Arseneau v. The Queen, [1979] 2 SCR 136

Supreme Court of Canada

Arseneau v. The Queen, [1979] 2 S.C.R. 136

Date: 1979-03-20

J. Yvon Arseneau Appellant;

and

Her Majesty The Queen Respondent.

1978: October 13; 1979: March 20.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Criminal law—Corrupt practices—Corruption—Bribery—Giving or offering corruptly money—Person bribed, a member of a legislature—Person bribed, also Minister of Tourism—Criminal Code, R.S.C. 1970, c. C-34.

Appellant was a lawyer practising in Campbellton, New Brunswick where he had been in partnership with Charles Van Horne until the latter was elected to the provincial legislature. Van Horne later became Provincial Minister of Tourism and appellant was retained by that department to negotiate for the purchase of some land for the establishment of a provincial park. While so retained appellant indicated to a friend interested in building a motel that he could obtain favours for him from Van Home but that it would cost $10,000, including legal fees, to obtain Van Horne’s approval of having the motel located in the provincial park. This proposal was accepted and over a period of months large sums of money were transferred through the appellant to Van Home. Appellant was convicted before a judge and jury upon a count that he “…did give or offer corruptly to a person then a member of the legislature of the Province of New Brunswick, to wit: J. Charles Van Home in his official capacity as member of the legislature and Minister of Tourism… in relation to the proposed construction of or leasing or purchasing of land for or operation of a motel in or near Sugar Loaf Park in which the Government of New Brunswick had some interest… contrary to Section 108(1)(b) of the Criminal Code of Canada and amendments thereto”. The Appeal Division unanimously dismissed the subsequent appeal.

Held (Laskin C.J. and Spence J. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: There could be little doubt that the appellant offered money to Van Home, then a member of the legislature of New Brunswick, in respect of acts to

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be done by him in furtherance of plans to construct a motel in the provincial park. The charge as amended alleged that the money was corruptly paid to a member of the legislature who had also become a minister of the Crown and who therefore acted in both capacities. While it was contended that Van Horne was acting only in his “official capacity” as Minister of Tourism and that it was not an offence under s. 108 to pay money to a member of the legislature for something done by him in his official capacity as a minister, such contention would involve the proposition that a member of the legislature, who is also a minister, is to be taken not to be acting in his capacity as a member in respect of his acts and decisions in his department. It was however as a member of the legislature that Van Horne was appointed Minister of Tourism and in light of this and the accountability of ministers to, and involvement in, the legislature, the ministerial and legislative functions should not be severed so as to make it an offence under s. 108 to corruptly pay money to him as a member and no offence to pay money to him as a minister.

Appellant also contended that if the charge laid disclosed any offence it was an offence under s. 110(1)(d)(i) of which he had already been acquitted. The distinction between the offences was however that the conviction under s. 108(1)(b) related to bribery and the count under s. 110(1)(d)(i) to “influence peddling”. In the circumstances there was no overlapping between the sections or counts so as to make an acquittal under s. 110 inconsistent with the conviction under s. 108. Parliament regarded the s. 108 offence as the more serious and it would be unlikely that Parliament intended that that section was to have no application to bribery of a member of the legislature qua minister of the Crown.

Per Laskin C.J. and Spence J. dissenting: It is not an offence under s. 108(1)(b) to pay a minister of the Crown for use of his influence. The subsection is aimed only at transactions with holders of judicial office, members of Parliament and members of provincial legislatures. Section 110 is concerned with bribery of a minister. The whole intent of the prosecution was that Van Home, a minister, had been bribed. This was not a case where the member Van Home was given money to influence the minister Van Home. The defect was fatal in that the accused was charged with a non-existent offence and the indictment should be quashed. In the

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circumstances it was not necessary to consider faults in the trial itself.

[Regina v. Bruneau (1963), 42 C.R. 93; Martineau v. The Queen, [1966) S.C.R. 103, 48 C.R. 209 referred to.]

