R. v James | May 19, 2022

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. James,

2022 BCSC 854

Date: 20220519

Docket: Victoria

Registry: 181243

Regina

v.

Craig Harley James

Before: The Honourable Associate Chief Justice H. Holmes

Reasons for Judgment

Counsel for the Crown:

Counsel for the Accused:

Place and Date of Trial:

D.G. Butcher, Q.C.

B. Martland, Q.C.

E. Holzman

K. Westell

G. Cameron

P. Mueller, Articled Student

Vancouver, B.C.

January 24-28,31, 2022

February 1-3,7-11,14-18,22, 2022

March 1-3, 2022

Place and Date of Judgment:

Vancouver, B.C.

May 19, 2022

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INTRODUCTION ....................................................................................................... 4

THE CONTEXT OF THE ALLEGATIONS................................................................. 5

The Legislative Assembly of British Columbia....................................................... 5

The Financial Management of the LABC............................................................... 7

THE LAW RELATING TO THE CHARGES .............................................................. 8

Breach of Trust by a Public Official........................................................................ 8

Fraud ................................................................................................................... 11

THE LONG SERVICE AWARD............................................................................... 13

Introduction.......................................................................................................... 13

The Origin and Evolution of the Long Service Award, and Payments Made........ 14

Preliminary Remarks....................................................................................... 14

The Origin of the Award .................................................................................. 15

Changes to the Award..................................................................................... 16

Payments of the Long Service Award ............................................................. 19

Robert Vaive’s Retirement and the Award ...................................................... 20

Payment to Mr. James and Ms. Ryan-Lloyd.................................................... 25

Analysis ............................................................................................................... 28

Introduction...................................................................................................... 28

Was Mr. James Entitled to a Long Service Award?......................................... 28

What Effect Had Mr. Farquhar’s Advice? ........................................................ 32

Was Mr. James’s Conduct A Serious and Marked Departure from the Standard

Expected of Him?............................................................................................ 35

Did Mr. James Act for a Purpose Other than the Public Good? ...................... 37

Conclusion........................................................................................................... 42

THE WOOD SPLITTER AND TRAILER.................................................................. 42

Introduction.......................................................................................................... 42

The Facts............................................................................................................. 42

The Parties’ Positions.......................................................................................... 44

Analysis ............................................................................................................... 45

Decision to Purchase ...................................................................................... 45

The Purchases ................................................................................................ 47

Storage Away from the LABC Precinct............................................................ 49

Use of the Equipment...................................................................................... 53

The Wood Splitter ....................................................................................... 53

The Trailer................................................................................................... 54

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Conclusion re Use....................................................................................... 56

Conclusion re Wood Splitter and Trailer Charges................................................ 56

Count 3: Breach of Trust by a Public Official.................................................. 56

Count 4: Fraud ............................................................................................... 59

THE TRAVEL-RELATED EXPENSE CLAIMS........................................................ 60

Introduction and the Parties’ Positions................................................................. 60

The Process for Reimbursement......................................................................... 62

Analysis ............................................................................................................... 64

Luggage .......................................................................................................... 65

Gift Shop and Other Miscellaneous Purchases............................................... 69

Protocol Gifts .............................................................................................. 70

Prototypes for LABC Giftshop..................................................................... 72

Office Supplies............................................................................................ 72

Office Decor................................................................................................ 73

Hospitality Supplies..................................................................................... 74

Staff Gifts .................................................................................................... 76

Books .............................................................................................................. 78

Clothing........................................................................................................... 81

The Travel Expenses as a Whole.................................................................... 85

Conclusion........................................................................................................... 86

VERDICT................................................................................................................. 87

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INTRODUCTION

[1]

Craig James was tried on five charges (in counts 2 - 5) alleging improper

payments or reimbursements to him from public funds during his term as Clerk of the

House for British Columbia’s Legislative Assembly. A sixth charge (in count 1) was

quashed after a pre-trial application – see R. v. James, 2021 BCSC 1408. The

remaining charges reflect three main allegations.

[2]

First, count 2 alleges that Mr. James committed breach of trust by a public

official in connection with the duties of his office by improperly obtaining and keeping

a long service award in the amount of close to $258,000.

[3]

Second, counts 3 and 4 charge breach of trust by a public official and fraud in

relation to the purchase and use of a trailer and a wood splitter paid for with public

funds.

[4]

Third, counts 5 and 6 charge breach of trust by a public official and fraud by

submitting claims and receiving reimbursement for personal (not job-related) travel

expenses.

[5]

In these reasons, I will discuss each of these main allegations separately,

always keeping in mind the evidence as a whole, including about the context in

which Mr. James and others worked. The observations and findings I will make are

based on a consideration of all the evidence in the trial, and only on that evidence.

The evidence in the trial may have been different from the information or evidence

available in the several investigative or inquiry processes that preceded the trial,

including those conducted by Speaker D. Plecas and by The Right Honourable B.

McLachlin.

[6]

I have considered my conclusions about each allegation in the larger context

of the conclusions made about the other main allegations, to determine whether one

conclusion affects another when they are viewed as a whole. In particular, I have

considered whether the conclusions made later in the reasons about some of the

travel-related expenses informs those made earlier in the reasons about the long

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service award, and have found that they do not. The events relating to the travel-

related expenses that may be relevant were much later in time than those relating to

the long service award, such that Mr. James’s purpose in relation to one does not

cast light on his purpose in relation to the other.

[7]

To provide a backdrop for the discussion to follow, I will start by briefly

outlining some of the key features of the context in which Mr. James worked, noting

in particular some of its distinct constitutional features – this was a public office but

not a government office – as well as some of the main events, notably a report of the

Auditor General, relating to the financial management of the office.

THE CONTEXT OF THE ALLEGATIONS

The Legislative Assembly of British Columbia

[8]

The Legislative Assembly of British Columbia (LABC) is created under s. 17

of the British Columbia Constitution Act, which sets out the rules governing the

system of parliamentary democracy in the Province, including the holding of

elections of Members (MLAs), the formation of government, and the passage of

legislation.

[9]

The LABC is independent of government and has a separate administrative

framework. According to s. 57 of the Act, the funds required for the necessary

expenses of the LABC are paid from the Consolidated Revenue Fund.

[10] Generally speaking, LABC officials and staff provide non-partisan support and

advice to the elected MLAs, and are responsible for facilities maintenance, security,

and other administrative functions to support the parliamentary activities of the

Assembly.

[11] The most senior official is the Speaker of the House, an MLA elected by the

other Members to preside impartially over debates of the Assembly, and maintain

order and decorum.

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[12] The role of the Speaker is supported by permanent officers and other staff.

The chief permanent officer is the Clerk, who is appointed by resolution of the

Members. Reporting directly to the Speaker, the Clerk provides non-partisan advice

to the Speaker and MLAs regarding matters of parliamentary procedure, prepares

the Orders of the Day, and maintains the records of parliamentary proceedings. The

Clerk also has extensive responsibilities for the administrative aspects of the LABC,

including directing the branches, approving and authorizing all operational policies,

and overseeing the management of LABC’s resources.

[13] The Clerk has the authority to delegate tasks to the Deputy Clerk and Clerk of

Committees, another permanent officer appointed by resolution.

[14] The LABC is managed by the Legislative Assembly Management Committee

(LAMC), which is created and governed under the Legislative Assembly

Management and Committee Act. The Speaker is the Chair of LAMC and is

responsible for the day-to-day administration of the LABC subject to the direction of

the Committee. There are a number of subcommittees that provide advice,

direction, and support to LAMC, including the Finance and Audit Committee, the

Executive Management Committee, and the Audit Working Group.

[15] The Clerk also serves as the Clerk of LAMC, and sits on the Financial and

Audit Committee and the Executive Management Committee.

[16] The organizational structure of LABC has varied over time, but during the

time relevant to this matter it included the following branches:

(a) Financial Services Branch, led by the Executive Financial Officer (EFO),

which is responsible for financial and administrative support to MLAs, the

LABC, caucuses, and constituency offices;

(b) Legislative Assembly Protective Services, headed by the Sergeant-At-

Arms (SAA), which provides security for the LABC precinct; and

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(c) Legislative Facilities Services Branch, which is responsible for the

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maintenance of all buildings and grounds in the LABC precinct, and is

headed by the Facilities Manager who reports to the SAA.

The Financial Management of the LABC

[17]

As mentioned, the LABC’s Financial Services Branch, led by the EFO, is

responsible for financial and administrative support to the LABC, as well as MLAs,

caucuses, and constituencies. The EFO serves at the same level as the SAA and

the Deputy Clerk and Clerk of Committees, and reports to the Clerk.

[18] Hilary Woodward, who testified in the trial, joined the LABC as EFO in 2013,

and has served in that position since then. She evidently viewed her mandate as, in

large part, to address the deficiencies in the LABC’s financial management identified

by the extremely critical report of the BC Auditor General in July 2012, which was

also supplemented by further comment in follow-up processes. The Auditor General

had also been critical in 2007.

[19] The 2012 report identified serious systemic problems with the LABC’s

financial administration. For example:

Internal control deficiencies were so serious and pervasive that I was unable

to conclude whether the Legislative Assembly’s trial balance for the years

ended March 31^st, 2009, 2010 and 2011 were fairly stated.

Segregation of duties is an internal control designed to prevent errors or

fraudulent transactions . . . the Legislative Assembly does not have the

necessary oversight procedures to compensate for inadequate segregation of

duties.

. . . LAMC, the Speaker and the Clerk are not operating as a governance and

management oversight body to ensure that the Legislative Assembly’s

resources are properly utilized and that its operations are well managed and

in compliance with all relevant legislation and stakeholder expectations

(around the stewardship of public monies).

[20] Some changes were implemented after the release of the July 2012 report.

For example, a new management structure was created. Also, the Office of the

Clerk made a commitment to provide audited financial statements for the Legislative

Assembly each year. And, a large-scale process was implemented for the review of

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the LABC’s written policies. That process was underway at the time of Mr. James’s

departure from the LABC, and has continued under the leadership of his successor

as Clerk, Kate Ryan-Lloyd. Ms. Ryan-Lloyd was Deputy Clerk and Clerk of

Committees during Mr. James’s tenure as Clerk.

[21] I turn now to the law relating to the charges.

THE LAW RELATING TO THE CHARGES

[22]

The indictment charges breach of trust by a public official under s. 122 of the

Criminal Code, and fraud under s. 380.

Breach of Trust by a Public Official

[23] The offence of breach of trust by a public official flows from the duty of public

office holders to ensure actions taken in their official capacity are for the benefit of

the public and not for an improper purpose. This duty is essential to good

governance, including by maintaining public confidence in those who exercise state

power: R. v. Boulanger, 2006 SCC 32 at para. 1.

[24] Section 122 provides that:

122 Every official who, in connection with the duties of their office, commits

fraud or a breach of trust, whether or not the fraud or breach of trust would be

an offence if it were committed in relation to a private person, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more

than five years; or

(b) an offence punishable on summary conviction.

[25] The section codifies the common law offence of misfeasance in office, which

required proof of dishonesty, corruption or oppression. It is an offence with serious

consequences upon conviction, including loss of reputation and the risk of a

significant prison sentence: Boulanger at paras. 41, 47.

[26] In Boulanger, the Court listed five essential elements of the offence (para.

58):

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(a) the accused is an official;

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(b) the accused was acting in connection with the duties of their office;

(c) the accused breached the standard of responsibility and conduct

demanded of them by the nature of the office;

(d) the conduct of the accused represented a serious and marked departure

from the standards expected of an individual in the accused’s position;

and

(e) the accused acted with the intention to use their official position for a

purpose other than the public good – for example, for a dishonest, partial,

corrupt or oppressive purpose.

[27] The first four elements describe the actus reus of the offence, and the fifth

describes the mens rea. To establish the offence, the Crown must prove each of the

five elements beyond a reasonable doubt.

[28] In Boulanger at paras. 49-52, McLachlin C.J.C. for the Court noted that the

actus reus could cover a wide range of conduct in breach of the official’s duty to the

public. The breach could consist of any act or omission contrary to a duty that is

imposed by law or regulation, by the accused’s contract of employment, or by a

guideline connected with the accused’s duties. But perfection is not required, if

public officers are to avoid criminal liability – mistakes and errors in judgment do not

of themselves give rise to the offence. The conduct must be sufficiently serious in

act and in the intent with which it is done, to move it from the realm of administrative

fault into that of criminal behaviour.

[29] In this case, the first two elements are not in issue. The parties agree that

Mr. James was an “official” at the relevant times, and that he was acting in

connection with the duties of his office in relation to the subject matter of the

charges.

