Cite as: R. v. Cleary, 1992 NSCO 43
CANADA
PROVINCE
OF
NOVA SCOTIA
COUNTY
OF
HALIFAX
IN THE
COUNTY
COURT JUDGE'S CRIMINAL
COURT
OF DISTRICT NUMBER
BETWEEN:
HER MAJESTY
against
CLARENCE
MARK
DATE
HEARD:
August 17,
PLACE
HEARD:
The
Law
Scotia.
DATE
OF
DECISION:
September 11th,
COUNSEL:
Gary Holt,
Brian Newton,
Peter
Defence.
BATEMAN,
J.C.C.
(ORALLY):
Mr. Cleary is charged with an offence contrary to s.
l21(1)(d) of the Criminal Code -
I find the facts as follows:
C.R.
NO.:
12364
ONE
THE
QUEEN
CLEARY
18,
19,
20 & 31,
1992.
Courts,
Halifax,
Nova
1992
Esq.,
for the Crown
Esq.,
Q.C.
and
Crowther,
Esq. ,
for
the
influence peddling.
2
On June 7th. 1990. Mr. Cleary had a meeting with the
four stonemasons who owned a company known as Millenium
Masonry Limited.
The meeting took place at the instigation of Mr.
Cleary.
During a telephone conversation prior to the meeting
Mr.
Burke. one of the four stonemasons. had outlined for
Mr. Cleary the general corporate structure of the company
and advised that there was a fifth person who might take
up an equal share but was undecided.
At the meeting on June 7th. 1990 Mr. Cleary told the
stonemasons of his experience with Minas Electric Ltd.
In particular.
he related an account of Minas Electric
being awarded a contract through the tendering process,
although
the
company
was
not
the
lowest bidder.
He
further advised them that he had received payment from
Minas Electric for his role in gaining the contract. That
amQunt was ~O% of the difference between the lower bid
and
Minas
Electric's
bid
which
difference
was
$158. 000. 00.
Mr. Cleary recounted.
as well,
a story about being
in Florida with certain government people and friends of
the then Premier and having an opportunity to win a bet
wi th another
indi vidual
as
Deputy Minister of Government Services.
according to his story,
accept the bet although he had
accurate inside information as to who would be appointed.
He said he later confided in the Premier of his turning
down the bet.
The Premier told him he should have taken
1 t.
Mr.
Cleary
told
the
Zareski, then Deputy Minister of Government Services, was
having problems and under the influence of a cult.
Mr.
Cleary discussed the value of the company with
Mr.
Burke and stated that the company was of no value.
He
wanted
a
piece
of
the
expertise and contacts.
Mr.
buy an interest, if Millenium made it available to him.
The members of Millenium and Mr.
the basis that the company would consider his proposition
and get back to him.
All
members
of
Millenium
understanding that Mr. Cleary was offering to assist the
3
to
who
would
be
the
next
He
did' not,
four
stonemasons
that
Mr.
company
in return
for
his
Burke felt that he should
Cleary parted on
left
the
meeting
company by finding out information from the government
and by his access to people in government.
Mr. Cleary and Mr.
Burke met briefly the day after
the meeting when Mr. Cleary dropped by the Millenium work
site to return papers to Mr.
meeting,
had offered to look into Mr.
a bricklayer.
On
Apr il 6th,
1990 Mr.
Stonehouse,
then
Executive
Construction with the Department of Government Services,
and advised of his intention to help out
stonemasons
who
were
forming
Stonehouse that he would ensure Canstone did not receive
the Government House contract, even if it submitted the
lowest tender.
On March 23,' 1992, at a reception,
Norman Atkinson, Director of Building Services with
the Department of Government Services, whom he knew on a
casual basis.
Mr.
Cleary told Mr.
goverment insisted upon awarding the Government
contract to Canstone,
he would see "John" and make sure
they didn't get it.
Mr.
Atkinson understood "John" to
4
Burke.
Mr.
Cleary, at the
Burke's status as
Cleary had met wi th Br i an
Director
of
Design
and
a
group of
a
company.
He
told
Mr.
Mr.
Cleary met
Atkinson that if the
House
5
mean
Mr.
Buchanan.
Mr.
Atkinson
knew nothing of the
Government House job.
The
members
of Millenium decided not to give Mr.