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, dismissing an appeal from a judgment of a judge and a jury convicting appellant of an undictable offence under s. 108(1)(b) of the Code. Appeal dismissed, Laskin C.J. and Spence J. dissenting.

Patrick A. A. Ryan, Q.C., and Jean-Claude Angers, Q.C., for the appellant.

Eugene Westhaver, J.-Paul Thériault, Q.C., and Gabriel Lapointe, Q.C., for the respondent.

The judgment of Laskin C.J. and Spence J. was delivered by

SPENCE J. (dissenting)-This is an appeal from the judgment of the Appeal Division of the Supreme Court of New Brunswick pronounced on February 18, 1977. By that judgment, the said Appeal Division dismissed an appeal by the present appellant from his conviction after a trial by a judge and jury on March 28, 1975, upon a single count.

The accused, the present appellant, had been charged originally under an indictment dated November 13, 1974, laid by the then Attorney General of New Brunswick John B.M. Baxter under the provisions of s. 507(1) of the Criminal Code. Mr. Baxter, the then Attorney General of the Province, had not appeared in court to present the indictment and the present appellant had succeeded in an application to have the indictment quashed. Another indictment, dated December 14, 1974, was laid by the Attorney General of the Province who had succeeded Mr. Baxter, a Mr. Paul Creaghan. Mr. Creaghan appeared in court personally and presented the indictment.

The indictment first laid by Mr. Baxter and the second indictment preferred personally by Mr. Creaghan were in exactly the same form. I quote the Creaghan indictment in full:

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CANADA
PROVINCE OF NEW BRUNSWICK

IN THE COUNTY COURT OF NEW BRUNSWICK

BETWEEN:

HER MAJESTY THE QUEEN
and
J. YVON ARSENEAU J.

YVON ARSENEAU stands charged that he:

(1) between June 15th, A.D. 1971 inclusively to July 31st, A.D. 1972 inclusively, at Fredericton, County of York, Province of New Brunswick; Campbellton, County of Restigouche, Province of New Brunswick; and elsewhere in the said Province; did unlawfully conspire together and one with the other with CAMILLE DESCHENES, JEAN‑CLAUDE LE BLANC and SUGARLOAF PARK MOTELS LIMITED and others, to commit an indictable offence to wit: to give or to offer corruptly to a person, then a member of the legislature of the said Province of New Brunswick, to wit: J. CHARLES VAN HORNE, money or a valuable consideration, in respect of anything done or omitted or to be done or omitted by the said CHARLES VAN HORNE in his official capacity, for the said J. YVON ARSENEAU or CAMILLE DESCHENES or JEAN-CLAUDE LE BLANC or SUGARLOAF PARK MOTELS LIMITED, in violation of Section 108(1)(b) of the Criminal Code of Canada and amendments thereto, contrary to Section 423(1)(d) of the said Criminal Code.

(2) between June 15th, A.D. 1971 inclusively to July 31st, A.D. 1972 inclusively, at Campbellton, County of Restigouche, Province of New Brunswick; and elsewhere in the said Province; did give or offer corruptly to a person then a member of the legislature of the Province of New Brunswick, to wit: J. CHARLES VAN HORNE, money or a valuable consideration, in respect of anything done or omitted or to be done or omitted by the said J. CHARLES VAN HORNE in his official capacity, for the said J. YVON ARSENEAU or CAMILLE DESCHENES or JEAN CLAUDE LE BLANC or SUGARLOAF PARK MOTELS LIMITED, contrary to Section 108(1)(b) of the Criminal Code of Canada and amendments thereto.

(3) between June 15th, A.D. 1971 inclusively and July 31st, A.D. 1972 inclusively, at Campbellton, County of Restigouche, Province of New Brunswick; and elsewhere in the said Province; having or pretending to have influence with a minister of the government of the said province, to wit: J. CHARLES VAN HORNE, or an

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official of the Department of Tourism of the Province of New Brunswick, did demand, accept or offer or agree to accept for himself or another person a reward, advantage or benefit of any kind as consideration for co-operation, assistance, exercise of influence or an act of omission in connection with the transaction of business with or any matter of business relating to the government of the Province of New Brunswick contrary to Section 110(1)(d)(i) related to subparagraph (a)(iii) of the Criminal Code of Canada and amendments thereto.