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[30] For the third element, which asks whether the accused breached the

standards of responsibility and conduct demanded of them, the relevant standard

must be proven. This may be done through opinion evidence, rules, policies, or

codes of conduct: R. v. McNish, 2020 ABCA 249 at para. 37. See also R. v. Brown,

2014 BCSC 1911 at para. 52.

[31] The fourth element requires proof that the accused not only breached the

standard expected of an individual in the same position, but did so in a “marked”

departure from that standard. This is to distinguish less serious forms of conduct

(that may attract administrative or civil sanction) from conduct of a criminal

character: Boulanger at para. 54. The inquiry takes account of the full context,

including the public purpose the accused serves in their official position, as well as

their public responsibilities, and considers the severity of the departure from those

responsibilities: McNish at para. 38.

[32] The mens rea, the fifth element, requires a high level of culpability, measured

subjectively, in distinction to administrative fault: McNish at para. 39. McLachlin

C.J.C. described the element as using the public office for purposes other than the

benefit of the public, and noted that in practice this has often been using an office for

a dishonest, partial, corrupt, or oppressive purpose (Boulanger, para. 56):

In principle, the mens rea of the offence lies in the intention to use one’s

public office for purposes other than the benefit of the public. In practice, this

has been associated historically with using one’s public office for a dishonest,

partial, corrupt or oppressive purpose, each of which embodies the non-

public purpose with which the offence is concerned.

[33] For this reason, the accused’s purpose in committing the conduct must be

considered, unlike for some offences where that is not necessary. For the offence to

be complete, the purpose must have been for a purpose “other than the public

good”: R. v. Darnley, 2020 ONCA 179 at para. 45.

[34] In R. v. Probe, 2020 SKCA 5 at paras. 65-77, Leurer J.A. undertook a

detailed analysis of whether the mens rea for s. 122 requires that the sole purpose

of the official’s action be for a purpose other than the public good (a “non-public

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good purpose”), and concluded that it does not. Rather, the Crown must “prove that

the official acted deliberately while specifically intending a non-public good purpose,

not that the official had only that one non-public good purpose in mind”: at para. 77.

[35] The mens rea may be inferred from the circumstances, such as the accused

attempting to conceal their actions, or receiving a significant personal benefit.

However, the receiving of a personal benefit will not be conclusive of mens rea, and,

conversely, the offence may be proven where the accused is not enriched:

Boulanger at para. 57.

Fraud

[36] The offence of fraud is set out in section 380, which provides:

380 (1) Every one who, by deceit, falsehood or other fraudulent means,

whether or not it is a false pretence within the meaning of this Act, defrauds

the public or any person, whether ascertained or not, of any property, money

or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of

imprisonment not exceeding fourteen years, where the subject-matter

of the offence is a testamentary instrument or the value of the subject-

matter of the offence exceeds five thousand dollars; or

(b) is guilty

(i) of an indictable offence and is liable to imprisonment for a

term not exceeding two years

(ii) of an offence punishable on summary conviction,

where the value of the subject-matter of the offence does not exceed

five thousand dollars.

[37] Fraud as so described consists of two essential elements: dishonesty and

deprivation: R. v. Olan, [1978] 2 S.C.R. 1175 at 1182.

[38] These are succinctly described by McLachlin J. as she then was, in her

discussion of fraud’s actus reus and mens rea in R. v. Zlatic, [1993] 2 S.C.R. 29 at

43:

The elements of the offence of fraud are discussed in a general fashion in R.

v. Théroux, [1993] 2 S.C.R. 5, released simultaneously. For the purposes of

this case, it suffices to state that the actus reus of fraud will be established by

proof of:

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1. the prohibited act, be it an act of deceit, a falsehood or some other

fraudulent means; and

2. deprivation caused by the prohibited act, which may consist in

actual loss or the placing of the victim's pecuniary interests at risk.

Correspondingly, the mens rea of fraud is established by proof of:

1. subjective knowledge of the prohibited act; and

2. subjective knowledge that the prohibited act could have as a

consequence the deprivation of another (which deprivation may

consist in knowledge that the victim's pecuniary interests are put at

risk).

Where the conduct and knowledge required by these definitions are

established, the accused is guilty whether he actually intended the prohibited

consequence or was reckless as to whether it would occur.

[39] Where the alleged fraud is by deceit or falsehood, the issue concerning the

actus reus is whether the accused, as a matter of fact, represented that a situation

was of a certain character when, in reality, it was not: R. v. Théroux, [1993] 2 S.C.R.

5 at 17.

[40] Where the alleged fraud is, rather, by “other fraudulent means”, the

fundamental question concerning the actus reus is whether the act can be

stigmatized as dishonest. This may be where deceit or falsehood cannot be shown,

but other dishonest circumstances can be, such as using corporate funds for

personal purposes, failing to disclose important facts, exploiting the weakness of

another person, or diverting or arrogating funds or other property without authority to

do so: Zlatic at 44-45.

[41] The deprivation element of the actus reus may consist of actual economic

loss caused by the dishonest act, or the risk of such economic loss: Théroux at 16.

[42] The mens rea for fraud is subjective, and the bar faced by the Crown is high.

The accused must have known and intended both the prohibited act and the

deprivation as a consequence. In Théroux, McLachlin J. described the mens rea as

follows (at 19):

Having ventured these general comments on mens rea, I return to the

offence of fraud. The prohibited act is deceit, falsehood, or some other

dishonest act. The prohibited consequence is depriving another of what is or

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should be his, which may, as we have seen, consist in merely placing

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another's property at risk. The mens rea would then consist in the subjective

awareness that one was undertaking a prohibited act (the deceit, falsehood

or other dishonest act) which could cause deprivation in the sense of

depriving another of property or putting that property at risk. If this is shown,

the crime is complete.

[43] With this factual and legal framework in mind, I turn to the first main

allegation, which relates to the long service award.

THE LONG SERVICE AWARD

Introduction

[44] Count 2 charges that between September 2011 and February 2013,

Mr. James acted in breach of trust by using his position as Clerk to improperly obtain

and keep a long service award in the amount of approximately $258,000.

[45] The Crown contends that Mr. James was not entitled to this award because

the award was created in 1984 specifically for the three table officers (as well as the

Chief of Hansard) who were serving at that time, and who did not include Mr. James.

[46] Table officers are LABC personnel, and include the Clerk, Deputy Clerk, and

other staff who sit at a table on the floor of the Legislative Chamber during sessions

of the Legislative Assembly, and provide advice and support to MLAs and the

Speaker on parliamentary procedure.

[47] The Crown notes that the table officers serving in 1984 were on retainer to

the LABC without the substantial salary and benefits that Mr. James has enjoyed

since he was first appointed as a table officer in 1987.

[48] The Crown contends also that even if Mr. James was, in law, entitled to the

award, his conduct in arranging payment to himself was in breach of trust because

he was in an obvious conflict of interest but nonetheless inserted himself into the

process at the LABC and pushed for payment.

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[49] The defence contends that the evidence about the origin and terms of the

award, and about which table officers were eligible for it, has too many gaps to show

that Mr. James was not entitled to the payment he received.

[50] The defence contends also that to the extent that Mr. James participated in

the process that led to payment, he relied on legal advice from an experienced

lawyer, Donald Farquhar Q.C., from whom he concealed no facts, and who stands

by his view to this day that Mr. James was entitled to the award. Moreover, it was

the Speaker at the time, Bill Barisoff, not Mr. James, who made the decision to pay

the award. In all those circumstances, Mr. James’s intended purpose cannot be

viewed as corrupt, the defence submits.

[51] I will first outline the main evidence about the history of the award, before

then discussing whether Mr. James acted in breach of trust by obtaining and

keeping payment to himself.

The Origin and Evolution of the Long Service Award, and Payments Made

Preliminary Remarks

[52] The type of payment described by count 2 as a long service award was also

referred to in the evidence and submissions by other terms, including long service

allowance, long service benefit, retirement allowance, and retirement benefit. It is

common ground that these terms may all be taken as referring to the long service

award, and that it was a different form of compensation than an employment-related

pension. In these reasons, I will usually refer to “the long service award”, as does

the charge (or to simply “the award”), unless I am discussing evidence that uses a

different term.

[53] In this initial review of the origin and evolution of the award, I will set out the

undisputed or agreed facts about it, only alluding at this stage to points of dispute

between the parties about how those facts should be interpreted. I will, on occasion,

indicate my own view of the facts, and will always signal (by “in my view”, “I find”, or

a similar phrase) where this represents a factual finding. The discussion and

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determination of the main issues in dispute that are necessary to resolve will come

later.

[54] As I recount the undisputed or agreed facts, I will highlight references in the

evidence to potential indicators that the award was intended either for only the three

specific table officers (who did not include Mr. James), as the Crown contends, or for

all table officers serving between the award’s origin and its termination, as

Mr. Farquhar concluded.

The Origin of the Award

[55] The parties agree that the award was created in 1984, three years before

Mr. James joined the LABC.

[56] At that time, the LABC’s three table officers were Ian Horne Q.C., George

MacMinn Q.C., and Ian Izard Q.C.. All three of these table officers were practising

lawyers who maintained their law practices alongside their legislative roles

throughout their service to the LABC. The LABC paid them each a retainer, and,

back in 1984, they received neither benefits (such as the public service pension plan

or the government’s executive benefit plan) nor vacation pay.

[57] Some time later, those table officers were given various benefits, but the

evidence did not make clear when that happened or exactly which benefits they then

received. Mr. Izard testified, and was not challenged on this evidence, that the

public service pension plan was one of the benefits to which the three table officers

became entitled, but that they never became entitled to the government executive

benefit plan.

[58] The long service award as originally created is described in the August 10,

1984 memorandum of Speaker Walter Davidson, which revised earlier memoranda

of May 11 and 16, 1984. It provided for a lump sum long service award on leaving

office, in the amount of 13 days of salary for each year of service to a maximum of

20 years, and read in full as follows:

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Subject: Retirement Allowance of Table Officers

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of the House and Chief of Hansard in

Recognition of Years of Service______

The above senior officers do not fall within the terms of the Public Service Act

Retirement Allowance (or the Executive Benefit Plan, and/or similar benefits

available to senior officials and managers).

Accordingly, it is agreed and confirmed that as a term of appointment and

employment with respect to the Table Officers and Chief of Hansard that

upon vacating their respective offices, they shall be paid a long-service

award. The formula for the award is to be based on 13 days of salary at the

current daily rate for each year of service to a maximum of 20 years, effective

from the date of appointment, to be paid in a lump sum in the year of

termination of office.

[59] As can be seen above, the subject line of the August 10, 1984 memorandum

related the award to “Table Officers of the House and Chief of Hansard”. This was

slightly different from the subject line that had appeared in the May 11 and 16, 1984

memoranda, which referred to “Officers of the House and Chief of Hansard”. I note

also that all three memoranda were directed to “Officers of the House and Chief of

Hansard”, none of them specifically naming Messrs. Horne, MacMinn, or Izard.

Changes to the Award

[60] Three years later, shortly after Mr. James joined the LABC as a table officer,

Speaker John Reynolds confirmed (in a memorandum of March 31, 1987) that the

award would be payable to the estate of a person entitled to it, in the event of their

death. This memorandum again referred to “Table Officers of the House and Chief

of Hansard”, without naming particular people. It read in full as follows:

Re:

Memorandum of August 10^th, 1984; Retirement Allowance of Table

Officers of the House and Chief of Hansard in Recognition of Years of

Service

It is agreed and confirmed that the award referred to in the above mentioned

memorandum shall, in the event of the death of any of the persons entitled

thereto prior to retiring from office, be payable to the estate of such deceased

and calculated as if the deceased had retired on the day preceding his death.

[61] Also in 1987, the government made changes to the public service pension

plan, including an early retirement incentive, and discontinued the government

executive benefit plan.

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[62] In October of that year, Speaker Reynolds increased the retainers of Messrs.

Horne and MacMinn “to allow for the Provincial Government’s Executive Benefit

Plan”, as well as for “an adjustment being made within that British Columbia Public

Service”. The memorandum, dated October 6, 1987, also capped as of April 1, 1987

“the lump sum settlements of the above Table Officers, previously approved in lieu

of the Executive Benefit Plan”. The memorandum referred specifically to Mr. Horne

and Mr. MacMinn – I will explain later why it did not also refer to Mr. Izard. The

memorandum read in full as follows:

Re: Mr. Ian M. Horne, Q.C., Clerk of the House and Mr. E. G. MacMinn,

Q.C., Deputy Clerk.

I have approved a 15% increase in the retainers of the above Table Officers,

effective April 1, 1987, to allow for the Provincial Government’s Executive

Benefit Plan; and for a 1 1/2% cost-of-living increase in these retainers,

effective November [1], 1987 with respect to an adjustment being made

within the British Columbia Public Service.

This memorandum will also confirm that the lump sum settlements of the

above Table Officers, previously approved in lieu of the Executive Benefit

Plan, will be capped as at April 1, 1987.

Please process the above increases in the appropriate manner.

[line 4 of the memorandum as typed read November 2, 1987, but a

handwritten correction on the exhibit substituted November 1, 1987, and the

admissions refer to November 1 as the applicable date.]

