Crown pursues trial of officer
Prosecutors appealing decision to quash case in High Park suicide
The Toronto police officer who allegedly refused to help stop a young man’s suicide in High Park should stand trial, on evidence a Crown prosecutor says shows that the police officer “knowingly avoided a duty of vital importance.”
In recently filed documents at the Ontario Court of Appeal, Crown prosecutor Milan Rupic outlines the case for an appeal of a lower court’s decision to quash Const. Kyle Upjohn’s criminal trial — a January ruling that found his failure to act did not constitute breach of trust.
Upjohn, an officer with a decade on the force, was charged with the offence in connection to the February 2016 death of Alexandre Boucher, who was 19 years old at the time.
The officer had been in his marked police vehicle in High Park that afternoon when a concerned citizen alerted him to a young man hanging himself in the park.
Instead of helping, Upjohn falsely claimed that he was on another call, told the man to dial 911, then drove away, according to a summary of evidence in a decision released earlier this year by Ontario Superior Court Justice Maureen Forestell.
Upjohn was subsequently dispatched to the call he’d driven away from, and Boucher was later pronounced dead.
The officer was initially charged with criminal negligence causing death and failing to provide the necessities of life, but the charges were withdrawn.
Upjohn was later charged with breach of trust — a charge that’s laid when an official is accused of violating the standard of conduct and responsibility demanded by his position.
While she noted Upjohn’s decision may have “put his own comfort or needs before the good of the public,” Forestell concluded his behaviour was “not enough” evidence to prove a breach of trust, and she quashed the case. Her decision wasa reversal of a lower court’s decision finding sufficient evidence for the case to proceed.
In his appeal to the province’s highest court, Rupic argues Forestell erred in her decision to quash the trial. Among her errors, Rupic said, was in failing to consider the “whole of the evidence” when it came to Upjohn’s intent.
Upjohn’s lawyer, Gary Clewley, had argued that a breach of trust case required evidence the accused had a dishonest or corrupt ulterior purpose for avoiding the call, and there was no such evidence in Upjohn’s case. Forestell agreed.
But Rupic argued that when viewed as a whole, the evidence in fact supports the inference that Upjohn “knowingly avoided a duty of vital importance by means of a deceit.”
“The evidence also supports the inference that in avoiding his duty (Upjohn) was knowingly untrustworthy, and that his purpose in breaching his duty was not for the public good,” Rupic writes.
“Looking at the evidence as a whole, the judge at the preliminary inquiry had ample basis to conclude that the evidence permitted an inference that (Upjohn) had acted with a ‘subjective intent of dishonesty.’ ”
Rupic adds a “trier of fact,” such as a judge, could reasonably draw inferences about Upjohn’s state of mind, including that he knew he had a “vital duty to respond,” and that his failure to do so was a “grave breach of his duty.”
Clewley, Upjohn’s lawyer, has not yet filed a response to Rupic’s arguments. Reached Tuesday, Clewley declined to comment, saying his written response “would do the talking.”
Upjohn remains suspended with pay, and is accused of three counts of misconduct under Ontario’s Police Services Act stemming from the incident, including neglect of duty. Tribunal documents allegehe refused to help a concerned citizen who was trying to enlist Upjohn’s assistance to intervene in the suicide.
“You told the citizen that you were on call and that he should call 911. This advice was inconsiderate, disingenuous, and not in keeping with the Toronto Police Service customer service strategy,” reads a document outlining the allegations before the tribunal.
The allegations have not been tested at the tribunal. The appeal is scheduled to be heard in November.