events of impaired driving with a blood alcohol level over 80 mg per 100ml of blood, she would ask Deschênes to intercede on her behalf with Morency to help her get out of it. [ 12 ] Accordingly, as the operation unfolded a few days later, the undercover agent was able to get in touch with Morency. She met with him twice in his office at the courthouse, on April 7, 2008, and May 5, 2008.

During these meetings, he made admissions regarding Deschênes's case and implicated himself once again, this time in the undercover agent’s fictitious scenario. [ 13 ] On May 22, 2008, the accused was arrested without a warrant and the ensuing interrogation, which lasted a few hours, was videotaped. B- Procedure at the sentencing hearing [ 14 ] The sentencing hearing lasted a few days and proceeded in two stages. First, the Court heard the prosecution's evidence and the testimony of the accused who contested an aggravating factor, namely, the planning and premeditation of the prescription in the Deschênes case.

After the Court's ruling on that issue, which required an adjournment, the defence presented the rest of its evidence on sentencing. C- The evidence pertaining to the three offences 1- Between September 24, 2004, and April 26, 2005, did commit breach of trust (with respect to Pierre Deschênes) [ 15 ] On September 24, 2004, Deschênes, a long-time acquaintance of Morency, was stopped for speeding in the District of Alma. After observing several obvious symptoms of intoxication, the police officers, one of whom was Officer Éric Harvey, proceeded to arrest him for impaired driving.

The breath samples taken later at the police station revealed a blood alcohol level of 162 mg and 154 mg per 100 ml of blood. A summons was issued ordering him to be present in court on December 30, 2004, at the Alma courthouse. [ 16 ] On October 18, 2004, a request to institute proceedings was sent to Morency.

On October 22, 2004, as there was no copy of the ticket annexed to the report, Morency sent a request for further investigation to find out whether or not a speeding ticket had been issued to the driver and if not, why this was not done. [ 17 ] In late November of 2004, Officer Harvey happened to be at the Alma courthouse and explained to Morency in person that he had not issued a speeding ticket because the impaired driving charges seemed sufficient to him in the circumstances.

He offered to give the prosecutor a written response, but the prosecutor indicated that this would not be necessary. [ 18 ] On April 26, 2005, Morency refused to authorize the filing of the information on the grounds that it had been prescribed since March 24, 2005.

In the administrative document entitled [ translation ] "Decision regarding a request to institute proceedings" found in the prosecutor's work file, he wrote that he had looked for this file, which had been misplaced, that he believed that he had never received the additional evidence, that it was possible that Officer Harvey had spoken of it to him, but that he must have mistakenly forgotten. [ 19 ] The evidence reveals, however, that it was very rare at the time for an information not to be authorized by the prosecutor on the grounds of prescription, and that this only happened when the request to institute was already tardy.

In her testimony, the prosecutor's administrative assistant explained that when a request for further investigation is made, she sends the document to a liaison officer at the police department and files the record in an orderly fashion in a dedicated drawer, and that she has never misplaced a file.

Subsequently, the liaison officer recounted in her deposition that she ensures a certain degree of follow-up through various means and that when she receives the additional evidence from the police officer, which acts as a kind of reminder, she attaches it to the request to institute proceedings, which is thus reactivated. [ 20 ] In the course of his meetings with the undercover agent in his office on April 7 and May 5, 2008, Morency confided in her that in the past he had [ translation ] "helped" Deschênes, an [ translation ] "old friend" who got lucky. "Pierre" had told him of his arrest for impaired driving.

When he received the police report, he requested further information regarding a major element that was missing. He never received the answer and the file was forgotten on a shelf. He contacted "Pierre", who had asked him about any developments in the case, to let him know that he would not bring charges against him because of prescription and "Pierre" gave him a gift of $5,000 to $6,000. 2- Between April 3, 2008, and May 22, 2008, did commit

an act of bribery while a public officer (with respect to the undercover agent) [ 21 ] On April 4, 2008, the day after her simulated arrest, the undercover agent communicated with Deschênes to ask him to speak with Morency on her behalf so she would not lose her driver's licence or get a criminal record. [ 22 ] That same day, Deschênes left Morency a voice mail. Three days later, he finally reached him by telephone and asked him to meet a friend who had [ translation ] "a little problem".

The prosecutor enquired about her reliability and, after being reassured by Deschênes, scheduled a meeting for her that afternoon in his office at the courthouse. [ 23 ] During the meeting with the undercover agent, Morency pointed out that Deschênes was an [ translation ] "old friend", that they did

favours for each other and that she was very lucky to be able to benefit from a good contact and meet with a Crown prosecutor because it was not [ translation ] "an easy thing" to do. [ 24 ] Once apprised of the fictitious events at issue and the false certificate of the qualified technician indicating blood alcohol levels of 144 mg and 145 mg per 100 ml of blood, the prosecutor presented various scenarios that might help the undercover agent avoid a conviction, including a refusal to authorize the information if the symptoms were weak, a request for additional evidence with a particular focus on her file and the prescription date (which he took pains to verify at that point), or the presentation of expert evidence to the contrary by a defence attorney that he would himself mandate. [ 25 ] The accused agreed to call "Pierre" or the undercover agent when he received the request to institute proceedings. [ 26 ] Late in the morning of May 5, 2008, the undercover agent arrived unannounced at the office of Morency, who agreed to meet with her again. [ 27 ] He had not yet received the request to institute proceedings and repeated that he would verify the symptoms described in the report to see if there was an obvious [ translation ] "weakness" in the case and consider the possibility of requesting additional evidence. [ 28 ] When she asked him about money, he answered that she could give him a [ translation ] "gift" but that she did not have to, and recommended that she wait and see what he could do. [ 29 ] At one point, Morency seemed worried and stated that he disliked talking about such things in his office.

He wondered if she might sell him out to the Sûreté du Québec and stated that, if that happened, he would always deny anything that might have been said between them. [ 30 ] Before leaving, the undercover agent told him that she had begun to save money and that she did not want to keep it in case she spent it.

She gave him 20 $100 bills, which he put into an envelope and placed in a desk drawer. [ 31 ] That same day, shortly after this conversation, Morency received the fake police report in which the symptoms of intoxication were described as follows: − vehicle veered into the oncoming lane three times, pulling suddenly back into its lane; − smell of alcohol coming from inside the vehicle; − bloodshot eyes, surprisingly red, with heavy lids; − smell of alcohol on her breath; − slight difficulty speaking, halting speech; − teetering walk, loss of balance, officer had to hold her to prevent her from falling, and she repeatedly tried to lean on the vehicle; − persistent smell of alcohol once she was seated in the patrol car. − apathetic, tearful, and desperate. [ 32 ] At 3:10 p.m., Morency called the undercover agent on her cellular telephone, the number for which he had previously noted on a piece of paper he had placed on his desk. [ 33 ] He told her that the symptoms were not [ translation ] "serious", that they were not fatal, that he had thought of a few possible solutions and that, [ translation ] "to appear more transparent", he would ask a defence attorney with whom he was friends to represent her so that a pharmacological expert report could be ordered to establish a blood alcohol level below the legal limit, after which he could refuse to authorize the information or withdraw the charge. [ 34 ] During this conversation, upon learning that she was driving another person's vehicle that night, he suggested, [ translation ] "we could always say that it was a vehicle that... that you weren't used to driving". [ 35 ] He also told the undercover agent that she would have to pay the defence counsel’s fees and the expert's fees, which could amount to five or six thousand dollars.

When she said that a part of the money would go to him and the other part to the attorney, he answered [ translation ] "yeah" three times in a row. [ 36 ] The prosecutor confirmed: [ translation ] "... ultimately, I'll be able to take care of the complaint". [ 37 ] Before hanging up, he repeated that he trusted her and that he would call her and "Pierre" back the following week. [ 38 ] On May 20, 2008, Morency called the undercover agent to let her know that he had authorized the information and that she was scheduled to appear the following Friday.

