ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The Police Act, R.S.O., 1970, c.351, and amendments thereto and Regulations thereunder, and
IN THE MATTER OF an Appeal to the Ontario Police Commission by:
CONSTABLE EDWARD BATORSKI NIAGARA REGIONAL POLICE FORCE
DECISION
Panel: W.T. McGrenere, Esq., Q.C.
Hearing Date: Friday April 16, 1982
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
Before: W.T. McGrenere, Esq., Q.C.
Appearances:
J.R. Barr, Esq., Q.C. for the Appellant.
Deputy Chief M, Walsh for the Respondent, and Staff Sergeant Sauder.
Held: Friday April 16, 1982
This is an appeal by Constable Edward Batorski of the Niagara Regional Police Force from the decision of the Board of Commissioners of Police for the Region of Niagara affirming on December the llth, 1981, his conviction by Superintendent J. Moody of September 4th, 1981, on a charge of consuming intoxicating liquor in a manner prejudicial to duty that is to say that he reported for duty and was unfit for duty through drinking intoxicating liquor contrary to Section lix (b) of the code of offences, Regulation 791 made in the pursuance of the Police Act of Ontario.
The evidence disclosed that Constable Batorski attended for duty at approximately 15:45 hours on May the 6th, 1981. He had earlier in the day been engaged in domestic duties around his home which included painting. While on parade Sergeant Moore noted that there was an odour of alcohol emanating from his breath. Sergeant Croft and Staff Sergeant Wilson gave evidence that they also noticed a odour of alcohol emanating from the accused officer. Superintendent Leigh who is responsible for the inspection did not notice any liquor emanating from the officer's breath. When the officer was taken to task over his offensive breath he was offered the right to take a breathalyzer test. He refused and apparently took very strong exception to the allegations made against him, and to his being discharged from duty at that time.
The necessary elements for the charge giving rise to this appeal are that the officer must have consumed intoxicating liquor and must have reported in a state unfit for duty. I find that the evidence tendered at the hearing supports the finding that the Constable had consumed intoxicating liquor and that the odour of same was emanating from him when he reported for duty. This then raises the question of whether it is sufficient to support a conviction under this charge by simply showing that an officer has reported for duty with the odour of liquor on his breath. Does such an odour render the officer unfit for duty.
It could be argued that an officer is "unfit for duty" by simply attempting to perform a public function while the odour of alcohol emanates from his breath. Examples come to mind where members of the public would be critical of an officer's conduct when he attempts to ticket them or intervene in their affairs with the offending odour of liquor on his breath. Obvious problems are created when an officer's conduct is the subject of a complaint and there is the added feature of alcohol on his breath. It is not difficult to envisage situations of the above nature bringing disrepute to a Force, wherebut for the taint of alcohol same would not be warranted.
The logical conclusion of this proposition would be that an officer is "unfit for duty" by simply attending for duty with alcohol on his breath where his duties are likely to bring him into contact with the public. If this were the case there could be a different standard applied to officers who's duty was notlikely to bring them into contact with the public.
If a test is simply based on the odour of alcohol on the officer's breath it raises the further consideration of why the code of offences did not specifically say so. Section 1IX (b) would seem to presume a distinction between consuming liquor and being unfit. The word "unfit" connotes a lack of suitable qualities for the occasion and this then presumes a value judgement on the part of the officer in charge to make such a determination. Deputy Chief Welch admitted that the officer-in- charge could and does exercise a discretion in situations similar to those giving rise to this charge. In such instances an officer with offending breath whether it be stale alcohol or otherwise could be and is in fact counselled and permitted an opportunity to attempt to correct the situation.
There obviously must be criteria, other than the odour of liquor on an officers breath, to assist a superior officer in excercising his discretion of permitting an officer to assume his duty or to be sent home. Any signs of a physical or mental impairment would readily assist in the necessary determination In the absence of any other evidence other than odour it evolvesto the superior officer to make a simple value judgement. The officer's value judgement then forms the basis of the administrative decision and at the same time the essential evidence for a discipline charge.
The administrative decision is instantly effective and is a fail safe decision where the officer is discharged or where he is removed from a situation where his conduct is at risk. The superior officer's value judgement however, must be tested in the discipline process, otherwise the officer charged would have no recourse or defence to what could be an arbitrary conduct bya superior officer. The value judgement must be examined in accordance with both its basis in fact and its freedom from discrimination; i.e. is the decision supported by particular facts and was it exercised in an even-handed and consistent manner.
The pertinent evidence was as follows:
Sergeant Moore detected alcohol on the breath of Constable Batorski at a distance of 2 feet while the Constable was on parade. He again noticed the odour in the elevator, in the Superintendent's office, and in the guard room.
Sergeant Croft could smell "a strong smell of stale alcoholic beverage while in the elevator and later when standing 4 to 5 feet away he detected "a faint smell of alcohol". Staff Sergeant Wilson while standing face to face with Batorski could detect an odour of alcoholic beverage.
Superintendent Leigh was accustomed to making a thorough inspection and he did not detect the odour of alcohol from the breath of Constable Batorski when facing the Constable at a distance of approximately 3 feet.
All of the officers agreed that the only indication that the Constable was unfit for duty was the odour of alcohol emanating from his breath. It was argued that such a condition ought to have been remedied by counselling and by the ingestion of somemouth wash or similar aid. There seems to be nothing peculiar to the facts giving rise to this incident which would warrant against the officer-in-charge exercising his discretion to advise and counsel the Constable. The evidence did not indicate that Constable Batorski had an alcohol-related history and in fact indicated to the contrary.
The Constable's conduct subsequent to the allegation by Sergeant Moore while imprudent was not necessarily supportive of thecharge and was not viewed as such by the attending officers. It would appear, however, that his reaction inflamed the situation and perhaps created the atmosphere ensuring the discipline process was to be implemented.
The Constable's conduct subsequent to the allegation by Sergeant Moore while imprudent was not necessarily supportive of the charge and was not viewed as such by the attending officers. It would appear, however, that his reaction inflamed the situation and perhaps created the atmosphere ensuring the discipline process was to be implemented.
There was evidence tendered on behalf of Constable Batorski, the main thrust of which purported to give an alternative to the presence or lack thereof of alcohol on the Constable's person. While the main thrust of this evidence was rejected, the balance of the evidence would tend to indicate that the Constable was in a state that appeared unaffected by alcohol. This evidence pertained to a period shortly before the Constable reported for duty.
While I believe that an officer could be judged unfit for duty because of alcohol emanating from his breath, I would think that the evidence supporting such a conclusion would have to be somewhat stronger than exists in this particular case. In the absence of any signs other than offending breath, and in the absence of a history of alcohol abuse, and given that the officer-in-charge has a discretion to counsel and to recommendsome breath treatment, I would have thought that such a discretion would have been exercised here.
Every case must be judged on its particular facts and I think that the evidence here falls short of clearly demonstrating that Constable Batorski was unfit for duty at the relevant time. In the circumstances the appeal is allowed and the conviction is quashed.
DATED at the City of Toronto, in the Municipality of Metrorpolitan Toronto, this 13th day of May A.D., 1982.
W.T. McGrenere,
Member.