Sergeant Michael Rusnak v. Tillsonburg Police Force, 1980 CanLII 2750

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF The Police Act, R.S.O. 1970,

Chapter 351, and amendments thereto and Regulations

thereunder; and,

IN THE MATTER OF Appeals to The Ontario Police

Commission by:

SERGEANT MICHAEL RUSNAK

Appellant

TILLSONBURG POLICE FORCE

Respondent

DECISION

Panel: W. Thomas McGrenere, Esq., Q.C., Member

Hearing Date: Friday, August 8, 1980, at 10:00 a.m.

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

1. This is an appeal from the decision of the Tillsonburg Police Committee dated May 21, 1980, which upheld the decision of the Chief of Police dated February 11, 1980, which found Michael Rusnak guilty of discreditable conduct and required Michael Rusnak to resign within seven days or be dismissed from the Force.

2. The charges against Sergeant Rusnak arise out of an incident which occurred on September 12, 1979. Sergeant Rusnak was in a police cruiser at the time and invited Constable Bobbins to join him, allegedly for a chat about problems in Sergeant Rusnak's platoon.

3. The evidence of Constable Robbins as to what Sergeant Rusnak said and how he said it was diametrically opposed to Sergeant Rusnak's version of the incident.

4. Constable Robbins alleged that Sergeant Rusnak had used a great deal of profanity and had down-graded Constable Robbins in many ways, and had referred to him as being stupid and incompetent and made a great deal more derogatory comments. Constable Robbins stated that Sergeant Rusnak had told him amongst other things that he had been charged before and beat it and that he, Sergeant Rusnak, could "waste you know who." The evidence leaves little doubt that Sergeant Rusnak was referring to Detective Sergeant Dore.

5. There is common ground in the evidence of both men to the effect that Sergeant Rusnak invited criticism of himself as to the way he was operating the platoon and to the effect that Sergeant Rusnak actually apologized to Constable Robbins for not properly covering him on an earlier occasion.

6. Sergeant Rusnak was originally charged on September 12, 1979. This charge was defective and was subsequently reissued on November 8, 1979.

7. Counsel for Sergeant Rusnak takes issue with the Chief's decision in three respects:

(1) The Chief's overall involvement and conduct was

tantamount to a denial of natural justice.

(2) Constable Bobbins' evidence ought not to be accepted

over that of Sergeant Rusnak.

(3) In any event, the penalty administered is too severe

given the circumstances.

8. In Mr. Mandryk's submission that the decision was contrary to natural justice, he took issue with the fact that Chief Harley had taken part in the initial interrogation of Constable Robbins at the time the complaint was made, and that in giving judgment, he took into consideration extraneous matters which were not in evidence.

9. With respect to the point relating to the Chief partaking in the interrogation of Constable Robbins, I am satisfied that this does not amount to a denial of natural justice. The Police Act puts a Chief in a rather unique position in this regard and his status to be both a complainant and a judge was upheld by the Court of Appeal in R. v. Peterborough Police Commissioners, 1965 CanLII 196 (ON CA), 2 O.R., 577. I believe that this decision is applicable to the case at hand, notwithstanding the presence of the Chief at Constable Robbins' interrogation.

10. The use by the Chief of statements, the contents of which were not entered at trial, and of other extraneous matters requires further consideration.

11. When Sergeant Rusnak was served with the charge sheet on November 8, 1979, by Sergeant Hovorka, he reacted in an uncontrolled fashion and on his own admission, made threats against both Detective Sergeant Dore and the Chief of Police. He suggested that someone was going to get hurt and that he would like to "waste" certain people. According to Constable Robbins, Sergeant Rusnak had used the same expression on the night of September 12 when referring to what he would like to have done to Detective Sergeant Dore for his part in earlier disciplinary hearings.

12. These threats by Sergeant Rusnak on November 8, 1979, had been recorded in a statement by Sergeant Hovorka to the Chief of Police. Sergeant Hovorka had also filed with the Chief a detailed report of comments made by Sergeant Rusna to Sergeant Hovorka on November 1, 1979. This later statement contained some unflattering comments about the Chief and also indicated a somewhat cavalier attitude by Sergeant Rusnak to the disciplinary proceedings originally commenced on September 12, 1979. The report also contained a rather clear statement by Sergeant Hovorka that Sergeant Rusnak was no longer fit to be part of the Tillsonburg Police Force.

13. Sergeant Hovorka's evidence at the hearing covered only a portion of what was contained in his statement of November 9, 1979, and none of which was contained in the November 1, 1979 statement.

14. The Chief had particulars of Sergeant Rusnak's conduct both on November 1, 1979 and November 9, 1979, but chose not to proceed with further charges. In his judgment however, he recites the full text of Sergeant Hovorka's reports of both dates.

15. The Chief in his reasons refers to past meetings with Sergeant Rusnak to talk about his performance and attitude, and also to meetings with Detective Sergeant Dore to talk about Sergeant Rusnak's insubordination. With the exception of vague references to an earlier incident dealing with Sergeant Hovorka, which was not pursued by the Chief, no evidence of these meetings was given at the trial.

16. The question arises then, did the Chief feel that this information was essential to his determination of the