Supreme Court of Canada
R. v. Giguere, [1983] 2 S.C.R. 448
Date: 1983-11-24
Her Majesty The Queen (Plaintiff) Appellant;
and
Louis de Gonzague Giguère, David Belhumeur, Jean P. Dionne, Canadian Advertising Agency Limited and Publicor Ltd. (Defendants) Respondents.
File No.: 16706.
1983: April 28; 1983: November 24.
Present: Dickson, McIntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Corruption—Fraud upon the government—Conspiracy—Elements of offence—Form of the indictment—Agreement to receive benefit as consideration for cooperation, assistance and exercise of influence not proven—Criminal Code, R.S.C 1970, c. C‑34, s. 110(1)(a), (d).
In 1965, respondents Giguère, Belhumeur, Dionne and another person bought the shares of Publicor Inc. which held all the outstanding shares of Canadian Advertising Agency Ltd. Although the advertising agency’s financial position was poor at the time, it improved considerably shortly after the takeover. A major part of this improvement resulted from contracts with the federal government. The Agency made use of Giguère’s political contacts in the federal government. Giguère also continued to arrange meetings between government officials and the Agency’s representatives after the sale of his shares to his partners in 1967. Respondents were later indicted on three counts of conspiracy to offer or accept a “benefit as consideration for cooperation, assistance and the exercise of influence” on the government; the indictments are related to the awarding of advertising contracts to the Agency. Respondents were acquitted at trial and the Crown’s appeal was dismissed.
Held (Wilson J. dissenting): The appeal should be dismissed.
Per Dickson and Chouinard JJ.: The trial judge erred in assuming that there was in law no “benefit” unless Giguère had been given more than fair market value for his shares. The entire purchase price constituted a benefit within the meaning of s. 110(1)(a) and (d) of the
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Code. To be illegal however the benefit must be in consideration for cooperation, assistance or exercise of influence. It is in this context that the matter of fair market value becomes relevant. If a person is given fair market value or more for his shares, it is pertinent to investigate to determine what is being paid for. If the payment is for a past or future intervention by a person of the nature proscribed by s. 110, an illegal benefit has been conferred. Here, the worth of the Agency’s shares increased because of contracts with the government. If those contracts could be attributed to Giguère’s influence, the payment for Giguère’s shares could amount to payment for that influence. The trial judge did not make the necessary findings and inferences of fact to make such a determination because he wrongly thought fair market value to be the only issue.
The trial judge also erred in his treatment of fair market value. In determining whether Giguère’s shares were purchased at fair market value, it was the sum effectively received by Giguère, and not the cost to the donor, that the trial judge had to take into account.
The trial judge was also wrong in concluding that Giguère’s opening doors or arranging meetings did not constitute cooperation or assistance under s. 110. Opening doors or arranging meetings does not by itself constitute “exercise of influence”. However, if someone opens doors and arranges meetings as a first step in an effort by another to secure a government contract, that is indeed assistance or cooperation in connection with the transaction of business with government within s. 110(1) (a) and (d).
Finally, although the indictment read for “cooperation, assistance and exercise of influence”, the Crown did not need to prove all three elements. An accused is liable for conviction on any part of the indictment that constitutes an offence. Therefore, a conviction should follow if the Crown proved a conspiracy to pay Giguère a benefit in consideration for cooperation or assistance but not for the exercise of influence. In the case at bar, the trial judge found no proof of any agreement that Giguère cooperated, assisted or exercised influence. Such an agreement was an essential ingredient of the offences as charged. Consequently, despite the trial judge’s errors of law concerning the constituent elements of an offence under s. 110(1) of the Criminal Code, the respondents were entitled to have their acquittals
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affirmed as the trial judge made sufficient findings of fact to support the verdict.
Per Mclntyre and Lamer JJ.: The Court of Appeal committed no error of law in dismissing the appeal by choosing not to interfere with the trial judge’s findings that there was no discussion nor agreement as to “future services” and to consider the word “services” used by him as encompassing any activity contemplated under s. 110(1)(a) of the Code.
Per Wilson J., dissenting: The trial judge misdirected himself as to the constituent elements of the offence under s. 110 of the Code. In particular, he failed to appreciate that an agreement to open doors and arrange meetings in return for a “benefit” could constitute cooperation or assistance within the meaning of the section. Because of this error he made no finding of fact as to whether there has been such an agreement and accordingly a new trial should be ordered.
