Court of Appeal for Ontario

Date: 2018-12-20 Docket: C65011

Judges: Doherty, Rouleau and Paciocco JJ.A.

Between

Her Majesty the Queen Appellant

and

Kyle Upjohn Respondent

Counsel: 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.

Reasons for Decision

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 The first two charges were later withdrawn after it became apparent that the Crown would be unable to determine the precise time of Mr. Boucher's death. There was, in essence, no way to link the respondent's 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:

Elements of Breach of Trust by Public Officer

(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 accused's 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 respondent's 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 respondent's 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 appellant's 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 appellant's 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 one's public office for purposes other than the benefit of the public. In practice, this has been associated historically with using one's 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 appellant's 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 respondent'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.

[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 one's 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 one's public office that would satisfy the mens rea requirement. This said, however, 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. 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"