DATED this 14th day of December, A.D. 1974, in the Province of New Brunswick.

“Paul S. Creaghan”

PAUL S. CREAGHAN, ATTORNEY GENERAL for the province of New Brunswick

The foregoing indictment is preferred by the Attorney General for the Province of New Brunswick, in accordance with Section 507(3)(a) of the Criminal Code of Canada and amendments thereto.

“Paul S. Creaghan”

PAUL S. CREAGHAN, ATTORNEY GENERAL for the province of New Brunswick

…

When the trial finally proceeded, the jury found the accused, the present appellant, not guilty on counts Nos. 1 and 3 aforesaid but guilty on count No. 2, and these reasons are concerned alone with count No. 2.

Amongst the multitude of proceedings taken in reference to the matters involved in this appeal was a demand for particulars delivered to the Crown on behalf of the appellant. That demand required the giving of literally dozens of particulars. One of the demands was known as Question 14 in reference to count No. 2. A search of the papers has failed to reveal the actual words of the question but the answer is set out plainly. In volume 1 at p. 83 of the Appeal Case, the statement made by Crown counsel at the trial is recited as follows:

C) Question number 14 is answered as follows: “as Member of the Legislature and Minister of Tourism for the Province of New Brunswick”. These particulars should be inserted in the middle of line

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9 of Count Number Two, after the words “official capacity”.

At another point in the proceedings at the commencement of the trial, the learned trial judge stated:

Having so concluded, I am satisfied that both parties are in the same position and that the Indictment contains in its three counts sufficient ingredients to constitute the three offences for which the accused is charged, namely, the offence of conspiracy, the offence of bribery and the offence of influence peddling. I do not see at this time where it would be fitting for me to order further particulars to be included in any of these three counts of the Indictment.

Again, the learned trial judge stated:

I ought to direct a plea at this time. I would ask the Clerk to ask the accused on each one of the counts for a plea. I believe that it would be sufficient to specify count No. 1 as amended, Mr. Ryan would you agree to that?

to which Mr. Ryan assented and the court continued:

I think that the counts have been read on numerous occasions here and the accused is well aware of what they are as amended. The copies of the amendment have been filed and there is no confusion there, is there Mr. Ryan?

Mr. Ryan agreed.

(The underlining is my own.)

The clerk said:

With regard to count No. 2, how do you plead guilty or not guilty?

Mr. Ryan, on behalf of the appellant, replied:

The accused enters no plea, Your Honour.

THE COURT: I again direct the clerk to enter on Count No. 2 a plea of not guilty.

It is to be noted that on this count the count was not read to the accused. On a previous occasion, much earlier in the trial, the three counts had been read and count No. 2 at that time was in the exact form I have quoted at the commencement of these reasons. It is, however, quite apparent from what I have quoted that counsel for the accused was considering a count with the words added from the

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answer to Question 14 in the demand for particulars, i.e., with the words “as member of the Legislature and Minister of Tourism for the Province of New Brunswick” added after the words “J. Charles Van Horne, in his official capacity”. This is in accord with the provisions of s. 516 (3)(c) of the Criminal Code.