He added that he had already picked out the defence attorney who would represent her and that it would be easier to proceed this way. He had more information to ask her, but did not want to do it over the telephone.

As for the attorney fees and the disbursements for the expert report, he said he would make arrangements with the attorney, but there was no rush for the moment. [ 39 ] On May 22, 2008, following his arrest without a warrant as he was leaving the courthouse and his videotaped interrogation, the accused consented to a search without a warrant and the 20 $100 bills were found in the dresser in the master bedroom of his home. [ 40 ] The next day, on May 23, 2008, during a telephone conversation with his father, the accused acknowledged that he had suffered a complete lapse of judgment and had taken the envelope full of money.

He also explained that he had been set up. 3- On or about May 13, 2008, did commit breach of trust (with respect to Roger Tremblay) [ 41 ] On May 13, 2008, during a telephone conversation with one of his friends, Roger Tremblay, Morency undertook to help Tremblay's

son avoid paying a fine for a ticket that was issued for a violation of the Highway Safety Code . [ 42 ] On November 25, 2008, during an interrogation by the Sûreté du Québec investigators, Roger Tremblay stated that Morency was a friend and that the possibility of dropping the charges against his son had been offered a favour.

III - Defence evidence on sentencing A- Testimony of the accused 1- Respecting the offences The case of Pierre Deschênes [ 43 ] At the sentencing hearing, the accused maintained in his deposition, which was deemed non-credible on this aspect, [1] that he neither planned nor premeditated the prescription of Deschênes's file.

He claimed that it occurred as a result of fortuitous circumstances, including his having completely forgotten about the request to institute proceedings, which had been misfiled. [ 44 ] In an attempt to hide his actual relationship with Deschênes, despite its being clearly disclosed in the wiretap evidence, Morency described him as a mere acquaintance he did not trust.

During his videotaped interrogation, he even pretended not to know Deschênes, obviously unaware of the information available to the investigator. [ 45 ] According to Morency, shortly after prescription was acquired, Deschênes, who was under the mistaken impression that it was due to Morency's direct intervention that the information had not been filed, repeatedly insisted on rewarding him, and in a moment of weakness that he has yet to comprehend, he accepted the money despite his solid personal financial situation at the time. [2] The case of the undercover agent [ 46 ] From the moment he took the money, the accused was uneasy and worried about the seriousness of his actions.

He felt vulnerable with respect to Deschênes and feared that he would report him. He agreed to take care of the undercover agent because he felt [ translation ] "caught between a rock and a hard place", even though, it should be pointed out, the events involving the undercover agent occurred three years later. The case of Roger Tremblay [ 47 ] With respect to Tremblay, although he did not have the chance to act prior to his dismissal, he acknowledges that he should not have intervened.

Reasons for his actions [ 48 ] In an attempt to explain his actions, which he himself characterizes as unacceptable, the accused lists: − the number of files under his care, in conjunction with his lack of experience and his professional isolation, since he was the only criminal and penal prosecutor in the area; − a propensity to prioritize his personal relationships and a certain vulnerability, which are both incompatible with the independence required to perform this function with integrity; − a kind of laxity in the impaired driving cases even if, in all other respects, he applied himself to the overall discharge of his duties, as demonstrated by his good evaluations and the bonuses he received. [ 49 ] In his view, he should never have been appointed criminal and penal prosecutor because the job was in the area in which he had grown up, where he was surrounded by his many personal relationships that he had forged over the years through social and sporting activities and his private law practice prior to being named to the position. 2- Respecting his personal situation [ 50 ] Morency is 46 years old and has been in a relationship with the same woman for over 15 years.

They have a daughter who is now a teenager. [ 51 ] His arrest caused the couple to experience some difficult times. This led the accused to start taking medication and forced his wife to take a leave of absence from work. They found strength in their respective families and received psychological help.

His wife, whose resilience he emphasizes and for whom he expresses a great deal of gratitude, decided to continue their relationship and support him, despite the challenges of the ordeal. [ 52 ] He was immediately relieved of his duties by the Director of Criminal and Penal Prosecutions and made an agreement with the Barreau du Québec that had the same effect as a provisional striking off of the Roll of the Order of Advocates.

On November 1, 2011, the day before pleading guilty, the accused tendered his resignation from the Barreau du Québec, thereby giving up his license to practice. [ 53 ] Since leaving the police station on the evening of May 22, 2008, the accused has been in great inner turmoil and cannot stop thinking of his deceit and the sadness he has caused his loved ones, his fear of losing his wife, his remorse, the media pressure, the loss of his reputation, his social rejection, and his feelings of guilt and anxiety in relation to the outcome of the proceedings.

[ 54 ] His financial situation has declined as a result of his professional undoing. There were times where he received employment insurance, he has sold property and gotten loans, and he has worked odd jobs for minimum wage, for example as a night watchman in a retirement home. [ 55 ] Yet, he has never given up and has decided to face all these challenges head-on rather than flee the area. [ 56 ] After returning to school and having several employers refuse to hire him, in September of 2009, he finally got a job as a project manager and contract administrator for Groupe Secto, a company selling modular trailers.

This new job, which fits into his vision for the future and his plans to develop his professional skills through a master’s of business administration, provides him with great satisfaction. His good performance and the results of his personal aptitude evaluations ground his hopes for a promotion to the vacant position of human resources coordinator. B- Testimony of the representative of his employer [ 57 ] Raymond Bouchard, general manager of Groupe Secto, describes the professional aptitude and worth of the accused.

His assumption of the position they hope to give him, fits into the plans of the company, which foresees steady growth resulting from the development of the Plan Nord project. [ 58 ] It is his view, however, that if the accused is absent for too long, he might lose his job because the business will be required to go forward with its activities and fill the position. [ 59 ] He maintains that if the accused is given a term of imprisonment to be served in the community, he would be able to adequately supervise him because he is familiar with the applicable rules due to a prior experience with another employee.

C- Testimony of the father of the accused [ 60 ] The father of the accused, Mtre Jean Morency, is a retired municipal court judge, as well as the founder of a respected law firm.

He reveals the extent of the shock, disappointment, humiliation and pain felt by the members of the family in the wake of his son's arrest and the media maelstrom surrounding the proceedings these last four years. [ 61 ] While condemning their son’s indefensible acts, which are contrary to their family values, the accused's parents have from the very beginning supported him in his rehabilitation attempts, which are evolving favourably in every aspect of his life, especially since he got a new job after difficult periods that were at times tinged with despair and worry. [ 62 ] In light of his son’s significant progress – especially with respect to his sense of responsibility for the harm he caused – and the corrective steps he has taken, the accused's father also offers to supervise him should he receive a prison sentence to be served in the community because he believes that the harshness of the challenges his son has faced have permanently deterred him from ever doing anything of the sort again.

IV - Pre-sentencing report [ 63 ] During conversations with the probation officer, the accused, who does not have a delinquent personality, expressed sincere regret for the sadness he caused his entire circle of acquaintance and the harm he caused to the administration of justice and to the reputation of criminal and penal prosecutors as a result of his unacceptable offences. [ 64 ] The author of the report deems that the risk of re-offending has been eradicated in light of his personal situation, the progress he has made, his supportive social network, his increased sense of responsibility, the deterrent effect of the repercussions, and the efforts he has invested in his social reintegration, which is progressing well.

V - Mitigating circumstances [ 65 ] − His guilty pleas; − His lack of criminal record; − His personal situation; − The regret and apologies he has expressed; − His sense of responsibility and acknowledgement of the harm caused to the administration of justice; − His demonstrated social reintegration and the effort he has devoted thereto; − The lack of a risk of re-offending; − The punitive effect of the personal, professional, and social consequences already suffered; − The quality of the services rendered in the past that were rewarded by his superiors; − The favourable pre-sentencing report.

