



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Upjohn, 2018 ONCA 1059

DATE: 20181220

DOCKET: C65011

Doherty, Rouleau and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Kyle Upjohn

Respondent

Milan Rupic, for the appellant

Gary R. Clewley, for the respondent

Heard: November 14, 2018

On appeal from the order entered by Justice Maureen
    Forestell of the Superior Court of Justice on January 25, 2018, with reasons
    reported at 2018 ONSC 947.

Rouleau J.A.:

Facts

[1]

Early in the afternoon of February 2, 2016, while walking through High
    Park in Toronto, Sanja Mandic encountered a young man who appeared to be on the
    verge of hanging himself. He was tying a rope around a tree branch and around
    his neck. Ms. Mandic sought assistance from a park staff person, but to no
    avail. She then called her husband, Sasa Vukobrat. Mr. Vukobrat was a few
    minutes away so he drove to the park to assist his spouse.

[2]

Upon arrival at the park, Mr. Vukobrat saw the respondent, an on-duty
    police officer, sitting in a marked patrol car near the entrance of the park.
    Mr. Vukobrat told the respondent that someone may be about to commit suicide in
    the park and he asked for assistance.

[3]

The respondent refused to assist, stating that he was already on a call.
    He told Mr. Vukobrat to phone 911. Police records show that the respondent was
    in fact not on a call at that time. The respondent left the area after Mr.
    Vukobrat entered the park to find his spouse.

[4]

Mr. Vukobrat located the young man, later identified as Alexandre
    Boucher, who had hanged himself. Mr. Vukobrat called 911. Emergency personnel
    responded but Mr. Boucher did not survive.

[5]

The respondent was originally charged with criminal negligence causing
    death contrary to s. 220(b) of the
Criminal Code
, failing to provide
    the necessaries of life contrary to s. 215(2)(b) of the
Code
, and
    breach of trust contrary to s. 122 of the
Code
. The first two charges
    were later withdrawn after it became apparent that the Crown would be unable to
    determine the precise time of Mr. Bouchers death. There was, in essence, no
    way to link the respondents failure to act with the cause of death.

[6]

After a preliminary inquiry, the respondent was committed to stand trial
    for breach of trust. In her reasons, the preliminary inquiry justice properly
    identified the leading case as
R. v. Boulanger
, 2006 SCC 32, [2006] 2
    S.C.R. 49. In
Boulanger
, the Supreme Court of Canada set out the
    elements of the offence of breach of trust by a public officer at para. 58.
    They are as follows:

(1)

The accused is an official;

(2)

The accused was acting in
    connection with the duties of his or her office;

(3)

The accused breached the
    standard of responsibility and conduct demanded of him or her by the nature of
    the office;

(4)

The conduct of the accused
    represented a serious and marked departure from the standards expected of an
    individual in the accuseds position of public trust; and

(5)

The accused acted with the
    intention to use his or her public office for a purpose other than the public good,
    for example, for a dishonest, partial, corrupt, or oppressive purpose.

[7]

The preliminary inquiry justice found that there was evidence capable
    of supporting a finding that [the respondents conduct] is a conscious decision
    to ignore the police duty at common law to protect and preserve human life. As
    a result, she concluded that a trier of fact could reasonably infer that the
    respondents conduct constituted a serious and marked departure from the
    standards expected of an individual in his position of trust and that the
actus
    reus
of the offence as outlined in elements one to four had been
    satisfied.

[8]

As for the fifth element, the
mens rea
, she found it possible
    to infer that the respondent refused to assist and drove away for the dishonest
    purpose of avoiding all the unpleasant tasks involved in responding to a
    suicide call. The preliminary inquiry justice also found there was evidence
    that the respondent lied about being on a call and that, post offence, he
    attempted to conceal his breach of trust by falsely suggesting to a second
    officer that he  the second officer  was the one Mr. Vukobrat had approached
    for help. This, in her view, was consistent with the respondent having the
    subjective intent of dishonesty.

