COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carson, 2017 ONCA 142

DATE: 20170217

DOCKET: C61464

Simmons, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Bruce Carson

Respondent

Roger Shallow, for the appellant

Patrick McCann, for the respondent

Heard: October 12, 2016

On appeal from the acquittal entered by Justice Bonnie Warkentin
    of the Superior Court of Justice on November 17, 2015, with reasons reported at
    2015 ONSC 7127.

Pardu J.A.:

[1]

The Crown appeals from an acquittal on a charge
    of influence peddling, contrary to s. 121(1)(d) of the
Criminal Code
, R.S.C. 1985, c. C-46. This appeal turns on the interpretation of
    any matter of business in that provision and whether the respondents
    admitted activities were in connection with any matter of business relating to
    the government.

[2]

The respondent, Bruce Carson, was a senior
    advisor in the Office of the Prime Minister from 2006 to 2008 and briefly in 2009.
    In 2010, he negotiated a contract with H2O Professionals Inc. (H2O), which
    provided for commissions to be paid to his then girlfriend on all sales by H2O
    of water treatment systems to First Nations. The respondent did not personally
    sign the contract, as it was a contract between his girlfriend and H2O; the
    second version of the contract appointed his girlfriend as H2Os exclusive
    agent of [H2O] for the purpose of representing [H2O] in all matters relating to
    the sale of Water Purification Products to First Nations  (including dealing with
    the government of Canada relating to the sale of Water Purification Products to
    First Nations).

[3]

It was understood that the respondent would use
    his government contacts to help H2O sell its water treatment systems to First
    Nations.

[4]

At trial, the respondent admitted that he was a
    person who had influence with the government and that he had demanded a benefit
    for his girlfriend in exchange for exercising his influence on behalf of H2O. The
    only issue at trial was whether the respondents exercise of influence was in
    connection with any matter of business relating to the government.

A.

The trial evidence

[5]

The Crown and the defence agreed to apply all of
    the evidence from the preliminary hearing to the trial. No witnesses were
    called at the trial and one additional document was filed as an exhibit, which was
    filed on consent. It was a government document published by Indian and Northern
    Affairs Canada (INAC), entitled
Protocol for Decentralized Water and
    Wastewater Systems in First Nations Communities
(the
    Protocol for Decentralized Water). The purpose of the Protocol for
    Decentralized Water was to establish standards and codes to be followed for
    on-site water treatment systems funded by INAC.

[6]

According to the evidence, the respondent had
    several meetings and was in communication with government officials regarding
    H2O, including INAC employees. He also attempted to influence cabinet ministers
    and their staff for H2Os benefit.

[7]

The trial judge undertook an analysis of the
    relationship between INAC and First Nations with a view to determining whether
    the respondents exercise of influence was connected to a matter of business
    relating to the government. She summarized the two kinds of funding First
    Nations receive that can be used to purchase water treatment facilities at paras.
    32 and 33 of her reasons:

INAC provides two streams of funding to First Nations
    communities. The first stream relates to the operation and maintenance of
    existing facilities and is provided on an annual basis. This type of funding is
    formula-driven based upon a calculation of the size of the community, the
    inventory of assets and the relative lifecycle of those assets. This is the
    bulk of the funding that is provided to First Nations communities. The First
    Nations Band or community has complete autonomy with respect to how to allocate
    those funds each year. Neither INAC nor any other government department or
    official has input into how the community spends those funds. [Stream 1
    funding].

The second stream of funding is for capital investments such as
    building new or conducting major renovations to existing facilities. This
    stream of funding is allocated based upon priority, need and risk levels. Proposals
    from First Nations communities are submitted to INAC which then considers each
    proposal in relation to the needs and proposals submitted by other First
    Nations communities. If approved, the proposal is placed in a queue with other
    proposals of this nature to be awarded when funds from this stream are
    available. [Stream 2 funding].

[8]

First Nations had complete autonomy in deciding whether
    to purchase the smaller decentralized water treatment systems sold by H2O, as
    they could only use Stream 1 funding or their own resources to purchase this
    type of product. INAC was not involved in making decisions regarding purchases.

[9]

The trial judge found that the point-of-use water
    treatment systems sold by H2O were not major capital projects envisioned by
    Stream 2 funding, which INAC was directly involved in allocating. Referring to
    the testimony of Gail Mitchell, INACs Director General of Community
    Infrastructure, the trial judge explained:

If the water treatment system contemplated was a centralized or
    municipal system to supply water to the entire community, it would be a major
    project which would fall under the second stream of funding. [Gail Mitchell] confirmed
    that First Nations Bands could not afford to purchase such a system from their annual
    operating fund. The First Nations community seeking this type of system would
    have to submit a proposal to INAC that would then undergo a rigorous review,
    analysis and ranking and then make a decision about whether to proceed with
    that project. Ms. Mitchell indicated that the point-of-use water treatment
    systems marketed by H2O did not fall into this category for funding.

[10]

The respondent
also tried
to promote pilot projects using H2Os water treatment systems to
    INAC officials. In November 2010, the respondent first mentioned the prospect
    of a pilot project. In an email, he stated that four communities had been
    identified as potential sites for pilot projects involving H2Os water
    treatment systems. Later, in February 2011, Mr. Carson wrote to INAC about the
    possibility of another pilot project. The trial judge found that these
    possibilities did not relate to any pilot projects contemplated by INAC.

[11]

Ultimately, an INAC official told the respondent
    in an email that it was up to individual First Nations to identify their own needs
    and submit project proposals to INAC for funding. The same email referred to a
    partnership between INAC and the Province of Ontario to evaluate and
    pilot-test drinking water technologies and indicated that INAC was in the process
    of developing a list of potential technologies and vendors for that project.
    The email explained that the
final technologies/vendors selected for
    evaluation through pilot-testing would be chosen by the Project Team through a
    tendering process that will consider both technical merit and anticipated
    life-cycle cost (LCC). H2O Pros may be on the list of potential vendors invited
    to bid on this pilot-project.

[12]

At the preliminary hearing, an INAC official
    testified that the pilot project with the Ontario government was only in the
    conceptual planning stages at the relevant time.

B.

Positions of the parties at trial

[13]

Section 121(1)(d) of the
Criminal
    Code
provides:

121(1) Every one commits an offence
    who,

(d) having  influence with the government ,
    directly or indirectly demands, accepts or offers or agrees to accept, for
    themselves or another person, a reward, advantage or benefit of any kind as
    consideration for cooperation, assistance, exercise of influence or an act or
    omission in connection with

(i) [the transaction of business with or
any matter of business relating to the government
]. [Emphasis added]

[14]

The Crown submitted that any matter of business
    relating to the government should be interpreted broadly. It argued that the
    relationship between the government, First Nations and third party suppliers, such
    as H2O, constituted a three-way business relationship. The fact that the
    government provided funding to First Nations through INAC was sufficient to capture
    the respondents approaches to government as any matter of business relating
    to the government, even though INAC
is not involved in the purchase of
    the water treatment systems sold by H2O and
First Nations
    could use
INAC funding
as they saw fit.  The Crown also
    argued that the respondents pursuit of pilot projects on behalf of H2O was a
    matter of business relating to the government because INACs approval was required
    for funding.

[15]

The defence position was that any matter of
    business relating to the government should be read narrowly and should be
    restricted to actual commercial business dealings with the government. The respondent
    submitted that business dealings with entities outside the federal government
    that might receive funding from the government do not fall within the ambit of s.
    121(d) of the
Criminal Code
.

C.

The trial judges decision

[16]

The trial judge considered general principles of
    statutory interpretation. She adopted the views of Cunningham A.C.J.S.C.J., as
    he then was, in
R. v. OBrien
, [2009] O.J. No. 5817 (S.C.), at para. 52, where he said that s.
    121(1)(d) is directed at preventing influence peddling in order to protect the
    publics confidence in the integrity and the appearance of integrity of the government.
    At paras. 48-49, he explained that conduct will only fall within the purview
    of s. 121(1)(d) if it is perceived by the Canadian public as blameworthy and
    that conduct will be perceived as blameworthy where it gives rise to the
    appearance of dishonesty.

[17]

The trial judge also considered
R. v. Hinchey
, [1996] 3 S.C.R. 1128, which
    dealt with payment to government officials or employees by a person who has
    dealings with government, contrary to s. 121(1)(c). At para. 48, LHeureux-Dubé
    J., writing for the majority, interpreted dealings with government in that
    section to be truly concerned with persons who at the time of the commission
    of the offence had
specific or
    ongoing business dealings with the government
 (emphasis
    added).

[18]

The trial judge did not accept the Crowns
    argument that the government, First Nations and H2O were in a three-way business
    relationship. Given the autonomous status of First Nations, she reasoned that
    the mere fact that the government provides funding to an organization does not
    transform persons attempting to do business with those organizations into
    partners with the government.

[19]

She concluded that the respondents assistance
    to H2O was not in connection with the transaction of business with or any
    matter of business relating to the government because there simply was no
    government business:

Mr. Carson used his influence to set up meetings with INAC
    officials in which he tried to persuade INAC to support H2O as a supplier of
    water treatment systems in reserves. However, he was informed by INAC officials
    that they did not operate in that manner and that the First Nations Bands
    should be the point of contact if they wanted to sell their products to those
    communities.

[20]

The trial judge refused to draw any conclusions
    from the Protocol for Decentralized Water:

The Crowns argument that the Protocol for Decentralized Water
    demonstrated that there was funding that came through INAC for the types of
    water treatment systems marketed by H2O was not supported by the evidence of
    those who testified on behalf of INAC.  This document was not put to any
    of them.