[63] The “lump sum settlements” to which the memorandum referred were

evidently Messrs. Horne and MacMinn’s long service awards. The admissions

indicate that Ian Fraser, the Comptroller at the time to whom the memorandum was

addressed, wrote in handwriting next to the near-final paragraph relating to capping,

“This is the 13 days per year bank they were receiving”.

[64] The Chief of Hansard’s award was also capped at around the same time.

Elaine Dunbar, Administrative Officer with the Office of the Speaker, sent a

memorandum dated November 20, 1987 in relation to the salaries of personnel in

the Hansard and SAA offices indicating that, among other things, the “retirement

benefit of 13 days per year” of, specifically, Mr. Gislason was capped as of March

31, 1987.

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[65] On the same day (October 6, 1987) that Speaker Reynolds approved the

15% increase in Messrs. Horne and MacMinn’s retainers and capped their lump sum

settlements, he also approved a 10% increase in Mr. James’s salary, setting out his

reasoning as follows:

Re:

Mr. Craig H. James, Clerk of Committees and Second Clerk Assistant

I have approved a 10% increase in salary for Mr. Craig H. James, effective

October 1, 1987, to allow for the Provincial Government’s Executive Benefit

Plan; and for a 1 1/2% cost-of-living increase in salary, effective November

2nd, 1987, with respect to an adjustment being made within the British

Columbia Public Service.

Please process the above increases in the appropriate manner.

[66] A month later, on November 5, 1987, Speaker Reynolds sent another

memorandum about the long service award, this one allowing for early payment out

after the capping date. This memorandum again referred to “Table Officers of the

House and Chief of Hansard”, and not to particular named people:

Re:

Table Officers of the House and Chief of Hansard long-service benefit

provisions.

Any of the above whose long-service benefits have been previously “capped”

may, upon request, have paid out the amount of benefit respectively earned

and accrued at the date of capping in lieu of payment in year of termination of

office, as previously provided.

[67] The only evidence of any previous “capping”, as referred to in the above

memorandum, is Speaker Reynolds’ October 6, 1987 memorandum, discussed

earlier, which capped the awards for, specifically, Mr. Horne and Mr. MacMinn as of

April 1, 1987. Also, as noted above, a later memorandum of November 20, 1987

indicated that Chief of Hansard Mr. Gislason’s award was capped as of the previous

March.

[68]

I said I would explain why the October 6, 1987 memorandum granting

Messrs. Horne and MacMinn a 15% increase in their retainers and capping their

long service awards as at April 1, 1987 did not also apply to Mr. Izard. Mr. Izard

testified (and a memorandum of November 12, 1987 from Ms. Dunbar to Comptroller

Fraser confirms) that Mr. Izard opted to, in the language of the memorandum,

R. v. James

Page 19

“continue receiving his retirement benefit package of thirteen days annually, to a

maximum of twenty years of service, rather than to opt for a salary increase of ten

percent as of October 1, 1987”.

[69] In his evidence, Mr. Izard confirmed that this accurately reflected the

agreement he made with the LABC at that time. He had served as a table officer for

about ten years by that time, while both Mr. MacMinn and Mr. Horne had passed the

twenty-year mark, and for reasons he could not remember, he preferred to forego

the proposed salary increase in favour of continuing to accrue entitlement to the long

service award up to the twenty-year maximum. This allowed him to accrue

entitlement beyond the April 1, 1987 “capping date” that applied to the awards for

Messrs. Horne and MacMinn.

Payments of the Long Service Award

[70] Each of the three table officers and the Chief of Hansard serving in 1984,

when the award was created, received payment for the award at one time or

another. Mr. Izard was the only one of the four whose payment was completed after

Mr. James became Clerk in 2011.

[71] Mr. Izard opted in late 1987 to take payment of the award accrued to that

point, and $31,495 was accordingly paid to him in April 1988. He received a further

$80,224 (prior to adjustments) in mid-January 2012 when he retired, representing

the balance of his award which, as agreed, had continued to accrue.

[72] Mr. MacMinn was, at his request, paid out for his benefit in February 1988,

and received $82,057.

[73] Mr. Horne received his payment in the late 1980s, but the amount is not

known.

[74] Garth Gislason, who had been Chief of Hansard when the award was created

in 1984 and continued in that position until his retirement in 1993, sought payment of

the award in early 1992. The evidence is incomplete as to whether Mr. Gislason

R. v. James

Page 20

was actually paid the award, but various documents indicate that he was considered

entitled to it.

[75] Robert Vaive, who was Clerk Assistant (and therefore a table officer) from

1994 until the end of 2011, but was not a table officer before that period, received a

total retirement benefit payment of $202,385 in late 2011, the majority of which was

characterized as the long service award. I will discuss the circumstances of this

payment shortly.

[76] The parties agree that nobody received the award other than the people

mentioned above and later Mr. James and Ms. Ryan-Lloyd, as I will discuss.

However, the parties also agree (by way of an admission) that the documentary

evidence is not necessarily complete because the information available from the

LABC in relation to payments of the retirement benefits “appears to be incomplete”.

[77] The parties also agree that, except for Ms. Ryan-Lloyd, everyone who

received the award retained it.

[78] Before I say more about the payments to Mr. James and Ms. Ryan-Lloyd, I

will first outline the circumstances relating to the retirement of Mr. Vaive, because

they immediately preceded those payments and cast some light upon them.

Robert Vaive’s Retirement and the Award

[79] Issues about eligibility for the award came to the fore in 2011 in connection

with Mr. Vaive’s retirement. As previously mentioned, Mr. Vaive was a table officer

for many years (1994 - 2011) but was not one of the three table officers serving in

1984 when the award was created.

[80] Mr. Vaive’s first two letters announcing that he would retire, which he sent in

May 2011, gave a retirement date of early 2012, and sought “severance

compensation based on the severance formula of one month’s salary for each year

of service at the BC Legislative Assembly, i.e. 17 months”.

R. v. James

Page 21

[81] When Mr. James became Clerk later in 2011, Mr. Vaive withdrew (by letter of

October 11, 2011) his outstanding retirement letter, but he maintained his request for

“retirement severance compensation” on his eventual retirement. It was clear that

Mr. Vaive would need to retire soon because of a serious medical condition

expected to cause his death imminently.

[82] Mr. Vaive followed up with a letter of November 9, 2011, in which he noted

that the Speaker seemed disinclined to grant the “retirement severance

compensation” he had sought, and he claimed instead a “retirement allowance for

table officers”. The letter read as follows:

This is further to my submission dated May 18, 2011, regarding a retirement

severance compensation. At my last meeting with you and George MacMinn,

Q.C., on October 11, 2011, you stated that the Speaker was not inclined to

approve this retirement severance application. You will note that I have yet to

receive a written response to this May 18, 2011 application.

Accordingly, absent a tenable counter-proposal from the Legislative

Assembly and, pursuant to a Legislative Assembly policy entitled Retirement

Allowance for Table Officers and Chief of Hansard in Recognition of Years of

Service, dated August 10, 1984, endorsed and signed by then-Speaker

Walter Davidson, I am claiming my retirement allowance for Table Officers,

namely thirteen (13) days of salary annually, from March 20, 1994, the date

of commencement of my service with the Legislative Assembly, to March 20,

2012, i.e. 234 days. See the actual policy dated August 10, 1984 attached.

Please note that there are precedents at the Legislative Assembly actually

perfecting this policy. See Memo dated April 25, 1988, from then-Speaker

John Reynolds. In this context a further retirement allowance was paid to this

Table Officer on August 18, 1998. Verification of the files may confirm that

other Table Officers also availed themselves of this policy.

It is reasonable and would be much appreciated to expect a written response

to the above by November 30, 2011.

[83] Mr. Vaive then spoke with Speaker Barisoff, who had taken office in 2005,

about the “retirement benefit” (the admissions use that term). Speaker Barisoff

testified that he himself did not know of the existence of the retirement benefit –

Speaker Barisoff also used that term – until Mr. Vaive told him about it in this

conversation.

[84] Speaker Barisoff asked Mr. James to obtain legal advice, and Mr. James

consulted Donald Farquhar, Q.C., a Victoria lawyer. Speaker Barisoff testified that it

R. v. James

Page 22

was clear that Mr. Vaive wanted the financial consequences of his retirement settled

quickly, and that he would litigate if necessary, possibly on short notice because of

the urgency arising from his medical condition. Mr. Vaive also let it be known that

Mr. MacMinn would support him, including by giving evidence. Mr. MacMinn had

retired as Clerk by this time but was still serving as Clerk Consultant, and was

considered influential.

[85] Mr. Farquhar met with Mr. James on five occasions about Mr. Vaive’s

situation, and also spoke with Mr. James several times by telephone. Mr. James

gave Mr. Farquhar the five memoranda about the award from speakers Davidson

and Reynolds in 1984 and 1987, as well as Mr. Vaive’s letters and attachments.

[86] During the course of their dealings about Mr. Vaive, Mr. James sent

Mr. Farquhar an email, as below, in which he also asked about his own situation

(and that of Ms. Ryan-Lloyd):

Subject line: Craig James

Hi, Don —

I would be interested in knowing how the financial arrangement I sent you

yesterday could work for Robert Vaive. Perhaps paying him over time instead

of one huge lump sum. As well, how this package affects both Kate and me.

Thanks,

Craig

[Emphasis added.]

[87] The defence submits that this email is significant in showing that Mr. Farquhar

was asked for his legal opinion about Mr. James’s and Ms. Ryan-Lloyd’s eligibility for

the award, as well as about Mr. Vaive’s situation. (I note in this regard that the

defence does not suggest that this submission finds support from the email’s subject

line, “Craig James”. As the defence fairly noted, Mr. James used that subject line in

a number of his emails on a variety of topics.) I will discuss the defence submission

later.

[88] In his email response, Mr. Farquhar raised concerns about the seemingly ill-

defined scope of the retirement award, and about the basis on which Mr. Izard had

R. v. James

Page 23

been partially paid out. He began with a comment that, in my view, expressly or by

implication indicated that table officers other than those in office when the award

was created were also entitled to it:

Hi Craig -

I have read with interest the documentation that Mr. Vaive has brought

forward with respect to his pending retirement. It would seem that the

Retirement Allowance Policy is binding and would apply to Mr. Vaive’s

situation as well as to any other party who falls within the classification of

“Officers of the House and Chief of Hansard”.

What is being relied upon is simply a policy and therefore can be revised or

revoked at any time. However, should that happen, then in my opinion those

who fell within the designated class of beneficiaries at the time of the revision

or revocation would be entitled to claim the Retirement Allowance, at least up

until that point in time, on the basis that it was described in the Memorandum

as a term of appointment and employment.

[Emphasis added.]

[89] Speaker Barisoff was concerned both to avoid litigation with Mr. Vaive, and to

shut down the award to close out any unfunded liabilities for the LABC. At

Mr. James’s request, Mr. Farquhar drafted a letter setting out a proposal for Speaker

Barisoff to send to Mr. Vaive, and he sent the draft to Mr. James on December 5,

2011. The letter, which was never sent by Speaker Barisoff, would have said that

Mr. Vaive was entitled to the following (based on a retirement date of January 2,

2012):

 Vacation compensation carry over

 Vacation compensation current

 Retirement allowance

 Total

$26,483

$29,900

$197,474

$253,859

[90] Although Speaker Barisoff did not send the letter, I mention it as some

evidence of Mr. Farquhar’s understanding and views, although I also recognize that

it was drafted for potential use in a negotiating process, and not as a legal opinion.

R. v. James

Page 24

[91] Speaker Barisoff, Mr. Farquhar, and, I find, Mr. James (although Speaker

Barisoff did not remember Mr. James attending), met on December 14, 2011 for

Mr. Farquhar to give his legal advice.

[92] As I will discuss later, Mr. Farquhar testified that the legal advice he gave in

the meeting related only to Mr. Vaive’s situation, not to the situations of Mr. James or

Ms. Ryan-Lloyd, whose names he said did not come up in the meeting. He testified

that the advice was for Speaker Barisoff, not for Mr. James.

[93] Mr. Farquhar gave his advice orally, and did not reduce it to writing in any

way until asked to do so approximately two years later by Speaker Linda Reid, who

by that time had taken office and was making inquiries into the payment of one or

more long service awards. When asked why he did not give a written opinion at the

time he gave the advice, Mr. Farquhar testified that Speaker Barisoff evidently

wanted the Vaive matter resolved in quick order, especially because of the threat of

litigation, and was concerned about the LABC’s future liability in respect of the

retirement award.

[94] The letter that was actually sent to Mr. Vaive was from Mr. James.