VI - Aggravating circumstances [ 66 ] − The objective seriousness of the offences: breach of trust is punishable by a five-year prison term and the act of bribery while being a public officer is punishable by fourteen years in prison. − The subjective seriousness of the offences as described in the recitation of the facts; − The planning and premeditation; − The sophistication; − The repetition; − The corruption; − The offences committed in the performance of his duties as a criminal and penal prosecutor; − Breach of trust; − The harm caused to the administration of justice and to the profession.

VII - Positions of the parties A- Prosecution [ 67 ] Arguing, amongst other things, the primacy of the principles of denunciation and general deterrence in these types of offences, as well as the need to clearly express society's condemnation, the Crown seeks a sentence of three years' imprisonment.

B- Defence [ 68 ] Counsel for the defence emphasizes the objective of social reintegration and suggests a maximum prison sentence of two years less one day to be served in the community, followed by probation, which could be ordered for the three-year maximum, both orders providing optional conditions such as an order for the accused to complete hours of community service and make a $6,000 donation to a charity as reparation to society.

VIII - Sentencing Rules A- General principles [ 69 ] A fit and proper sentence is determined through a complex and difficult process [3] that takes into account the principles of proportionality, totality, moderation, identification of less restrictive sanctions, the individualization and harmonization of sentences, the objective and careful balancing of various legitimate objectives including denunciation, deterrence, the protection of society, social reintegration, reparation, and sense of responsibility, the relative importance of which varies according to the particular circumstances related to the nature and gravity of the offence and to the situation and moral blameworthiness of the offender. [4] [ 70 ] The discretionary power thus conferred upon the sentencing judge to craft the appropriate combination for each case is, in part, defined by prior case law, which presents guidelines, not absolute rules, and establishes general ranges of sentences applicable to certain offences to promote parity and consistency in the sentencing of offenders. [5] B- Sentences for similar offences [ 71 ] A table summarizing 62 judgments rendered in similar matters is attached as a

schedule to the judgment and does not include sentences at the extremes of the range since they do not apply here. It is presented in

summary form and were selected according to the following two criteria: 1- The offender : crown prosecutor, officer of the court, attorney, notary, police officer, elected representative, senator, or public officer; 2- The nature of the offence : breach of trust, bribery in public affairs, secret commissions, fraud, obstruction of justice, contempt of court, and misdemeanour against the government. [ 72 ] Here is a broad outline: − Except in rare cases, the objectives of general deterrence and societal condemnation are predominant;

− In nearly a third of the decisions, the courts imposed prison sentences to be served in the community for periods varying between twelve months and two years less one day, the average being around eighteen months; − In a majority of cases, the courts ordered prison sentences ranging between three months and six years; the average, however, was between two and a half and three years, despite the presence of numerous mitigating circumstances such as guilty pleas, the absence of criminal records, remorse, non-existent risks of re-offending, and social reintegration that was well underway or even assured; − In most cases involving attorneys practising their profession, judges insisted on the importance of using the prison sentence to clearly express the particular seriousness of the offence when it is committed by an officer of the court whose professional conduct must be completely honest.

C- Case law specific to a prosecuting attorney for an offence committed while in the performance of duties [ 73 ] According to the case law directories consulted, this case marks the third time in Canadian legal history that a crown prosecutor has been convicted for similar crimes. Here is a

summary of the two other cases [ 74 ] In R. v. Fournier , [6] the accused, a Crown counsel, was convicted by a jury of obstruction of justice and breach of trust by a public officer for two separate events. In 1970, he obstructed justice by refusing, without reason, to recommend the criminal prosecution of a person. In 1975, he committed breach of trust by leveraging his position to obtain a loan of money. It was not proved that he accepted financial consideration for either of these events.

The judge ordered an overall prison sentence of two years less one day, or eighteen months for obstruction of justice and six months less one day for breach of trust, to be served consecutively. [ 75 ] In R. v. Harris , [7] the accused, a Crown counsel, pleaded guilty to one count of bribery while a public officer and one count of breach of trust by a public officer. He had accepted two payments of one thousand dollars each from an attorney: the first to reduce a charge and recommend an absolute discharge, and the other to submit a sentence that was favourable to the defence.

The judge ordered an overall prison sentence of eighteen months, that is, six months on the count of breach of trust and twelve months on the count of bribery, to be served consecutively.

IX - Analysis A- The relative weight of some of the mitigating circumstances 1- Guilty pleas [ 76 ] After more than three years of filing unsuccessful proceedings challenging first the indictment, then the wiretap authorization both in first instance before the Superior Court and before the Court of Appeal, and faced with indisputable wiretap evidence, the accused pleaded guilty to the three counts on November 2, 2011. [ 77 ] Furthermore, at the sentencing hearing, in an adversarial debate concerning the evidence of planning and premeditation, the accused attempted to mitigate his degree of responsibility and moral blameworthiness in the offence of breach of trust in the Deschênes case. [ 78 ] A court cannot fault an accused for demanding a trial, which is an absolute right, or for bringing proceedings to argue rights that are his under the law. [8] The manner in which the defence was conducted at trial can never be cause for a harsher sentence. [9] [ 79 ] In addition, depending on the circumstances, an offender's guilty plea may represent the expression of remorse, demonstrate a sense of responsibility, and constitute

an act of collaboration with the administration of justice by saving society a long and expensive trial, which might justify a more lenient sentence. [10] [ 80 ] In the present context, however, the accused's guilty pleas in the face of overwhelming evidence reflect a feeling of impotence and certainly do not display the characteristics that the Court of Appeal affirms could justify a lighter sentence.

The weight the Court assigns to them must therefore be relative. 2- Absence of a criminal record [ 81 ] The positions of criminal and penal prosecutor or Crown counsel are strictly regulated by a set of legal provisions that establish the applicable ethical standards and duties as well as the professional consequences for prohibited derogatory acts. [11] [ 82 ] There is an overarching obligation to operate within the law and to act in the public interest with integrity, honesty, impartiality, loyalty, and justice.

Specifically, it is stated that counsel for the prosecution must avoid bribery, breach of trust and conflicts of interest and that they must not accept a benefit that could influence a decision of public order. [ 83 ] Viewed from that angle, the absence of a criminal record, particularly in matters such as the one before us, is a normal attribute of persons who occupy this public function and in whom society places a great deal of trust.

In this case, therefore, it is has less impact as a mitigating circumstance. [12] [ 84 ] The Court will keep in mind, however, that this is the accused's first conviction, which calls for moderation. 3- Loss of reputation, loss of profession, financial decline

[ 85 ] In Marchessault , [13] the Quebec Court of Appeal stated that it is true that when the person committing an offence ranks highly in society, the publicity, shame and scorn are multiplied, often in conjunction with a job loss, but this does not in principle justify imposing a lighter sentence.

Justice must be the same for everyone, big or small, rich or poor, even while the principle of individualization of punishments is preserved. [ 86 ] In Quintin Vézina , [14] the Court of Appeal added that these inconveniences have little impact on sentencing because they arise from conduct consciously chosen by the offenders at a time that they enjoyed a good reputation and a position of trust and status, which they abused to commit their crimes. [ 87 ] Although they are a mitigating circumstance, the negative consequences on the accused and his loved ones from the commission of the offences are secondary to the primary objectives relating to the seriousness of the crime and the offender's degree of responsibility. [15] 4- The good conduct of the accused since the arrest [ 88 ] The great progress of the accused since his arrest, established by the defence evidence and considered by the probation officer in his favourable assessment of the accused and by the accused’s parents and employer, who support him, represents the cornerstone of the defence's submission emphasizing the objective of social reintegration. [ 89 ] The Quebec Court of Appeal previously ruled that a trial judge must assign a relative weight to the good conduct of the offender between the indictment and the sentencing, [16] but may give it more importance if the accused has successfully taken steps to limit the risk of re-offending. [17] [ 90 ] In a recent judgment, [18] however, the Court of Appeal recalled that a trial judge may, without completely setting aside social reintegration, correctly assign more weight to the objectives of denunciation and deterrence when they are predominant with respect to the nature and circumstances of the offence. 5- The underlying offence of impaired driving [ 91 ] As a mitigating factor, the defence argues that the accused did not, through his illegal actions, benefit a criminal organization or a dangerous repeat offender. [ 92 ] Even though the accused's actions did not benefit a criminal organization, which would have constituted an additional aggravating circumstances under subparagraph 718.2 ( a )(iv) of the Criminal Code , the fact remains that impaired driving is considered by the Supreme Court of Canada [19] to be a crime causing the greatest carnage and the most significant social loss in the country.