It is not possible therefore to consider this Protocol for
    Decentralized Water in isolation without evidence from one of the INAC
    witnesses regarding how funding was provided under the Protocol for
    Decentralized Water; whether it applied to the type of point-of-use water treatment
    systems proposed by H2O and whether or not this Protocol for Decentralized
    Water had been part of the discussions between Mr. Carson and INAC.

D.

Issues

[21]

On appeal, the Crown submits that the trial
    judge erred in her interpretation of any matter of business related to
    government and erred in giving no weight to the Protocol for Decentralized
    Water.

E.

Analysis

(1)

Principles of Statutory Interpretation

[22]

This appeal turns on the interpretation of any
    matter of business relating to the government or
un sujet daffaires
    ayant trait au gouvernement
.

[23]

Business and affaires are elastic terms
    which may be read broadly, for example, as any matter dealt with by government,
    or narrowly, for example, as a commercial transaction to which the government
    is a party.

[24]

The modern approach to statutory interpretation involves
    reading the impugned words of the statute
"in their entire context
    and in their grammatical and ordinary sense harmoniously with the scheme of
    the Act, the object of the Act, and the intention of
    Parliament": see
Rizzo & Rizzo Shoes Ltd. (Re)
, 1998
    CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing Elmer
    Driedger,
Construction of Statutes
, 2d ed. (Toronto:
    Butterworths, 1983), at p. 87.
Interpreting s. 121(1)(d) requires
    an examination of the text of the provision, the context of the language and the
    legislative purpose:
Blue Star Trailer Rentals Inc. v. 407 ETR
    Concession Co.
, 2008 ONCA 561, 91 O.R. (3d) 321, at para. 23
.

[25]

Penal provisions should, where there is
    uncertainty or ambiguity of meaning, be generally construed in favour of,
    rather than against, an accused:
R. v. McLaughlin
, [1980] 2 S.C.R. 331,
    at p. 335;
R. v. McIntosh
, [1995] 1 S.C.R.
    686, at para. 39. Where, however, a broader reading is more consistent with the
    apparent legislative purpose, a provision in the
Criminal Code
may be given a liberal and purposive interpretation: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham:
    LexisNexis, 2014), at para. 15.32-15.33;
R. v. Lightfoot
, [1981] 1 S.C.R. 566, at p. 575;
CanadianOxy Chemicals Ltd.
v
. Canada
    (Attorney General)
, [1999] 1 S.C.R. 743, at paras.
    18-19. The
Interpretation Act
, R.S.C. 1985, c.
    I-21, s. 12, provides:
Every enactment is deemed remedial, and
    shall be given such fair, large and liberal construction and interpretation as
    best ensures the attainment of its objects
.

(2)

Statutory Interpretation of s. 121(d) of the
Criminal
    Code

[26]

Offences related to corruption and government
    first appeared in the
Criminal Code
in 1892. The
offence of trading in influence
was introduced at that
    time:

Criminal
    Code, 1892
, S.C. 1892, c. 29, s. 133(f). Section 133(f) created
    the offence where a person:

by reason of, or under the pretence of
    possessing influence with the Government, demands, exacts or receives from any
    person, any compensation fee or reward, for procuring from the Government the
    payment of any claim, or of any portion thereof, or for procuring or
    furthering the obtaining for himself or any other person, of any grant, lease
    or other benefit from the Government.

[27]

The prohibition against a person of influence receiving any
    compensation for procuring a benefit from government continued in various
    iterations to the present:
An Act to amend the Criminal Code, 1892
, S.C. 1893, c. 32;
Criminal Code
, R.S.C.
    1906, c. 146;

Criminal Code
, R.S.C. 1927, c. 36;
Criminal Code
,
    S.C. 1953-54, c. 51;
An Act to amend the Criminal Code in order to
    implement the United Nations Convention against Corruption
, S.C. 2007, c. 13.

[28]

Bill
    C-48,
An Act to amend the Criminal Code in order to implement the United
    Nations Convention against Corruption
, made technical changes to
Criminal
    Code
and received Royal Assent on May 31, 2007. Canada signed the
    Convention on May 21, 2004 and ratified it on October 2, 2007, following the coming
    into force of Bill C-48. Article 18 of the Convention, entitled trading in
    influence, provides:

Each State Party shall consider adopting such legislative and
    other measures as may be necessary to establish as criminal offences, when
    committed intentionally:

(a) The promise, offering or giving to a public official or
    any other person, directly or indirectly, of an undue advantage in order that
    the public official or the person abuse his or her real or supposed influence
    with a view to obtaining from an administration or public authority of the
    State Party an undue advantage for the original instigator of the act or for
    any other person;

(b) The solicitation or acceptance by a public official or
    any other person, directly or indirectly, of an undue advantage for himself or
    herself or for another person in order that the public official or the person
    abuse his or her real or supposed influence with a view to obtaining from an
    administration or public authority of the State Party an undue advantage.

[29]

Article
    18 does not mandate any particular form of anti-corruption measure. The conduct
    targeted by Article 18 is the paid exercise of influence to obtain an undue
    advantage.

[30]

As highlighted by the trial judge, the purpose
    of s. 121
Criminal Code
is to maintain the integrity of the government and the appearance
    of government integrity:
R. v. Giguere
, [1983] 2 S.C.R. 448 at
    para. 30;
Hinchey
, at paras. 13, 16-17. Forbidding people
    who have or pretend to have influence from receiving a benefit for cooperating,
    assisting, exercising influence or acting in connection with any matter of
    business relating to the government promotes merit-based, impartial government
    decision making.

[31]

Confining an interpretation of the phrase any
    matter of business relating to the government to transactions to which
    government is a party would fail to capture the mischief to which s. 121(1)(d)
    is directed. Paid exercise of influence to, for example, obtain preferential
    tax treatment for a manufacturer to the detriment of its competitors, might be
    the kind of decision based on influence rather than merit tending to undermine
    the integrity of government, which the criminal prohibition is designed to
    prevent. The interpretation urged by the respondent would largely limit the
    application of the section to payments akin to kickbacks on government
    contracts, and would not catch conduct highly corrosive of government
    integrity.

[32]

As explained above, the trial judge relied on
Hinchey
, a case that dealt with s.
    121(1)(c), which makes it an offence for a government official to accept payments
    or gifts from a person who has dealings with the government. In interpreting
    the scope of the term dealings, the court recognized at para. 48 that almost
    everyone has dealings with the government, perhaps to apply for
licences
, file tax returns or obtain passports. As well, government
    employees, like all individuals, may receive personal gifts from time to time,
    quite unrelated to their work. In this context, to avoid criminalizing conduct
    beyond the scope targeted by the legislature LHeureux-Dubé J. interpreted s.
    121(1)(c) at para. 48 as truly concerned with persons who at the time of the
    commission of the offence had specific or ongoing
business
    dealings
with the government and that the gift was such
    that it could have an effect on those dealings (emphasis added).

[33]

The same concerns do not arise in the context of
    s. 121(1)(d), which does not target government officials but rather individuals
    who either have or pretend to have influence with the government and who
    promise to attempt to influence government decisions in exchange for a benefit
     monetary or otherwise.

[34]

Section 121(1)(a)(iii) forbids agreements to
    exercise influence in connection with the transaction of business with the government
    or any matter of business relating to the government. If the second phrase is
    to have meaning, it must go beyond the scope of the first phrase, which
    pertains to business transactions to which the government is a direct party.

[35]

Section 121(1)(d) criminalizes the conduct of a
    person having influence who accepts a benefit as consideration for exercise
    of influence. The gravamen of the offence under s. 121(1)(d) is the acceptance
    of a benefit in exchange for a promise to influence government, whether or not
    any transaction results. This is influence peddling.

[36]

In s. 121(1)(c), where the legislative purpose
    is to confine the application of the section to situations where there is a
    direct business relationship with the government, the interdiction bars
    acceptance of a benefit from a person who has dealings with the government or
    une personne qui a des relations daffaires avec le gouvernement, terminology
    narrower than any matter of business relating to the government. It is
    reasonable to conclude that the use of two different expressions signifies an
    intention to define two different interactions with the government.

[37]

Part of the legislative context surrounding s.
    121(1)(d) of the
Criminal Code
is contained in
    the
Lobbying Act
,
    R.S.C. 1985, c. 44 (the Act). There is considerable overlap between the
    conduct targeted by the Act and that targeted by s. 121(1)(d). Read literally, almost
    identical conduct which, on its face, is made criminal by s. 121(1)(d) is
    sanctioned and regulated by the Act. I turn to an examination of the
    legislative scheme embodied in the Act which will inform the contextual
    analysis of s. 121(1)(d).

[38]

The
Lobbyist Registration Act
, R.S.C. 1985, c. 44 (4th Supp.), came into force on September 30,
    1989. It required paid lobbyists to register and provide the government with
    information about themselves and the subject matter of their lobbying. In
    January 1996, the
Lobbyist Registration Act
was amended by expanding disclosure requirements for lobbyists, making more
    information about lobbyists and lobbying activities available to the public:
    S.C. 1995, c. 12. The amendments also mandated the development of a code of
    conduct for lobbying. The first version of the
Lobbyists Code of
    Conduct
came into effect on March 1, 1997.

[39]

The
Lobbyist Registration Act
was
    further amended in 2006 when Bill C-2, the
Federal Accountability
    Act
, S.C. 2006, c. 9, received Royal Assent. Significant
    amendments were made to the legislation. The amendments shifted the regime from
    one governing lobbyists through registration to regulating lobbying, and the
    statute was renamed the
Lobbying Act
to
    reflect its broader scope. The lobbying provisions came into force on July 2,
    2008.

[40]

The preamble to the
Lobbying Act
provides:

WHEREAS free and open access to government is
    an important matter of public interest;

AND WHEREAS lobbying public office holders is
    a legitimate activity;

AND WHEREAS it is desirable that public office
    holders and the public be able to know who is engaged in lobbying activities;

AND WHEREAS a system for the registration of
    paid lobbyists should not impede free and open access to government.