'Cleary an interest in the company but rather to make a
counter-offer.
Some members recall that they decided to
offer a finders fee, others thought they decided to offer
to sell Mr.
Cleary a share of the company.
Mr.
Burke called Mr. Cleary around June 19th, 1990.
He offered him a
20% share of Millenium for $20,000.00,
Mr. Cleary declined.
He told Mr.
Burke that he hoped he
would not see Mr.
Burke quoted in the newspaper.
Mr.
Burke assured him he wouldn't.
Mr.
Cleary
did
not
reach
any
agreement
with
Millenium.
Mr.
Cleary did not
express ly say
he
had
influence with the government.
He did not promise that
he could get government contracts for Millenium.
In finding the foregoing facts I have made certain
determinations as to credibility.
There
are
definite
discrepancies
among
the
recollections
of
the
members
of
Millenium
of
the
conversation at the June 7th, 1990 meeting, and of events
6
before and after.
These recollections differ again from
the evidence of Mr.
Cleary.
While there are discrepancies as to the timing of
events around the meeting,
the exact words used during
the meeting,
the order of di scuss ion of
1terns at the
meeting and the timing and form of the decision to reject
the association suggested by Mr. Cleary, the four members
of Millenium are in agreement on the following material
areas:
1.
Mr.
Cleary initiated the meeting;
2.
Mr.
Cleary spontaneous ly told the three anecdotes;
(Minas Electr ic; Zareski; Flor ida);
3.
They all understood the anecdotes were told with the
purpose of impressing them with Mr. Cleary's connections
to the Premier and in government;
4.
In telling the anecdotes and in other conversation
dur ing the meeting Mr.
Cleary was not refer ing to the
importance
of
ensuring
that
tenders
were
properly
completed.
7
5.
Mr. Cleary sought information about the status of
the company and indicated that he wanted an interest in
the company.
He
was not prepared to pay money for that
interest in the company.
6.
At the conclusion of the meeting Mr. Cleary left all
members with the understanding that he wanted a piece of
the company and that they were to decide if they wanted
to give him a share;
7.
Mr. Cleary did not expressly say he had "influence"
with the government nor did he promise he could obtain
contracts for Millenium.
His words were to the effect
that
they
would
have
a
better
chance
of
obtaining
government contracts with him as part of the company.
8.
They all felt Mr.
Cleary was suggesting something
improper.
9.
Mr.
Cleary,
in response to Millenium telling-
him
they
had
approached
certain
Government
Ministers
to
ensure an opportunity to tender, told them that that was
not enough,
they had to go to the top person or top dog.
They understood him to mean the Premier or someone at a
high level in government.
Mr.
Cleary testified
Millenium were at all times directed to ensuring that the
company
understood
the
importance
process.
He explains that his comments to Mr. Atkinson
and Mr.
Stonehouse were to the effect that he would make
certain that the Government
tender.
Neither
Mr.
Atkinson
understood that to be the thrust of his comments, nor did
the members of Millenium.
Cleary could be so universally misunderstood.
conclude that the import of Mr. Cleary's comments was as
understood by the members of Millenium.
I
do not draw any unfavourable inference from the
fact that the evidence of Mr. Stonehouse and Mr. Atkinson
came to the attention of the Crown Attorney only shortly
before the trial.
The burden,
as always,
its case beyond a reasonable doubt.
not prove his or her innocence.
It is helpful,
however,
consider the defence put forward by the accused.
8
that
his
discussions
with
of
the
tendering
House
jobs were opened to
nor
Mr.
Stonehouse
It is inconceivable that Mr.
I can only
is upon the Crown to prove
The Defendant need
in analyzing the facts to
9
It is Mr.
Cleary's submission that the members of
Millenium do not properly remember the conversation, and
that
the
discrepancies
1n
evidence as
a
whole unreliable.
submission 1n my factual findings.
discrepancies,
I
find their evidence to be credible on
the material points.
I
do
not attr ibute
any
members
of
Millenium
who
evidence.
They clearly had different views
collective abilities
and
the
within the company.
They held somewhat divergent goals.
That does not detract from the significant aspects of
their evidence as it relates to this charge.
The Defence submits that Mr. Cleary did not have the
requisite
mens
rea
and,
that
sufficient to constitute an offence under s. 121(1)(d).
