TORONTO – The pre-trial acquittal of an on-duty Toronto police officer who drove away despite a plea to intervene as a teenager prepared to kill himself has been upheld on appeal.
In its ruling this week, Ontario’s top court sided with an earlier breach of trust decision in favour of Const. Kyle Upjohn despite evidence he had lied about being on another call when asked for help.
“However egregious the (officer’s) conduct may have been and however seriously such conduct might tarnish the image of his police service and its members, no intent to use the public office for some improper purpose can be inferred from the record,” Appeal Court Justice Paul Rouleau wrote for the panel.
The incident occurred on an afternoon in February 2016 in the city’s west-end High Park when a passerby encountered Alexandre Boucher, who was tying a rope around a tree branch and around his neck, court records show. The woman called her husband, who was nearby and drove to the park to help.
On arrival, the man saw Upjohn in a cruiser near the park entrance and alerted the officer to the fact that someone appeared to be on the verge of suicide in the park and asked for help. Records show Upjohn lied about being on another call and refused to get involved. He told the man to call 911 and drove off.
By the time emergency responders arrived, Boucher had killed himself.
Upjohn, suspended with pay since May 2016, was initially charged with criminal negligence causing death, failing to provide the necessaries of life, and breach of trust. However, the prosecution withdrew the first two charges because it would have been impossible to link Upjohn’s failure to act with the cause of Boucher’s death, court records show.
In January, Superior Court Justice Maureen Forestell tossed out the breach of trust charge against Upjohn before trial. Despite finding that the officer had failed to carry out his duty, lied about what he was doing, and had tried to cover up what he had done, Forestell agreed with the defence that there was no evidence Upjohn had an ulterior personal motive for driving away that would have supported the charge.
The prosecution appealed on the basis that Forestell had misinterpreted case law on breach of trust. It argued Upjohn’s decision to put his own comfort or needs before the good of the public was enough of an ulterior motive to prove the crime.
The Appeal Court rejected that argument, saying the crux of the offence rests on an intention to use public office for purposes other than the benefit of the public – even if the evidence in this case could lead to the conclusion that Upjohn exhibited a “shocking and complete disregard for the duties” police officers are sworn to uphold.
“To satisfy the improper purpose requirement, there must be an improper purpose that is materially different from the decision not to perform the duty,” Rouleau found. “In my view, a desire to avoid an unpleasant duty does not make the grade.”
The point, the Appeal Court said, is that any lazy public official could be convicted of breach of trust for simply deciding to avoid doing their job.
“This would not be consistent with fundamental criminal law principles that have historically set a high bar to establishing mental culpability for public misfeasance,” Rouleau said.
“Simply failing to carry out one’s duty to avoid doing the work – even where the work is considered to be unpleasant by the public official – will not suffice.”
Upjohn still faces internal disciplinary proceedings. Meaghan Gray, a spokeswoman for Toronto police, said the professional misconduct counts had been put on hold pending the outcome of the criminal proceedings.
“His internal discipline matter was being held (indefinitely), so it will now move forward,” Gray said on Friday.