Mr. Farquhar did not draft this letter, and was unaware of it. In this letter of

December 19, Mr. James expressed doubt about Mr. Vaive’s entitlement to a “Long

Service Award”, but nevertheless offered $197,474, along with other amounts, on

receipt of a notice of retirement effective December 31, 2011. It was advantageous

to the LABC for Mr. Vaive to retire in 2011, rather than in early 2012 as he had

originally indicated he would, because substantial further vacation entitlement would

be avoided. The letter read in full as follows:

Further to our meeting of December 16, we have now determined that you

are entitled to the Executive Benefit Earned of $53,177.32. We continue to

have some concerns about the applicability of the Long Service Award to

your situation. Nevertheless upon receiving from you a Notice of Retirement

effective December 31, 2011 we shall pay to you the following sums:

Vacation compensation carry-over

Vacation compensation current

Executive benefit earned

$26,483.70

29,900.96

53,177.32

197,474.38

Long service award

R. v. James

Page 25

If the foregoing is not acceptable to you, then we will consider it necessary to

place you on leave of absence without pay as of January 1, 2012. We trust

that the foregoing will allow matters to be expeditiously concluded, hopefully

to your satisfaction.

[Emphasis added.]

[95] Mr. Vaive accepted the offer the next day, and confirmed that he would retire

as of December 31, 2011.

Payment to Mr. James and Ms. Ryan-Lloyd

[96] Ms. Ryan-Lloyd testified that, in February 2012, Mr. James told her that the

long service retirement benefit program still existed, that Mr. Farquhar had

determined that it applied to existing table officers, and that she and Mr. James

would be paid out to terminate any ongoing liability to the LABC.

[97] This was surprising news to Ms. Ryan-Lloyd, who had not been aware of the

award’s existence until Mr. James told her about it when he was working with

Mr. Farquhar concerning Mr. Vaive’s and, Ms. Ryan-Lloyd testified, Mr. Izard’s

eligibility. (Mr. Izard’s eligibility appears to have been subject to question for a short

time, but, I find, was resolved.) Ms. Ryan-Lloyd consulted Mr. MacMinn, who, she

testified, confirmed the existence of the program, and she also took some comfort

from Mr. James’s assurance that he had legal advice from Mr. Farquhar that she

was entitled to payment. Her impression from her inquiries of Mr. James was that

Mr. Farquhar had given a written legal opinion.

[98] On February 10, 2012, Mr. James emailed Comptroller Dan Arbic advising

that Speaker Barisoff had instructed that the award was to be terminated, and that

Mr. James and Ms. Ryan-Lloyd were to be paid out:

Subject: FW: Craig

…

The Speaker has instructed that the long service award/retirement plan for

Table Officers be terminated as of February 8, 2012 and that Kate and I be

paid out. The instruction is addressed to me and copied to Kate and you.

Your copy of the instruction will be delivered Friday and I would appreciate

the amounts in question being processed immediately.

R. v. James

Page 26

[99] As indicated in Mr. James’s email to Mr. Arbic, a more complete instruction

from Speaker Barisoff followed shortly after. This was in the form of a letter, drafted

by Mr. Farquhar, from Speaker Barisoff to Mr. James, copied to Ms. Ryan-Lloyd and

Mr. Arbic. The letter, dated February 13, 2012, read in full as follows:

Dear Mr. James,

By Memorandum dated August 10, 1984, the Honourable K. Walter

Davidson, Speaker, put in place a Retirement Allowance for Table Officers of

the House to recognize the years of service of those individuals. The

allowance was intended as a term of employment payable upon the

recipients vacating their respective offices or the plan being terminated.

While styled a ‘long-service award’ the arrangement did not require a

minimum length of service by way of entitlement. As well, while purportedly

intended as a Retirement Allowance, the body of the document makes no

reference to retirement.

Accordingly, as of the date of this Memorandum I am hereby terminating any

further commitments and obligations that the Legislative Assembly would

otherwise have had to the Officers of the House pursuant to the

Memorandum of August 10, 1984.

To ensure full compliance with the terms of the Memorandum of August 10,

1984 to this point in time all those Officers of the House who have accrued

entitlements pursuant to the Memorandum of August 10, 1984 to this date,

that remain unpaid, shall be forthwith paid out.

Yours sincerely,

Hon. Bill Barisoff

Speaker

c.

Kate Ryan-Lloyd, Deputy Clerk and Clerk of the Committees

Dan Arbic, Legislative Comptroller

[100] Mr. James followed up on February 15 through Ms. Horvath, who asked

Mr. Arbic to ensure that the amounts due to Mr. James and Ms. Ryan-Lloyd be paid

out by Friday, February 17.

[101] Mr. Arbic asked for written confirmation from Speaker Barisoff that Mr. James

and Ms. Ryan-Lloyd were intended to fall within, as described in Speaker Barisoff’s

letter, “all those Officers of the House who have accrued entitlements pursuant to

the Memorandum of August 10, 1984 to this date, that remain unpaid”. Mr. James

responded quickly, saying:

R. v. James

For clarification, the Speaker’s letter was drafted by Don Farquhar, QC and

Page 27

though referencing Officers of the House it is meant to include only Table

Officers, the remaining two being Kate and myself and no one else.

Craig

[102] Wanting additional assurance that Speaker Barisoff intended payment to

Mr. James and Ms. Ryan-Lloyd, Mr. Arbic printed Mr. James’s email and took it to

Speaker Barisoff. Speaker Barisoff initialled the email to confirm that his instruction

was described in Mr. James’s email.

[103] Payment was made as directed, Mr. James receiving $257,988 and

Ms. Ryan-Lloyd $118,915 in February 2012.

[104] Ms. Ryan-Lloyd returned her payment approximately a year later, in February

2013, saying that she was “uncomfortable with accepting such a large payment” and

was returning it “for personal reasons”.

[105] This followed after inquiries were made by Acting EFO Bob Faulkner, who

had recently joined the LABC to help reform its financial practices after the report of

the Auditor General in July 2012. When Mr. Faulkner asked Ms. Ryan-Lloyd for the

documents relating to the award paid to her, she once again questioned Mr. James

about these and also asked him for the legal opinion Mr. James had, a year earlier,

told her Mr. Farquhar had given.

[106] It was clear from her evidence that Ms. Ryan-Lloyd felt that Mr. James

misdirected or misled her in response to her request for the legal opinion she

understood was reduced to writing. She testified that Mr. James directed her at

various times to his own office staff, to the Auditor General’s office, and to Speaker

Barisoff’s office, none of whom or which were able to produce it.

[107] I turn now to discuss whether the evidence establishes beyond a reasonable

doubt that Mr. James was in breach of trust as a public official by obtaining and

keeping the $257,988 paid to him as a long service award.

R. v. James

Page 28

Analysis

Introduction

[108] For the reasons I will give, I conclude that Mr. James likely was not entitled to

the long service award. However, I also conclude that Mr. Farquhar’s advice may

have led Mr. James to sincerely believe that he was entitled. In those

circumstances, together with all the other circumstances, the mens rea of the

offence is not proven beyond a reasonable doubt.

[109] In principle, it may be possible for the Crown to establish beyond a

reasonable doubt that a public official who obtains and keeps a payment to which

they are entitled acted in breach of trust. However, in this case the facts would not

support such a conclusion.

[110] It will therefore be unnecessary to discuss the more challenging issue (for the

Crown) of whether the mens rea is proven beyond a reasonable doubt if Mr. James

was entitled to the award.

[111] I will first explain my conclusion that Mr. James was likely not entitled to the

award.

Was Mr. James Entitled to a Long Service Award?

[112] The conclusion that Mr. James was likely not entitled to an award is based on

the following.

[113] First, Mr. James always received substantial employee benefits throughout

his employment as a table officer, and the 1984 memoranda in my view made clear

that the award was created to substitute for benefits that the table officers were not

receiving at that time.

[114] In this regard, I agree with the Crown that the first paragraph of the August

1984 memorandum explained the basis for the award, while the second paragraph

(which begins with “Accordingly . . .”) described the award that is available as a

result. For convenience, I reproduce those portions:

R. v. James

Page 29

The above senior officers do not fall within the terms of the Public Service Act

Retirement Allowance (or the Executive Benefit Plan, and/or similar benefits

available to senior officials and managers).

Accordingly, it is agreed and confirmed that as a term of appointment and

employment with respect to the Table Officers and Chief of Hansard that

upon vacating their respective offices, they shall be paid a long-service

award.

[115] As I said, Mr. James received a salary and substantial employee benefits

throughout his employment as a table officer that the table officers serving in 1984

were not receiving at the time.

[116] In relying on this factor, I recognize that it is possible that the underlying

purpose of the award changed over time. However, this I find unlikely, despite the

fact that the three table officers on retainer did begin to receive some benefits,

though not the executive benefit plan, according to Mr. Izard, within a few years after

the award was created.

[117] Second, no evidence suggests that any of the table officers, other than those

serving in 1984, knew of the award until the topic came up in 2011 in relation to

Mr. Vaive’s claims. There was also clear and specific evidence that none of

Mr. James, Ms. Ryan-Lloyd, and Speaker Barisoff knew about the award before that

time. Ms. Ryan-Lloyd testified that she did not know about the award until

Mr. James told her about it in connection with the work he was doing with

Mr. Farquhar concerning Mr. Vaive’s and Mr. Izard’s retirements, and that Mr. James

at that time expressed scepticism about the award’s existence and about Mr. Izard

or any other table officer’s eligibility.

[118] It is true that, in his November 9, 2011 letter, Mr. Vaive claimed the award

and thus must have known about its existence. However, this claim was new in that

letter, and Mr. Vaive described that claim very differently from the “retirement

severance compensation” he had sought in his May and October 2011 letters. I find

that Mr. Vaive likely learned of the award between the October and November letters

from discussions with Mr. Izard, who had been making his own retirement

arrangements and was claiming the remainder of his award. Mr. Izard testified that

in, he believed, approximately September 2011, he told Mr. Vaive about the award

R. v. James

Page 30

and that it had been capped – I conclude that this conversation in fact happened a

few weeks later.

[119] Third, none of the documents relating to Mr. James’s employment make any

mention of a long service award. The November 28, 1986 letter of Mr. Horne, then

Clerk, offering Mr. James a position as Clerk of Committees, indicated the salary “we

are recommending” and also numerous types of benefits or allowances, but did not

refer to a long service award or retirement allowance of the type described in the

1984 memoranda. Nor did a later memorandum of August 23, 2011 confirming

Mr. James’s compensation as Clerk mention eligibility for any such long service or

retirement award or allowance. In that memorandum, the Speaker advised the

Comptroller that as Clerk, Mr. James would be receiving a “salary equivalent to that

paid to the Chief Judge of the Provincial Court . . . with benefits commensurate with

those received by Deputy Ministers, including a vehicle allowance”.

[120] Similarly, and as the parties agree in the admissions, Ms. Ryan-Lloyd’s terms

of employment did not refer to the long service award.

[121] Fourth, Speaker Davidson sent two separate memoranda on October 6,

1987, one increasing Messrs. Horne and MacMinn’s retainers, and capping their

long service awards as of April 1, 1987, and the other increasing Mr. James’s salary

but making no reference at all to a long service award or benefit, or to capping such

an award. Each of these memoranda set out the rationale for the retainer and salary

increases (to allow for the Provincial Government’s executive benefit plan, a cost of

living increase, and an adjustment within the public service), but only the Horne-

MacMinn memorandum went on to also address the long service award. The

reasonable inference is that Speaker Davidson did not consider Mr. James to be

entitled to the award.

[122] Fifth, no documentary or other evidence, apart from Mr. Farquhar’s testimony,

which I will discuss below, expressly states or supports the conclusion that

Mr. James was entitled to the award.

R. v. James

Page 31

[123] Sixth, I cannot agree with Mr. Farquhar’s opinion that the August 10, 1984

memorandum “embedded the award into the position of table officer” in a

prospective manner. Mr. Farquhar based this view in large part on the fact that that

memorandum spoke of the award being “a term of appointment and employment”, in

contrast to the two May 1984 memoranda, which spoke of it being “a term of

employment”. In Mr. Farquhar’s view, the use of “appointment” indicated that the

August 1984 memorandum should be read as prospective, granting eligibility to table

officers appointed after the date of the memorandum.

[124] I find this reasoning unpersuasive because, in its context in the

memorandum, “appointment” is as easily read as speaking retrospectively as it is as

speaking prospectively. I refer back to my first point on this issue, that the first

paragraph of the August 1984 memorandum indicates that a condition for

entitlement was to be one of the senior officers who were not receiving the benefits

described in the memorandum. The officers who fit this description at the time were

already appointed.

[125] Seventh, I cannot agree with the defence that the long service payment to

Mr. Vaive provides evidence that eligibility was not confined to the three table

officers (and Chief of Hansard) serving in 1984. The payment was made in the

course of negotiations which the LABC had a strong interest in concluding quickly,

and, as I noted earlier, the LABC achieved significant financial advantage in the

overall result by moving forward Mr. Vaive’s retirement.

[126] For the various reasons I have given, I find it unlikely that Mr. James was

entitled to the award, despite, as I will explain, Mr. Farquhar’s opinion to the

contrary.

[127] I turn now to Mr. Farquhar’s advice, and its effect on the analysis of whether a

breach of trust is proven.

R. v. James

What Effect Had Mr. Farquhar’s Advice?