The charge on the indictment reads:
..... that
on
about
June,
1990, at,
or near Halifax,
the County of Hali fax,
Nova
Scotia,
did,
having
or
pretending
influence
with
the
their
accounts
make
their
I
have rejected that
Notwithstanding the
improper
mot i ves
to the
came
forward
with
their
of their
level
of
sophistication
his
actions
were
not
the
7th day of
in
Province of
being
a
person
to
have
government
or
10
with a
minister of the government,
demand
or
offer
to
accept
for
himself
a
benefit as consideration
for
co-operation,
assistance
or
exercise of influence in connection
with
the
transaction
of
business
with
or
any
matter
of
business
relating to the government, contrary
to Section 12l(l)(d) of the Criminal
Code. "
The Crown must prove that:
1.
Mr. Cleary had or pretended to have influence;
2.
The
influence
was
with the
government
or
a
Minister;
3.
Mr.
Cleary demanded
or
offered to accept
a
benefit;
4.
The
benefit
was
as
consideration
for
cooperation, . assistance or exercise of influence;
5.
The
exercise
of
influence,
cooperation
or
assistance was
in connection with the transaction
of government business.
S.
121 is aimed at ensuring public confidence in the
operations of government.
Without public confidence the
11
abili ty of
the
government
undermined.
While many of the offences in s.
directed at those employed by or otherwise representing
the government,
certain of
conduct
of
people
dealing
121(1)(d) is intended to deter people from holding out
influence with the government.
confidence in government can be eroded not only by the
actions of government officials but by others,
the
government,
who
pretend
influence government officials.
The intention required by the person accused of the
offence is an intention to hold out that he or she has
influence with the government and that he or she will
accept a benefit in return for "cooperation, assistance
or the exercise of influence".
Cleary
held
out
that
he
nevertheless,
not" guilty unless
trade upon that influence.
If his
representations
members of the government (Zareski) and his relationship
with the Premier were innocently made and not with the
intent of being connected to his potential relationship
with Millenium,
then the offence is not made out.
to function effectively is
121 are
the subsections
catch the
wi th
the
government.
S.
Obviously.
the public's
outside
to
be
in
a
position
to
In other words,
if Mr.
had
i nf 1uence
he
is.
he
was
attempting to
of
his
information
about
12
I am satisfied that Mr. Cleary, in his dealings with
Millenium,
and
particularly
anecdotes,
suggested he had close connections with the
government and,
specifically,
Province.
He clearly represented that he was privy to
confidential information.
solely
because it
was
the
members of the company.
Mr.
could offer no acceptable explanation as to why he would
tell
these
stories.
While
telling of the Minas Electric experience was ostensibly
to convey the importance of properly tendering -
not the understanding of the members of Millenium.
does
that explanation sati sfactor ily explain
Cleary would
include detai Is
gaining the contract.
Mr. Cleary addressed this latter
point by testifying that he wanted to explain to the
group the type of arrangements that could be made for his
remuneration and to ensure them that he did not want to
take over the company.
It is interesting that
Millenium
of
his
role
in
process is somewhat at odds with that given by Donald
Fultz of Minas Electric.
Mr.
by
telling
the
three
wi th the Premier of the
I
reach this conclusion not
impression
left
with all
Cleary,
in his evidence,
his
explanation
for
the
that was
Nor
why
Mr.
of
his
remuneration for
Mr.
Cleary's account to
the
Minas
Electric
tender
Fultz testified that Mr.
13
Cleary was simply called upon to place a second call to
Government Services to advise that Minas Electric was
aware that the compet i ng tender had not been proper ly
completed.
Why
then
would
percentage of the tender differential? If his purpose in
recounting
the
Minas
Electric
emphasize the importance of tendering,
have provided the financial information nor overstated
his contribution in gaining the contract.
Millenium were universally of the understanding that Mr.
Cleary had been pivotal in obtaining the contract.
satisfied that their understanding is consistent with the
information provided by Mr. Cleary.
Mr. Cleary offered no satisfactory explanation as to
why he volunteered the information about Mr.
ci rcumstances.
He
acknowledged that he wanted them to
know of his friendship with the Premier.
could well
have told
them of his friendship with the
Premier without recounting the Florida story.
reasonable inference from that story is that Mr.
was demonstrating that he was not only a
Premier but also a confidant.