According to the Société de l'assurance automobile du Québec, together with excessive speed, drunk driving is one of the two main causes of death and serious injury on the roads, even though the offenders are often without criminal records. [ 93 ] The responsibility of a criminal and penal prosecutor is not less with respect to impaired driving than it is with respect to organized crime or a first-time offender.

B- The criminal prosecutor's central role in the criminal justice system [ 94 ] Criminal and penal prosecutors are delegated representatives of the State and lawful deputies of the Attorney General of Quebec within the meaning of the Criminal Code .

They administer justice at the local level and in doing so act as auxiliaries of the court [20] on behalf of the Director of Criminal and Penal Prosecutions, under the general authority of the Minister of Justice, with the independence afforded to them by statute. [21] [ 95 ] Crown prosecutors assume heavy responsibilities and obligations that in some ways set them apart from civil law attorneys. [22] They play a central role in the criminal justice system that is no less important than that of the judge and, as officers of the court, they must enlighten the court in the search for truth and display unwavering honesty in the discharge of their duties. [ 96 ] The primary task of crown prosecutors is to initiate prosecutions against offenders and ensure their proper unfolding before every court. [23] They therefore fill a quasi-judicial function [24] that confers upon them a great deal of independence, especially when exercising the discretionary power to bring proceedings, [25] which requires neutrality protecting them from any inappropriate interference or other vitiating factors. [26] [ 97 ] The mission of criminal and penal prosecutors mirrors society's interest in seeing justice served.

Their duty is not only to protect the public, but also to honour and express the meaning of justice in the community. [27] C- Seriousness of the offences [ 98 ] The indictable offences committed by Morency while performing his duties as criminal and penal prosecutor, which were in breach of the Criminal Code and his professional and ethical obligations, are serious and discredit the administration of justice, in addition to tarnishing the reputation of prosecuting attorneys and other members of the Bar. [ 99 ] The reprehensible acts of the accused, an officer of the court, while they remain isolated acts in the context of criminal and penal prosecutors in general, can only reinforce the prejudice and cynicism aimed at the legal system, and the courts must clearly distance themselves from such acts by imposing meaningful sentences. [28] D- Degree of responsibility and moral blameworthiness of the accused [ 100 ] Morency's degree of responsibility and moral blameworthiness is high because of his crucial role in the perpetration of the offences, his active and decisive involvement, his position of trust, his dishonesty in performing his duty as Crown prosecutor, the corruption, the planning and premeditation, the sophistication, and the repetition.

[ 101 ] The accused's offences were not the result of an addiction to intoxicating substances or to gambling.

Nor were they the result of a family life marked by lack and deprivation, the consequence of a precarious financial situation, or the manifestation of personal problems. [29] [ 102 ] On the contrary, the accused enjoyed a stable family life without financial hardship and occupied a privileged position in society, after being given solid values by his parents and even benefiting from his father's situation when embarking upon the practice of law and working in his father’s firm for a few years before obtaining the position of criminal and penal prosecutor. [ 103 ] Finally, greed is the only possible explanation for why the accused accepted the money. [30] E- Application of sentencing principles to the facts at issue [ 104 ] While the sentence must represent the collective expression of our fundamental values and society's condemnation of the accused's conduct, it must be proportionate to the gravity of the offence and the accused's degree of responsibility and moral blameworthiness. [31] [ 105 ] In matters involving breach of trust and bribery by an officer of the court (such as a criminal and penal prosecutor) in the performance of his duties, the courts must give priority to the objectives of denunciation and general deterrence and to society's condemnation, while respecting the principle of moderation, [32] such that a clear message is given that dishonesty in the administration of justice will not be tolerated because it offends our common values, undermines the foundations of democracy, and erodes the trust of citizens in their institutions and in the rule of law.

X - Disposition [ 106 ] For all of these reasons, the Court finds that the accused merits an overall prison sentence of three years, allocated as follows: − Count No. 2: 2 years; − Count No. 5: 3 years, to be served concurrently; − Count No. 10: six months, to be served concurrently. [ 107 ] The victim surcharges will be paid within one year. __________________________________ Alain Morand , J.C.Q. Mtre Jean-François Tessier Mtre Alexis Gauthier For the prosecution Mtre Jean-Marc Fradette For the accused

SCHEDULE I Table of sentences for similar offences

Table of Contents I - The Offences. 1 II - The Facts. 2 III - Defence evidence on sentencing. 7 IV - Pre-sentencing report 10 V - Mitigating circumstances. 11 VI - Aggravating circumstances. 11 VII - Positions of the parties. 12 VIII - Sentencing Rules. 12 IX - Analysis. 14 E- Application of sentencing principles to the facts at issue. 19 X - Disposition.. 19 Criminal and Penal Prosecutors. 22 Officers of the court 23 Police officers. 29 Federal, provincial and municipal elected officials and senators. 32 Other jobs. 38 Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence Criminal and Penal Prosecutors 1.

R. v. Davies, (ON CA), [2005]O.J. No. 4829(C.A.) - Breach oftrust: s. 122 Cr. C. - Fraud: s. 380Cr. C. - The accused is aCrown prosecutor. - He sufferedfrom bipolar mooddisorder. - Hemisappropriatedmore than $48,000from stock marketfunds for which hewas theadministrator. - He is full ofremorse. - He is preparedto recognize andassumeresponsibility for hisactions. - He takesmedication tocontrol and preventhis manic episodes,thereby reducing therisk of re-offending. - He has nocriminal record.

The principles ofdenunciation anddeterrence requirea period ofincarceration in thepresentcircumstances. - For thecounts of breachof trust: 12months less 1 dayof prison. - For thecounts of fraud:12 months to beserved in thecommunity,consecutively.

2. - R. v. Harris , [1984] J.Q. No. 102 (C.S.P.) - Bribery: former s. 109( a ) (ii) and (vi) Cr. C. - Breach of trust: former s. 111 Cr. C. (former). The accused, a Crown prosecutor, received two amounts of $1,000 each from an attorney. The first was in exchange for reducing the charge to a

summary offence and recommending an absolute discharge while the second was in exchange for submitting a sentence. - To this day, the accused tries to varnish the truth. - His attitude is disrespectful to magistrates. - He knew the risks he was taking. - The accused was severely condemned by the public. - He pleaded guilty. - His financial situation was precarious at the time of the crimes. - He assumes his familial responsibilities and would like to start over. - He offered a good service and had the respect of his close relations prior to the events. - He has no criminal record.

Denunciation and society's condemnation are the key factors; deterrence does not have its place. - For the count of bribery: 12 months, to be served consecutively; a fine of $1,000. - For breach of trust: 6 months' imprisonment; $1,000 fine. 3. R. v. Fournier (20 June 1978), Montreal 500-01- 001135-786 (Sup. Ct.), K. Hugesen, J. - Breach of trust: former s. 111 Cr.

C. - Obstruction of justice: former s. 127(2) Cr C. - The accused, a Crown prosecutor, refused to recommend criminal prosecution without justification. - On another occasion, he obtained a financial loan by leveraging his position as Crown prosecutor. - The accused received all the benefits of an excellent education. - The seriousness of the offences in relation to his position. - It is a serious violation of societal values. - Greed and the lure of money. - He has no criminal record. - He lost his job. - Low risk of re- offending. - General deterrence. - Society's condemnation. - For breach of trust: 6 months less one day, to be served consecutively. - For obstruction: 18 months.