[Doré v. Attorney General of Canada, [1975] 1 S.C.R. 56; R. v. Hoffmann-La Roche (Nos. 1 and 2) (1981), 33 O.R. (2d) 694; Lake v. The Queen, [1969] S.C.R. 9; R. v. Spot Supermarket Inc. (1979), 50 C.C.C. (2d) 239; R. v. Kestenberg and McPherson (1959), 126 C.C.C. 387; Lilly v. The Queen, [1983] 1 S.C.R. 94; R. v. Graham (1954), 108 C.C.C. 153; R. v. Hundt (1971), 3 C.C.C. (2d) 279; R. v. MacNeil (1978), 41 C.C.C. (2d) 46; R. v. Simard (1980), 55 C.C.C. (2d) 306; R. v. Roberts (1980), 18 C.R. (3d) 191; Kienapple v. The Queen, [1975] 1 S.R.C. 729]
APPEAL from a judgment of the Ontario Court of Appeal rendered June 22, 1981 dismissing the Crown’s appeal from the acquittal of the respondents on charges of conspiracy to commit an offence under s. 110(a) and (d) of the Criminal Code. Appeal dismissed, Wilson J. dissenting.
Archie Campbell, Q.C., and Robert Houston, Q.C., for the appellant.
J. James O’Reilly, for the respondents Dionne, Canadian Advertising Agency Limited and Publicor Ltd.
Gabriel Lapointe, Q.C., and Robert Décary, for the respondent Belhumeur.
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Robert Carter, Q.C, and Robert Climie, for the respondent Giguère.
The judgment of Dickson and Chouinard JJ. was delivered by
DICKSON J.—What are the elements of an offence under s. 110 of the Criminal Code, proscribing frauds upon the government? That general question lies at the heart of this case. The more particular question is whether, despite any errors of law, the trial judge’s findings of fact are such as to entitle the several accused to an acquittal.
I The Facts
The accused were tried without a jury before Labrosse J. and were acquitted on three counts of conspiracy. The Crown’s appeal to the Ontario Court of Appeal (Lacourciere, Houlden, Goodman JJ. A.) was unanimously dismissed. The Crown appeals to this Court by leave.
The three counts on the indictment are as follows:
1. Louis de Gonzague Giguere, David Belhumeur, Jean P. Dionne, Canadian Advertising Agency Limited and Publicor Ltd. stand charged that between the first (1st) day of January, nineteen sixty-five (1965) and the thirty-first (31st) day of December, nineteen seventy-three (1973), at the City of Ottawa in the Judicial District of Ottawa‑Carleton in the Province of Ontario and elsewhere in Canada, they unlawfully did conspire together and with Leon Simard and with another person or other persons unknown to have the said Louis de Gonzague Giguere, a person having or pretending to have influence with the Government of Canada or with an official of the Government of Canada, accept for himself a benefit, to wit, eighty-seven thousand dollars ($87,000.00) more or less, as consideration for cooperation, assistance and the exercise of influence in connection with matters of business relating to the Government of Canada, to wit, the awarding of contracts for advertising services by the Government of Canada to Canadian Advertising Agency Limited, contrary to Sections 423(1)(d) and 110(1)(d) of the Criminal Code of Canada.
2. Louis de Gonzague Giguere, David Belhumeur, Jean P. Dionne, Canadian Advertising Agency Limited and Publicor Ltd. stand charged that between the twelfth (12th) day of September, nineteen sixty-eight (1968)
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and the thirty-first (31st) day of December nineteen seventy-three (1973), at the City of Ottawa in the Judicial District of Ottawa-Carleton in the Province of Ontario and elsewhere in Canada, they unlawfully did conspire together and with Leon Simard and with another person or other persons unknown to have Canadian Advertising Agency Limited and Publicor Ltd. give to the said Louis de Gonzague Giguere, an official, to wit, a member of the Senate of the Parliament of Canada and to have the said Louis de Gonzague Giguere accept a benefit, to wit, twenty thousand seven hundred dollars ($20,700.00) more or less, as consideration for cooperation, assistance and the exercise of influence in connection with matters of business relating to the Government of Canada to wit, the awarding of contracts for advertising services by the Government of Canada to Canadian Advertising Agency Limited, contrary to Sections 423(1)(d) and 110(1)(a) of the Criminal Code of Canada.