Page 32

[128] The Crown submits that Mr. Farquhar’s legal advice has no real relevance to

the issues because it related only to Mr. Vaive’s situation, and not to Mr. James’s (or

Ms. Ryan-Lloyd’s) eligibility for the award.

[129] Mr. Farquhar’s evidence supports this position.

[130] Mr. Farquhar testified that his legal opinion was for the Speaker, who he

viewed as his client, not for Mr. James. He also testified that the opinion related only

to Mr. Vaive’s compensation, not to whether Mr. James or any other table officer

was eligible for the award – he explained his remarks about Mr. James and

Ms. Ryan-Lloyd’s eligibility as but a passing comment. Mr. Farquhar testified that

Mr. James’s and Ms. Ryan-Lloyd’s names never once came up in his dealings with

Speaker Barisoff, and that the eligibility of table officers generally was never

discussed with him.

[131] In addition, Mr. Farquhar testified that he was careful never to name any

particular person as entitled to be paid out. Rather, his advice to Speaker Barisoff

was that those who were entitled to an award should be paid out, and he knew that

the Comptroller’s office would work out which, if any, of the table officers were

entitled.

[132] Speaker Barisoff’s evidence on this last point was a bit different. He testified

that Mr. Farquhar advised that Mr. Vaive, Mr. James, and Ms. Ryan-Lloyd were all

eligible.

[133] Mr. Farquhar’s evidence about the scope of his opinion is consistent with his

September 16, 2013 “written accounting of the verbal legal advice that [he] provided

to Speaker Barisoff in December, 2011”, in response to Speaker Reid’s request.

And Speaker Barisoff agreed, in his evidence, that the accounting accurately reflects

the advice Mr. Farquhar gave. That written accounting read in full as follows:

Dear Madame Speaker:

Re: Retirement Allowance

I am writing in response to your request for a written accounting of the verbal

legal advice that I provided to Speaker Barisoff in December, 2011, in

R. v. James

response to the request by Table Officer Robert Vaive for a retirement

Page 33

package at the time of his withdrawal from service with the Legislative

Assembly.

One of the terms of retirement being pursued by Mr. Vaive was a retirement

allowance which was pursuant to a plan put into place by the Honourable K.

Walter Davidson, Speaker by Memorandum dated August 10, 1984, a copy of

which is included herewith. After reviewing the document and collateral

information received, I advised Speaker Barisoff that in my opinion Mr. Vaive

would be entitled to the compensation provided for in the Memorandum of

August 10, 1984, for the following reasons:

 The plan was styled as a retirement allowance, for inter alia Table

Officers in recognition of years of service and therefore would

include Mr. Vaive.

 The plan was stated to be “…as a term of appointment and

employment…”, and therefore, in my opinion, could not be

retroactively rescinded.

 All Table Officers who had retired from or changed their status

with the Legislative Assembly from the inception of the plan

through to the end of 2011, had received the benefits provided for

under the plan.

 I was advised that George MacMinn, QC who had been Clerk

throughout the term of Mr. Vaive’s employment was of the view

that Mr. Vaive was entitled to the benefits of the plan, and

presumably would so testify if the matter had become contested.

I further advised Speaker Barisoff that in my respectful opinion he should give

consideration to terminating the plan since while it was purportedly in

recognition of years of service, it did not in fact require the Table Officer to

serve a minimum period in Office before gaining entitlement to the benefit.

Speaker Barisoff elected to terminate the benefit resulting in current Table

Officers having accrued benefits that could be paid out, or carried forward as

unfunded liabilities through to the time of their eventual termination of Office.

Speaker Barisoff elected to payout the accrued entitlements in 2012 for the

four Table Officers who had accrued entitlements.

I trust that the foregoing is responsive to your request and will be pleased to

answer any questions that you may have with respect to same.

[134] The Crown submits that Mr. Farquhar’s evidence about the limited scope of

his opinion is reflected also in the fact that he did not take various steps, listed

below, that an experienced lawyer would have taken if asked for an opinion about

the eligibility of table officers generally, or Mr. James and Ms. Ryan-Lloyd

specifically, such as to (as quoted from the Crown’s written submissions):

R. v. James

 review the circumstances of Mr. Izard’s case (he had elected to

Page 34

continue to accrue the Retirement Benefit by forgoing a 10% increase

salary);

 review changes to the Retirement Benefit that allowed for an earlier

payout than retirement/vacating office;

 review Mr. James’s employee file, where he would have seen that

Mr. James received a 10% salary increase in 1987 in exchange for

eligibility for the Executive Benefit Plan;

 review [former Chief of Hansard] Garth Gislason’s situation, where he

would have seen that the Retirement Benefit was capped as of March

31, 1987;

 speak with any individuals involved in the process;

 study the history or the purpose of the Retirement Benefit when it was

created in 1984;

 he did not write his legal advice down until two years later; and

 consider the potential “grandfathering” of the former non-employees.

[135] From this and other evidence, I cannot disagree that Mr. Farquhar may well

have intended to confine his advice to resolving Mr. Vaive’s situation as quickly and

as advantageously for the LABC as possible.

[136] However, the difficulty for the Crown is that Speaker Barisoff evidently did not

understand Mr. Farquhar’s advice to be as limited as Mr. Farquhar may have

intended, and one may reasonably infer that Mr. James may have understood the

advice similarly.

[137] Speaker Barisoff testified that after he was first made aware of the retirement

allowance, when Mr. Vaive claimed it, he was of the strong view that legal advice

was necessary to determine “the validity of paying it out”. He testified that

Mr. Farquhar gave advice about Mr. Vaive’s situation, and, in the course of so doing,

advised him that Mr. James and Ms. Ryan-Lloyd were also eligible.

[138] Further, it was implicit in the advice Mr. Farquhar acknowledged he did give,

to shut down the award, that he viewed all table officers as eligible. Mr. Farquhar’s

main concern about the “so-called retirement allowance” was that it was

fundamentally flawed in not being restricted, by its terms, to officials with long

R. v. James

Page 35

service. He therefore advised Mr. Barisoff to “shut it down” – especially since two

new table officers would soon be starting, replacing Messrs. Izard and Vaive. It

must have been clear to both Speaker Barisoff and Mr. James that the problem

Mr. Farquhar described could not arise unless the award was available to table

officers beyond those in service in 1984.

[139] Mr. James evidently paid attention to this advice – Mr. Farquhar testified that

Mr. James asked him to draft some wording to shut down the award, and he did so

in the form of the letter Speaker Barisoff sent on February 13, 2012.

[140] As I find, Mr. Farquhar was giving what reasonably appeared to be legal

advice (and was seen as such by Speaker Barisoff) that all table officers were

eligible for the award unless the Speaker took steps to shut it down.

[141] Whether Mr. James honestly relied on Mr. Farquhar’s advice to that effect

engages the mens rea element of the offence. Before I discuss that, I will first

explain my findings regarding the actus reus, specifically, how Mr. James’s conduct

breached the standard expected of him, and did so in a serious and marked way.

[142] At the centre of this discussion is the conflict of interest arising as a result of

Mr. James’s involvement in the process by which he obtained the award.

Was Mr. James’s Conduct A Serious and Marked Departure from the

Standard Expected of Him?

[143] The standard of conduct and responsibility demanded of Mr. James included,

at the most basic level, avoiding conflicts of interest between the duties of his office

and his personal financial interests. This and other basic responsibilities weighed all

the more heavily on him as Clerk, and therefore effectively the chief executive officer

and senior manager of the LABC, than on lower level employees.

[144] It hardly seems necessary to refer to written policies to explain how

Mr. James was in a conflict of interest, but they included, for example, para 1.1 of

the LABC’s Human Resource Operations Policies and Procedures Policy, 1-3

“Employee Relations Standards of Conduct” that said the following, and more:

R. v. James

No conflict should exist or appear to exist, between the private interest of

Page 36

employees and their official duties. Upon appointment to office, employees

shall arrange their private affairs in a manner that will prevent conflicts of

interest from arising.

…

Employees should not have a pecuniary interest that could conflict in any

manner with the discharge of their duties.

[145] Without a doubt, Mr. James breached the standard of conduct expected of

him in this regard by continuing to instruct Mr. Farquhar and to advise Speaker

Barisoff when his own financial interests were at play – worse yet, expressly brought

into play by his own inquiry. The potential benefit to him personally was extremely

large, and he should have disengaged entirely and stepped away from any further

involvement. The evidence made clear that the LABC had in the past sought

outside independent advice on human resources issues, and there is every reason

to conclude that similar steps could have been taken in this situation.

[146] Compounding the breach was Mr. James’s failure, in the context of inquiries

about his own eligibility, to bring to Mr. Farquhar’s attention to various items of

information Mr. Farquhar lacked – I will discuss these later. Having, as I find, never

heard of the long service award until Mr. Vaive claimed it, Mr. James should have

pressed for a more complete analysis of his own eligibility before directing and

receiving payment, albeit on Speaker Barisoff’s instruction.

[147] Mr. James’s conduct was thus a serious and marked departure from the

standard expected of him.

[148] The Crown has established the elements of the actus reus of the offence.

[149] I turn next to consider the mens rea of the offence, specifically, whether the

Crown has established beyond a reasonable doubt that Mr. James’s conduct was for

a purpose other than for the public good.

R. v. James

Did Mr. James Act for a Purpose Other than the Public Good?

Page 37

[150] As discussed, to prove a breach of trust by a public official, the Crown must

prove that the public official acted with a purpose other than for the public good,

such as for a dishonest, partial, corrupt or oppressive purpose. For brevity, I will

refer to this as a dishonest purpose. The dishonest purpose must be proven beyond

a reasonable doubt because it constitutes the mens rea, an essential element, of the

offence.

[151] Not every act (or failure to act) committed while in a conflict of interest is

dishonestly done, even where the conflict of interest is obvious to the objective

observer and is a significant one.

[152] The issue on this point is whether Mr. James may have honestly relied on

what he understood to be Mr. Farquhar’s advice that he was eligible for the award,

and in good faith carried out Speaker Barisoff’s instructions. On the facts of this

case, did Mr. James obtain and keep the payment while not really believing that he

was entitled to it (or being unsure on that point), and being aware of his conflict of

interest, but deciding not to take steps to confirm that he was entitled?

[153] The Crown submits that any purported reliance by Mr. James on

Mr. Farquhar’s opinion was in fact dishonest, because Mr. James manipulated the

situation in which Mr. Farquhar gave the advice, caused confusion about its scope,

and seized the opportunity that then arose to obtain payment to himself.

[154] I agree with the Crown that it was Mr. James who approached Mr. Farquhar

for advice for the LABC, and who, throughout, was the sole point of contact with

Mr. Farquhar (apart from the meeting with Speaker Barisoff at which Mr. Farquhar

gave his opinion). True as well that Speaker Barisoff was evidently not a “details

person” – unsurprising given the enormous scope of his responsibilities – and he

relied heavily on Mr. James and his staff for guidance and advice. I also agree that

Mr. James controlled the flow of documents and information that Mr. Farquhar

received or did not receive, and he did so while in an obvious conflict of interest, as I

have explained. Even worse, Mr. James specifically asked Mr. Farquhar about his

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Page 38

own (and Ms. Ryan-Lloyd’s) eligibility for the award while continuing to deal alone

with Mr. Farquhar on behalf of the LABC. And the payment potentially available to

Mr. James was extremely large – that too is a factor. Do these considerations and

all the other circumstances together show beyond a reasonable doubt that

Mr. James did not honestly believe from Mr. Farquhar’s advice and Speaker

Barisoff’s instructions that he could properly receive payment of the award as he

did?

[155] I conclude that they do not, to that high standard.

[156] Nothing in the evidence indicated that Mr. James’s relationship with

Mr. Farquhar was other than a regular professional one, or that it could in any way

have been expected to influence the opinion Mr. Farquhar was likely to reach.

Mr. James had dealt with Mr. Farquhar before these events, and, on being

appointed Clerk, asked him to provide legal services to the LABC on an ongoing

basis. However, their relationship was not a close or a social one, beyond the

occasional business lunch.

[157] Nor do I find that Mr. James manoeuvred Speaker Barisoff into approving

payment of the award. On Speaker Barisoff’s evidence, it was he himself who

insisted on legal advice about “the validity” of paying the award to Mr. Vaive, and

who, having received advice, was concerned to quickly shut down the award, and to

pay out those who he understood to be entitled.

[158] It is true that the instructions and LABC documents Mr. James gave to

Mr. Farquhar did not provide the full picture Mr. Farquhar needed to opine on

Mr. Vaive’s or Mr. James’ entitlement to the award. Mr. Farquhar was not given

Mr. James’s employment letter that outlined his various benefits without mentioning

the award, or the similar memorandum about Mr. James’s salary and bi-weekly pay.

Mr. Farquhar knew that Messrs. Horne, MacMinn, and Izard were part-time table

officers, but he did not know whether or not they received benefits, and he was

puzzled that Mr. Izard had received payment of a long service award without having

retired. He concluded his email to Mr. James as follows:

R. v. James

One thing that I find confusing is the payout to Mr. Izard on April 28, 1988 of

Page 39

benefits purportedly earned to that point in time as the Memorandum makes it

clear that same in fact only become payable upon the claimants “vacating

their respective offices”.