Officers of the court Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

4. Fortin v. The Queen , 2012 QCCA 883 - Obstruction of justice: s. 139 Cr. C . - Forgery: s. 366 Cr. C . - Use of forged documents: s. 368 Cr. C . - Fraud: s. 380 Cr. C .

Over a period of one year, the appellant, a young lawyer just starting out, fabricated and used a forged legal aid mandate, a forged agreement on corollary relief, a forged judgment, a forged motion, and forged cheques; he also made false representations harming the victims and the administration of justice. - Breach of trust by an officer of the court. - Planning and premeditation. - Significant financial and psychological harm to the victims. - Attack on the legal system. - Guilty plea. - He has no criminal record. - Regrets. - He has taken himself in hand and is studying history. - Father. - Good social network. - Does not have a delinquent personality. - No risk of re- offending. - Already deterred. - Collaboration with the police investigation. - The appellant did not profit financially, he acted only to maintain a positive image whereas his files were disorganized. - Favourable pre- sentencing report. - Offences committed during a depressive episode.

The objectives of denunciation and deterrence are preponderant. 15 months to be served in the community (at trial, 15 months of incarceration). 5. R. v. Telisma , 2012 QCCQ 27 Bribery of an officer: s. 120 Cr.

C . - Employed by the Municipal Court as a justice of the peace for the last ten years or so, the accused was responsible for the deposit of any cash seized. - Ten times over a period of 5 months, the accused took deposits for a total of $4,331 and hid the proofs of payment. - Breach of trust between the employer and the position occupied: officer justice of the peace. - Several times, over a period of 5 months, the accused, as an officer of the court, duped the public's trust, lured as she was by money. - The accused pleaded guilty. - She collaborated with the investigation. - She reimbursed the amounts and returned the documents taken. - She has no criminal record.

She has taken steps to solve her problems and is in school. Under the circumstances and taking into account the accused's profile, the steps taken, the real efforts toward rehabilitation, and the deterrent effect of the legal process, the Court believes that a suspended sentence would not contradict the criteria of denunciation and deterrence. 18 months to be served in the community. 6. R. v. Doiron , 2007 NBCA 41 Obstruction of justice: s. 139(2) Cr. C .

In an arson case, an attorney asked his client to withdraw his guilty plea in exchange for $35,000. - There was breach of trust. - The offences were committed in collaboration with a criminal organization. 3 years of prison. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

7. R v. Gobeil , 2006 QCCQ 5292 - Forgery: s. 366 Cr. C . - Fraud: s. 380 Cr. C . - Conspiracy to commit fraud: s. 465 Cr. C. The accused, an attorney, cashed two bank drafts at the Caisse populaire d'Alma that he had forged with the help of two accomplices, which resulted in a loss of $7,270 for the institutional victim. - The nature and scope of the fraud. - The premeditation and planning. - The absence of reimbursement. - The accused acted out of greed. - The breach of trust, even though the offences were not committed in the context of his professional activities.

He nevertheless took advantage of his status as a lawyer. - The accused played a minor role in the commission of the offences. - He has no criminal record. - Low risk of re- offending. The objectives of denunciation, deterrence and a sense of responsibility. - 12 months to be served in the community. - 2-year probation. - Obligation to reimburse the victim. 8. R. v. Bourbonnais , 2006 QCCS 5758 - Fraud against the government: s. 121 Cr. C. - Breach of trust: s. 122 Cr. C. - Obstruction of justice: s. 139 Cr. C . - Conspiracy: s. 465 Cr. C.

The accused pleaded guilty to 30 counts related to crimes committed in the performance of his duties as commissioner with the Immigration Appeal Division, Immigration and Refugee Board. He would receive a list of those he was scheduled to hear in the upcoming days and weeks.

He concocted a plan by using proxies who approached the individuals whose cases he would hear and ask the individuals in question for a sum of money in exchange for a favourable decision in their case. - The objective and subjective seriousness of the offences is significant. - A large number of individuals were approached. - He initiated the bribery. - He was motivated by greed. - He entered a guilty plea. - He is 64 years old. - He has medical issues. - 6 years of prison. - Surcharge of $1,000. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

9. R. v. Jeannotte, (QC CQ),[2005] R.J.Q.2425 (C.Q.) Fraud: s. 380 Cr.C. The accused, anattorney, used thesum of $200,000entrusted to her byher clients forprofessionalpurposes to pay forher husband's drugdebts. - The extent ofthe victims' financiallosses. - Non-existentreimbursement. - Breach of trust. - She received apersonal benefit. - Guilty plea. - She has lost herlicence to practicelaw. - She has healthissues. - Shame andrejection. - Insignificant riskof re-offending. - Sense ofresponsibility. - Favourable pre-sentencing report. - She has nocriminal record. - Numerousefforts to keep a job.

The punitive andcorrectiveobjectives are metby imposing aterm ofimprisonment tobe served in thecommunity. - 2 years less aday, to be servedin the community. - 2-yearprobation. 10.R. v. Bédard, (C.Q.) Obstruction ofjustice: s. 139(2)Cr. C. The accused, anattorney, asked hisclient's father to goto his cottage to getrid of a firearmbefore the policeofficers could findit. Very seriousobstruction ofjustice.

It becomeseven more seriouswhen the perpetratoris an officer of thecourt and moreoveran attorney. - The accused hasno criminal record. - He does notpresent a risk of re-offending. - He expressedremorse. - He must changehis life and leave hisenvironment. In general, thecourts of variousjurisdictions insiston denunciationand generaldeterrence whenan officer of thecourt commits acriminal offence. - 8 months ofprison. - 1-yearprobation. 11. R. v. Clément, J.E.2004-1570 (C.Q.).Fraud: s. 380 Cr.C.

Between 1997 and1999, the accused,an attorney, soughtand obtainedinvestments for aconstruction project.He used the fact thathe was a lawyer torecruit investors,even amongst hisclients. Because hehad promisedimpressive returnsbut the project wasnot completed, hereimbursed someinvestors with theinvestments ofothers, all whileliving a lavishlifestyle.

The lossestotalled $3,000,000. - The scope of thefraud. - The seriousconsequences for thevictims. - The position oftrust even though hewas not acting as anattorney. - The guilty plea. - He has nocriminal record. - He collaboratedwith the policeinvestigation and theBarreau du Québec. - He lost hislicence to practice. - The civil lawconfession ofjudgment for$1,500,000. - There wasphysical retaliation. - He is depressed. - There is no riskof re-offending. - Favourable pre-sentencing report.

Denunciation,deterrence andsense ofresponsibility. - 2 years less aday, to be servedin the community. - 240 hours ofcommunityservice. - Obligation toundergo therapy. - 3-yearprobation. Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

12. R. v. Corriveau , [2002] J.Q. No. 1140 Fraud: s. 380 Cr. C. The accused, an attorney, misappropriated sums of money given by clients. - The planning. - The accused received advantages that were used to maintain his lavish lifestyle. - There was a relationship of trust between the victims and the accused. - The accused partially reimbursed the victims. - He does not have any criminal record, as is often the case when lawyers are accused of fraud. - The accused has lost his licence to practice.

In these matters, the courts have always favoured the objectives of denunciation and general deterrence. 4 years of prison on each of the counts. 13. R. v. Bolduc , J.E. 2001-1666 (C.Q.) . Theft: s. 334 Cr. C .

The accused, a notary, stole the sum of $405,309.45 from Réno-Dépôt in a real estate transaction. - The actions occurred in the performance of his duties. - The amount is quite significant. - While the theft is an isolated event, the motive at its heart is the result of the prior set up of a fraudulent system the accused was no longer able to manage. - We must consider that the accused personally benefited from the theft. - He was in a position of trust. - The victim did not sustain a loss since it was indemnified by the Chambre des notaires. - He pleaded guilty. - He cooperated with police officers. - He does not have a criminal record, as is often the case for lawyers and notaries. - The offender assiduously attended therapy over a period of about 18 months. - He took responsibility for the reprehensible nature of his actions and recognized the need to return to his pro- social basic values.