3. Louis de Gonzague Giguere, David Belhumeur, Jean P. Dionne, Canadian Advertising Agency Limited and Publicor Ltd. stand charged that between the first (1st) day of January, nineteen sixty-five (1965) and the thirty-first (31st) day of December, nineteen seventy-three (1973), at the City of Ottawa in the Judicial District of Ottawa‑Carleton in the Province of Ontario and elsewhere in Canada, they unlawfully did conspire together and with Leon Simard and with another person or other persons unknown to have the Canadian Advertising Agency Limited and Publicor Ltd. give to the said Louis de Gonzague Giguere, an official of the Government of Canada, to wit, a Director of the Central Mortgage and Housing Corporation, an agency of the Government of Canada, and for the said Louis de Gonzague Giguere to accept a benefit, to wit, an undetermined amount of money and other valuable consideration not exceeding eighty-seven thousand dollars ($87,000.00) more or less, as consideration for cooperation, assistance and the exercise of influence in connection with a matter of business relating to the Government of Canada, to wit, the awarding of contracts for advertising services by the Government of Canada on behalf of the said Central Mortgage and Housing Corporation, contrary to Sections 423(1)(d) and 110(1)(a) of the Criminal Code of Canada.
At trial, the Crown conceded that counts 2 and 3 are simply variants of count one, and that this Court’s decision in Kienapple v. The Queen, [1975] 1 S.C.R. 29 precluded conviction on more than one count.
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The disposition of this case depends largely on what precisely were the trial judge’s findings of fact. I will consider that aspect later in these reasons. At this stage, I will undertake only a brief review of the uncontested facts.
Louis de Gonzague Giguère, during the period set out in the first count, (January 1, 1965 to December 31, 1973), was chief organizer of the federal Liberal party in the Province of Quebec. Throughout this period, the Liberal party was in power at the federal level. From 1963 until September 1968, Giguère was a director of Central Mortgage and Housing Corporation. Since September 1968 Giguère has been a Senator. At the material times David Belhumeur was a chartered accountant and a businessman. Jean Dionne was also a businessman, involved primarily in the food sector. Canadian Advertising Agency Limited (“Canadian Advertising”) was an old French Canadian advertising agency that did work for the federal Liberals during elections. Publicor Ltd. held all of the outstanding shares of Canadian Advertising.
In 1965 Canadian Advertising was in poor financial condition. The majority shareholder of Publicor, Arthur Fontaine, was terminally ill. He wanted to sell. His primary concern was to have Canadian Advertising continue as a French Canadian company. He was prepared to sell his interest in Publicor for $1, if the new purchasers would take over responsibility for a $100,000 bank overdraft. The minority shareholders of Publicor were also prepared to sell; their selling price was $22,500.
In September 1965 the sale of Publicor, and hence Canadian Advertising, was completed. The purchasers were the three individual accused, Giguère, Belhumeur and Dionne, as well as one Léon Simard. Simard is an unindicted co-conspirator and one of the Crown’s chief witnesses. The four new owners each paid $5,625 for the purchase of the minority shareholdings and each acquired 25 per cent of the shares of Publicor. The
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$100,000 bank overdraft was guaranteed by Simard, Belhumeur and Dionne, but not by Giguère. No one was ever called upon to pay on the guarantee. A “cash flow” of $48,000 was put into Canadian Advertising by way of a loan. Simard loaned $12,000; the remaining $36,000 was loaned by a company called Air Food Caterers (AFC). From October 1965 onward AFC was a company owned 42.5 per cent by Belhumeur, 37.5 per cent by Dionne, and 20 per cent by Giguère.
Although Giguère was initially listed on the records of Publicor as a shareholder, the records were changed shortly after the September 1965 acquisition. Thereafter, Giguère’s shares were held by a nominee, Paul Boudreau, an unnamed co-conspirator and Crown witness. Boudreau had been a director and officer of Canadian Advertising; he was in charge of the day-to-day operations of Canadian Advertising from shortly before the takeover in 1965 until the spring of 1968, when he left Canadian Advertising.
After the takeover in 1965, the financial position of Canadian Advertising improved considerably. A major part of this improvement resulted from contracts with the federal government. Giguère had contacts in the federal government of which the Canadian Advertising did make use.