[41]

Section 5(1) of the
Lobbying Act

requires any individual who, for payment, on behalf of any
    person or organization undertakes to:

(a)

communicate with a public office holder in respect of

(i) the development of any legislative
    proposal by the Government of Canada or by a member of the Senate or the House
    of Commons,

(ii) the introduction of any Bill or
    resolution in either House of Parliament or the passage, defeat or amendment of
    any Bill or resolution that is before either House of Parliament,

(iii) the making or amendment of any
    regulation as defined in subsection 2(1) of the Statutory Instruments Act,

(iv) the development or amendment of any
    policy or program of the Government of Canada,

(v) the awarding of any grant, contribution
    or other financial benefit by or on behalf of Her Majesty in right of Canada,
    or

(vi) the awarding of any contract by or on
    behalf of Her Majesty in right of Canada; or

(b) arrange a meeting between a public office
    holder and any other person.

to file a monthly return identifying,
    among other things:

·

The name and business address of the individual;

·

His or her client;

·

Any government funding provided to the client;

·

The subject matter of the communication or
    meeting;

·

Particulars to identify the relevant legislative
    proposal, Bill, resolution, regulation, policy, program, grant, contribution,
    financial benefit or contract; and

·

The name of any government official or employee
    with whom the individual communicates, and the means of communication,
    including pressure applied through grass-roots communication.

[42]

Public office holder includes any officer or
    employee of the government, as well as a member of the Senate or House of
    Commons and any person on the staff of such a member:
Lobbying Act
, s. 2(1). In s. 2(1) organization is defined to include
    traditional business organizations as well as trade unions and charitable
    organizations.

[43]

Relating these provisions to the facts of this
    case, the foregoing description of the legislative regime governing lobbying illustrates
    that an individual paid to lobby on behalf of a business may communicate with
    cabinet ministers and government officials about the development of any policy
    or program, the award of any grant, contribution of financial benefit, or the
    award of any contract by or on behalf of the government, or may simply arrange
    a meeting between a public office holder and any other person, and be caught by
    the reporting requirements of the Act. If that same person were a person of
    influence or a person who pretended to have influence, he or she might also be
    caught by s. 121(1)(d) of the
Criminal Code
by his or her
    agreement to undertake this task.

[44]

The purposes of the regime established by the
Lobbying Act
include recognition of the
    value of communication with government. Governments cannot be expected to know
    everything about everyone; information about constituency needs and the impact
    of government measures promotes better decision making by government. The
    complexity of some issues means that expertise or paid lobbyists may be
    required. Transparency of communications by lobbyists with government promotes
    decisions based on merit. Public availability of information and returns filed
    by lobbyists levels the playing field between groups attempting to influence
    the government and competitors vying for government attention and resources: C.
    Holman & W. Lunenburg, Lobbying and transparency: A comparative analysis
    of regulatory reform (2012), 1 Int Groups Adv 75, at pp. 77, 79.

[45]

A violation of the
Lobbying
    Act
, which is an offence under s. 14 of the Act,
    is not completely co-extensive with a violation of s. 121(1)(d) of the
Criminal Code
.

[46]

There are differences between the regulatory
    regime established by the
Lobbying Act
and the
Criminal Code
prohibition. The first is
    directed at regulation of professional lobbyists. The second is aimed at
    criminal influence peddling. The Acts reporting requirements apply to persons
    paid to communicate with government.  Section 121(1)(d) applies to persons
    having or pretending to have influence with government. A report must be filed
    under the Act when an individual undertakes to communicate with or arrange a
    meeting with a public office holder in respect of enumerated issues for payment.
    The prohibition in s. 121(1)(d) forbids acceptance of a benefit in exchange for
    cooperation, assistance, exercise of influence or an act or omission in connection
    with a matter of business relating to the government. Both provisions are
    triggered by the antecedent agreement  the undertaking to communicate in the
    case of the
Lobbying Act
and the acceptance of
    a benefit in exchange for the exercise of influence or assistance in s.
    121(1)(d).

[47]

In light of the purposes of s. 121, the context
    and the above textual analysis, the trial judge erred in confining any matter
    of business related to government to actual transactions to which the
    government is a party. This led her to err in concluding that the government
    had to be a party to the decision to purchase a water treatment system for s.
    121(1)(d) to apply.

F.

Application

[48]

I turn then to a consideration of Mr. Carsons
    undisputed conduct and whether his acceptance of the benefit was for a promise
    on his part to exert influence in connection with any matter of business
    relating to the government. The critical question here is, what did Mr. Carson
    promise in exchange for the benefit?

[49]

Mr. Carson attempted to secure a business
    advantage for H2O without the transparency that would have been afforded by
    compliance with the
Lobbying Act.
[1]
The
    trial judge found at para. 22 that the respondent told H2O that he could help
    them by making some important calls in order to connect them with the right
    people to push through their water treatment products to First Nation Bands. Mr.
    Carson had a lawyer prepare a contract in his girlfriends name, which entitled
    her to a commission on sales of H2Os water treatment systems to First Nations,
    and it was understood that in exchange, he would attempt to influence
    government decisions. The undisputed evidence was that Mr. Carson advocated on
    behalf of H2O as a supplier.

[50]

In this case, the government did not make any
    particular decision about whether to purchase H2Os water treatment systems,
    however, the essence of the offence is acceptance of a benefit for exercise of
    influence. Section 121(1) provides that it matters not whether or not, in
    fact, the official is able to cooperate, render assistance, exercise influence
    or do or omit to do what is proposed. Accepting a benefit in exchange for
    exercising influence on government officials in order to push through their
    water treatment products to First Nation Bands is a matter of business
    relating to the government.

[51]

It is not necessary to deal with the appellants
    argument that the trial judge erred in her treatment of the Protocol for
    Decentralized Water, but I observe briefly that I see no error in her
    conclusion that she could not attach any weight to that document.

[52]

As Mr. Carson did not comply with the
Act
,
it is unnecessary to consider the effect of compliance with the Act
    on the scope of criminality defined by s. 121(1)(d) of the
Criminal
    Code
, for both provisions embrace this conduct. If the
    purpose of the s. 121(1)(d) prohibition is to bar the non-transparent exercise
    of influence, it may be that the two regimes can work harmoniously together. It
    may be in some cases that the transparency afforded by compliance with the
    reporting requirements of the
Lobbying Act
will mitigate the evils to which s. 121(1)(d) is directed. As indicated by
    Jackson J.A. in
Platana (Litigation guardian of) v. Saskatoon (City)
, 2006 SKCA 10, [2006] S.J. No. 44, at para. 89: One cannot
    determine if legislation is in conflict in the abstract. Legislative conflict
    is determined when the application of the legislation to a particular fact
    situation will result in two different results.

G.

Disposition

[53]

Mr. Carsons conduct fell within the scope of
    the conduct captured by s. 121(1)(d) of the
Criminal Code
. Accordingly, I would allow the appeal, set aside the acquittal,
    enter a verdict of guilty, and remit the matter to the trial judge for
    sentencing.

G. Pardu J.A.

I agree B.W. Miller
    J.A.

Simmons J.A. (dissenting):

A.

Introduction

[54]

I
    have had the benefit of reading the reasons of my colleague, Pardu J.A. As she
    has explained, the Crown appeals from the respondents acquittal on a charge of
    influence peddling contrary to s. 121(1)(d) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[55]

Among
    other things, s. 121(1)(d) prohibits a person having or pretending to have
    influence with the government from accepting, for themselves or another
    person, a  benefit of any kind as consideration for cooperation, assistance,
    exercise of influence  in connection with [the transaction of business with or
    any matter of business relating to the government].

[56]

At
    trial, the respondent admitted that he was a person with influence with the
    Government of Canada at the relevant time. He also admitted that he demanded a
    benefit for his then girlfriend from a company with whom she was associated as
    consideration for using his government contacts on behalf of the company. The
    respondent denied that his assistance was in connection with a matter of
    business relating to the government. Rather, he asserted that it was to obtain
    information about a matter of business relating to First Nation bands.

[57]

After
    reviewing the evidence, the trial judge concluded that there simply was no
    government business involved. Accordingly, she acquitted the respondent.

[58]

The
    Crown argues that the trial judge erred in law by misinterpreting s. 121(1)(d);
    by misinterpreting the
actus reus
of the offence; and by failing to
    give proper legal effect to a government protocol that was admitted at trial.

[59]

My
    colleague would accept the Crowns submission that the trial judge
    misinterpreted s. 121(1)(d) and would therefore allow the appeal.

[60]

I
    do not agree that the trial judge misinterpreted s. 121(1)(d) or that she made
    any other error of law. In my view, she found, simply, that the Crown had
    failed to prove that the respondents conduct fell within the purview of the
    section.

[61]

I
    would therefore dismiss the Crowns appeal. To explain my reasons, I will set
    out my own summary of the facts and the trial judges decision before turning
    to my analysis.

B.

Background

[62]

The
    respondent worked as a senior advisor in the Prime Ministers Office between
    2006 and 2008, and briefly in 2009.

[63]

After
    leaving the Prime Ministers office, in February 2010, the respondent met and
    began a romantic relationship with Michele McPherson.

[64]

Ms.
    McPherson met the principals of H20 Professionals Inc., a company that marketed
    and sold point-of-use water treatment systems and water softener systems, and
    had some brief involvement with that company. Point-of-use water treatment
    systems are typically marketed to private homeowners to purify water for use in
    the home. H20 did not sell water treatment systems that would supply clean
    water to an entire community.