Eventually, the trial proper commenced. The jury was chosen and the clerk of the court, in the usual course, required the members of the jury to look at the accused and listen to the counts of the indictment which were presented against him, then read those counts and he read count No. 2 in French in the following words:

2) entre le 15 juin A.D., 1971, inclusivement et le 31 juillet A.D., 1972, inclusivement, à Campbellton, comté de Restigouche, province du Nouveau-Brunswick; et ailleurs dans ladite Province; donné ou offert par corruption à une personne, alors membre de la Législature de la province du Nouveau-Brunswick, à savoir: J. Charles Van Horne, de l’argent ou une contrepartie valable à l’égard d’une chose que ledit J. Charles Van Horne, en sa qualité officielle, comme membre de la Législature et ministre du Tourisme de la province du Nouveau-Brunswick, a accomplie ou omise ou à être accomplie ou à être omise pour ledit J. Yvon Arseneau ou Camille Deschenes ou Jean-Claude Leblanc ou Sugarloaf Park Motels Limited, au sujet de la construction ou de la location ou de l’achat de terrains ou de l’exploitation projetés d’un motel par Camille Deschenes ou Sugarloaf Park Motel Limited dans ou près de Sugarloaf Park dans lequel le gouvernement de la province du Nouveau-Brunswick avait un intérêt contrairement à l’article 108(1)(b) du code criminel et ses amendements.

(The underlining is my own.)

Amongst the jury chosen to try the case was one Yvon Jean. It would appear that Mr. Jean was elected foreman of the jury and he announced the verdict of the jury in the court. A copy of the indictment in French had been furnished to the jurors and that copy may be perused in the papers filed upon this appeal. Count No. 2 in that French form of the indictment is in exactly the same words as count No. 2 read to the jury by the clerk of the court and which I have recited above. On the French form of the indictment at the end of count No. 2 appears in handwriting the words

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“Yvon Jean No. 2 Coupable”. It is, therefore, manifestly apparent that the indictment presented to the jurors as count No. 2 and as to which the accused was found guilty was a count which recited that the accused did give or offer corruptly to a person a “Member of the Legislature of the Province of New Brunswick, to wit, J. Charles Van Horne, money or a valuable consideration, in respect of anything done or omitted or to be done or omitted by the said J. Charles Van Horne in his official capacity as Member of the Legislature and Minister of Tourism for the Province of New Brunswick”. The charge, by its very terms, purported to be a charge under s. 108(1)6) of the Criminal Code. That section provides:

108. (1) Everyone who

…

(b) gives or offers corruptly to a person who holds a judicial office, or is a member of the Parliament of Canada or of a legislature, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by him in his official capacity for himself or another person,

is guilty of an indictable offence and is liable to imprisonment for fourteen years.

That charge, for the present circumstances, may be stated shortly as giving money to a member of a provincial legislature in respect of anything done or omitted in his official capacity, that is, the official capacity as a member of the legislature. The charge which this jury was asked to consider was a charge of giving Van Home money in respect of something done or omitted in his official capacity as member of the legislature and Minister of Tourism for the Province of New Brunswick.

I have not read the whole of this evidence but all the reasons and all the factums deal only and consistently with the question of whether Van Home, the Minister of the Crown, was bribed and are quite unconcerned with whether or not Van Home were a member of the legislature. It was Van Home’s character and capacity as a Minister which provided the only reason why there should be any attempt to bribe him. Indeed, in the reasons

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for judgment given by the Appeal Division of the Province of New Brunswick, there appears this sentence:

In our view, the money transactions between the Minister, the Appellant and Deschenes, the influence sought by Deschenes and the alleged bribe disclosed in the letter from the Minister all related to his official capacity as Minister of Tourism in interference with the administrative function of the Government. The last ground of appeal does not commend itself to us.

It would not be an offence under s. 108(1)(b) to pay a minister of the Crown for use of his influence. The subsection is aimed only at transactions with holders of judicial office, members of Parliament, and members of provincial legislatures. Section 110 of the Criminal Code is concerned with bribery of a minister. Another subsection of s. 110 was the subject of count No. 3 upon which the accused was acquitted. But s. 110 (1)e) is not cited in count No. 2 and is not related to count No. 2.