In late 1967 Giguère informed the other three shareholders that he wished to sell his shares in Publicor. Giguère wanted $100,000 for his quarter interest. Belhumeur, the accountant, did an evaluation, without taking account of goodwill, and concluded Giguère’s shares were worth approximately $52,000. Belhumeur, Dionne and Simard offered $67,000, including $15,000 for goodwill. Giguère was not satisfied. It was finally agreed that Giguère would get $67,000, plus $5,000 a year for five years—a total of $92,000. The $5,000 a year was to be paid not by Belhumeur, Dionne and Simard, but by Canadian Advertising as either salary or expenses. Canadian Advertising would claim the salary or expenses as
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a deduction for income tax purposes, so the effective cost would be $2,500 a year rather than $5,000. These would not be legitimate company deductions, but, as the trial judge noted, the accused are not charged with conspiring to evade taxes.
The $67,000 was actually paid to Giguère through Canadian Advertising. Canadian Advertising was shortly thereafter reimbursed by Simard and AFC. Belhumeur’s and Dionne’s two-thirds of the $67,000 was charged back to them by AFC. In the same transactions the loans to Canadian Advertising of $12,000 by Simard and $36,000 by AFC were retired.
The $5,000 a year was paid in different ways. For about two years, Canadian Advertising paid a salary to Françoise Demers, Giguère’s personal secretary. Demers was not an employee of Canadian Advertising. It is conceded that a salary was paid to Demers rather than to Giguère because Demers was in a lower tax bracket. Demers turned the money over to Giguère. The practice of paying a salary to Demers stopped after an inspection by the tax department. Thereafter, moneys were paid to Giguère by way of expenses. Over the five years, the amount paid by Canadian Advertising to Giguère, directly or indirectly, was approximately $25,000.
There is uncontradicted evidence that Giguère, after the sale of his shares, arranged meetings between government officials and representatives of Canadian Advertising, and also that Giguère put in a good word for Canadian Advertising with at least one Cabinet Minister.
The factual question in this case is: what was the nature of the agreement surrounding the sale of Giguère’s shares.
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II The Law
The charges are conspiracy to contravene s. 110(1) of the Criminal Code. The first count relates to s. 110(1)(d), the second and third to s. 110(1)(a):
110. (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, demands, accepts or offers or agrees to accept for himself 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 himself, to an office;
(Emphasis added.)
Section 110(1)(a) relates to public officials, s. 110(1)(d) to persons having or pretending to have influence with the government. In respect of count one (s. 110(1)(d) the trial judge found, and it is not contested, that Giguère’s position as chief organizer of the federal Liberal party in the Province of Quebec made him a person having influ-
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ence with the government. In respect of counts two and three Giguère’s position, respectively, of Senator and Director of Central Mortgage and Housing Corporation, made him an official. (However, Belhumeur and Dionne testified that they were not aware that Giguère was a director of Central Mortgage and Housing until late 1967 when Giguère indicated he wanted to sell his shares.) No questions of statutory interpretation arise in relation to these elements of the offences. The matters in dispute are the meanings in both s. 110(1)(a) and (d) of (i) “benefit… as consideration for”, and of (ii) “cooperation, assistance, exercise of influence”.
(i) “Benefit… as consideration for”
At trial, Labrosse J. assessed “benefit” within s. 110(1)(a) and (d) exclusively in terms of whether Giguère had been given fair market value for his shares. The Ontario Court of Appeal seemed to agree. In my view, with respect, Labrosse J. erred in this regard. I also think he erred in his treatment of fair market value.
Labrosse J. assumed that there was, in law, no benefit unless Giguère had been given more than fair market value for his shares. This Court’s decision in Doré v. Attorney General of Canada, [1975] 1 S.C.R. 56, would suggest otherwise. Doré, a CBC employee, was paid a salary by other companies for writing scripts. These companies then sold the scripts to CBC upon Doré’s recommendation. One of the issues in the case was whether the salary constituted a benefit under s. 110(1)(c), which reads:
110. (1) …
(c) being an official or employee of the government, 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 directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of
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government that employs him or of which he is an official, the proof of which lies upon him;
Doré took the position that the salary was not a benefit because he was only being paid the fair market value of his labour. The salary was held, however, to constitute a benefit. Pigeon J. said this, at p. 780:
Clearly, the fact that a sum of money or other value represents only the equivalent of the benefits conferred does not prevent it from being “a commission, reward, advantage or benefit”. The words “commission” and “reward” suggest the idea of compensation for services rendered.
I think the same reasoning applies to a purchase of shares. The entire purchase price is a benefit. That does not, however, necessarily connote an illegal benefit.