[65]

Subsequently,
    in exchange for a contract that provided commissions to Ms. McPherson on sales
    of water treatment systems to First Nations communities, the respondent agreed
    to help promote H20 products. In doing so, the respondent had various
    interactions with officials from a federal government department then known as
    Indian and Northern Affairs Canada (INAC)
[2]
,
    as well as others, including Ministers and their staff.

[66]

These
    interactions gave rise to the influence peddling charge laid against the
    respondent. In particular, he was charged with being:

a person having or pretending to have influence with the
    Government of Canada, or with a minister or an official of the Government of
    Canada, [who] did directly or indirectly demand, accept, or agree to accept for
    himself or Michele McPherson, a reward, advantage or benefit as consideration
    for cooperation, assistance, exercise of influence, or acts
in connection with a matter of business relating to the
    Government of Canada
, contrary to s. 121(1)(d) of the Criminal Code.
    [Emphasis added]

[67]

Following
    a preliminary inquiry, the Crown and the defence agreed that the evidence from
    that proceeding would be admitted as evidence at trial. The Crown did not call
    any additional witnesses at trial but filed as an exhibit one additional
    document that had not been filed at the preliminary inquiry, INACs
Protocol
    for Decentralized Water and Wastewater Systems in First Nations Communities
,
    dated April 15, 2010 (the Protocol).

[68]

At
    trial, the respondent admitted that he was a person who had influence with the
    Government of Canada at the time of the alleged offence. He also admitted that
    he demanded a benefit for Ms. McPherson from H20 in exchange for using his
    government contacts on H20s behalf.
[3]

[69]

However,
    the respondent denied that his assistance was in connection with any matter of
    business relating to the government for the purposes of s. 121(1)(d). Rather,
    he maintained that his interactions with government officials were in
    connection with a matter of business relating to First Nations bands.

C.

Section 121(1)(d) of the
Criminal Code

[70]

Section
    121(1)(d) of the
Criminal Code
incorporates by reference certain
    portions of s. 121(1)(a). It is therefore necessary to review s. 121(1)(a) to
    understand s. 121(1)(d). The full text of both the English and French versions
    of s. 118 (the definition provision) and s. 121 is set out in Appendix A to
    these reasons. For convenience, the English version of s. 121(1)(a) and (d) is
    reproduced below:

121 (1)
Every one
    commits an offence who

(a) directly or indirectly

(i) gives, offers
    or agrees to give or offer to an official or to any member of his family, or to
    any one for the benefit of an official, or

(ii) being an
    official, demands, accepts or offers or agrees to accept from any person for
    himself or another person,

a loan, reward, advantage or benefit of any kind
    as consideration for cooperation, assistance, exercise of influence or an act
    or omission in connection with

(iii) the
    transaction of business with or any matter of business relating to the
    government
, or

(iv) a claim
    against Her Majesty or any benefit that Her Majesty is authorized or is
    entitled to bestow,

whether or not, in fact, the official is able to
    cooperate, render assistance, exercise influence or do or omit to do what is
    proposed, as the case may be;

(d)
having
or
    pretending to have
influence with the government
or with a minister of the government or an official,
directly
    or indirectly demands, accepts or offers or agrees to accept, for themselves or
    another person, a reward, advantage or benefit of any kind as consideration
for cooperation,
assistance, exercise of influence
or an act or omission
in connection with

(i) anything
    mentioned in subparagraph (a)(iii)
or (iv), or

(ii) the
    appointment of any person, including themselves, to an office [Emphasis added.]

D.

The Trial Judges Reasons

[71]

Given
    the respondents admissions and the manner in which the charge against the
    respondent was framed, the only issue at trial was whether the respondent used
    his influence with the government to obtain a benefit for Ms. McPherson in
    connection with any matter of business relating to the government.

[72]

At
    trial, the Crown argued that there was a three-way business relationship
    between the Crown, First Nations communities and H20. In the Crowns
    submission, the fact that INAC was the agency providing taxpayers money to First
    Nations Bands for their use was sufficient for the respondents actions to be
    captured under s. 121(1)(d) as any matter of business relating to the
    government.

[73]

In
    her reasons, the trial judge reviewed the evidence about INAC funding to First
    Nations communities.

[74]

The
    evidence indicated that INAC provides two streams of funding.

[75]

The
    first stream relates to the operation and maintenance of existing facilities
    and is provided on an annual basis. The funding is formula-driven based on
    various factors, including the size of the community. The First Nations Band or
    community has complete autonomy with respect to how to allocate those funds
    each year.

[76]

The
    second stream of funding is for capital investments such as building new facilities
    or conducting major renovations to existing facilities. First Nations
    communities can submit proposals to INAC for such funding, and INAC allocates
    funds on the basis of priority, need and risk levels.

[77]

The
    evidence indicated that smaller types of water treatment systems, such as the
    type sold by H20, would be purchased by the First Nations bands from the first
    stream of funding or from resources the community raised on its own.

[78]

However,
    there was also some evidence about H20 seeking to participate in a pilot
    project in one or more First Nations communities. The trial judge found this
    evidence to be somewhat unclear. She also noted evidence from an INAC
    official that a pilot project that had been in the conceptual stages around the
    time of the respondents interactions with INAC officials. However, the
    official confirmed that it was ultimately up to First Nations Bands to take
    action in either participating in or advancing the project.

[79]

After
    reviewing the evidence, the positions of the parties, relevant principles of
    statutory interpretation, case law interpreting s. 121, and the purpose of s.
    121, the trial judge embarked on her analysis in a section of her reasons
    entitled Analysis and Conclusion. She found that it was abundantly clear
    that the respondent was attempting to influence government officials to promote
    H2Os water treatment systems. Moreover, he had admitted doing so to obtain a
    benefit for his girlfriend. Nonetheless, the evidence supported a finding that
    it was up to individual First Nations communities to determine whether to
    purchase the systems being sold by H20.

[80]

As
    noted by the trial judge, the testimony of INAC employees indicated that INAC
    did not offer funding to First Nations outside of its first stream of annual
    formula-based funding to purchase the type of product sold by H20.

[81]

The
    trial judge rejected a Crown submission that because INAC was the funding
    agency for, and an advisor to, First Nations, a three-way business relationship
    was created between the government, First Nations and third-party suppliers
    such as H20. In the trial judges view, such a finding would be contrary to
    First Nations right to autonomy.

[82]

Based
    on a common sense reading of s. 121(1)(d), and applying the modern rule of statutory
    interpretation, the trial judge concluded that the respondents conduct did not
    fall within the purview of s. 121(1)(d). While the respondent had tried to
    persuade INAC employees to support H20 as a vendor to First Nations
    communities, the employees instructed him that they did not operate in that
    manner and that the First Nations communities must be his point of contact.

[83]

Accordingly,
    the trial judge found that the respondents actions were not in connection
    with the transaction of business with or any matter of business relating to
    the government -  there simply was no government business.

[84]

The
    trial judge elaborated on these conclusions in the context of the purpose of s.
    121 being to preserve the integrity of the government. She found that the
    government was not in the business of procuring water systems for First Nations
    communities; nor did the government have any authority to approve the systems
    to be purchased. Rather, First Nations communities were autonomous from the
    government in relation to third party vendors such as H20. She said:

In light of my findings that there was no
    business with the government, it follows that the integrity of the government
    was not in issue.
I do agree, however, that it was Parliament's intent
    that s. 121(1)(d)  should be applied so as to preserve the integrity of
    government.
It may also be true that the public
,
    viewing [the respondents] conduct,
would believe that
    there was, at the very least, an appearance that his conduct
as someone
    with influence with the government
compromised the
    government's integrity and gave rise to the appearance of dishonesty
as
    described  in
O'Brien
.

However, the difference between
O'Brien
and
    this case is that
the government's integrity was never in
    issue here
because
regardless of [the
    respondents] attempts to persuade INAC officials to purchase water systems
    from H2O, INAC officials were not in the business of procuring these water
    treatment systems for First Nations communities.

[The respondent] appears to have erroneously believed that the
    government, particularly INAC, was able to assist H2O in selling their water
    treatment products to First Nations communities. He either never understood, or
    chose to ignore the information he received from his contacts at INAC and the [Assembly
    of First Nations]  that they were the wrong entities to engage.
Had I found that INAC had the authority to either approve or
    purchase H2O's water treatment systems, beyond the provision of funding to
    First Nations, [the respondents] conduct would have been blameworthy
and I would have found him guilty of the charge of committing a fraud on the
    government pursuant to s. 121(1)(d).

However,
one cannot engage in "the
    transaction of business with or any matter of business relating to the
    government" nor damage the integrity of the government when the government
    is not the entity with which business must be conducted in order to achieve the
    benefit sought. In this case, the evidence supports only one conclusion and
    that is that First Nations communities were autonomous from the government with
    respect to any business transactions with H2O
. [Emphasis added.]

[85]

The
    trial judge also rejected the Crowns argument that the Protocol demonstrated
    that there was funding that came through INAC for the types of systems marketed
    by H20. She found the argument was not supported by the evidence of those who
    testified on behalf of INAC. This document was not put to any of them. In the
    trial judges view, it was not possible to afford weight to the Protocol in the
    absence of evidence from an INAC witness concerning how the Protocol operated,
    whether it applied to H20-type water treatment systems and whether it had been
    part of the discussions between the respondent and INAC.

E.

Issues & Analysis

[86]

Under
    s. 676(1) of the
Criminal Code
, the Attorney General may appeal
    against an acquittal on any ground of appeal that involves a
question of law alone
 (emphasis added). Thus, the Crown
    is precluded from challenging findings of fact, or findings of mixed fact and
    law, on this appeal.