When they have had to sanction the misappropriation of money by persons in a position of trust, the courts have always kept in mind the denunciation of the unlawful conduct and general and specific deterrence. - 2 years less a day of prison. - Surcharge of $100. - 2-year probation. 14. R. v. Bunn , 2000 SCC 9 Breach of trust: s. 122 Cr. C .

Soviet lawyers retained the services of the accused, a lawyer, to recover money from the estates of six deceased residents of Manitoba and Saskatchewan; In each case, the accused moved part of the trust funds he received for each of the beneficiaries from his trust account to his own general account. - The ruin and humiliation suffered by both the respondent and his family are significant. - He lost his professional status; - The respondent was the sole provider for his teenage daughter and his wife, who was suffering from multiple sclerosis for which she required treatment, and had been confined to a wheelchair for several years.

The sentence imposed by the Court of Appeal had a sufficient effect of denunciation and deterrence, and it was not disproportionately lenient. - 2 years less a day, to be served in the community. - 200 hours of community service. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

15. R. v. Roussin, J.E.2000-1385 (C.Q.).- Forgery: s.366 Cr. C. - Using aforgery: s. 368 Cr.C. - Fraud: s. 380Cr. C.

The accused, anattorney, prepared afalse judgment of theSuperior Court andforged several otherfalse documents tothe prejudice of thevictims. - Breach of trust. - Committedwhile acting as anattorney. - Negative pre-sentencepsychologicalreports. - High risk of re-offending. - Disbarment fromthe Roll of the Orderof Advocates. - The socialstigma. - The harshness ofthe accused'sdetention. - The accusedsuffers from apersonality disorder. - Reimbursementof some victims bythe accused's parents. - Guilty plea.

Thepredominance ofdenunciation andgeneraldeterrence. - Overallprison sentence of2 years less a day. - 3-yearprobation. 16.R. v. Flahiff, (QC CQ), [1999]R.J.Q. 884 - Possession ofmoney fromtrafficking innarcotics - Transfer ofthe money. - Conspiracy. A criminal lawyer,who was laterappointed a judge,offered to laundermoney from cocainetrafficking for aninternational drugtrafficker.

Over aperiod of 30 months,with his accompliceLavoie, he sent andrepatriated over $1.5million throughmultiple transactionsintended to hide theorigin of the funds. - He planned andsuggested thecommission of thecrime. - His status as alawyer justifies aharsher sentence. - He has nocriminal record. - His trial receivedextensive mediacoverage. - There was a longperiod of timebetween thecommission of theoffences and thefiling of thecomplaint. - The difficultsituation for thefamily of theaccused, this shouldnot appreciablyreduce a justsentence.

The sentenceimposed must beproportional tothe gravity of theoffence and thedegree ofresponsibility ofthe accused. Three years ofprison for eachcount, to beservedconcurrently. 17.R v. Champagne,[1999] J.Q. No.6163 Fraud: s. 380 Cr.C. The accused, anotary, committedseveral fraudsagainst the RoyalBank, amongstothers. - The accused is awell-known notary. - The frauds werecommittedrepetitively overtime, against 4distinct groups,during variousperiod between Juneof 1991 and Januaryof 1993. Theamounts of moneyinvolved arerelatively significant,about $300,000.

Inmany respects, hebenefited orattempted to benefit,directly or indirectly,from the money. - The actionswere planned andpremeditated. - He acted out ofgreed. - He has nocriminal record. - He losteverything. 36 months'imprisonment less3 months for pre-sentencingcustody. Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

18.R. v. Bergeron[1998] J.Q. No.3539 (C.Q.) Criminal breachof trust: s. 336 Cr.C. The accused, anattorney at the time,admits tomisappropriating$65,069.19 from histrust account for anunauthorized use. Heused this money tohis advantage whenit had been given tohim by clients tobegin, continue, orfinalize legalproceedings. Theindemnity fund ofthe Barreau duQuébec reimbursed$45,582.99. Thisreimbursement waspartial for some andnon-existent forothers.

It is a breach of trust.- The accused hasno criminal record. - His rehabilitationis complete and re-offending is unlikely. - He is 46 yearsold and it is unlikelyhe will ever practicelaw again. While taking intoaccountsubjective factors,the Court must,on a balance ofprobabilities,preferdenunciation andgeneraldeterrence insociety in generaland in the legalenvironment, inparticular. 23 months ofprison. 19.R. v. Fitzgibbon, (SCC), [1990] 1S.C.R. 1005. - Breach oftrust: s. 336 Cr. C. - Fraud: s. 380Cr. C. The appellant, whowas an attorney,misappropriatedfunds that had beengiven to him andswindled his ownclients.

In mostcases, the appellanthad assured hisvictims that hewould invest theirmoney in safehypothecs but hewas investing ingoods that had a lowor non-existent netvalue. In other cases,the appellant usedthe funds belongingto his clients, such asthe $70,000entrusted to him byRudolph Gatien, tomake monthlypayments to otherclients on fictitioushypothecary loans. - 3 ½ years ofprison. - Reimbursementof $359,204.28 tothe Law Societyof Upper Canadaand $45,000 toRudolph Gatien. 20.R. v. Morin,[1985] C.S. 505. Contempt ofcourt: s. 8 Cr. C.

The accused, anattorney, offered two$1,000 bribes to aCrown prosecutor.The first was inexchange forreducing the chargeto a

summaryoffence andrecommending anabsolute dischargewhile the secondwas in exchange forsuggesting asentence. - The accusedsidesteps the factthat he wasconvicted. - He was theinstigator of bothevents. - Total of 2years'imprisonment. - 1 year ofimprisonment foreach of thecharges. Police officers Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

21. R. v. Bannon , 2011 ONSC 3000 - Breach of trust: s. 122 Cr. C. - Secret commissions: s. 426(1)( a )(ii) Cr. C . Chief of an Aboriginal police department, 57 years old, received $142,437.48 to ensure that new police cruisers would be purchased from that company. - Significant advantages for the offender. - He was the chief of police. - Accused is an Aboriginal person who received a poor education. - Accused is in poor health.

The law states that the first factors to be considered during sentencing for breach of trust by a public officer are denunciation and deterrence. - For breach of trust: 12 months of prison. - For accepting secret commissions: 4 months, to be served concurrently. 22. R. v. Morgan , 2010 QCCQ 2555 Bribery of officers: s. 120(

a) Cr. C. Police officer who, in exchange for a sum of $2,000, warned a suspect in a sexual abuse case that he would run into the complainant, who would be wearing a body-pack, and coached him on how to act during a possible meeting with the investigators. - He is a police officer with 30 years' experience, head of investigations. - It is the accused who reached out to R. P. to meet with him and tell him about the sexual abuse complaint. - It is the accused who asked for money in return for his help. - It is the accused who gave advice on how to behave with the complainant (M.

B.) and the police officers. - They met twice. - He was on duty during the second meeting. - He used a department vehicle during his second meeting. - He violated his oath to act honestly and fairly. - Through his actions, he contributed to undermining the trust that a young man had placed in the justice system. - The crime is a breach of trust. - Premeditation. - The accused has no criminal record. It is not without relevance to point out that this is the case for a majority of accused facing such charges. - The risk of re- offending is low.

The Court reiterates the priority of the criteria of denunciation and general deterrence. 2 years less a day of prison. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

23. R. v. Blais , 2009 QCCQ 451 - Bribery of officer: s. 120(

a) Cr. C . - False pretences:

section 362 Cr. C . - Fraud: s. 380 Cr. C. The accused, a police officer, offered to destroy the file of a friend in exchange for the sum of $2,500.