Section 110(1)(a)and (d) does not make it illegal to receive a benefit as such; the benefit must be as consideration for cooperation, assistance, and the like. It is in this context that the matter of fair market value becomes relevant. As Pigeon J. noted in Doré, supra, at p. 780, the question whether the sum paid exceeds the value given may be important in deciding if it was given as consideration for any of the matters mentioned in s. 110(1). If a person is given more than fair market value for his shares, it may lead to an inference that something else is also being bought, and the something else may be within s. 110.
Even if only fair market value is given, however, the inquiry is not ended. Fair market value tends to be within a range than a fixed value. If the person is given an amount at the upper end of the range, it is appropriate to ask why. If the reason is to obtain an intervention in the future by the person of the nature proscribed by s. 110, an illegal benefit has been conferred.
It is also pertinent to look to the past to determine what is being paid for when only fair market
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value is received. In the present case the worth of the shares of Canadian Advertising, and hence Publicor, had been increased between 1965 and 1967 because of contracts with the federal government. If obtaining these contracts could be attributed to Giguère (and Labrosse J. made no finding of fact on this point) payment for the shares could amount to payment for Giguère’s intervention. Section 110, of course, creates mens rea offences; what matters is whether the accused Giguère was to be paid for past interventions.
The matters referred to in the two preceding paragraphs require findings and inferences of fact, none of which was made by the trial judge, because he thought the only issue was fair market value.
I said earlier that I was also of the opinion Labrosse J. erred in his treatment of fair market value. He concluded his discussion on that topic with the following:
The seller started at one hundred thousand dollars ($100,000.00) and the buyers at fifty‑two thousand ($52,000.00). Then taking into consideration the tax implications, they settled on approximately seventy-nine thousand five hundred dollars ($79,500.00), of which amount remaining shareholders were paying sixty-seven thousand dollars ($67,000.00) as the balance would be paid as an expense of the agency.
In all the circumstances as they existed at the time, I am satisfied that Giguère’s shares were not purchased at an inflated price.
Labrosse J. decided that $79,500 was fair market value, but that was not the selling price. I have great difficulty in agreeing that illegal tax consequences can be taken into account in determining the purchase price paid, but that is beside the point. The focus of s. 110 is the government official or the person having or pretending to have influence. It is that person’s integrity which is at issue and what matters is the amount that person is supposed to receive. It is the value in the hands of the recipient, not the cost to the donor, that counts. Giguère was supposed to receive $92,000. The question in the present case is whether
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$92,000 was fair market value. The trial judge made no finding of fact on this point.
I therefore conclude Labrosse J. made errors of law in respect of “benefit… as consideration for” which caused him to fail to make certain important findings of fact.
(ii) “Cooperation, assistance, exercise of influence”
It is undisputed that “cooperation, assistance, exercise of influence” are alternate modes of committing an offence under s. 110. An act or an omission of the nature contemplated in s. 110 are, of course, other modes but with these we are not here concerned. Proof of one mode is sufficient to constitute an offence. However, the counts on the indictment in the present case all read “cooperation, assistance and the exercise of influence”. The Crown conceded at trial that the word “and” was conjunctive, and it was being alleged the agreement was in respect of all three.
During the course of his reasons Labrosse J. said this:
On the wording of the indictment, the words cooperation, assistance and the exercise of influence must be taken conjunctively. In my view, this is the strongest argument advanced by the defence. There was no evidence from any of the numerous witnesses that Giguere exercised influence in respect of the government contracts received by the agency. I accept that exercise of influence would mean to affect a decision, or do something that could affect the decision, but there was no evidence that any decision to award a contract to the agency was affected by the intervention of Giguere. The evidence was that he opened doors. There was evidence that he arranged appointments to permit the representatives of the agency to make presentations to government officials and in my view, this is not what is contemplated by section 110 of the Code.
This passage contains three propositions of law:
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(1) opening doors or arranging meetings does not constitute exercise of influence under s. 110;
(2) opening doors or arranging meetings does not constitute cooperation or assistance under s. 110;
(3) the inclusion of “and” in the indictment required the Crown to prove all three, “cooperation, assistance, exercise of influence”, to obtain a conviction.
I think that Labrosse J. was right on the first point, but in error on the latter two.
(a) Exercise of Influence
All parties in this case agree that “influence” means to affect a decision. But what kind of decision? Respondents argue the decision must be the actual decision to award a contract. The Crown argues that a decision to hold a meeting is sufficient; opening doors and arranging meetings is an exercise of influence under s. 110.
It must be noted the word “influence” appears twice ins. 110(1)(d):
110. (1) …
(d) having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself 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 himself, to an office;
(Emphasis added.)
