22 In my opinion, the essence of the offences pursuant to ss. 122 and 426 of the Criminal Code are the same - the receipt of a benefit related to the Appellant’s duty as an office holder in the Siksika Nation (pursuant to s. 122 of the Criminal Code) and the acceptance of a benefit related to the affairs of Siksika Nation (pursuant to s. 426 of the Criminal Code). Section 426 requires that the Crown establish an agency relationship between the accused and, in the case at bar, the Siksika Nation. Under s. 122, the requirement is that the Appellant be the holder of a public office. In this case, both offences require a relationship of agency to the government or the community, satisfied by acting as a public official. Both require a benefit to the accused and an act contrary to the accused’s duties. Neither offence requires an actual corrupt bargain or action. While s. 122 does not require secrecy, s. 426 clearly requires non-disclosure of the commission as a constituent element of the secret commissions offence: R. v. Kelly, supra, at para 47 (“corruptly, in the context of secret commissions, means without disclosure.”). This additional element of secrecy/corruption in s. 426 does not, in my opinion, detract from the conclusion that the essence of the offences remains the same. The legal nexus between the elements of the actus reus is made out.
23 As to mens rea, ss. 122 and 426 of the Criminal Code enact general intent crimes. Both require some awareness or knowledge on the part of the accused of his or her position, i.e. as an official or an agent. Both require that the accused know or be reckless or wilfully blind to the fact that he or she was receiving a benefit. While it is true that s. 426 additionally requires that the accused know that he or she is in receipt of a benefit in relation to the affairs of the agent’s principal, in my view, this requirement is no more than a particularization of the mens rea requirement in s. 122, sufficient, on the authority of Prince, supra, to satisfy the Kienappleprinciple. (As to the mens rea of the two offences, see also R. v. Arnold, 1992 CanLII 63 (SCC), [1992] 2 S.C.R. 208, R. v. Gross (1945), 1945 CanLII 55 (ON CA), 1 C.R. 14 (Ont. C.A.), R. v. Flamand (1999), 1999 CanLII 13326 (QC CA), 141 C.C.C. (3d) 169 (Que. C.A.), leave to appeal to the S.C.C. refused March 30, 2000, and R. v. Pilarinos (2003), 2002 BCSC 452 (CanLII), 168 C.C.C. (3d) 548 (B.C.S.C.)).
24 The following comments of Dickson, C.J. in R. v. Prince, supra, at p. 500-501, lend support:
“... Parliament may create offences of varying degrees of generality, with the objective (vis-à-vis the more general offence) of ensuring that criminal conduct will not escape punishment because of a failure of the drafters to think of each individual circumstance in which the conduct might be committed, or with the objective (vis-à-vis the more specific offence) of addressing with certainty particular conduct in particular circumstances. In the absence of some indication of Parliamentary intent that there should be multiple convictions or added punishment in the event of an overlap, the particularization of an element ought not to be taken as a sufficient distinction to preclude the operation of the Kienapple principle.”
25 I conclude, accordingly, that the two offences have no significant, additional distinguishing elements. It follows that the legal nexus as to mens rea is made out.
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