All
members
of
Mi lleni urn
words
to the effect of the
Mr.
Cleary
receive
a
story
was
to
simply
he would neither
The members of
I
am
Zareski' s
Mr.
Cleary
The only
Cleary
friend of the
recall Mr.
Cleary us i ng
importance of
"having the
14:
Premier"s ear" or going to the "top man" or "top dog"
in the context of
someone superior in position to the
other government Ministers.
If Mr. Cleary was not implicitly suggesting that he
had the Premier"s ear or access to the top man,
he tell Millenium that such was necessary?
The evidence of Mr. Stonehouse and Mr. Atkinson does
not bear directly on the
substantiate that Mr. Cleary was given to speaking of his
relationship with the Premier and that he suggested to
both that the had sufficient connection to divert the
awarding
of
the
Government
Canstone.
I accept their evidence.
Did Mr. Cleary represent that he had influence?
R.:.. v. Giguere (1983),
8 C.C.C. (3d) 1 (S.C.C.) the court
held that "influence" as used in the section and in the
context of that case means a person who could affect, or
pretends
he
could affect,
government to award a contract.
I
am
satisfied
that
representations to the members of Millenium could only be
construed
as
suggesting
he
why would
charge.
It does,
however,
House
contract
away
from
In
for
example,
·a decision
by
Mr.
Cleary"s
collective
had
influence
with
the
15
government.
While he did not use the word influence or
expressly say he could affect a decision of government,
when one couples his story of successfully gaining the
contract for Minas Electric, with the information as to
his close relationship with the Premier and the necessity
of having connections at high levels,
the only meaning
that could reasonably be assigned is that Mr. Cleary was
representing that he had influence with the government.
In my view "influence" is not limited to actually
obtaining
a
contract,
for
example,
but
includes
the
ability to affect decisions as to tendering, meetings and
the like.
In a
criminal context,
the problem,
of course,
is
not in having or exercising influence,
but in selling
that influence.
Did Mr. Cleary demand or offer to accept a benefit?
All members of Millenium left the meeting with Mr.
Cleary understanding that he wanted some association with
their company and that he did not want to pay for that
association.
Certain of them thought he wanted
a
20%
interest, others thought he wanted a finder's fee for any
contract he arranged,
or both.
16
Mr. Cleary says he decided early in the meeting that
he did not want any association with the
company.
I
accept the evidence of the members of Millenium that they
left the meeting with the understanding that they were to
decide upon Mr. Cleary's suggested involvement with the
company.
I
accept,
as well,
the evidence of Mr.
Burke
that Mr. Cleary took particulars of their qualifications
during the meeting and left them with the advice to get
their resume's together, which he reinforced the next day
with Mr.
Burke.
This is inconsistent with Mr. Cleary's
evidence that he had determined not to associate with
Millenium.
He provides no explanation as to why he would
leave the company believing he
was interested in
some
involvement.
I
am further persuaded to this view by the
fact of Mr. Burke's subsequent call to Mr. Cleary around
June 19th,
1990.
I accept Mr.
Burke's explanation that
the purpose of that call was to finally respond to Mr.
Cleary.
This call is
further
confirmation that
the
members of Millenium understood that the matter remained
open.
The conversation with Mr.
Burke in which Mr. Cleary
described the company as worthless or of
no value can
only be interpreted as coming from a person attempting to
bargain -
to convince Millenium that he should not pay
for the share.
I
am satisfied that Mr. Cleary, in his meeting with
Millenium,
was offering to accept a benefit, the benefit
being
some
association with
Cleary would have a share or receive a finder's fee for
contracts he obtained for the company.
It is not enough,
however, that Mr.
to have influence with the government and that he offer
to accept
a
benef it.
He
benefit as consideration for his cooperation, assistance
or
exercise
of
influence
business.
Mr. Cleary was offering no monetary contribution for
an interest in or association with Millenium.
According to
Mr.
Cleary's
early in the meeting that he was not at all interested in
an aSSOCiation.
·The thrust of
have,
he says,
was
to demonstrate his experience with
fledgling
companies.
his
process and his legal experience.
I
have
no
doubt
that
attributes portrayed by Mr.
I
am satisfied, however, that in addition to the above he
17
the
company
by which
Mr.