Prima facie, the word means the same thing in both places. I will deal firstly with the initial appearance of the word. A person “having or pretending to have influence” clearly includes persons outside government—that distinguishes s. 110(1)(d)from s. 110(1)(a). If arranging a meet-
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ing is influence, a non-government person who could do no more than arrange a meeting would fall within the ambit of s. 110(1)(d). If, for example, a lawyer arranged a meeting with a government official as part of the services for which he was paid, he would commit an offence under s. 110(1)(d).That cannot be correct. The threshold which must be passed before falling foul of s. 110(1)(d) must be higher.
The general purpose of s. 110 is to preserve the integrity of government. Those connected with government are meant to carry on the business of government without favours being bought by those who deal with government. The focus of s. 110 is those who have a real connection with government. Section 110(1)(a) maintains this focus by being limited to “officials”, i.e. those who are actually part of government. Section 110(1)(d), although including people outside government, must be limited to those who have, or pretend to have, a significant nexus with government. Someone outside government who has no more “clout” than to be able to arrange a meeting with a government official has at best a tangential connection with government. That is not the type of person whose actions s. 110 is trying to control. In my view, a person having influence with government is a person who could affect, for example, a decision by government to award a contract, and correspondingly a person who pretends to have influence is a person who pretends he could affect such a government decision.
Having thus defined “influence” in the first line of s. 110(1)(d), I think that “exercise of influence” in the rest of s. 110, i.e. in both s. 110(1)(a) and (d), must be defined accordingly. There is nothing in the context that would suggest the word “influence” changes its meaning in different parts of the same section. I therefore agree with the respondents as to the meaning of the words “exercise of influence”. In the present case it would mean actually affecting the awarding of an advertising contract to Canadian Advertising.
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(b) Cooperation, Assistance
Labrosse J. thought that cooperation and assistance within s. 110(1)(a) and (d) were something less than the exercise of influence—otherwise he would not have attributed any significance to the “and” in the indictment. He also assumed, however, that cooperation and assistance were something more than opening doors and arranging meetings. This is not only apparent from the passage quoted above, but also from Labrosse J.’s treatment of similar fact evidence, all of which he ruled inadmissible. The Crown sought to adduce evidence that Giguère had been employed by Kruger Pulp & Paper Limited to open doors of the federal government. The evidence was held not to constitute similar fact evidence because it was not evidence of anything criminal.
Labrosse J. appears to have adopted the argument made by counsel for Giguère at trial that the words “cooperation, assistance” must be read in the context of “exercise of influence”, and thus signify a higher level of intervention than the ordinary meaning of the words would convey. That argument was not pressed in this Court.
In my view, if someone opens doors or arranges meetings as the first step in an effort by another to secure a government contract, that is indeed assistance or cooperation in connection with the transaction of business with government within s. 110(1)(a) and (d). That is simply giving the words their ordinary meaning.
Labrosse J. took a contrary view on the basis that opening doors or arranging meetings is something perfectly legitimate, happening frequently. The error in this approach is in examining particular elements of s. 110 in isolation. By itself, opening doors or arranging meetings is certainly not a crime. The problem arises only when two conditions meet: (i) when a benefit is given, offered or demanded for the opening of doors or arranging of meetings respecting the matters listed in s. 110(1), and (ii) the person who receives or demands it is an official or one having or pretending to have influence in the sense defined earlier.
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In the previous section it was noted that, as a threshold, s. 110(1) applies only in respect of persons having a close connection with government. Once that threshold is passed, however, the section imposes stringent limitations. It is clear that the right to contract with government is not something to be bought with under-the-table payments. It is equally clear, in my view, that access to government officials is not something to be bought. Even if it is a seemingly modest intervention, opening doors or arranging meetings is caught by s. 110(1)(a) and (d) as constituting cooperation or assistance.
(c) The Form of the Indictment
If there had been an agreement that Giguère be given a benefit as consideration for opening doors and arranging meetings, an offence would have been committed. But would that be an offence under this indictment, which charged “cooperation, assistance and the exercise of influence”?
It should be noted at the outset there is no problem of duplicity here. Counsel for the respondents did not argue duplicity in the conspiracy counts, nor was it suggested that the counts would have been duplicitous if the substantive offence had been charged instead of conspiracy. Cooperation, assistance, exercise of influence are alternate modes of committing an offence under s. 110(1)(a) or (d).