[87]

The
    Crown argues that the trial judge erred in law in three respects:

·

she adopted an overly narrow interpretation of s. 121(1)(a)(iii),
    as incorporated in s. 121(1)(d);

·

she misinterpreted the
actus reus
of the offence; and

·

she failed to give proper legal effect to the Protocol.

[88]

The
    Crown contends that but for the trial judges legal errors, there would have
    been a finding of guilt in this case. It is the Crowns position that the
    matter of business relating to the government to which the respondents
    conduct related is government funding of, and funding decisions concerning,
    decentralized water systems in First Nations communities.

[89]

I
    will address each of the alleged errors relied on by the Crown in turn.

(1)

Alleged Error #1: Misinterpretation of s. 121

[90]

The
    Crown submits that the trial judge made several errors in interpreting s.
    121(1)(a)(iii), as incorporated in s. 121(1)(d).

[91]

First,
    the Crown says that the trial judge erred in focusing on the phrase
    transaction of business with  the government, and ignored the intentionally
    broad language of the phrase any matter of business relating to the
    government.

[92]

Second,
    the Crown argues that the trial judge relied improperly on narrow judicial
    interpretations of other offences created by s. 121 to justify a narrow
    interpretation of s. 121(1)(a)(iii).

[93]

Third,
    the Crown submits that the trial judge failed to apply the modern approach to
    statutory interpretation by ignoring the broad and specific words used by
    Parliament and reading down the grammatical and ordinary meaning of any matter
    of business relating to the government to mean actual commercial dealings
    with the government.

[94]

Fourth,
    the Crown maintains that trial judge ignored the concluding language in s. 121(1)(a),
    which makes an officials ability to cooperate, render assistance, exercise
    influence or do or omit to do what is proposed, as the case may be irrelevant
    to the offence.

[95]

Fifth,
    the Crown submits that the trial judges decision ignores the purpose of the
    section in that it fails to capture blameworthy conduct that Parliament
    intended to be captured.

[96]

I
    would not accept these arguments.

[97]

Contrary
    to the Crowns submission, in my opinion, the trial judge did not ignore the
    broad language of the phrase or any matter of business relating to the
    government; nor did she focus on the phrase the transaction of business with
     the government. Rather, on the evidence before her, the trial judge found
    that [the respondents] actions were not in connection with the transaction
    of business with or any matter of business relating to the government. Read
    fairly and in context, her statement there simply was no government business
    can only be seen as referring to both elements of s. 121(1)(a)(iii).

[98]

Further,
    in my view, the trial judge did not rely on narrow judicial interpretations of
    other provisions in the scheme of offences created by s. 121 to justify a
    narrow interpretation of s. 121(1)(a)(iii). Before turning to the Analysis and
    Conclusion section of her reasons, she quite properly reviewed what little
    case law there is dealing with the interpretation of s. 121 of the
Criminal
    Code
. While she recognized that none of the cases were directly on point,
    she used them to help inform her understanding of the purpose of s. 121, as discussed
    below.

[99]

Similarly,
    I do not agree that the trial judge read down the grammatical and ordinary
    meaning of any matter of business relating to the government to mean actual
commercial
dealings
with
the government (emphasis added).

[100]

The trial judge
    uses the word commercial twice in her reasons. At para. 58, she notes the
    defences argument that the phrase in s. 121(1)(d) transaction of business
    with or any matter of business relating to the government must be restricted
    to actual commercial business dealings with the government. She also uses the
    word commercial at paragraph 74, in quoting from
R. v.

Hinchey
, [1996]
    3 S.C.R. 1128. There is no mention of the word commercial elsewhere in her
    reasons, including in her Analysis and Conclusion section.

[101]

On my reading of
    her reasons, the trial judge found that there was no matter of business
    relating to the government in this case because INAC did not have the authority
    to either approve or purchase H20s water treatment systems. Had INAC had the
    authority to approve a transaction, the trial judge would have found that there
    was a matter of business relating to the government, even though INAC was not
    a party to the transaction. The trial judge did not read s. 121(1)(d) to
    require that the government be a party to any transaction, actual or proposed.
    I therefore reject the Crowns submission that the trial judge read down the
    section in the manner alleged.

[102]

Nor, in my view, did the trial judge err in ignoring the
    closing phrase of s. 121(1)(a). That section makes it an offence to bribe
    officials or their families and the closing phrase stipulates that it is not a
    defence that the official is unable to cooperate, render assistance, exercise
    influence or do or omit to do what is proposed.

[103]

However, no such closing phrase is included in s.
    121(1)(d). Moreover, I see no basis on which to hold that the fact that s.
    121(1)(d) incorporates sub-paragraphs 121(1)(a)(iii) and (iv) by reference also
    serves to incorporate by reference the closing phrase of s. 121(1)(a).

[104]

As I read s. 121(1)(a), the closing phrase is not an integral
    part of sub-paragraphs (iii) and (iv); rather, sub-paragraphs (iii) and (iv)
    stand alone. Section 121(1)(d)(i) refers specifically to subparagraphs (a)(iii)
    and (iv); it makes no mention of the closing phrase of s. 121(1)(a), or the
    remainder of that subsection.

[105]

Further, if the closing phrase of s. 121(1)(a) were to be
    incorporated into s. 121(1)(d), it would have to be modified to fit the
    different context. While s. 121(1)(a) deals with bribes to officials and their
    families, s. 121(1)(d) deals with influencing officials or ministers. Thus, if
    the closing phrase were to apply in the context of s. 121(1)(d), it would have
    to read  whether or not, in fact, the official
or Minister
is able to cooperate.

[106]

I would also reject the Crowns submission that the trial
    judges decision ignores the purpose of s. 121(1)(d) in that it fails to
    capture blameworthy conduct that Parliament intended to be captured. The
    trial judge acknowledged that the purpose of s. 121 is to preserve the
    integrity and appearance of integrity of the government. However, on the facts
    of this case, she found that the governments integrity was never in issue.
    This was because INAC officials were not in the business of procuring water
    treatment systems for First Nations communities; nor did they have authority to
    approve them.

[107]

As for the Crowns reliance on an isolated passage from
    the Supreme Courts decision in
R. v.

Giguère
, [1983] 2
    S.C.R. 448, I would simply note that the issue in
Giguère
was not the proper
    interpretation of the phrase the transaction of business with or any matter of
    business relating to the government. The passage on which the Crown relies
    does not address that question.

[108]

Before concluding on this issue, I note that my colleague
    contends that the gravamen of the offence under s. 121(1)(d) is the acceptance
    of a benefit in exchange for a promise to influence government or assistance,
    whether or not any transaction results. I do not agree with this
    characterization. Among other things, it ignores the essential requirement that
    cooperation, assistance, exercise of influence or an act or omission must be
    in connection with the transaction of
business with
or
any matter of business relating to the government

    (emphasis added). A promise to influence the government can only meet that
    criterion if the promise is in connection with the transaction of
business with
or
any matter of
    business relating to the government.

[109]

In the result, I am not persuaded that the trial judge
    erred in law in interpreting s. 121(1)(a)(iii) as incorporated in 121(1)(d). Absent
    an error of law alone, it is not open to this court to overturn an acquittal. I
    would not give effect to this ground of appeal.

(2)

Alleged Error #2: Misinterpretation of the
Actus Reus
of the
    Offence

[110]

The Crown points to para. 76 of the trial judges reasons,
    where she said:

Subsection 121(1)(a)(ii) of the
Criminal Code
includes
    the same language as s. 121(1)(d), (both make reference to s. 121(1)(a)(iii)).
    The difference between the two sections is that s. 121(1)(a)(ii) applies to
    government officials who commit a fraud against the government whereas
    subsection 121(1) (d) applies to anyone "having or pretending to have
    influence with the government".
On the facts of
    both Cogger and this case, for the accused to be found guilty he must
    have engaged in "the transaction of business with or any matter of
    business relating to the government
". [Emphasis added.]

[111]

The Crown submits that by including the words he must
    have engaged in prior to the final phrase, the trial judge imposed an
    additional conduct requirement where none exists.

[112]

Similar language appears in para. 98, where the trial
    judge states:

However, one cannot engage in "the transaction of business
    with or any matter of business relating to the government" nor damage the
    integrity of the government when the government is not the entity with which
    business must be conducted in order to achieve the benefit sought.

[113]

I see no merit in this argument.

[114]

Reading these paragraphs in the context of the trial
    judges reasons as a whole, in my view, it is clear that the trial judge did
    not create an additional conduct requirement.

[115]

In paragraph 76, the trial judge was discussing the
    differences between the offences in
R. v. Cogger
,

[1997] 2
    S.C.R. 845, and that alleged against the respondent.

[116]

In para. 98, the trial judge was focused on the impact of
    the respondents conduct on the integrity of the government.

[117]

A full reading of the trial judges reasons reveals that
    she was keenly aware that the only issue in the trial was whether the
    respondent was assisting H20 in a matter of business relating to the
    government.

[118]

I would not give effect to this ground of appeal.

(3)

Alleged Error #3:
Failure to Give Legal Effect to the Protocol

[119]

As indicated above, the evidence from the preliminary
    inquiry was incorporated into the trial on consent. However, the Protocol was
    not filed as an exhibit at the preliminary inquiry. Rather, the Crown filed it
    as an exhibit at trial on consent.

[120]

In her reasons, at paras. 4650, the trial judge reviewed
    the evidence relating to the Protocol. Ultimately, however, since it had not
    been put to the INAC witnesses who testified, in the absence of their evidence
    on a document that could have been put to them, the trial judge declined to put
    any weight on it.

[121]

On appeal, the Crown attempts to formulate the trial
    judges assessment of this evidence as some form of legal error. I reject this
    submission. Although the Protocol was before the court on consent, there was no
    agreement on what conclusions could or should be drawn from it.

