No trial forcopwho refused to intervene

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 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.”

Upjohn still faces internal disciplinary proceedings.