The Crown’s primary position at trial was that there was an agreement for Giguère to do all three, that Giguère was actually to get contracts for Canadian Advertising Agency. Labrosse J. rejected the Crown’s primary position on the facts. The Crown’s alternate position was that there was at least an agreement for Giguère to cooperate and assist. Labrosse J. assumed the form of the indictment precluded a conviction on this basis. I think he was in error on this point.
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In R. v. Hoffmann-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694 (C.A.), the indictment charged contravention of the Combines Investigation Act in respect of sales of Librium and Valium, but the trial judge found the evidence proved an offence only in respect of Valium. In concluding that it was not necessary to amend the indictment to enter a conviction, Martin J.A. drew an analogy to the cases of theft or false pretences (p. 712). If an indictment charges theft of several items, it is sufficient to prove theft of one to enter a conviction, and it is not necessary to amend the indictment. The same applies to a charge of obtaining money by false pretences or possession of stolen goods; Lake v. The Queen, [1969] S.C.R. 9 (false pretences); R. v. Spot Supermarket Inc. (1979), 50 C.C.C. (2d) 239 (Que. C.A.) (theft); R. v. Kestenberg and McPherson (1959), 126 C.C.C. 387 (Ont. C.A.) (possession); this Court recently reaffirmed that position in Lilly v. The Queen, [1983] 1 S.C.R. 94, although in that case it was considered inappropriate to enter a conviction and a new trial was ordered.
I agree with Martin J.A. that theft of lesser amounts is no different in principle from committing an offence in one of the two or more ways charged. A number of other Courts of Appeal adopted the view that a conviction is warranted if the Crown proves at least one of the modes of committing an offence charged: R. v. Graham (1954), 108 C.C.C. 153 (B.C.C.A.) (conspiracy to steal and receive and retain stolen goods); R. v. Hundt (1971), 3 C.C.C. (2d) 279 (Alta. S.C., A.D.) (while not being a member of the Alberta Guild… and not being a holder of a certificate of competence… and not supplying in accordance with…);R. v. MacNeil (1978), 41 C.C.C. (2d) 46 (Ont. C.A.) (failed or refused to comply with demand… to provide… samples of breath… and to accompany a peace officer for the purposes…); R. v. Simard (1980), 55 C.C.C. (2d) 306
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(N.S.S.C., A.D.) (failed to stop and give his name and render assistance); R.v. Roberts (1980), 18 C.R. (3d) 191 (Ont. C.A.) (robbery using knife and revolver).
I conclude that if Labrosse J. had thought the Crown had proved a conspiracy to pay a benefit to Giguère in consideration for cooperation and assistance, but not for the exercise of influence, a conviction should have followed for the part proved. This is simply one example of the general principle that an accused is liable for conviction on any part of the indictment that constitutes an offence.
III The Trial Judge’s Findings of Fact
I have concluded Labrosse J. made a number of errors of law concerning the elements of an offence under s. 110. Nevertheless, the accused would be entitled to have their acquittals affirmed in this Court if the trial judge had made sufficient findings of fact to support such a verdict. Labrosse J. made a clear finding of fact that there was no agreement that Giguère exercise influence. If he had also found no proof beyond a reasonable doubt of any agreement to cooperate or assist, including opening doors or arranging meetings, that would be sufficient to warrant an acquittal despite the inadequate findings of fact concerning “benefit. as consideration for”.
There is one finding in Labrosse J.’s judgment which may, at first glance, seem to represent a holding of no proof of an agreement to cooperate or assist: “I am not satisfied that anything Giguère received was in consideration for something”. In the context, however, all Labrosse J. seems to have been saying was that he found no benefit, about which I have said he erred. The full passage from Labrosse J.’s judgment, part of which was repro-
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duced earlier, is as follows:
I have already dealt with the argument of the sale of Giguere’s shares at an inflated price in nineteen sixty-seven (1967). I am not satisfied that he received any benefit other than what he was entitled to for the value of his shares. That applies also to the benefit referred to in Count two (2), which is part of the same money.
…
It follows from the above that I am not satisfied that anything that Giguere received was in consideration for something. But if I had found that a benefit had been accepted or given, it would have then been necessary that it be in consideration for cooperation, assistance and the exercise of influence. On the working of the indictment, the words cooperation, assistance and the exercise of influence must be taken conjunctively. In my view, this is the strongest argument advanced by the defence. There was no evidence from any of the numerous witnesses that Giguère exercised influence in respect of the government contracts received by the agency. I accept that exercise of influence would mean to affect a decision or do something that would affect the decision, but there was no evidence that any decision to award a contract to the agency was affected by the intervention of Giguere. The evidence was that he opened doors. There was evidence that he arranged appointments to permit the representatives of the agency to make presentations to government officials and in my view, this is not what is contemplated by section 110 of the Code.