Moreover, he told his victim that he knew people who could make his money grow quickly; he then took the money without fulfilling his end of the bargain. - Significant objective seriousness. - The sentence must reflect the criterion of deterrence. - Every action in the commission of the offences was premeditated. - The events took place over a long period of time. - The accused used his job as a police officer to commit the offences. - The accused voluntarily improved his financial situation to fraudulently obtain the money. - The amount is $51,500. - The accused has already deposited a portion of that amount to benefit the victims and if he keeps his job, he will be able to finish reimbursing everyone. - The accused pleaded guilty. - The victims consented to an attempt to make cash profits. - At the time the offences were perpetrated, the accused had a gambling problem. - After the information was filed, the accused chose to retire. - The file was publicized and his wife even lost a well-paid job. - The accused has not frequented gambling establishments since the summer of 2004. - He has a new steady job. - Since 2006, he has worked as a taxi driver.

He must also reimburse his brother. - The risk of re- offending is greatly diminished due to his rehabilitation. - The sentence must provide sufficient denunciation and deterrence. - 2 years less a day, to be served in the community. - 2-year probation. 24. R . v. LeBlanc , 2003 NBCA 75 - Breach of trust: s. 122 Cr. C. - Theft: s. 334( b )(

i) Cr. C. The accused, a police officer with the city of Fredericton, went to the scene of a fire that had broken out in a dwelling. While there, he acted as if he was leading an investigation and searched the owner's goods, stealing several personal items as well as $83. The accused was a police officer. Society must be able to count on its police officers to enforce the law. General deterrence and condemnation must outweigh all other factors. 3 months of prison. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

25. R. v. Ryan [1999] A.N.-B. No. 487 (C.Q.B.) . - Breach of trust: s. 122 Cr. C. - Theft: s. 334 Cr. C . - Fraud: s. 380 Cr. C. The accused, a police officer, committed the offences of breach of trust, theft, and fraud. The accused was a police officer. Society should have been able to trust him. - He shows some remorse. - The accused tends to rationalize and minimize the consequences of his conduct. - He has a family. We must consider sentencing objectives and principles, deterrence and the consequences of the sentence on third parties. 8 months of prison.

Federal, provincial and municipal elected officials and senators 26. R. v. Lavigne , 2011 ONSC 2938 - Breach of trust: s. 122 Cr. C. - Fraud The accused, a senator, claimed travel expenses that he did not incur.

He also asked his research assistant to cut trees on his property while being paid by the Senate. - 54 false claims. - The accused is a senator, a privileged position. - Some degree of planning. - The accused committed the offence out of greed. - The accused has no criminal record. - He is 65 years old. - He has been steadily employed throughout his life and was elected to the House of Commons for three mandates from 1993 to 2002, at which time he was appointed to the Canadian Senate . - He was involved in his community as a business man and volunteered with at least two organizations. - He contributed to his community through his political involvement. - He made full restitution by reimbursing $23,000 to the Senate.

The principles that apply to the present case are those of general and specific deterrence, denunciation and social reintegration. - For fraud: 6 months of prison. - For breach of trust: 6 months, to be served consecutively in the community. 27. R. v. Everitt , 2010 YKTC 91 Breach of trust: s. 122 Cr. C. The accused was the mayor of Dawson and misappropriated $38,300 over eight years.

The accused wrote false expense reports and claimed expenditures that were never incurred. - The fraud occurred over a certain number of years and involved a number of transactions . - The fraud was for personal purposes. - The accused had a high-level job; he was the mayor of the city. - He pleaded guilty. - He expressed remorse. - His wife and mother have died and he must take care of the three children. - He can function in society. - He has health issues. - He wants to reimburse the city. - He volunteers. - This case took 6 years to resolve.

The main objectives in cases of breach of trust are those of denunciation and general deterrence. - 12 months to be served in the community. - 12 months of probation. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

28.R. v. Murray,2010 NLTD 44 - Fraud on thegovernment: s.121(1)(

a) Cr. C. - Fraud: s. 380Cr. C. The accused was thedirector of thefinancial departmentat the GeneralAssembly ofNewfoundland andLabrador. He forgedexpense claims forhis own benefit andthose of othermembers. Theaccused alsoreceived bribes forfraudulenttransactions.

He alsodirected funds worth$2.6 million tocompanies in whichhe had a direct stake. - The accusedtook advantage ofthe trust of thepeople ofNewfoundland andLabrador. - This offencecontinued over along period of timeand was notperpetrated on awhim. - He did not havea criminal record. - He has acceptedresponsibility for hisactions and forrestitution. - Moreover, hepleaded guilty at thefirst opportunity. - He was not adanger to thecommunity. - He has agambling addiction. Public interest. - 2 years ofprison. - 2-yearprobation. - Restitution of$177,000. 29.R. v. Walsh, (NLPC), 2010 N.J.No. 3 - Fraud: s. 380Cr.

C. - Breach oftrust: s. 122 Cr. C. The accused wasboth an electedmember of theHouse Assemblyand, at times, acabinet member. Hefraudulentlyobtained$159,316.55 bymaking false claims. - As the mainactor, he has a highdegree of moralblameworthiness. - He breached thetrust of the people ofNewfoundland andLabrador to enrichhimself. The actions weredeliberate. He defrauded asignificant amount ofmoney. - The accused hasno criminal record. - He wasgainfully employedand was an activemember of society.He is 60 years old. These events costhim his reputationand willundoubtedly affecthis future ability towork.

The main factorsare denunciationand deterrence. - For fraud: 22months of prison. - For breach oftrust: 12 months,to be servedconcurrently. - 2-yearprobation. - Restitution of$144,000. 30. R. v. Byrne,(2009) (NL PC), 286Nfld. & P.E.I.R.191. - Fraud: s.380(1)(

a) Cr. C. - Fraud on thegovernment: s.121(1)(

a) Cr. C.and 121(3) Cr. C. The accused was anelected member ofthe GeneralAssembly of thegovernment ofNewfoundland andLabrador when hecommitted theoffences.

Hesubmitted claims forexpenses that werefalsified, forged, orduplicated and paidthousands of dollarsin personal chequesto public officerswho gave himbenefits in exchange. - The accusedwas an electedofficial. - The breach oftrust is significant. - He defraudedthe State hundreds oftimes over a periodof 6 years. - The actionswere planned anddeliberate. - He used briberyto avoid detectionand keep his job. - Thirty-threecheques were drawnon the accused'spersonal account andused to pay $18,125in bribes. - He was undulypaid a substantialamount of cash($117,812), whichwas directed to a usefor which it was notintended ($401,000). - His career isover. - He did not havea criminal record. - He pleadedguilty. - His chargesreally affected hisfamily.

Denunciation. - For fraud: 2years less a day. - For fraud onthe government:18 months, to beservedconcurrently. Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

31. R. v. Harvey , 2006 BCPC 444 Breach of trust: s. 122 Cr. C. The accused was the mayor of the City of Vernon and used public funds to pay for his personal expenses. - He submitted 90 claims for reimbursement using false documents. - He is mayor, which is a position of importance in the public function. - In 2004, he had been questioned about the use of the City's credit cards. - He pleaded guilty. - He has no criminal record. - He acknowledged his fault. - He has resigned. - He expressed remorse. - He paid reparation to the City. - He has undertaken a plan to change. - He is having difficulty finding a job.

General deterrence, reintegration and reparation to the community are important principles to consider. - 12 months, to be served in the community. - 1-year probation. 32. R. v. Filion , J.E. 2005-1863 (C.Q.) . - Breach of trust: s. 121 Cr. C. - Fraud: s. 380 Cr. C . The accused hired construction workers and administrative personnel as support staff for his constituency office, as provided in the Act respecting the National Assembly , but misappropriated the funds for his own benefit. He had a personal dwelling built with the remuneration earmarked for the MNA's support staff.