[122]

The trial judge considered the evidence relating to the
    Protocol and concluded that she could not give it the weight the Crown submitted
    it should have. I fail to see how this gives rise to a question of law alone
    affording the Crown a right of appeal.

[123]

I would not give effect to this ground of appeal.

F.

Disposition

[124]

Based on the foregoing reasons, I would dismiss the
    appeal.

Released: B.M. February 17, 2017

Janet Simmons J.A.

Appendix A

Criminal Code
, R.S.C. 1985, c. C-46

Definitions

118 In this Part,

evidence
or
statement
means
    an assertion of fact, opinion, belief or knowledge, whether material or not and
    whether admissible or not;
    (témoignage, déposition ou déclaration)

government
means

(a) the Government of Canada,

(b) the government of a province, or

(c) Her Majesty in right of Canada or a
    province; (gouvernement)

judicial proceeding
means a
    proceeding

(a) in or under the authority of a court of
    justice,

(b) before the Senate or House of Commons or
    a committee of the Senate or House of Commons, or before a legislative council,
    legislative assembly or house of assembly or a committee thereof that is
    authorized by law to administer an oath,

(c) before a court, judge, justice,
    provincial court judge or coroner,

(d) before an arbitrator or umpire, or a
    person or body of persons authorized by law to make an inquiry and take
    evidence therein under oath, or

(e) before a tribunal by which a legal right
    or legal liability may be established,

whether or not the proceeding is invalid for want of
    jurisdiction or for any other reason; (procédure judiciaire)

office
includes

(a) an office or appointment under the
    government,

(b) a civil or military commission, and

(c) a position or an employment in a public
    department; (charge ou emploi)

official
means a person who

(a) holds an office, or

(b) is appointed or elected to discharge a
    public duty; (fonctionnaire)

witness
means a person who
    gives evidence orally under oath or by affidavit in a judicial proceeding,
    whether or not he is competent to be a witness, and includes a child of tender
    years who gives evidence but does not give it under oath, because, in the
    opinion of the person presiding, the child does not understand the nature of an
    oath. (témoin)

Frauds on the government

121 (1) Every one commits an offence who

(a) directly or indirectly

(i) gives, offers
    or agrees to give or offer to an official or to any member of his family, or to
    any one for the benefit of an official, or

(ii) being an
    official, demands, accepts or offers or agrees to accept from any person for
    himself or another person,

a loan, reward, advantage or benefit of any kind
    as consideration for cooperation, assistance, exercise of influence or an act
    or omission in connection with

(iii) the
    transaction of business with or any matter of business relating to the
    government, or

(iv) a claim
    against Her Majesty or any benefit that Her Majesty is authorized or is
    entitled to bestow,

whether or not, in fact, the official is able to
    cooperate, render assistance, exercise influence or do or omit to do what is
    proposed, as the case may be;

(b) having dealings of any kind with the
    government, directly or indirectly pays a commission or reward to or confers an
    advantage or benefit of any kind on an employee or official of the government
    with which the dealings take place, or to any member of the employees or
    officials family, or to anyone for the benefit of the employee or official,
    with respect to those dealings, unless the person has the consent in writing of
    the head of the branch of government with which the dealings take place;

(c) being an official or employee of the
    government, directly or indirectly demands, accepts or offers or agrees to
    accept from a person who has dealings with the government a commission, reward,
    advantage or benefit of any kind for themselves or another person, unless they
    have the consent in writing of the head of the branch of government that
    employs them or of which they are an official;

(d) having or pretending to have influence
    with the government or with a minister of the government or an official,
    directly or indirectly demands, accepts or offers or agrees to accept, for
    themselves or another person, a reward, advantage or benefit of any kind as
    consideration for cooperation, assistance, exercise of influence or an act or
    omission in connection with

(i) anything
    mentioned in subparagraph (a)(iii) or (iv), or

(ii) the
    appointment of any person, including themselves, to an office;

(e) directly or indirectly gives or offers,
    or agrees to give or offer, to a minister of the government or an official, or
    to anyone for the benefit of a minister or an official, a reward, advantage or
    benefit of any kind as consideration for cooperation, assistance, exercise of
    influence, or an act or omission, by that minister or official, in connection
    with

(i) anything
    mentioned in subparagraph (a)(iii) or (iv), or

(ii) the
    appointment of any person, including themselves, to an office; or

(f) having made a tender to obtain a contract
    with the government,

(i) directly or
    indirectly gives or offers, or agrees to give or offer, to another person who
    has made a tender, to a member of that persons family or to another person for
    the benefit of that person, a reward, advantage or benefit of any kind as
    consideration for the withdrawal of the tender of that person, or

(ii) directly or
    indirectly demands, accepts or offers or agrees to accept from another person
    who has made a tender a reward, advantage or benefit of any kind for themselves
    or another person as consideration for the withdrawal of their own tender.

Contractor subscribing to election fund

(2) Every one commits an offence who, in order
    to obtain or retain a contract with the government, or as a term of any such
    contract, whether express or implied, directly or indirectly subscribes or
    gives, or agrees to subscribe or give, to any person any valuable consideration

(a) for the purpose of promoting the election
    of a candidate or a class or party of candidates to Parliament or the
    legislature of a province; or

(b) with intent to influence or affect in any
    way the result of an election conducted for the purpose of electing persons to
    serve in Parliament or the legislature of a province.

Punishment

(3) Every one who commits an offence under this
    section is guilty of an indictable offence and liable to imprisonment for a
    term not exceeding five years.

Code criminel
, L.R.C. 1985, ch. C-46

Définitions

118 Les définitions qui suivent
    sappliquent à la présente partie.

charge
ou
emploi
Sentend notamment :

a) dune charge ou fonction
    sous lautorité du gouvernement;

b) dune commission civile
    ou militaire;

c) dun poste ou emploi dans
    un ministère public. (office)

fonctionnaire
Personne qui, selon le cas :

a) occupe une charge ou un
    emploi;

b) est nommée ou élue pour
    remplir une fonction publique. (official)

gouvernement
Selon le cas :

a) le gouvernement du
    Canada;

b) le gouvernement dune
    province;

c) Sa Majesté du chef du
    Canada ou dune province. (government)

procédure judiciaire
Procédure :

a) devant un tribunal
    judiciaire ou sous lautorité dun tel tribunal;

b) devant le Sénat ou la
    Chambre des communes ou un de leurs comités, ou devant un conseil législatif,
    une assemblée législative ou une chambre dassemblée ou un comité de lun de
    ces derniers qui est autorisé par la loi à faire prêter serment;

c) devant un tribunal, un
    juge, un juge de paix, un juge de la cour provinciale ou un coroner;

d) devant un arbitre, un
    tiers-arbitre ou une personne ou un groupe de personnes autorisé par la loi à
    tenir une enquête et à y recueillir des témoignages sous serment;

e) devant tout tribunal
    ayant le pouvoir détablir un droit légal ou une obligation légale,

que la procédure soit invalide ou
    non par manque de juridiction ou pour toute autre raison. (judicial proceeding)

témoignage
,
déposition
ou
déclaration
Assertion
    de fait, opinion, croyance ou connaissance, quelle soit essentielle ou non et
    quelle soit admissible ou non. (evidence or statement)

témoin
Personne qui témoigne oralement sous serment ou par affidavit
    dans une procédure judiciaire, quelle soit habile ou non à être témoin, y
    compris un enfant en bas âge qui témoigne sans avoir été assermenté parce que,
    de lavis de la personne qui préside, il ne comprend pas la nature dun
    serment. (
witness
)

Fraudes envers le
    gouvernement

121 (1) Commet une
    infraction quiconque, selon le cas :

a) directement ou
    indirectement :

(i) soit
    donne, offre ou convient de donner ou doffrir à un fonctionnaire ou à un
    membre de sa famille ou à toute personne au profit dun fonctionnaire,

(ii) soit,
    étant fonctionnaire, exige, accepte ou offre ou convient daccepter de
    quelquun, pour lui-même ou pour une autre personne,

un prêt, une récompense, un
    avantage ou un bénéfice de quelque nature que ce soit en considération dune
    collaboration, dune aide, dun exercice dinfluence ou dun acte ou omission
    concernant :

(iii) soit
    la conclusion daffaires avec le gouvernement ou un sujet daffaires ayant
    trait au gouvernement,

(iv) soit
    une réclamation contre Sa Majesté ou un avantage que Sa Majesté a lautorité ou
    le droit daccorder,

que, de fait, le fonctionnaire
    soit en mesure ou non de collaborer, daider, dexercer une influence ou de
    faire ou omettre ce qui est projeté, selon le cas;

b) traitant daffaires avec
    le gouvernement, paye une commission ou une récompense, ou confère un avantage
    ou un bénéfice de quelque nature, directement ou indirectement, à un employé ou
    à un fonctionnaire du gouvernement avec lequel il traite, ou à un membre de sa
    famille ou à toute personne au profit de lemployé ou du fonctionnaire, à
    légard de ces affaires, à moins davoir obtenu le consentement écrit du chef
    de la division de gouvernement avec laquelle il traite;

c) pendant quil est
    fonctionnaire ou employé du gouvernement, exige, accepte ou offre ou convient
    daccepter dune personne qui a des relations daffaires avec le gouvernement
    une commission, une récompense, un avantage ou un bénéfice de quelque nature,
    directement ou indirectement, pour lui-même ou pour une autre personne, à moins
    davoir obtenu le consentement écrit du chef de la division de gouvernement qui
    lemploie ou dont il est fonctionnaire;

d) ayant ou prétendant avoir
    de linfluence auprès du gouvernement ou dun ministre du gouvernement, ou dun
    fonctionnaire, exige, accepte ou offre, ou convient daccepter, directement ou
    indirectement, pour lui-même ou pour une autre personne, une récompense, un
    avantage ou un bénéfice de quelque nature en contrepartie dune collaboration,
    dune aide, dun exercice dinfluence ou dun acte ou dune omission
    concernant :