In this Court, very considerable argument was made in reference to Regina v. Bruneau[1], a decision of the Court of Appeal for Ontario. In that case, the accused was convicted of corruptly agreeing to accept money for the use of his influence in his official capacity as a member of Parliament in respect of the sale of certain property to the federal government. The charge was laid under s. 100(1)(a)(ii) as it then appeared, the counterpart of the present s. 108(1)(a), and the question was whether a private member could be convicted of accepting money when it was the function of the executive and not of a private member to authorize the purchase which the briber sought to influence. McLennan J.A. said at p. 97:

In this case the corrupt agreement was with a constituent of the riding for which the appellant was the member of Parliament; it related to a prospective transaction in land within the constituency between the Government and the constituent; it was the established practice of the Government to consult the local member about such transactions and he was brought into that transaction by the Government by virtue of that practice. In these circumstances he agreed to accept money for the use of his influence to bring about the purchase

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by the Government of land belonging to the person who offered him the money. Although the corrupt agreement was to interfere with the administrative function of Government, in the final analysis that function is subject to the will of Parliament of which the appellant was a member and therefore I am of the opinion that he was acting “in his official capacity” when he made that agreement.

A similar result was reached by the Judicial Committee of the Privy Council under like circumstances in Attorney General of Ceylon v. De Livra[2].

There is no such inference in the present case. The appellant Arseneau was not accused of giving the member of the legislature Van Horne money so that he might influence the Minister Van Horne to grant the desired privilege. The whole intent of the prosecution was that the Minister Van Home had been bribed. I am of the opinion that this is a fatal defect, that the accused was simply charged with an offence which did not exist and that, therefore, the appeal must be allowed. It would be purposeless to permit a new trial upon the same faulty indictment and so I am of the opinion that the indictment simply should be quashed.

Under these circumstances, it is not necessary to deal with the several other grounds of appeal urged on behalf of the appellant. The indictment charging an offence which does not exist makes the trial on the second count a nullity and, therefore, I need not be concerned with faults in the trial.

The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick dismissing the appeal of the appellant from his conviction at trial before Judge G. A. Richard of the County Court sitting with a jury, on the second of three counts in an indictment preferred against him at the instance of the Attorney General which count, as will hereafter appear, was amended during the course of the proceedings.

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The original indictment has been helpfully reproduced in full in the reasons for judgment of my brother Spence which I have had the benefit of reading, but, as I have indicated, we are only concerned on this appeal with count two as the appellant was acquitted by the jury on the other two counts.

It is desirable in my view, for the sake of clarity, to set out what I regard as the essential averment in the second count of the original indictment which alleges that the appellant

…did give or offer corruptly to a person then a member of the legislature of the Province of New Brunswick, to wit: J. CHARLES VAN HORNE, money or a valuable consideration, in repect of anything done or omitted or to be done or omitted by the said J. CHARLES VAN HORNE in his official capacity, for the said J. YVON ARSENEAU or CAMILLE DES-CHENES or JEAN CLAUDE LE BLANC or SUGALOAF PARK MOTELS LIMITED, contrary to section 108(1)(b) of the Criminal Code of Canada and amendments thereto.

At all times relevant hereto the appellant was a lawyer practising in the City of Campbellton in the Province of New Brunswick where he had been engaged in partnership with Charles Van Horne until the latter was elected to represent the constituency where they both lived in the provincial legislature. In due course the local member became Minister of Tourism in the provincial government and the appellant was retained by that department to negotiate for the purchase of some land for the establishment of a provincial park to be known as Sugarloaf Park. While so retained the appellant had occasion to advise his friend, Camille Deschenes, who was a hotel operator and real estate dealer in the area, that if he was considering the building of a motel he might find the park area a desirable site for the purpose, in which event advantages could probably be obtained for him through the government, such as a long-term renewable lease and other benefits, including the shifting of some government construction equipment and material to the proposed site of the motel. In this connection the appellant indicated to his friend that he could obtain favours for him from his former partner, but that it would cost $10,000, including legal fees, to obtain Van

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Horne’s approval of having the motel located in the park complex.