With the help of people who were fraudulently characterized as the MNA's support staff, he produced a computer document addressed to the accountants for commercial distribution. - The offence was committed out of greed. - He had developed a very elaborate scheme. - The loss was significant. - For four years, and through undetectable manoeuvres, the accused fooled the accounting department of the said institution. - He shirks any responsibility. - He has never understood that an MNA must be above any suspicion and that even if

section 121 does not require an unlawful motive, this is a case of corruption. The only mitigating factors that apply to the accused's case are the fact that he does not have a criminal record and the extensive publicity the case received in the media. The corrective and punitive objectives and that of general deterrence are not fulfilled by a conditional sentence. - 6 months of prison. - 2-year probation. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

33. R. v. Dusseault , J.E. 2004-2221 (C.Q.) . Municipal corruption: s. 123 Cr. C . - The Coptic Church of Montreal wished to build a real-estate complex and was having difficulty obtaining the zoning change. - It hired the accused José Sardano and Luis Vitorino to favourably influence the said changes and to then to proceed with the demolition of the existing buildings and the construction of new ones. - The accused José Sardano was surprised when he was asked for a $100,000 bribe by two city councillors - Irving Grundman and René Dussault.

He informed the accused Luis Vitorino and ultimately an agreement was entered into by the parties to finalize the bribe. Dussault: - His actions tarnished the reputation of municipal elected officials. Grundman: - His actions tarnished the image of municipal elected officials. Dussault: - He has no criminal record. - He is 68 years old. - He had an illustrious career in business. Grundman: - He has no criminal record. - He is 76 years old. - He had an illustrious career.

Luis Vitorino and José Sardano: - They are both 54 years old, married, with families. - Luis Vitorino has no criminal record. - José Sardano received a conditional discharge in a case respecting an industrial still. - A criminal record would endanger their licence. - They did not really benefit financially from this affair. Dussault: - 23 months, to be served in the community. - Fine of $25,000. Grundman: - 23 months, to be served in the community. - Fine of $50,000. Sardano and Vitorino: - Conditional discharge. - $25,000 to be paid by each of them to the CAVAC. 34. R. v. Gyles , [2003] O.J.

No. 6249 (S.C.J.) - Bribery of officers: s. 120 Cr. C. - Breach of trust: s. 122 Cr. C. - The accused, a councillor for the city of Mississauga, asked for and accepted a bribe in exchange for his influence in obtaining a particular zoning. - No acknowledgement of his responsibility. - No explanation was given, such as a gambling addiction or a sudden need for cash, to explain the motive for the offences . - Mere greed must be assumed. - He has no criminal record in such matters. - He has health issues.

A prison sentence meets the objectives of denunciation and general deterrence. - For the charge of municipal bribery: 2 years of prison. - For breach of trust: 2 1/2 years, to be served concurrently. - 2 week reduction because of the sentence served after his arrest. Decision Charges Facts Aggravating circumstances Mitigating circumstances Factors considered Sentence

35.C.J. v. TheQueen, (QC CA), J.E.2001-1529 (C.A.). - Fraud on thegovernment: s.121 Cr.

C. - The accusedwas a ConservativeMP whose party wasin power in Ottawa.Jean-Yves Pantaloniwas her politicalorganizer. - They demanded$50,000 fromAlexander Rack, aLiberal partysupporter, whorefused to payconsidering that itwas his MP's job tohelp him receivefinancialassistance. - As for MarcPaquin, aConservative partysupporter, theyasked him for$40,000, andfollowing somenegotiating byPaquin, reduced thatprice to $30,000.This amount was notpaid. - They conspired. - The actionswere planned andpremeditated. - The case washighly publicized inthe media. - She experiencedhealth issues. - She is a singlemother to her 9-year-old daughter. - She has nocriminal record.

The punitive andcorrectiveobjectives as wellas generaldeterrence areparamount. - 2 years less aday, to be servedin the community. - 100 hours ofcommunityservice. (Appeal replacingthe 60-day prisonsentence and the$10,000 fine and$1,000 surcharge.Leave to appeal tothe SupremeCourt denied.) Same sentencefor Pantaloni. (R.v. Pantaloni, ). 36.R. v. Berntson,2000 SKCA 47 - Breach oftrust: s. 122 Cr. C. - Fraud: s. 380Cr. C. The accused was amember of theSaskatchewanLegislativeAssembly. Hedefrauded the publicby making falsereimbursementclaims.

He claimedfees foradministrativeassistant servicesprovided by his ex-wife, his currentwife and hischildren. His familywas never directlypaid for theirservices. - The offence isserious. - It is not a single,spontaneous act. Onthe contrary, theoffence occurredover some time. - The amountdefrauded issignificant. - The accused hada position ofimportance andabused it. - 12 months ofprison. 37.R. v. Gagné,(2000) (QCCA), 148 C.C.C.(3d) 182 (C.A.) Breach of trust: s.122 Cr. C.

The mayor of amunicipalityinterfered on behalfof his son with amunicipal employeeto favourablyinfluence theissuance of aconstruction permit. - 18 months, tobe served in thecommunity. - Fine. Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

38.R. v. McLaren, (SK KB), [1995]S.J. No. 565(Q.B.) - Fraud: s. 380Cr. C. - Breach oftrust: s. 122 Cr. C. - Theft: s. 334Cr. C.

A member of theprovincial legislativeassembly committedseveral offencesinvolving an amountthat exceeded onemillion dollars. - Each of theoffences is serious. - Evidently, theseoffences wereplanned andperformed over along period of time. - The purpose andcircumstancessurrounding theoffences. - He pleadedguilty. - He expressedremorse. - His health ispoor. - He has nocriminal record. - He has familialobligations. - He has a goodwork portfolio. - The primaryobjectives arethose of protectingthe public, generaldeterrence, andmaintaining publicconfidence in theadministration ofjustice. - Fraud: 3 1/2years of prison. - Breach oftrust: 2 years, tobe servedconcurrently. - Theft: 2years, to beservedconcurrently. 39.R. v.

Bouchard,J.E. 92-451. Breach of trust The mayor of amunicipality and thepresident of theurban planningcommission receiveda $25,000 bribe inexchange for theirfavourable influenceregarding the projectof a real estatedeveloper. Mayor Bouchard: - Factualbackground closelyresemblingextortion. - There waspremeditation,organization andcomplicity. - The victimexperienced manyinconveniences. - He was in aposition of authority. Gaudreau: - The crime is thesame as for his co-accused except thathe participated as anaccessory. - He used hisexperience for thepurpose of greed.

Mayor Bouchard: - He has nocriminal record. - He has a spouseand is a father tothree children. - He withstoodwidespread mediacoverage. - His politicalcareer is ruined. Gaudreau: - He has a family. - He is involvedin his community. The sentence mustalso favour therehabilitation ofthe accused andtheir reintegrationinto society even iftheseconsiderationsmust, in this case,yield to deterrenceand society'scondemnation. - MayorBouchard: - 1 year ofprison. - Gaudreau: - 6 months less1 day. 40.R v. MacEachern, (PE SCAD), 182Nfld. & P.E.I.R.219. - Breach oftrust: s. 122 Cr. C. - Fraud: s.380(1)(

a) Cr. C. The accused, adeputy minister atthe time, took$25,000 over athree-year period. - He had acriminal record insimilar matters. - He abused hishigh-rankedposition, he wasdeputy minister, ajob at the high levelsof Government. He volunteered. Denunciation anddeterrence. 12 months, to beserved in thecommunity. Other jobs Decision Charges Facts Aggravatingcircumstances Mitigatingcircumstances Factorsconsidered Sentence

41. R. v. Champagne , 2011 QCCQ 6419 Fraud: s. 380 Cr. C. The accused was secretary-treasurer for the town of Sainte-Eulalie. She misappropriated funds in the amount of $265,671 from the City for her own personal benefit. - Objectives of denunciation and general deterrence must be given priority. - Special significance since the municipal area is plagued by fraud and corruption. 15 months of prison. 42. Corbeil v. The Queen , 2010 QCCA 1628 - Fraud on the government: s. 1

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