(Emphasis added.)
The Ontario Court of Appeal treated this only as a negation of consideration under s. 110. I would not be prepared to conclude on the basis of this passage alone that Labrosse J. found no proof of any agreement that Giguère cooperate or assist.
At several places in his judgment Labrosse J. said there was no agreement that Giguère provide “services”. He did not, however, define what he meant by the word “services”. Nevertheless, the ordinary meaning of the word is broad enough to include opening doors, arranging meetings, or other forms of cooperation or assistance. There is nothing in the judgment which would demonstrate conclusively that Labrosse J. was using the word
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“services” to represent anything narrower than its ordinary meaning. I therefore conclude that Labrosse J.’s findings of fact were not only that the Crown had not proved an agreement that Giguère exercise influence, but also that the Crown had not proved an agreement that Giguère cooperate or assist, as defined earlier. Since proof of an agreement that Giguère either exercise influence, or cooperate, or assist is an essential ingredient of the offences charged, the accused are entitled to an acquittal unless those findings of fact can somehow be challenged.
The Crown does attempt to challenge Labrosse J.’s findings of fact on the basis that Labrosse J. misdirected himself on issues of corroboration and circumstancial evidence. The alleged errors, however, arise from what Labrosse J. did not say, not from what he did say. The Crown asks us to infer error from the fact that the trial judge did not review the law of corroboration or circumstancial evidence. I find nothing in Labrosse J.’s judgment which would support the inference of misdirection in these respects and I find no merit in the Crown’s argument. In my view Labrosse J.’s findings of fact were ones open to him on the evidence, and ones which cannot be interfered with on appeal.
In respect of Giguère only, the Crown alleged that Labrosse J. had erred in failing to admit similar fact evidence. The Ontario Court of Appeal agreed that Labrosse J. had erred on this point but held, as the Crown had conceded, that this alone did not warrant a new trial. The Crown again raised the similar fact point in this Court, but it is not necessary to deal with it in light of the Crown’s concession before the Court of Appeal.
I would dismiss the appeal.
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The judgment of Mclntyre and Lamer JJ. was delivered by
LAMER J.—The trial judge having accepted, as he was entitled to do, the evidence of the respondents Dionne and Belhumeur that there was no discussion nor agreement as to “future services”, and having doubted the testimony of Crown witness Léon Simard on that point, the Court of Appeal for Ontario committed no error of law in dismissing the appeal by choosing not to interfere with the finding and to consider the word “services” used by Labrosse J. as encompassing any activity contemplated under s. 110(1)(a) of the Criminal Code.
The appeal to this Court from that decision should therefore be dismissed.
The following are the reasons delivered by
WILSON J. (dissenting)—I am in respectful agreement with the interpretation of s. 110 of the Criminal Code contained in the reasons for judgment of my colleague, Mr. Justice Dickson.
However, the problem before the Court as I see it is that the learned trial judge, because he misdirected himself as to the constituent elements of the offence under s. 110 in the ways indicated by my colleague, failed to make the relevant findings of fact. In particular, having failed to appreciate that an agreement to open doors and arrange meetings in return for a “benefit” could constitute cooperation or assistance within the meaning of the section, he made no express finding as to whether such an agreement existed or not. Instead he focussed his attention on whether there was an agreement that Giguère would provide “services” by which he clearly meant something well beyond the opening of doors and arranging of meetings i.e. something which would constitute the offence on his interpretation of the section. He found that there was no such agreement. I do not see, however, how a finding of no agreement to go beyond the opening of doors and arranging of meetings can be construed as a finding of no agreement to open doors or arrange meetings.
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Accordingly, I must respectfully differ from my learned colleague as to the proper disposition of the appeal. I would allow it and order a new trial.
Appeal dismissed, WILSON J. dissenting.
Solicitor for the appellant: The Ministry of the Attorney General, Toronto.
Solicitor for the respondent Giguère: Robert J. Carter, Toronto.
Solicitor for the respondent Belhumeur: Gabriel Lapointe, Montreal.
Solicitor for the respondents Dionne, Canadian Advertising Agency Limited and Publicor Ltd.: Marcel Piché, Montreal.