Cleary pretend
must
offer to accept that
in
relation
to
government
evidence
he
concluded
any discussions he did
knowledge
of
the
tendering
those
were
some
of
the
Cleary in the discussions.
18
was holding out his relationship with the government and
the
consequent
access
to
further attribute.
In ~ v.
Giguere,
supra,
meaning
of
"cooperation,
influence"
within
s.
l2l(l)(d)
(formerly s. llO(l)(d».
At p.
112, writing for the majority,
states:
liThe general purpose of s. 110 is to
preserve
the
government.
Those
government are meant to carryon the
business
of
government
favours
being bought
deal with government.
s.
110
is
those
connection
with
Section
110(1)(d),
including people outside government,
must be limited to those
or
pretend to have,
nexus
with
government.
outside government
'clout' than to be able to arrange a
meeting with
a
government official
has at best a tangential connection
wi th government.
type of person whose actions s.
is trying to control.
person
having
government
is
a
affect,
for example,
government to award a contract, and
correspondingly
pretends
to
have
person who pretends he could affect
power
and
influence,
as
a
the Court considered the
assistance
and
exercise
of
of
the
Criminal
Code
Dickson J.
integr i ty
of
connected
wi th
without
by
those
who
The focus of
who
have
a
real
government ...
although
who have,
a
significant
Someone
who has
no more
That is not
the
110
In my view,
a
inf luence
wi th
person
who
could
a decision by
a
person
who
influence
is
a
19
such
a
government
(emphasis added)
And at p.
13
"In my view. if someone opens doors
or arranges
meetings as
step
in
an
effort
secure a
government contract.
is indeed assistance or co-operation
in connection with the transaction
of business with government within
s.
110(1)(a)
and
simply
giving
ordinary meaning.
By
itself.
opening
arranging meetings is certainly not
a
cr ime.
The
problem ar i ses only
when two conditions meet: (ii when a
benefit
is
given.
demanded for the opening of doors or
arranging of meetings respecting the
matters
listed
in
(ii)
the
person
demands it is
an official
having
or
pretending
influence
in
the
earlier.
(emphasis added)
It
is
not
necessary
arrange meetings
or otherwise
ground a
charge.
This is clearly the case since even
those
people
who
do
not
actually
pretend to are caught.
Even putting the most positive light on Mr. Cleary's
position, assuming for the moment he simply intended to
decision. "
the first
by
another
to
that
(d).
That
is
the
words
their
doors
or
offered
or
s.
110(1),
and
who
receives
or
or
one
to
have
sense
defined
that
the
accused
actually
open doors
in order to
have
inf luence
but
20
ensure through hi s
connect ions
wi th the Premier,
that
contracts went to tender; if he offered to do this in
exchange
for
an
interest
in
or
association
with
Millenium,
he committed the offence.
Continuing at p.
13 of Giguere, supra,
"It is clear that the right to
contract
with
government
is
not
something to be bought with under
the-table
payments.
It is equally
clear,
in
my
view,
that access to
government
officials
is
not
something to be bought.
Even if it
is a seemingly modest intervention,
opening doors or arranging meetings
(sic} is caught by s. 110(1)(a) and
(d) as constituting co-operating or
assistance.
(emphasis added)
The
question
remaining
is
whether
Mr.
Cleary's
references to having the Premier's ear, absent an express
promise to use his influence or gain contracts or take
some other specific step is sufficient to underpin the
charge?
Mr. Cleary did not promise to deliver contracts.
He
left the members of Millenium believing,
however,
that
with him aboard they would have a better opportunity to
receive government contracts.
21
It is clear from the wording of the statute that
there
need
not
be
a
concluded
influence or provide cooperation or assistance.
sufficient that the influence, assistance or cooperation
be "offered".
Did Mr. Cleary's conduct amount to such an offering?
Without question the
language
oblique.
All members of Millenium,
with the firm understanding that Mr. Cleary was offering,
as part of his qualifications, his connections with high
levels of government.
Mr. Cleary must be taken to have
been offering his cooperation or assistance.
other rational explanation.
Mr. Clearly must. of course, have had the necessary
mental state to substantiate a charge.
criminally responsible if he
about his government connections
they be related to his obtaining
Millenium.
It is commonly necessary to rely upon circumstantial
evidence and,
therefore, inferences from circumstantial
facts to prove intent.
agreement
to exercise
It is
used
by
Mr.
