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  
R. v. James  
Page 2  
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 31st, 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):  
   
R. v. James  
(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  
Page 13  
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  
Page 16  
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 10th, 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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Page 17  
[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.  
R. v. James  
Page 18  
[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  
 
R. v. James  
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  
R. v. James  
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  
 
R. v. James  
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  
   
R. v. James  
Page 46  
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  
R. v. James  
Page 47  
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  
Page 48  
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  
Page 49  
[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  
 
R. v. James  
Page 50  
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.  
R. v. James  
Page 51  
[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  
R. v. James  
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  
R. v. James  
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.  
   
R. v. James  
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  
 
R. v. James  
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  
R. v. James  
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  
R. v. James  
Page 58  
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  
R. v. James  
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.  
 
R. v. James  
Page 60  
[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.  
   
R. v. James  
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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 I said, the purchases in issue range widely as to type. It is useful to group  
them for the purposes of discussing, as below, whether the evidence shows beyond  
a reasonable doubt that Mr. James claimed and received reimbursement for them in  
breach of trust or fraudulently. However, I keep in mind throughout that, in that  
R. v. James  
Page 62  
analysis, the evidence about particular expenses or groups of expenses must not be  
considered in isolation from the evidence as a whole, including evidence about other  
expenses or groups of expenses.  
[263] Before I discuss each of these categories of purchases, I will briefly outline  
the claims and reimbursement process because it will bear on some of that  
discussion.  
The Process for Reimbursement  
[264] For most of the expenses in issue, the claim was made by memorandum,  
separate from Mr. James’s claim (by way of a specific form) for direct travel costs,  
such as for flights, hotels, taxis, and meals. Mr. James made a few of the claims by  
email or oral request to the Speaker or the SAA.  
[265] For expenses claimed by way of memorandum, Mr. James would give  
receipts for purchases to LABC staff, who would convert the foreign currency prices  
into Canadian dollars, and would prepare a memorandum summarizing the  
expenses and attaching the receipts. Mr. James would then verify the expenses  
claimed on the memorandum by signing it, and would submit the memorandum to  
the Financial Services Branch for reimbursement by the LABC. The Financial