This proposal was readily accepted by Deschenes with the result that over a period of months large sums of money were transferred by Deschenes through the appellant to Vane Horne who was then, as I have said, a sitting member of legislature for the constituency where both Arseneau and Deschenes resided, and who was by that time also the Minister of Tourism. Van Home’s co-operation in this scheme was made manifest by a letter which he wrote to Deschenes on the notepaper of the Office of the Minister of Tourism on December 24, 1971, in the following terms:

Further to our plans for a lodge at the Sugar Loaf Park, this will confirm you will be given first refusal in connection with the erection and operation of an 80 unit lodge on the park land, to be arranged on long term lease. This is to permit you to complete your plans and arrange financing.

It will have been noted that the appellant was charged with breach of s. 108(1)(b) of the Criminal Code which reads as follows:

108. (1) Every one who…

(b) gives or offers corruptly to a person who holds a judicial office, or is a member of the Parliament of Canada or of a legislature, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by him in his official capacity for himself or another person,

is guilty of an indictable offence and is liable to imprisonment for fourteen years.

There can, in my opinion, be little doubt, having regard to the facts which I have recited, that the appellant offered money to Van Home, then a member of the legislature of New Brunswick, in respect of acts to be done by him for the benefit of Camille Deschenes in furtherance of the latter’s plans to construct a motel in the provincial park.

The proceedings at trial were, however, characterized by a series of technical and procedural motions made on behalf of the appellant which included a lengthy demand for particulars of each

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count in the indictment. In the case of the second count the record discloses that only 13 particulars were sought, but the answer to the 13th particular read as if it were answering particular No. 14 of the first count in the indictment. The answer so given was, however, treated by all concerned as if the indictment had been amended to conform with it in accordance with s. 516(3)(c) of the Criminal Code which reads:

(3) Where a particular is delivered pursuant to this section,…

(c) the trial shall proceed in all respects as if the indictment had been amended to conform with the particular.

The particular in question, which was treated as if it had effected an amendment to count No. 2, read as follows:

Q. What specifically was the official capacity of J. Charles Van Horne?

A. Question number 14 is answered as follows: ‘as Member of the Legislature and Minister of Tourism for the Province of New Brunswick’. These particulars should be inserted in the middle of line 9 of Count No. Two, after the words ‘official capacity’.

I should have thought that the words “in his official capacity” as they occur in the original count No. 2 referred to Van Horne in his “official capacity” as “a Member of the Legislature of the Province of New Brunswick”, particularly having regard to the fact that the appellant is charged with having given or corruptly offered money “to a person then a Member of the Legislature of New Brunswick.”

Accordingly, in my view, the amendment to the second count does nothing more than add the words “and Minister of Tourism” to the charge as originally laid so that the count now alleges that the money was corruptly paid to a member of the Legislature who had also become a minister of the Crown and who therefore acted in both capacities.

It was, however, contended on behalf of the appellant that Van Horne was acting throughout the transaction in question in his “official capacity” as Minister of Tourism and that it would be no offence under s. 108 to pay money to a member of

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the Legislature in respect of anything done by him in his official capacity as a minister. This contention appears to me to involve the proposition that a member of the Legislature who is also a minister of the Crown is to be taken not to be acting in his official capacity as a member in respect of the acts and decisions which he makes in the administration of the department over which he is temporarily presiding.

In the absence of evidence to the contrary, I am prepared to proceed on the basis that it was as a member of the Legislature that Van Horne was appointed to be Minister, of Tourism. This would be in accord with the generally accepted practice in this country whereby ministers are accountable to the elected representatives of the people in Parliament or the Legislature as the case may be, and it is in his capacity as a member of the Legislature that a cabinet minister participates in the process of securing legislative authority for the implementation of the policies which he proposed. In the final analysis, it is as a member and not as a minister that he approves the expenditures which he may have recommended as a minister. In view of the above, I am unable to accept the contention of the appellant that Van Horne’s capacity as a member of the Legislature can be so severed from the functions which he performs as Minister of Tourism as to make it an offence under s. 108 to corruptly pay money to him as a member of the Legislature and no offence to corruptly pay money to the same man in his capacity as minister.