(i) soit
    une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit
    la nomination dune personne, y compris lui-même, à une charge;

e) donne, offre ou convient
    de donner ou doffrir, directement ou indirectement, à un ministre du
    gouvernement ou à un fonctionnaire ou à quiconque au profit dun ministre ou
    dun fonctionnaire, une récompense, un avantage ou un bénéfice de quelque nature
    en contrepartie dune collaboration, dune aide, dun exercice dinfluence ou
    dun acte ou dune omission du ministre ou du fonctionnaire concernant :

(i) soit
    une chose mentionnée aux sous-alinéas a)(iii) ou (iv),

(ii) soit
    la nomination dune personne, y compris lui-même, à une charge;

f) ayant présenté une
    soumission en vue dobtenir un contrat avec le gouvernement :

(i) soit
    donne, offre ou convient de donner ou doffrir, directement ou indirectement, à
    une autre personne qui a présenté une soumission, à un membre de la famille de
    cette autre personne ou à quiconque au profit de cette autre personne, une
    récompense, un avantage ou un bénéfice de quelque nature en contrepartie du
    retrait de la soumission de cette autre personne,

(ii) soit
    exige, accepte ou offre ou convient daccepter, directement ou indirectement,
    dune autre personne qui a présenté une soumission, une récompense, un avantage
    ou un bénéfice de quelque nature, pour lui-même ou pour une autre personne, en
    contrepartie du retrait de sa propre soumission.

Entrepreneur qui souscrit à
    une caisse électorale

(2) Commet une infraction
    quiconque, afin dobtenir ou de retenir un contrat avec le gouvernement, ou
    comme condition expresse ou tacite dun tel contrat, directement ou
    indirectement souscrit, donne ou convient de souscrire ou de donner à une
    personne une contrepartie valable :

a) soit en vue de favoriser
    lélection dun candidat ou dun groupe ou dune classe de candidats au
    Parlement ou à une législature provinciale;

b) soit avec lintention
    dinfluencer ou daffecter de quelque façon le résultat dune élection tenue
    pour lélection de membres du Parlement ou dune législature provinciale.

Peine

(3) Quiconque commet une
    infraction prévue au présent article est coupable dun acte criminel et
    passible dun emprisonnement maximal de cinq ans.

[1]
As a former staff member of the PMO, Mr. Carson was a designated public office
    holder under the
Lobbying Act
,
    forbidden under s. 10.11(1) of the
Lobbying
    Act
from being engaged as a paid lobbyist for a five year period.
    Section 10.1(1) forbids payment to a lobbyist which is contingent on the
    outcome, as provided in the contract in issue.

[2]

INAC was later succeeded by Aboriginal Affairs and Northern
    Development Canada and is now named Indigenous and Northern Affairs Canada.

[3]

The evidence at trial
confirmed that, under the
    contract(s) the respondent demanded that Ms. McPherson receive a commission on
    sales of H20s water treatment systems to First Nations communities.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Clermont, 2017 ONCA 134

DATE: 20170216

DOCKET: C62746

MacPherson, Juriansz and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ely Clermont

Appellant

Ely Clermont, acting in person

Vincenzo Rondinelli, duty counsel

Luke Schwalm, for the respondent

Heard: February 10, 2017

On appeal from the conviction entered on April 29, 2016
    by Justice Marc A. Garson of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his conviction for impaired driving causing bodily
    harm, contrary to s. 255(2) of the
Criminal Code
, R.S.C. 1985, c.
    C-46.

[2]

With the assistance of duty counsel, the appellant argues that the trial
    judge erred by admitting into evidence for the truth of its contents a prior
    inconsistent statement allegedly made by a defence witness, Ms. Simms.

[3]

We do not give effect to this ground of appeal. The prior inconsistent
    statement made by Ms. Simms was tendered in evidence by the Crown in reply for
    the purpose of challenging Ms. Simms credibility. It was clearly admissible
    for that purpose.

[4]

In his reasons, the trial judge, after determining that it was
    admissible as being relevant to the issue of Ms. Simms credibility, went on to
    find that it could also be used for the truth of its contents. The trial judge
    did this despite the fact that the Crown had never sought to use the statement
    for its truth and neither party at trial had made submissions as to whether it
    could be used in this manner.

[5]

We agree with duty counsel that it was clearly inappropriate for the
    judge to have carried out the analysis as to whether the statement could be
    used for the truth of its contents. That the trial judge did so in this case
    does not, however, constitute reversible error.

[6]

As submitted by the Crown, it is apparent from a review of the trial
    judges reasons that, although he found that he could use the statement for the
    truth of its contents, he did not then, in fact, use or rely on the truth of the
    statement to convict the appellant. The trial judge used the statement only for
    the proper purpose of assessing Ms. Simms credibility and concluding that
    portions of it which were favourable to the defence should be rejected.

[7]

It is after explaining why he rejected this evidence that the trial
    judge carried out the impugned analysis. That analysis is then followed by the
    judges consideration of whether the Crown had met its onus. In this portion of
    his reasons, the trial judge outlined in detail why he concluded, beyond a
    reasonable doubt, that the appellant had committed the offence. The grounds set
    out do not depend or rely on the impugned statement being admitted for its
    truth. As a result, we are satisfied that, when read as a whole, the reasons
    show that the trial judge did not misuse the statement.

[8]

In any event, even if the trial judge had improperly relied on the
    statement for the truth of its contents, we would nonetheless have dismissed
    the appeal. This was an overwhelming Crown case and an appropriate one to apply
    the proviso.

[9]

In conclusion, the appeal is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2017 ONCA 93

DATE: 20170202

DOCKET: C62680

Feldman, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant

Angelina Marie Codina, acting in person

Robert Morin, for the respondent

Heard: January 11, 2017

On appeal from the orders of Justice Susanne R. Goodman
    of the Superior Court of Justice, dated July 6, 2016 and July 21, 2016.

By the Court:

[1]

The appellant is detained awaiting trial on a number of counts under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
)
    in respect of advising on immigration matters as a non-lawyer without
    authorization to do so.
[1]
She was originally charged on May 7, 2014, and released on bail on July 15,
    2014. On September 17, 2015, she was arrested and charged with breaching her
    bail and committing further offences under the
IRPA
. Following a
    revocation hearing, her bail was cancelled on November 8, 2015. She was
    ultimately detained on all charges on December 8, 2015 after a show-cause
    hearing.

[2]

A preliminary hearing was commenced for each of the two sets of charges
    (the May 2014 charges and September 2015 charges). Before receiving a decision
    on the preliminary hearings, the Crown preferred a direct indictment on
    December 11, 2016, with respect to all the charges under the
IRPA
. The
    original charges, including the breach of bail charges, were stayed on January
    5, 2017.

[3]

While detained, the appellant has initiated a number of proceedings
    including three bail reviews, an application to remove Crown counsel from the
    record, an application before Code J. challenging the constitutionality of a
    number of relevant statutory provisions and procedures, three applications for
    prerogative relief, and a two-part
habeas corpus
application. All of
    the proceedings initiated by the appellant have been dismissed. She remains in
    custody pending trial under the new indictment.

[4]

This is the appeal of the denial of
habeas corpus
relief. The application
    judge gave two brief oral decisions for denying the two-part
habeas corpus
application on July 6 and 21, 2016, with written reasons to follow. To date, no
    written reasons have been provided. In these circumstances, the court agreed
    with the appellant that it was not in the interests of justice to delay the hearing
    of the appeal any longer.

Decision Below

[5]

The appellants
habeas corpus
application proceeded in two
    parts. The first part of the appellants argument was that the border service
    officers who arrested her did not have the statutory authority to do so. The application
    judge held that the officers had the requisite authority and in a brief oral
    statement, she dismissed the application on that ground on July 6, 2016.

[6]

The second part of the application was a challenge to the detention
    order of the Justice of the Peace dated December 8, 2015, on various
    jurisdictional and constitutional grounds. At the second hearing, the appellant
    raised two further issues  the failure to hold a 90-day bail review and an
    argument under s. 11(b) of the
Canadian Charter of Rights and Freedoms
.
    The application judge noted that the appellants argument on delay was that the
    amount of time she would spend in pre-trial custody would be close to, or could
    exceed, any sentence she would receive if convicted.

[7]

On July 21, 2016, the application judge gave brief oral reasons
    dismissing the balance of the grounds and stating that the written reasons for
    her dispositions on all grounds that could form part of a
habeas corpus
application would be provided later that week. The application judge then
    stated that there were other issues raised that did not properly form part of a
habeas corpus
application.

[8]

The application judge also noted that the appellant, being incarcerated
    and self-represented, did not fully comply with required procedures in raising
Charter
issues, but that all issues were argued in any event. The application judge was
    also aware that the appellant had had one bail review before Himel J. but the
    reasons for dismissal were not provided. In her oral endorsement the application
    judge stated that many of the grounds being raised were essentially
    re-arguments of positions taken on the detention application and that would be
    the subject of a bail review.

[9]

Although the appellant raised the issue that the duration of her
    pre-trial custody could well exceed her ultimate sentence if convicted, the application
    judge did not address that issue in her oral reasons.

Issues on this Appeal

[10]

The appellant was asked to address four issues at the appeal hearing:

1.

The validity of
    the preferred indictment;

2.

The impact of
    the stay on the continued validity of her detention;

3.

The statutory
    authority for the border officers to arrest her; and

4.

The duration of
    her pre-trial custody compared to her ultimate sentence if convicted.