Also, when Mr. Farquhar wrote the draft letter for Speaker Barisoff to send to

Mr. Vaive, he did not know that Mr. Vaive had been (according to the letter

Mr. James instead sent to Mr. Vaive) eligible for executive benefit plan

compensation, which the August 1984 memorandum indicated was one of the forms

of compensation for which the award was to substitute. Nor did he know that

Mr. James had received a salary raise when the government executive benefit plan

concluded in 1987.

[159] Since Mr. Farquhar’s conclusion about the eligibility of all table officers

therefore lacked a solid foundation, there should be no surprise that, as I find, it was

not correct. However, the evidence does not allow me to conclude that Mr. James

was dishonest in failing to provide Mr. Farquhar with the documents he needed.

Mr. Farquhar was the lawyer giving advice and was therefore in the best position to

determine what class or type of document he required, even if he did not know what

specific documents existed. On the evidence, Mr. James gave Mr. Farquhar the

“core” documents, and, as their dealings continued, he gave him the additional

documents Mr. Farquhar requested. During those dealings, Mr. James spoke with

Mr. Farquhar numerous times, and no evidence shows that he failed to provide any

document or information that Mr. Farquhar requested. (I will address shortly

whether Mr. James’s failure to, of his own initiative, provide additional documents

and information nonetheless indicates a dishonest purpose.)

[160] Indeed, Mr. Farquhar remained firm during the trial in his conclusion that all

table officers were eligible, despite having by then seen most or all the documents

that he did not see before he gave his advice. Mr. Farquhar was not asked directly

whether some or all of the documents he did not see would have made a difference

to his conclusion. However, he said nothing in his evidence to suggest that any

additional documents could have affected his reasoning in 2011. Rather, he

explained and justified without qualification the reasoning underlying his 2011

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Page 40

opinion, and he took issue with the different conclusions about eligibility for the

award that he understood had been reached in other settings or inquiries.

[161] In making these observations, I recognize that Mr. Farquhar testified that he

viewed his advice as relating only to Mr. Vaive’s situation, and not to the eligibility of

Mr. James (or other table officers), and that this may explain why he did not ask for

documents such as Mr. James’s employment letter. However, and as I have

discussed, there can be no doubt that, even though Mr. Farquhar may well have not

intended this, others may have understood the advice he actually gave as going

further than only to whether Mr. Vaive should be paid an award.

[162] Was Mr. James dishonest by omission in not pressing upon Mr. Farquhar

additional documents, such as those relating to his own compensation, or

information he could have derived from a thorough inquiry into the origin and

evolution of the award?

[163] I view this as a grey area, on the evidence. Mr. James’s apparent failure to

assemble or seek out further information and documents for Mr. Farquhar raises

some doubt about the honesty of his state of mind, particularly in view of his obvious

conflict of interest, of which Mr. James must have been aware. However,

Mr. Farquhar had been engaged because he had knowledge and experience that

neither Mr. James nor Speaker Barisoff, as non-lawyers, themselves had.

Mr. Farquhar was therefore best-equipped to determine what types of information or

documents would assist him. I note also, in considering the overall context in which

Mr. James and Mr. Farquhar interacted, that Mr. Farquhar read the language of the

key memoranda as conclusive in indicating that all table officers were eligible.

[164] The Crown submits further that a dishonest purpose should be inferred from

Mr. James telling Ms. Ryan-Lloyd that a written legal opinion supported the view that

he and she were eligible for the award, and referring her in three different fruitless

directions to seek it out. As I have said, there was no such legal opinion in written

form, and Ms. Ryan-Lloyd evidently felt humiliated in having been misled.

R. v. James

Page 41

[165] However, Mr. Farquhar had given oral legal advice that, as discussed,

expressly or implicitly indicated that same result. Also, Speaker Barisoff testified

that Mr. Farquhar did give a written legal opinion at the time in the form of a letter.

Speaker Barisoff was mistaken in that evidence, but, if his mistake carried back to

the time of the events, he may well have inadvertently misled Mr. James (and

others) to believe that a written opinion existed.

[166] The Crown submits also that Mr. James’s letter to Mr. Vaive offering the

retirement package that Mr. Vaive accepted provides evidence of dishonesty

because the letter shows that Mr. James doubted Mr. Vaive’s eligibility, and by

logical extension his own. To repeat, Mr. James said, in the letter, that “[w]e

continue to have some concerns about the applicability of the Long Service Award to

your situation”, but he offered compensation on that basis nonetheless.

[167] As I have already discussed, this provides some evidence that Mr. James

knew that table officers not in service when the award was created may not be

eligible for it. However, the weight of that evidence is reduced by the fact that the

LABC and Mr. Vaive were negotiating, the LABC “blowing smoke”, as Mr. Farquhar

put it, in an effort to bring down the amount Mr. Vaive was claiming. Mr. Vaive had

specifically claimed the award, and thus put it on the negotiating table; and although

the LABC offered and paid Mr. Vaive a substantial long service award, it also

induced him to retire in 2011, and not 2012 as Mr. Vaive had originally indicated,

thus saving the LABC large amounts on account of vacation time that would

otherwise have accrued.

[168] On all the evidence, I find it well possible that Mr. James was, as the Crown

submits, purposefully selective in what he gave Mr. Farquhar, and was opportunistic

and self-serving in allowing the process to be driven forward as it was.

Mr. Farquhar’s opinion, together with Speaker Barisoff’s concern to bring an end to

the Vaive situation as well as to, as he understood, further liabilities of that nature, in

effect provided Mr. James with the perfect “cover”.

R. v. James

Page 42

[169] However, strong suspicion is not sufficient to establish an element of a

criminal offence. The Crown must prove the element beyond a reasonable doubt,

and, on my view of all the circumstances, it has not done so.

Conclusion

[170] The evidence does not establish beyond a reasonable doubt that Mr. James

acted for a dishonest purpose in obtaining the long service award.

[171] Count 2 is therefore not proven.

[172] Next, I will discuss the allegations relating to the wood splitter and the trailer.

THE WOOD SPLITTER AND TRAILER

Introduction

[173] Counts 3 and 4 charge respectively that Mr. James was in breach of trust as

a public official, and that he acted fraudulently, in relation to the LABC’s purchase of

a wood splitter and a trailer that he personally picked up from the vendors and kept

for approximately a year at his residence or elsewhere, where they were of no use to

the LABC.

The Facts

[174] The basic facts concerning these purchases are not in dispute.

[175] The two pieces of equipment were purchased in the fall of 2017 after a

decision was made to spend “use or lose” budgeted capital funds to increase the

supplies kept on the LABC precinct for “business continuity” purposes – meaning for

use in the event of a natural disaster or other catastrophic event. Randy Spraggett,

who was the LABC’s Facilities Manager at the time (and is now the LABC’s Manager

of Capital Planning) drafted a detailed proposal for various expenditures for this

purpose, which was then presented in abbreviated form for the various approvals

required.

R. v. James

Page 43

[176] The proposal encompassed a variety of equipment and storage items to be

used in the event of a disaster for heating, communications, shelter, rescue, and

extraction. These included, for example, a third sea container (to add to the two

already on site storing emergency equipment), tents, chain saws, chop saws, and a

hydraulic pump, as well as “log splitter equipment” and a “trailer for moving

equipment or tents as needed”.

[177] The rationale for the purchase of a wood splitter and chainsaws was that they

could be used to clean up debris and remove damaged trees and hydro poles,

which, in turn, could be burned and used for warmth if electrical power were to be

lost.

[178] Approval of the proposal was given by each of Mr. Lenz (as SAA),

Ms. Woodward (as EFO), Kate Ryan-Lloyd (as Deputy Clerk and Clerk of

Committees), and Mr. James (as Clerk of the House), as well as by Speaker Darryl

Plecas.

[179] Mr. Spraggett conducted research to find a wood splitter and trailer he

considered suitable, with Mr. James participating to some extent as I will discuss

later. Vendors of the selected models were found, and prices agreed. The wood

splitter would be purchased from a company in Sidney, BC for a total price of

$3,200, and the trailer from a company in Aldergrove, BC for a total price of $10,029.

[180] The next stage was delivery. None of the LABC vehicles had a hitch suitable

for towing either of these large pieces of equipment. As to the possibility of picking

up the wood splitter in a LABC vehicle, Mr. Spraggett testified that the LABC truck

was too small to carry the splitter – and his evidence on this point was not

challenged or contradicted – and there was no suggestion in the evidence that the

LABC had another suitable vehicle. The possibility of delivery by the vendor of the

wood splitter was not the subject of evidence, but, for the trailer, the evidence made

clear that the cost of delivery would have been very significant – potentially “upwards

of the selling price of the trailer itself”, according to an email from the vendor – and

R. v. James

Page 44

delivery would have been only to Parksville, from where the trailer would have had to

be collected.

[181] Mr. James had a suitable truck and hitch, and he offered to pick up the wood

splitter from Sidney because he “was out that way” (in Mr. Spraggett’s account of the

conversation). Mr. James did in fact pick up the wood splitter, on October 28, 2017.

He advised Mr. Lenz that day that he had done so, and he took the wood splitter to

his own residence in Saanich.

[182] The wood splitter remained away from the LABC precinct over the course of

the year or so that followed, until an officer of the LABC Protective Services

collected it from Mr. James’s residence on December 7, 2018 by arrangement with

Mr. James’s counsel, after Mr. James’s ouster from his position.

[183] As to the trailer in Aldergrove, Mr. Spraggett testified – unchallenged and

uncontradicted on this – that Mr. James said he was heading to the mainland

anyway, and would save the LABC some funds by picking it up. Mr. James did so in

a short trip during the morning of November 17, 2017. He notified Mr. Lenz that day

that he had collected the trailer, and he notified Mr. Spraggett similarly three days

later.

[184] It is common ground that Mr. James took the trailer directly to his residence,

and kept it there or at a storage facility until about a year later, when the trailer was

moved onto the LABC precinct, as I will discuss later.

The Parties’ Positions

[185] The Crown submits that Mr. James acted in breach of his position of trust as

a public official and fraudulently by inserting himself into the procurement and

purchasing process for the trailer, manoeuvring a means of taking the trailer and,

before it, the wood splitter to his residence, and keeping them for his own use for a

year, away from the LABC where they might have been needed in an emergency.

Mr. James’s residence is more than 13 km from the LABC precinct, and there is no

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Page 45

real dispute that the wood splitter and trailer would be of no use there to the LABC in

the type of emergency for which they were purchased.

[186] The defence submits that the Crown’s position essentially questions the

wisdom of the purchases, which were not Mr. James’s idea, and which in any event

were approved by the responsible officials. More fundamentally, the defence

submits that, on the evidence, Mr. James assisted, rather than deprived, the LABC

by collecting the wood splitter and trailer from the vendors, and by storing them at

his residence until a suitable space for them on the LABC precinct was found.

[187] In the discussion that follows, I will address in more detail the successive

steps by which the wood splitter and trailer were acquired by the LABC and came to

remain in Mr. James’s possession away from the LABC grounds. If any of the facts I

mention are in dispute, I will say so and will indicate my findings as necessary.

Analysis

Decision to Purchase

[188] Mr. James took a keen interest in the procurement of the trailer and in the

purchase of both it and the wood splitter. However, the evidence does not show that

he dominated or manipulated those processes, or directed them away from their

proper course. I will explain.

[189] On the evidence, it was Mr. Spraggett’s idea that these items be purchased.

He testified that news reports about Hurricane Maria in Puerto Rico alerted him to

the need for equipment of this type. Mr. Spraggett also drafted the detailed

spending request (on Mr. Lenz’s behalf) when capital project funds came available

for business continuity purposes, supporting the proposed purchases with a detailed

rationale. The request was submitted with minor revisions, and it was approved as

necessary, including by Mr. James and Speaker Plecas.

[190] There was some controversy about the choice of items to purchase. Some

senior staff with some responsibility for business continuity, but not among those

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whose approval of the request was necessary, did not agree with Mr. Spraggett that

the wood splitter and trailer would be useful purchases.

[191] Chief among those in disagreement was Randy Ennis, who at the time was

Staff Sergeant with the LABC Protective Services (and who, after Mr. Lenz’s

departure from the LABC, served as Acting SAA until his own departure in May

2019). Mr. Ennis raised concerns at the time about the proposal to purchase the

wood splitter and the trailer, though he supported the purchase of the other items

described in the spending request, because he thought that chain saws would be

sufficient for splitting logs (to burn for heat), and an existing LABC van could be used

to move things around the precinct. As to the suggestion of burning hydro poles if

necessary (along with fallen trees, for warmth if power was unavailable), which was

part of Mr. Spraggett’s rationale for the purchases, Mr. Ennis noted that hydro poles

are coated with creosote, and would emit toxic fumes if burned.

