La notion de mandat concernant l'infraction de commission secrète

R. v. Arnold, 1994 CanLII 4123 (NS CA)

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Fridman in The Law of Agency develops the concept of the authority necessary for an agency relationship on pages 15 ‑16 (6th edition) as follows:

“The question of the authority of an agent is at the very core of the agency.

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To describe the reason why the agent's acts produce a change in the principal's legal position by speaking of his 'authority' to act on behalf of the principal is hardly very explanatory. For the purpose of explaining the effects of the agency relationship, the notion of authority is extremely useful.

... But as a means of describing the legal nature of the agency relationship, the notion of authority is unsatisfactory, because it does not go far enough. [emphasis in original]

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The missing explanation is provided by the analysis of the relationship in terms of the agent's power to affect his principal's legal position.

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Dorwick described the essential characteristics of an agent as being that '... he is invested with a legal power to alter his principal's legal relations with third persons'; and adds that 'the principal is under a correlative liability to have his legal relations altered'.

There are many instances of such a power‑liability relation. Agency is only one of them. By the agency relationship the agent is invested by the law with 'a facsimile of the principal's own power'. For example, in respect of the making of a contract the agent, in effect, acts in such a way that he produces the same results as if the principal had acted personally and the agent had never appeared on the scene at all."

In this case the Crown submits that the accused affected the legal rights of their client by advising and influencing them to invest in the limited partnerships. The trial judge was, in our view, correct in determining that giving advice on investments does not establish an agency relationship. The Crown having tendered no evidence that the accused had the power to act on behalf of their clients in such a way to alter their legal relations with others, the motions for directed verdict were properly granted. The appeal is dismissed.