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| John L. Hill |
In July 2023, Superior Court Justice Joseph Fragomeni convicted McAllister on the breach of trust charge but acquitted him of sexual assault. The criminal proceeding likely ended when a unanimous three-judge panel of the Ontario Court of Appeal upheld the conviction and refused to alter the 18-month conditional sentence Justice Fragomeni imposed (R. v. McAllister, 2024 ONCA 456).
At the time of his arrest, McAllister was the Domestic Violence Co-ordinator for the Peel Regional Police and was assigned to follow up and assess the effectiveness in responding to a domestic situation. A complainant had reported that her then-partner had assaulted her in April 2008. Almost immediately, McAllister and the complainant had struck up a flirtatious relationship, and by May 2008, the relationship became sexual. While on duty a year and a half later, McAllister drove to the complainant’s home in Brampton without telling his supervisor why he needed the police vehicle. The criminal investigation against the complainant’s former partner was ongoing.
The sexual assault charge stemmed from the assumption that consent to sexual activity was vitiated by the nature
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McAllister ran aground in his breach of the elements of the offence of breach of trust set out in R. v. Boulanger, 2006 SCC 32. Those elements are:
- he is an official;
- he was acting in connection with the duties of his office;
- he breached the standard of responsibility and conduct demanded by the nature of the office;
- his actions constituted a marked departure from the standard expected of a person in a position of public trust; and
- he used his public office for a purpose other than the public good.
The first four elements were either admitted by the accused or established by the court. The fifth element constituted the mens rea of the crime. The Crown had established this, the appeal court held. The non-public “purpose” the trial judge identified was “to develop and pursue a sexual relationship with the victim of domestic violence.” The trial judge found, and the Court of Appeal accepted, that McAllister had become attracted to the woman and became involved and that the woman believed McAllister was the officer in charge of the case. He became her only means of communicating about her case. This personal involvement was a marked departure from the behaviour expected of an officer in his position.
The fact that McAllister was acquitted of sexual assault but convicted of breach of trust does not mean this was an inconsistent verdict. The evidence did not show that s. 273.1(2)(c) of the Criminal Code (a section protecting the vulnerable and preserving the right to choose to consent to sexual activity freely) had been breached. The aim of s. 122 (the breach of trust section) has a different purpose. It aims to preserve public confidence that those who hold public office are acting for the public good.
Even though the complainant testified that McAllister had said he would assist her in accessing a program for survivors of domestic violence only if she performed sexual services for him, the judge rejected the testimony as lacking plausibility and had material inconsistencies.
The verdicts on the charges were not inconsistent since the charges required separate findings and analyses.
The fact that McAllister breached the complainant’s trust could be an aggravating factor in justifying the conditional sentence. The charge relates to a breach of the public trust. Even if the judge erred, violating the complainant’s trust justified an increased penalty. The sentence did not justify appellate intervention (R. v. Lacasse, 2015 SCC 64).
It took from 2008 to 2024 to resolve the matter. With the criminal proceedings seemingly complete, let the Police Services Act investigation begin.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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