[192] Surjit Dhanota, who later replaced Mr. Spraggett as LABC Facilities Manager,

and was Mr. Spraggett’s deputy at the time, also had doubts about the purchases,

he testified, although he does not appear to have been as closely involved as

Mr. Ennis in the discussions that led to them. In respect of the wood splitter,

Mr. Dhanota noted that green wood does not easily burn. In respect of the trailer,

Mr. Dhanota testified that he understood – and I note that his evidence on this

specific point was hearsay as to the accuracy of his belief, and that topic was

undeveloped in the evidence – none of the LABC vehicles were powerful enough to

pull that large a piece of equipment.

[193] It is surprising that Mr. Ennis’s doubts, in particular, did not carry more weight

in the discussions with Mr. Spraggett, Mr. Lenz, and Mr. James. Mr. Ennis had been

a long-serving senior officer in the Canadian military with overseas tours in austere

and challenging field conditions, and he could reasonably be seen as well-qualified

to advise on the requirements for emergency preparedness.

[194] The purchases may thus have been ill-advised or unnecessarily extravagant,

although I make no finding on that point. Nonetheless, they were considered by the

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responsible officials, and were approved at the appropriate levels, and the evidence

does not establish that Mr. James or anyone on his behalf interfered with or

overwhelmed the decision-making process.

[195] It is true that, as one of the officials who approved the purchases, Ms. Ryan-

Lloyd misunderstood exactly what they would involve. She testified, and I accept,

that she assumed that “log splitter equipment” referred to something like a simple

metal wedge, and that the “trailer” referred to a hand-drawn one, neither being a

large or expensive piece of equipment that required ICBC insurance and licencing,

as these pieces of equipment did. I note in that regard that the capital project

request Ms. Ryan-Lloyd approved was for an estimated total expenditure of $65,000,

and did not give estimated costs for the numerous individual items it encompassed.

[196] However, nothing in the evidence indicates that Mr. James, or anyone else on

his behalf, deliberately misled Ms. Ryan-Lloyd or others about the nature of these

purchases. And there is ample evidence that several of the people with

responsibility for business continuity knew exactly what was contemplated, and gave

their approval or harboured their doubts, as the case may be, on that basis.

[197] The evidence shows no dishonesty or seriously improper conduct on

Mr. James’s part in relation to the decision to purchase the wood splitter and the

trailer.

The Purchases

[198] When the time came to make the purchases, Mr. Spraggett took the lead

once again, albeit with Mr. James closely behind.

[199] Mr. Spraggett testified that for each of these pieces of equipment, he

searched online for various brands and prices, and checked for quotes with vendors,

and that Mr. Lenz made the choice, which was then discussed with Mr. James. For

the trailer, Mr. James conducted his own internet searches and arrived at the same

conclusion Mr. Spraggett had already reached about the most suitable model.

R. v. James

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Mr. James also confirmed the purchase with the vendor, and received the invoice,

which he forwarded to Mr. Spraggett.

[200] The Crown suggests that Mr. James attempted to conceal the true nature of

these purchases by instructing Mr. Spraggett to use his LABC “P-card” to pay for

them in each instance, which Mr. Spraggett testified was not the normal process.

The P-card (or purchasing card) allowed Mr. Spraggett to make purchases of up to

$20,000 without going through the LABC’s Fleet Services procurement process.

Mr. Spraggett had a much higher spending authority for his P-card than did most

LABC staff because he might need to purchase items off-hours in an emergency.

[201] However, Mr. Spraggett himself evidently had no discomfort about using his

P-card for these purchases. When he contacted Fleet Services staff to discuss

arrangements for licencing the pieces of equipment before pick-up and they

suggested that “core policy” may require him to post a bid in an open competition, he

responded that a direct award was, in his view, appropriate so long as he had

funding approvals from his Director (Mr. Lenz) and EFO (Ms. Woodward). In a

statement during a police interview in January 2019, which he adopted as true,

Mr. Spraggett described the Fleet Services suggestion of going to tender as

“overkill” in the circumstances, given the dollar amounts in issue.

[202] In these circumstances, Mr. James’s direction to Mr. Spraggett to use the P-

card may well have been a lax application of the LABC’s procurement policy, but it is

difficult to view it as intended to further a deceit, especially since Mr. Spraggett

evidently did not see it as such, and he also disclosed the purchases and their

amounts to Fleet Services. I note in this regard that no suggestion was made that

Mr. Spraggett acted in violation of the responsibilities and duties of his own position

by knowingly participating in a scheme with Mr. James in relation to the purchases

or the approval process that led to them.

R. v. James

Storage Away from the LABC Precinct

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[203] I turn then to the fact that Mr. James kept the wood splitter and trailer away

from the LABC precinct for about a year, making them useless to the LABC for the

purpose for which they were purchased.

[204] The Crown submits that Mr. James did so for improper purposes, that he

manipulated a means of taking the wood splitter and the trailer to his residence, and

that through the emails he sent as he did so, he showed his intent to use them

personally.

[205] In my view, the evidence allows for those inferences, but it also allows for

different inferences suggesting innocent conduct, as I will explain.

[206] Concerning the trailer pick-up from Aldergrove, the Crown submits that

Mr. James must have manufactured a reason that he could conveniently collect it,

because the timing of his ferry trips between Vancouver Island and the mainland

shows that he had little more time on the mainland than he needed to drive from the

ferry to the Aldergrove vendor, deal with the registration papers and licence plates,

and return with the trailer.

[207] However, there is no evidence at all about why, as he said, Mr. James was

going to the mainland in any event, and there is therefore no basis on which to

conclude that his purpose could not be quickly accomplished. I cannot agree with

the Crown that, on the evidence, Mr. James must have planned the entire trip

around getting the trailer for himself.

[208] The Crown submits also that the emails Mr. James sent once he received the

trailer are inconsistent with a desire simply to help out the LABC Facilities staff by

collecting it, and instead show his interest in keeping and using it for personal

purposes.

[209] In his email to Mr. Lenz, Mr. James reported, “Picked up the trailer. It’s perfect

in all respects”, and he signed off as, “Craig (ready to haul)”. When Mr. Spraggett

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sent an email asking about the trailer and whether there were any issues getting it

back to the island, and also thanking Mr. James for collecting it, Mr. James

responded: “No issues at all. It’s a beauty. Thanks very much for facilitating this,

Randy”.

[210] The Crown submits that these comments show that Mr. James was excited

about having the trailer, was himself “ready to haul”, and was grateful to

Mr. Spraggett for facilitating that state of affairs. Again, I agree that one reasonable

inference from the emails, in the circumstances in which they were sent, is that

Mr. James was expressing his intent to use the trailer for personal purposes.

However, another reasonable inference is that the remarks were jocular ones,

reporting on the successful pick-up of the trailer but in a way that also referred

implicitly to the incongruity of the most senior LABC official performing that relatively

menial task.

[211] I note also that if the inference suggested by the Crown represented the

actual situation, then Mr. Lenz must have been privy to Mr. James’s scheme to get

the trailer for himself, and Mr. Spraggett must have become aware of the scheme, if

he did not know about it before, when, as the Crown submits, Mr. James thanked

him for facilitating it. Mr. Lenz did not testify in the trial, so there is no evidence

indicating either that he was privy or that he was not. And it was not suggested to

Mr. Spraggett that he knew Mr. James planned to keep and use the trailer for

personal purposes. Rather, Mr. Spraggett testified that he assumed that the trailer

was at Mr. James’s residence only because the trailer did not show up on the LABC

grounds. However, he also agreed that, at the time of the purchases, none of the

LABC vehicles had a hitch suitable for the trailer, and the issue of where the trailer

should be parked on the LABC grounds had yet to be resolved.

[212] The Crown submits that personal use of the wood splitter and the trailer can

be inferred from the fact that Mr. James kept them for almost a year, and never

delivered the wood splitter at all to the LABC precinct.

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[213] The inference that might otherwise flow from the simple fact of maintaining

custody of the wood splitter and trailer is, however, disrupted by the evidence about

whether the LABC precinct had a suitable place for these items to be stored.

[214] It is clear from this evidence, which was detailed and extensive, that senior

staff held different views about where these pieces of equipment should be parked

on the LABC precinct.

[215] Numerous considerations affected the choice of parking spot for the trailer

(and potentially the wood splitter inside it, Mr. Spraggett testified). These included

potential weather or environmental damage; risks of theft or vandalism; unsightliness

on the LABC grounds; accessibility, especially in a disaster situation; and, the

related concern that the parking place be distant from buildings that might collapse

in such an event.

[216] From the evidence on this issue as a whole, I find that there was no clear

consensus about where the wood splitter and trailer should go on a permanent

basis, and that the impetus to settle the matter was lost when, in December 2017,

Mr. Spraggett was seconded to become Manager of Capital Planning, and

Mr. Dhanota took over as Legislative Facilities Manager, each then distracted from

the matter by the challenges of their new position.

[217] Some effort was made in December 2017 to have a crushed gravel parking

pad installed for the trailer in the location Mr. Spraggett favoured, but Mr. Lenz wrote

from England, where he was travelling with Mr. James, to ask that that project wait

until Mr. James’s return, as he would want input into where the trailer would go.

Nothing in the evidence allows for an inference that Mr. James was responsible for

the delay Mr. Lenz occasioned in this way. Indeed, as SAA, it was Mr. Lenz who

was responsible for allocating parking spots on the LABC precinct.

[218] By the fall of 2018, several senior staff members, including Mr. Spraggett,

were making requests (though not directly to Mr. James) that he bring the wood

splitter and trailer to the LABC grounds. However, the evidence does not establish

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Page 52

that Mr. James knew of a parking space to which he could bring them, although it is

possible that he did. Walkabouts were still taking place, in which small groups of

senior staff, one of those involving Mr. James, viewed and discussed the

advantages and disadvantages of various locations. The gravel pad Mr. Spraggett

contemplated for the trailer still was not built – neither it nor the concrete pad

required for the new, third sea container were built by October 22, 2018, which was

roughly when the trailer was delivered to the precinct.

[219] It is true that as the senior LABC official Mr. James could have insisted that a

suitable parking spot be identified and prepared more quickly. And, if he wanted to

participate in the decision-making process, or even to make the decision himself, he

could have done so much earlier than he did. Mr. James’s failure to do these things

may not speak well of his management of LABC staff and its operations, but, on all

the evidence I cannot conclude that it indicates that he was deliberately trying to

delay the delivery of the wood splitter and trailer to the LABC precinct for improper

reasons.

[220] This conclusion does not rely on evidence of the statements Mr. James made

to the effect that he rented storage space for the trailer because his wife was

complaining about it remaining at his residence, although it is reinforced by that

evidence. I note also that, in relation to the evidence that Mr. James rented storage

space for a trailer – the reasonable inference is that it was the trailer now in issue –

for four months (July through October 2018) and paid for it personally, there is no

evidence about whether he did or did not claim reimbursement from the LABC for

the expense he so incurred.

[221] I give some but not much weight to the evidence that Mr. James wrote to

Mr. Ennis on October 12, 2018 saying that “[Mr. Dhanota] has found a spot for our

utility trailer”, and he would be delivering it on the weekend, and also to the storage

facility on October 23, 2018 saying that he no longer needed the extra storage space

for the trailer because his office had found a spot for it. These statements provide

some evidence that Mr. James was in possession of the trailer because – at least, to

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Page 53

his belief – the LABC until then had no suitable place for it. However, the evidence

was not sworn or affirmed, and, given the circumstances in which the statements

were made, with pressure for Mr. James to produce the wood splitter and trailer,

they could have been made for self-serving purposes. I make similar observations

about the evidence that Mr. James told Ms. Ryan-Lloyd, and possibly other senior

staff members, that his wife complained that the trailer was an eyesore on their

property.

[222] Finally, in relation to the allegations relating to the wood splitter and the

trailer, I turn to the evidence about their use while they were in Mr. James’s

possession.

Use of the Equipment

The Wood Splitter

[223] On December 10, 2018, three days after it was collected from Mr. James’s

residence, the wood splitter was examined by an officer with the Victoria RCMP’s

forensic examination section, who issued a detailed report about its condition. The

officer identified various signs of use, such as scratches, marks, greasy black

handling marks, and areas of damage or rust, as well as a few small pieces of wood

and a moderate amount of dirt and debris.

[224] Two days later, a mechanic with the original vendor examined the wood

splitter, and noted signs of some use, but not the extent of the wear and tear on the

rubber gas cap and gas cap seal ring that would be expected had the equipment

been used a lot. Based mainly on the condition of the guide rail and the wedge

blade, the mechanic estimated that the wood splitter had been used for perhaps two

or three pickup truck loads of wood, at the maximum. The mechanic also noted that

pre-delivery, before the wood splitter left the vendor, it was run on site for about five

minutes, and was tested with a block of wood that left marks and debris on it.

[225] I find from this evidence that the wood splitter had been lightly used while in

Mr. James’s possession.

