Accused intended to use her public office for purpose other than public good

GENERAL

Accused intended to use her public office for purpose other than public good

Trial of accused after she was charged with six counts of fraud on government contrary to s. 121(1)(a)(ii) of Criminal Code; nine counts of fraud on government under s. 121(1)(d) of Code; 12 counts of breach of trust by public officer under s. 122 of Code; and one count of bribery under s. 120(a) of Code. Accused was employed as acting manager with Citizenship and Immigration Canada during 2003 and 2004. She was friendly with her esthetician and her husband. Accused and husband formed joint enterprise to make money by helping immigrants with their immigration files. Husband let it be known in Lebanese community that for price he could make things happen with immigration files because he had someone helping him within Immigration. That person was accused. Husband met with clients, he learned about their circumstances and he then got accused to help him process file as quickly as possible. Accused remained anonymous. She accessed client’s file and determined what needed to be done to move file forward. She then used her managerial role to get result that client would not otherwise receive or she would use her position to speed up process to get desired result earlier than normal. Charges pertained to 10 files. Crown provided overwhelming amount of evidence to prove that accused was guilty as charged. When submissions were made accused’s counsel advised that he had nothing to say regarding evidence that supported charges. Accused convicted of all offences with exception of bribery. That charge was dismissed because Crown failed to prove that accused was public officer under s. 120(a). Under s. 121(1)(a)(ii) Crown had to prove that accused was official who demanded or who agreed to accept benefit of any kind. Under s. 121(1)(d) Crown had to prove that accused was party to offence and that she was official who husband claimed to have influence with and that she demanded or who agreed to accept any kind of benefit. Accused had to do something which encouraged husband to commit this offence. She had knowledge of elements of this offence and she intentionally helped husband in commit it. Crown proved elements of offences under s. 121(1)(a)(ii) and(d). Court decided that all evidence tendered at trial was similar fact evidence that could be considered in regard to each count. Statements that husband made to clients could be taken as describing accused’s role in joint venture. Such statements were admissible for truth of their contents on basis of co-conspirator’s exception to hearsay rule. Conspiracy existed and accused was member of it. Husband’s acts and declarations were admissible as evidence against accused. Regarding breach of trust offences under s. 122, commission of offences was done in connection with duties of accused’s office and accused breached standard of responsibility and conduct demanded of her by nature of her office. Her conduct also represented serious and marked departure from standards expected of individual in her position of public trust. Accused also acted with intention to use her public office for purpose other than public good.
R. v. Serre (June 22, 2012, Ont. S.C.J., Aitken J., File No. 05-30104) 103 W.C.B. (2d) 29 (86 pp.).