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CRIMINAL CODE OFFENCES - Offences against public order

Monday, April 17, 2017 @ 9:47 AM  

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Appeal by the Crown from Carson’s acquittal on a charge of influence peddling, contrary to s. 121(1)(d) of the Criminal Code. The appeal turned on the interpretation of "any matter of business" in s. 121(1)(d) and whether Carson's admitted activities were in connection with "any matter of business relating to the government". Carson served as a senior advisor in the Office of the Prime Minister between 2006 and 2008, and briefly in 2009. In 2010, he negotiated a contract with H2O Professionals Inc. (H2O), providing for the payment of commissions to his girlfriend on sales of water treatment systems to First Nations. Carson did not personally sign the contract, but it was understood that Carson would use his government contacts to help H2O sell its water treatment systems to First Nations. At trial, Carson admitted that he was a person with influence with the government at the relevant time and that he had demanded a benefit for his girlfriend in exchange for exercising his influence on behalf of H2O. The evidence established that Carson had several meetings with government officials, including Indian and Northern Affairs Canada (INAC) employees, and attempted to influence cabinet ministers and their staff. The judge found H2O’s point-of-use water treatment systems were not major capital projects for which INAC was involved in allocating funding. She also concluded that Carson’s attempts to promote pilot projects using H2O’s water treatment systems to INAC officials were fruitless, based on communications from INAC indicating that it was up to individual First Nations to identify their own needs and submit project proposals to INAC for funding. Ultimately, the judge rejected the Crown’s argument that the government, First Nations and H2O were in a three-way business relationship. She concluded that Carson’s assistance to H2O was not in connection with “the transaction of business or any matter of business relating to the government” because there simply was no government business. She refused to draw conclusions from the Protocol for Decentralized Water, an internal INAC document intended to establish standards to be followed for on-site water treatment systems funded by INAC, because the document was not put to any of the INAC witnesses.

HELD: Appeal allowed. The acquittal was set aside and a conviction was entered. The trial judge erred in confining "any matter of business related to government" to actual transactions to which the government was 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. The essence of the offence was acceptance of a benefit for exercise of influence. Carson’s acceptance of a benefit in exchange for exercising influence on government officials in order to push through H2O water treatment products to First Nation Bands was a "matter of business relating to the government" within the meaning of the offence. The evidence was undisputed that Carson advocated on behalf of H2O as a supplier in exchange for H2O paying commissions to his girlfriend. It did not matter that the government did not make any particular decision about whether to purchase H2O’s systems. The matter was remitted to the trial judge for sentencing.

R. v. Carson, [2017] O.J. No. 1223, Ontario Court of Appeal, J.M. Simmons, G.I. Pardu and B. Miller JJ.A., February 17, 2017. Digest No. TLD-Apr172017001