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Page 54

[226] However, in assessing whether the light use of the wood splitter represents a

misuse of the wood splitter for personal purposes, I take into account that the wood

splitter was purchased for business continuity purposes, and Mr. Ennis testified that

all such purchases are tested after delivery to ensure that they are undamaged and

in good working order, ready for use in an emergency. Mr. James openly told

Mr. Lenz, in his email after he had picked up the wood splitter that he “[m]ay try it

tomorrow”. One reasonable inference from this evidence is that Mr. James used the

wood splitter to ensure that it was functioning properly and that a person such as

himself could easily use it.

[227] There is no evidence of Mr. James using the wood splitter, such as from

neighbours who could have seen or heard. There is no evidence that Mr. James

had a wood-burning fireplace or any other reason to split wood. Nor is there

evidence about trees on or around Mr. James’s property (which was a single family

detached home in a six-unit strata development) from which branches might need to

be split. One of Mr. James’s neighbours testified that he never saw or heard the

wood splitter in use. The neighbour was away on week days, working in downtown

Victoria, but no other neighbours testified about seeing or hearing the wood splitter

in use.

The Trailer

[228] An RCMP officer inspected the trailer on November 28, 2018, just over a

month after it arrived on the LABC precinct. The trailer contained a large mirror and

a small piece of old wood. Mr. Ennis was with the RCMP officer and noted that the

mirror was cracked, though still in one piece, and that it cut the officer’s hand when

he picked it up.

[229] Jerald Frost, who at the time worked as a carpenter with LABC Facilities

Services, saw the mirror in the trailer much earlier – he estimated close to the end of

October 2018.

[230] Since the mirror and some miscellaneous small items found in the trailer were

thus not seen until, likely, days or as much as a week after it arrived on the LABC

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Page 55

precinct, I am unable to find that those items were in the trailer when it left

Mr. James’s possession, or that they therefore provide evidence that he used it. The

trailer sat in the open on the precinct, and there was no evidence that the public

could not have used it to dispose of junk – rather, the evidence suggested the

contrary.

[231] When the trailer was at Mr. James’s residence, it was seen from time to time

by a neighbour. It was also photographed there on October 13, 2018. The Crown

submits that use can be inferred from the fact that the trailer came and went while it

was in Mr. James’s possession, but in my view such an inference would be weak,

because the neighbour, who testified that the trailer was there “very sporadically,

maybe a few days at a time”, was uncertain and non-specific about over what period

that was the case. At least one departure is likely explained by the removal of the

trailer to the storage facility, where Mr. James paid for additional rental space for the

months of July through October 2018. The neighbour also testified that Mr. James’s

property did not have space for both the trailer and Mr. James’s Airstream, and the

reasonable inference is therefore that if the Airstream was at the residence the trailer

needed to be moved elsewhere. For these reasons, the comings and goings of the

trailer do not, without more, indicate use for personal purposes.

[232] The main evidence that Mr. James may have used the trailer for personal

purposes is that one time when the neighbour saw the trailer on Mr. James’s

property, it was filled with bark mulch. The neighbour assumed that the bark mulch

was there to be spread on Mr. James’s property because all of the strata owners in

the development have bark mulch at the front, but the neighbour did not actually see

or know that that was how this bark mulch was used. Nor did he see how the bark

mulch came to be in the trailer, and he agreed that a delivery truck could have put it

there when nobody was home. In my view, that seems unlikely but I do not disagree

with the neighbour that it was possible.

[233] When Mr. James wrote to Mr. Ennis on October 12, 2018 to say that he would

be delivering the trailer on the weekend, he also said, “[f]rom time to time, I may be

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Page 56

moving it”. The Crown submits that this provides evidence that Mr. James intended

to use the trailer from time to time even after delivering it to the LABC precinct, from

which one may reasonably infer use for personal purposes both in the future and in

the past.

[234] The difficulty with this reasoning is that, when Mr. James wrote to Mr. Ennis,

the LABC truck was still not equipped with a hitch, and there is no evidence that any

other LABC vehicle was suitable for pulling the trailer. Views still differed about

whether the trailer was parked in a suitable spot, and the gravel pad had not been

installed. On the evidence, if the LABC needed the trailer to be moved to a different

place on the precinct, Mr. James would have to move it, it appears.

Conclusion re Use

[235] The evidence establishes that at most Mr. James made light use of the wood

splitter for his own purposes, and that, likely for personal purposes, he used the

trailer for hauling the bark mulch seen by the neighbour.

[236] I turn now to consider whether, given the findings I have made, the evidence

proves the offences charged in relation to the wood splitter and the trailer.

Conclusion re Wood Splitter and Trailer Charges

Count 3: Breach of Trust by a Public Official

[237] The LABC had no guidelines or policies specifically addressing employee use

of LABC property for personal purposes. However, several more general policies

and codes of conduct, as well as other evidence, inform the responsibilities and

expectations of LABC employees generally and the Clerk specifically, and cast light

on the standard of conduct expected of Mr. James in relation to this specific aspect

of his duties.

[238] For example, all employees are expressly required to serve impartially and in

such a way as to prevent conflicts of interest arising. The LABC’s “Employee

Relations Standards of Conduct” (in its human resources operations policies and

procedures manual) includes this:

R. v. James

…shall conduct themselves in a manner that instills confidence and trust in

Page 57

the Members of the Legislative Assembly and the general public that

employees are fulfilling their obligation to serve impartially.

and, under the heading “Conflict of Interest”:

…employees shall arrange their private affairs in a manner that will prevent

conflicts of interests from arising.

[239] As to the standard expected of the Clerk, other policies emphasize the Clerk’s

responsibility for the overall stewardship of the LABC’s financial resources and for

ensuring appropriate controls over the use of public funds. See, for example, the

“General Expenditure Policy”, which includes this:

The Clerk of the House is responsible for the overall stewardship of the

financial resources…of the LABC and for ensuring appropriate controls over

the use of public monies.

[240] The standard of conduct expected of the Clerk is also informed by the

process of the Clerk’s appointment, which is by formal motion of the House. This

process reflects the heightened public interest in the Clerk’s role, and the importance

of the role being carried out in an exemplary manner.

[241] A failure to adhere to the expected standard does not, of itself, indicate

criminal conduct. As noted earlier, the breach of the standard must be a serious and

marked one, and also the conduct in breach must have been for a purpose other

than for the public good, such as a dishonest purpose.

[242] In this case, the evidence does not establish either of these elements beyond

a reasonable doubt. It does not establish that Mr. James’s conduct breached the

standard expected of him, except in minor or even minimal ways. Nor does it

establish that that Mr. James had a dishonest (or self-serving) purpose in his

dealings in relation to these pieces of equipment.

[243] The purchases of the wood splitter and trailer may not have been a wise use

of public funds. As I noted, there was disagreement on the point. However, the

purchases were duly considered and approved by the appropriate people, and

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nothing shows that the purchases themselves were for an improper purpose (that is,

other than for the public good), such as to give Mr. James or other senior staff

access to expensive equipment or “toys” for personal use.

[244] The interest Mr. James took in the choice of trailer may well have been

unusual for a person in his position, but the evidence does not show that it was a

self-serving interest. I note in this regard that Mr. James also took an interest in

seemingly mundane operational matters such as the placement of e-charging

stations for bicycles on the LABC grounds, as well as in items that could be

considered for sale in the LABC gift shop, as I will discuss later.

[245] Mr. James’s direction to Mr. Spraggett to use his P-card for the purchases,

rather than engaging Fleet Services for procurement and the purchases, may have

led to a breach of LABC purchasing policy – although this was not clear in the

evidence. However, if this did involve a breach of policy, the conduct was done

openly and with, it seems, the necessary approvals (or at least, the approvals

Mr. Spraggett believed were necessary). In those circumstances, the direction to

Mr. Spraggett cannot be seen as or as part of a serious and marked departure from

the standard of conduct expected of Mr. James. And, in the context of the evidence

as a whole, the conduct is difficult to view as self-interested or subjectively

dishonest.

[246] For the year of so during which Mr. James kept the wood splitter and trailer

away from the LABC, those pieces of equipment were of no use to the LABC for

their intended business continuity purpose. However, the evidence does not show

that Mr. James acted wrongfully in not delivering them sooner to the LABC, because

the evidence showed, although not powerfully, that LABC staff had yet to settle on

and prepare a suitable place for them on the precinct. While Mr. James could likely

have required his staff to achieve consensus or solve the problem sooner, so that he

would not have had to take personal responsibility for storing the equipment for over

a year, his failure to do so is not shown to have been a serious and marked

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Page 59

departure from the standard of conduct, or to have had a dishonest or other non-

public purpose.

[247] Did the fact that Mr. James used the wood splitter and likely the trailer for

personal purposes, albeit fairly minimally, amount to a serious and marked breach of

the standard in all the circumstances?

[248] Use for personal purposes would not be a responsible use of LABC property,

and it would not show the scrupulous regard for the public good that was required of

Mr. James’s position. For that reason, it would be in breach of the standard of

conduct expected of Mr. James, in his position as Clerk. However, the limited extent

of personal use proven in this case is not a serious or marked departure from that

standard.

[249] The mens rea is also not proven. The evidence does not establish beyond a

reasonable doubt that Mr. James was activated by a self-serving or otherwise

dishonest purpose, or that he knew his conduct was contrary to the duties of the

office. There was no policy or guideline prohibiting the use of LABC property for

personal purposes, and it was not uncommon for LABC staff to do so by borrowing

(albeit typically less valuable) items, such as carpentry tools and moving dollies.

[250] Count 3 is not proven.

Count 4: Fraud

[251] As I have discussed, the evidence does not establish beyond a reasonable

doubt that, in keeping the wood splitter and trailer at his residence where they were

unavailable for their intended LABC use, Mr. James was doing so for a self-serving

or otherwise improper reason. On the evidence, he may well have been storing

them for the LABC while a suitable place on the precinct was found. Deprivation

therefore is not proven on the basis of the equipment’s absence from the LABC for

that year.

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[252] But during that year, Mr. James likely used one or both of the wood splitter

and trailer for personal purposes on occasion, and in that sense deprived the LABC

and the public by depreciating the value of the equipment through wear and tear,

and creating a risk of damage and therefore loss.

[253] Since deprivation in this way would be the sole basis for proof of an essential

element of the offence, it must be proven beyond a reasonable doubt. The evidence

of personal use by Mr. James is not specific or complete enough to do so.

[254] For reasons similar to those I gave in relation to count 3 (breach of trust), the

evidence also does not establish the mens rea of fraud beyond a reasonable doubt.

[255] Count 4 is not proven.

[256] I turn now to the final allegations relating to the travel-related expense

claims.

THE TRAVEL-RELATED EXPENSE CLAIMS

Introduction and the Parties’ Positions

[257] Over the five-year period (November 2013 to September 2018) encompassed

by counts 5 and 6 of the indictment, Mr. James travelled widely as Clerk (and

travelled also on vacation), and, after his return, sought and received reimbursement

for a large number of purchases made during the trips. Count 5 charges that he did

so in breach of trust in connection with the duties of his office. Count 6 charges that

his travel expense claims were a fraud on the Province of British Columbia.

[258] The purchases ranged from clothing and cufflinks from London and

Edinburgh, UK, to luggage from Hong Kong, and included many dozens of less

expensive items, such as books, local foods, stationery, art prints, and

commemorative coins and stamps, many from the UK but some from the USA. The

amounts of the purchases and that Mr. James was reimbursed for them are the

subject of detailed admissions. The total value of the purchases in issue was

approximately CAD $11,500.

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[259] For convenience and brevity, I will use the terms “travel-related expenses” or

“travel expenses” to refer to the expenses encompassed by counts 5 and 6.

However, these expenses were not claimed or reimbursed as costs of travel.

Rather, they were expenses incurred during Mr. James’s travel, some of it personal

travel, and claimed for reimbursement as having a business or public purpose

relating to the LABC or Mr. James’s duties as LABC Clerk.

[260] In broad overview, the Crown submits that the purchases were in fact

personal, for souvenirs and other items for Mr. James’s own private purposes, and

were not for purposes connected to the LABC or for the public good. The Crown

submits that Mr. James was dishonest in using public money to fund purchases

intended for his personal use, and, in the course of doing so, exploiting his CEO-

level position and his knowledge of the workings of the LABC system. The Crown

submits that while there was no specific LABC policy expressing the standard of

conduct in relation to claims for these types of purchases, there was ample evidence

about the common understanding among LABC employees about how they were

properly to be handled.

[261] The defence submits that the purchases had business-related purposes, such

as for hospitality, office supplies, and staff and protocol gifts. The defence notes that

every claim was vetted and approved by the appropriate person, always a person

senior in the management of the LABC (all, except for the Speaker, nonetheless

junior to Mr. James), and that there is no evidence that any such person was ever

deceived by any of Mr. James’s claims. Nor was there clear or consistent evidence

about the policy or standard for claiming the various types of purchases Mr. James

made, the defence submits, such that Mr. James can be said to have seriously and

markedly departed from that standard.

[262] As