There can be little doubt that many of the actions with respect to which money was paid to Van Home were administrative in character and related to his authority as Minister of Tourism, but I do not think that it can be concluded that he was not also acting as a member of the Legislature of New Brunswick in relation to the favours which were sought and given for the construction of a motel by one of his constituents.

The distinction between legislative and administrative acts by a Member of Parliament is illustrated in the case of Regina v. Bruneau[3], where the

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accused was charged with unlawfully and corruptly agreeing to accept money for the use of his influence with the government in his official capacity as a Member of Parliament in relation to a real estate transaction in his constituency, contrary to s. 100(1)(a)(ii) of the Criminal Code, as it then read.

The defence advanced by the accused was that he was not acting in his official capacity as a Member of Parliament when he agreed to accept money for the purpose of influencing the administrative branch of the government with which, as a Member of Parliament, he had no direct concern. In the course of the reasons for judgment which he delivered on behalf of the Court of Appeal for Ontario, Mr. Justice McLennan had occasion to say, at p. 97:

Although the corrupt agreement was to interfere with the administrative function of Government, in the final analysis that function is subject to the will of Parliament of which the appellant was a member and therefore I am of opinion that he was acting ‘in his official capacity’ when he made that agreement.

In the same sense I am satisfied that the money was offered and accepted by Van Horne in the present case in his official capacity as a member of the Legislature notwithstanding that “the corrupt agreement was to interfere with the administrative function of Government”.

The appellant also contended that if the charge laid in count No. 2 disclosed any offence it was an offence against s. 110(1)(d)(i) which is the offence charged in count No. 3 of which the appellant had been acquitted. It is thus contended that the record discloses inconsistent verdicts and the defence of autrefois acquit should be applied.

The essential averment of the third count is that the appellant

…having or pretending to have influence with a minister of the government of the said province, to wit: J CHARLES VAN HORNE, or an official of the Department of Tourism of the Province of New Brunswick, did demand, accept or offer or agree to accept for himself or another person a reward, advantage or benefit of any kind as consideration for co-operation, assistance, exercise of influence or an act of omission in connection

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with the transaction of business with or any matter of business relating to the government of the Province of New Brunswick…

It will be seen that the charge in the second count relates to giving or offering money corruptly to Van Horne, whereas the third count alleges that the appellant did demand, accept or offer or agree to accept a reward or advantage of any kind for himself or another person, and I am satisfied that the words “another person” as used in the context of that section cannot refer to Charles Van Horne or an official of his department.

Count No. 2 under s.108(1)(b) relates to the offence of bribery, whereas count No. 3 under s. 110(1)(d)(i) is concerned with what is colloquially known as “influence peddling”.

The difference between the two sections is further accentuated by the fact that a person convicted of the offence of bribery (s. 108) is liable to imprisonment for fourteen years, whereas one convicted of influence peddling (s. 110) is liable to no more than five years’ imprisonment. It is abundantly clear that Parliament regarded s.108 as creating the more serious offence and, bearing this in mind, it is indeed unlikely that Parliament should have at the same time intended that s.108 was to have no application to bribery of a member of the legislature acting in his official capacity as a minister of the Crown.

The distinction between the two offences is also made the subject of the judgment of Fauteux, J., as he then was, speaking for this Court in Martineau v. The Queen[4], at p. 218.

With the greatest respect, I can see no overlapping between the two sections or the two counts so as to make an acquittal under count No. 3 inconsistent with a conviction under count No. 2.

For all these reasons, as well as for those expressed in the reasons for judgment of the

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Appeal Division of the Supreme Court of New Brunswick, I would dismiss this appeal.

Appeal dismissed, LASKIN C.J. and SPENCE J. dissenting.

Solicitors for the appellant: Patrick A.A. Ryan, Fredericton, and Jean-Claude Angers, Edmunston.

Solicitor for the respondent: Eugene D. Westhaver, Fredericton.