[11]

The first two issues were not raised before the application judge as
    they arise from the direct indictment that was filed last month, but were
    raised by the appellant in her appeal materials. We are satisfied that it is
    appropriate for this court to deal with these new issues as the record is
    sufficient to do so. The third and fourth issues were raised before the application
    judge.

[12]

In her factum, the appellant raised two further arguments. In light of
    the short notice for scheduling this appeal, the appellant was not permitted to
    argue these issues at the hearing, with the possibility that she would return
    to argue them later. Her first additional issue relates to the constitutionality
    of a number of relevant statutory provisions and procedures. This issue was
    also raised before the application judge. The second issue is an attack on the
    evidentiary basis for her arrest and detention. It is unclear whether this
    issue was raised before the application judge.

Analysis

(1)

Preferring of Direct Indictment

[13]

The appellant submits that the direct indictment is a nullity because it
    was preferred with the consent of the Deputy Attorney General, when it is
    required that it be preferred by the Attorney General or Deputy Attorney
    General, relying on this courts decision in
R. v. Dwyer
(1978), 42
    C.C.C. (2d) 83 (Ont. C.A.), revd on other grounds [1980] 1 S.C.R. 481.

[14]

There is no merit in this submission because of an amendment to the
Criminal
    Code
since the
Dwyer
decision. In
Dwyer
, the direct
    indictment was preferred under s. 507 of the
Criminal

Code
, but only with the consent of the Attorney General
    of Ontario, not directly by him
. Subsection (3) provided:

507(3)
Notwithstanding anything in this
    section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the
    accused has been discharged,

an indictment under subsection (1) shall not be
    preferred except with the written consent of a judge of the court, or by the
    Attorney General.

[15]

The court held that if the Attorney General does not personally sign the
    indictment, he must in a signed written direction clearly direct that the
    indictment be preferred or state that he prefers the indictment. To merely
    consent to the direct indictment being preferred would constitute an improper
    delegation of authority (pp. 100-101).

[16]

However, the direct indictment in this case was filed under the current s.
    577 of the
Criminal Code
which is differently worded and provides:

577

Despite
    section 574, an indictment may be preferred even if the accused has not been
    given the opportunity to request a preliminary inquiry, a preliminary inquiry
    has been commenced but not concluded or a preliminary inquiry has been held and
    the accused has been discharged, if

(a)
in the
    case of a prosecution conducted by the Attorney General or one in which the
    Attorney General intervenes, the personal consent in writing of the Attorney
    General or Deputy Attorney General is filed in court; or

(b)
in any
    other case, a judge of the court so orders.

[17]

This section now allows an indictment to be preferred with the consent
    in writing of the Deputy Attorney General. As a result, there is no
Dwyer
defect in the preferred indictment.

(2)

Continued Validity of Detention Order

[18]

Second, the appellant argues that because the previous informations were
    stayed as of January 5, 2017, the previous detention order is also stayed or no
    longer exists. We reject this submission.

[19]

Under s. 523(1.2), the previous detention order continues to apply in
    respect of the new indictment. That section provides:

523

(1.2)
When an accused, in respect of an offence with which
    the accused is charged, has not been taken into custody or is being detained or
    has been released from custody under or by virtue of any provision of this Part
    and after the order for interim release or detention has been made, or the
    appearance notice, promise to appear, summons, undertaking or recognizance has
    been issued, given or entered into, and an indictment is preferred under
    section 577 charging the same offence or an included offence, the order for
    interim release or detention of the accused and the appearance notice, promise
    to appear, summons, undertaking or recognizance, if any, applies in respect of
    the indictment.

[20]

The purpose and effect of s. 523(1.2) are to continue the previous detention
    order and make it apply to the new indictment. Any stay of the original charges
    therefore, has no effect on the ongoing status of the original detention order.

[21]

In conclusion, there is no basis to grant
habeas corpus
relief
    based on the two new issues raised by the appellant arising out of the direct indictment.

(3)

Remaining Grounds

[22]

This court does not have reasons from the application judge on the legal
    issues raised. Nor did the Crown assist the court by providing copies of the
    reasons of the other judicial officers who have addressed this matter, some of
    which were referred to by the application judge in her oral reasons. As a
    result, the court would in effect be deciding the remaining issues as a court
    of first instance without a proper record.

[23]

Further, it appears that there is considerable overlap
    between the constitutional issues the appellant raised on her
habeas corpus
application and those raised on the application before Code J., which was
    brought following the dismissal of the
habeas corpus
application. Justice
    Code declined to deal with most of the issues on their merits. Relying on the
    decision of this court in
R. v. Duvivier
, 64 C.C.C. (3d) 20 (Ont.
    C.A.), at pp. 23-25, he held that challenges to the jurisdiction of the court
    and the constitutionality of the underlying provisions should be determined at
    trial, on a full record. In
Duvivier
,
this court stated that:

Mr. Justice Farley also had original jurisdiction as a judge of
    the superior court to consider the application for declaratory relief brought
    under s. 24(1) of the Charter. The jurisdiction to grant that relief, either
    by way of prerogative writ or under s. 24(1) of the Charter, is
    discretionary. It is now firmly established that a court should not routinely
    exercise that jurisdiction where the application is brought in the course of
    ongoing criminal proceedings. In such cases, it is incumbent upon the applicant
    to establish that the circumstances are such that the interests of justice
    necessitate the immediate granting of the prerogative or Charter

remedy
    by the superior court.

These cases dictate that issues, including those with a
    constitutional dimension, which arise in the context of a criminal prosecution
    should routinely be raised and resolved within the confines of the established
    criminal process which provides for a preliminary inquiry (in some cases), a
    trial, and a full appeal on the record after that trial.

Those same cases identify the policy concerns which underline
    the predilection against resort to the superior court for relief during
    criminal proceedings. Such applications can result in delay, the fragmentation
    of the criminal process, the determination of issues based on an inadequate
    record, and the expenditure of judicial time and effort on issues which may not
    have arisen had the process been left to run its normal course. The effective
    and efficient operation of our criminal justice system is not served by
    interlocutory challenges to rulings made during the process or by applications
    for rulings concerning issues which it is anticipated will arise at some point
    in the process. A similar policy is evident in those cases which hold that
    interlocutory appeals are not available in criminal matters.

I stress, however, that this limitation on resort
    to Charter or extraordinary remedy relief during criminal proceedings
    has been judicially imposed and cannot be taken as the equivalent of an
    absolute privative clause barring all such applications. Where the
    circumstances are such that the interests of justice require immediate
    intervention by the superior court, that jurisdiction can and will be
    exercised.
R. v. Rahey supra
, provides
    a good example of a situation in which such intervention was warranted. [Citations
    omitted.]

[24]

However, in the last paragraph quoted from
Duvivier
, the court
    emphasized that where circumstances require the Superior Court to intervene in
    the interests of justice, the court may exercise that power on a
habeas
    corpus
application. As the Supreme Court recently stated,
h
abeas
    corpus
is a crucial remedy for those whose residual liberty has been
    taken from them by the state and should rarely be subject to restrictions:
Mission
    Institution v. Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 54.

[25]

In oral argument, the appellant acknowledged that although she may argue
    at her trial the issues she is raising that challenge the legality of a number
    of provisions of the
IRPA
and
Criminal Code
that underlie the
    charges or procedures employed, she is raising them here because she remains
    incarcerated pending trial.

[26]

The appellant also again raises the issue regarding the duration of her
    pre-trial custody in relation to the potential sentence she could receive if
    convicted. She has now spent 18 months in pre-trial custody. Over sixteen
    months have passed since her re-arrest on charges that she breached her bail, and
    while the new charges she allegedly committed while on bail are proceeding, the
    charges that she failed to comply with her bail have been stayed.

[27]

The maximum sentence for five of the counts is two years and five years
    for the sixth count. The appellant relies on case law that shows that the range
    of sentences for immigration offences is much lower than two years, and that
    there is a strong argument that she will have spent a longer period
    incarcerated in pre-trial custody than she would if she were convicted and sentenced
    for her alleged conduct. See
R. v. Dhalla
(2007), 63 Imm. L.R. (3d) 49
    (Ont. S.C.) and
R. v. Ren
, 2015 ONSC 3397, 35 Imm. L.R. (4th) 327.

[28]

At this point the appellant has been in custody for a further six months
    since the application judges dismissal of her
habeas corpus
application. She has had two further bail reviews. The court was not provided
    with the reasons on any of the three bail reviews. However, the court was able
    to obtain a copy of the oral reasons of the third one of December 29, 2016. While
    the appellant raised the issue of the duration of her pre-trial custody
    compared to her potential sentence on conviction as one of a number of grounds,
    it was not specifically addressed in the reasons.

[29]

In our view, this is now a serious liberty issue, which is why this
    court expedited the hearing of the appeal. However, it is an issue that is best
    addressed in the context of a bail review. Although the appellant has argued
    the issue before, it does not appear to have been fully considered. As well,
    more time has passed and the breach of bail charges have now been stayed. These
    are new factors that may well affect the considerations of a judge when determining
    the issues on a bail review.

Disposition

[30]

In our view, in all these circumstances, the appropriate order is to set
    aside the decision of the application judge for failure to give adequate reasons
    and order a new bail review hearing to be held forthwith. These reasons are to
    be provided by the Crown to the judge conducting the bail review.

[31]

A new
habeas corpus
hearing is adjourned pending the outcome of
    the bail review.
[2]

Released: February 2, 2017 (K.F.)

K.
    Feldman J.A.

Paul Rouleau J.A.

K. van
    Rensburg J.A.

[1]

The following facts are
based on those provided by the
    parties to this appeal.

[2]

See
R. v. Jones
(1996), 32 O.R. (3d) 365 (C.A.), where this court upheld a decision
    by a motion judge to adjourn a
habeas
    corpus

application and order a new bail hearing
    following a direct indictment.