Cleary was
however,
were left
There is no
Mr. Cleary is not
innocently
made
comments
-
with no intent that
an association
wi th
The usual rule is that before an inference can be
drawn from circumstantial evidence,
commission of
an act, it must
inference in the circumstances.
in Hodge's Case.
Where
circumstantial
however,
to
prove
intent,
apply.
In R.:.. v.
Mitchell [1985]
Spence J. at p.
167 says:
"This
does
not,
degree,
reduce
the
which
rests
upon
criminal
cases
substitute
any
direction in Hodge's case did not
add
to
or
subtract
requirement that proof of guilt in a
criminal
case
must
reasonable
doubt.
formula
to assist in applying the
accepted
standard
relat ion to the first only of the
two essential elements in
I.e.,
the commission of the act as
distinct
from
accompanied
that
element, assuming every circumstance
could
be
es tabU shed
would
be
capable
demonstration.
The latter element,
save perhaps out of the mouth of the
accused himself,
proved.
The
circumstances
establish the
former not
be, but must be consistent with each
other,
as
otherwise
doubt
on
the
issue
circumstances
which
latter,
being evidence personal to
22
in relation to the
be
the only reasonable
This replaced the Rule
evidence
is
relied
upon,
this
general
rule doesn't
1 C.C.C.
155 (S.C.C.)
in
the
slightest
onus
of
proof
the
Crown
in
and
does
not
other
rule.
The
from
the
be
beyond
a
It
provided
a
of
proof
in
a
crime,
the
intent
which
act.
The
first
by
evidence,
of
proof
to
a
could never
be so
which
only can
a
reasonable
arises.
The
establish the
one
individual,
ever, be wholly consistent with only
one
conclusion
state and yet the weight of evidence
on
the
issue
may
satisfy
the
reasonable doubt,
intent
of
the
instruction
of
Hodge's Case does not apply and was
never intended to apply to an issue
of this kind."
(emphasis added)
I
take it to be the law that the inference drawn
from circumstantial evidence relied upon to prove intent
need not be the only reasonable inference but,
must be a proper inference,
On the evidence before me
than that Mr. Cleary was offering to provide to Millenium
his cooperation or assistance in relation to government
business in exchange for a relationship with the company.
As
I
have previously said, even if it was
intention to simply use his influence to ensure that a
job went to tender -
that is a criminal act when coupled
with his offer to trade that exercise of influence or
assistance for
an association with Millenium.
facts
as
I
have
found
them,
beyond ensuring the tendering of contracts.
Throughout his evidence Mr.
he
was motivated
by his wish to help the Nova Scotia
23
will
seldom,
if
as
to
his
mental
be
such
as
to
jury,
beyond
a
as to the gUi 1ty
accused.
The
Baron
Alderson
in
rather,
beyond a reasonable doubt.
I
cannot conclude other
Mr.
Cleary's
On
the
however,
hi s
offer
went
Cleary emphasized that
24
stonemasons.
He could well have assisted them short of
a financially remunerative relationship with the company.
He could have attempted to ensure that future contracts
were
tendered
irrespective
of
his
relationship
with
Millenium or
any
of. the
stonemasons.
He
could
have
offered,
even
for
a
fee,
to assist
the
company
in
preparing tenders.
I do not accept that Mr. Cleary's primary motivation
was to ensure that Nova Scotians received the jobs.
I
conclude that he was only interested in Nova Scotians
receiving the jobs if he stood to gain financially.
Mr. Cleary's comment to Mr. Burke during their final
telephone contact -
that he hoped he would not see Mr.
Burke quoted in the paper -
is evidence of his concerns
about the meeting which had taken place.
I do not accept
Mr. Cleary's explanation that he said it out of concern
that Mr.
Burke would raise his name in the context of Mr.
Cleary's role in Canstone.
It is clear from the evidence
that Mr.
Cleary was not the focus of the stonemasons'
concerns with Canstone.
Accordingly,
I
find
that
the
Crown
has
proved,
beyond a reasonable doubt each essential element of the
offence.
I
find
Mr.
Clearly guilty
contrary to s. l2l(1)(d) of the Criminal Code.
25
of
an
offence
NANCY J. 8ATEMAN
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.