[9]

The respondent brought an application for
certiorari
on the
    narrow issue that there was no evidence capable of supporting an inference that
    he had the necessary
mens rea
for the offence. The application judge
    agreed. Based on
Boulanger
,

she determined that breach of trust is a specific intent offence requiring
    proof of an ulterior motive beyond the mere intention to carry out the act. In
    this case, what was required was proof of an intention other than the mere
    refusal to carry out his duty.

[10]

Relying
    on
Boulanger
,
the
    application judge explained at para. 19 of her reasons that the intent
    necessary for the offence goes beyond the intention for the
actus reus
and requires an additional or elevated intent: a non-public purpose, a
    corrupt or improper purpose. The only evidence of
mens rea
was
    evidence supporting a finding that the respondent did not carry out his duty,
    lied about it to Mr. Vukobrat and later tried to cover up his breach of duty. The
    application judge agreed that an inference could be drawn from this evidence
    that the breach was motivated by a desire to avoid the unpleasant consequences
    associated with responding to a possible suicide. This, in her view, did not
    constitute an ulterior purpose as required by
Boulanger
.

Analysis

[11]

The
    appellant argues that the application judge erred in her interpretation of
Boulanger
, namely with respect to
the requisite
mens
    rea
for the offence under s. 122. In the appellants view,
Boulanger
simply requires that the conduct of the public official satisfying the
actus
    reus
for the offence be done for a purpose other than the public good. Although
    such a purpose will frequently involve dishonest, partial, corrupt, or
    oppressive conduct, there is no fixed category of purposes that can satisfy the
mens rea
. In the appellants submission, the
mens rea
requirement is satisfied where a police officer decides not to carry out his
    duty for the purpose of putting his own comfort or needs before the good of the
    public.

[12]

I
    disagree. In
Boulanger
, when considering the
mens rea
requirement, the court explained at para. 56 that:

In principle, the
mens rea
of the offence lies in the
intention to use ones public
    office
for purposes other than the benefit of the public. In practice,
    this has been associated historically with using ones public office for a
    dishonest, partial, corrupt or oppressive purpose, each of which embodies the
    non-public purpose with which the offence is concerned. [Emphasis added.]

[13]

While
    I accept the appellants submission that an inference is available on this
    record that the respondent intended to put his own comfort or needs before the
    good of the public, I do not agree that this constitutes an intention to use
    his public office for a purpose other than the public good as required by
Boulanger
.

[14]

If
    accepted, the evidence would allow a trier of fact to find that the respondent
    exhibited a shocking and complete disregard for the duties police officers are
    sworn to uphold. Nonetheless, however egregious the respondents 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.

[15]

Boulanger
held that s. 122 criminalizes the common law offence of misfeasance in
    public office but not the common law offence of neglect of official duty: at
    para. 48. It is the
mens rea
of an improper purpose that marks the
    distinction between these two offences. If the improper purpose can be found,
    in substance, in a decision not to perform ones duty, the distinction the
    Supreme Court of Canada insisted upon disappears. The improper purpose
    requirement would also effectively be eradicated. To satisfy the improper
    purpose requirement there must be an improper purpose that is materially different
    from the decision not to perform the duty. In my view, a desire to avoid an
    unpleasant duty does not make the grade.

[16]

To
    find otherwise would, in effect, mean that the
mens rea
for the
    offence would be made out whenever a slothful public official simply chose not
    to carry out his or her duty to avoid doing the work. This would not be
    consistent with fundamental criminal law principles that have historically set
    a high bar to establishing mental culpability for public misfeasance:
Boulanger
, at para. 56
.

[17]

I
    should not be taken to suggest that the improper purposes that will satisfy the
mens rea
requirement are restricted to dishonesty, partiality,
    corruptness or oppression. There are certainly other improper uses of ones
    public office that would satisfy the
mens rea
requirement. This said,
    however, simply failing to carry out ones duty to avoid doing the work even
    where the work is considered to be unpleasant by the public official will not
    suffice. Although it does, in a sense, confer a personal benefit on the public
    officer, it does not amount to using the public office for a purpose other than
    the benefit of the public.

Conclusion

[18]

For
    these reasons, I would dismiss the appeal.

Paul Rouleau J.A.

I agree Doherty
    J.A.

I agree David M.
    Paciocco J.A.

Released: December 20, 2018

DD


