Constable Edward Batorski v. Niagara Regional Police Force, 1982 CanLII 3360

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: Monday, August 9, 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. Roderick Barr, Esq., Q.C., Counsel for the Appellant. Deputy Chief Martin Walsh, Agent for the Respondent

Held: Monday, August 9, 1982

1This 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 Regional Municipality of Niagara, dated February 25, 1982, which affirmed the conviction of Cosntable Batorski and varied the punishment by substituting a penalty of "Reduction in Rank to a Third Class Constable" in place of a decision of "Dismissal" by Superintendent Moody. A reversal of the Board's decision was sought on the following grounds:-

(a) The evidence of the alleged assault committed by Constable Batorski indicated that it was of such a trivial nature as not to warrant disciplinary sanction.

(b) The Board of Commissioners of Police erred in taking into account previous convictions of Constable Batorski without receiving evidence as to the facts of the incidents giving rise to these convictions.

(c) The punishment of reduction in rank was excessive in the circumstances disclosed in evidence.

2Although it was not contained in the Notice of Appeal, the Counsel for the appellant urged that the decision of Superintendent Moody ought to be reversed simply on the grounds that he failed to give any reasons to support his conviction and the penalty both in the first instance.

3It, undoubtedly, would have been helpful to the Board and to this Commission if the Trial Officer had given some reasons for registering the conviction and ordering the sentence. Although reasons should be given by the Trial Officer, I do not believe his failure to do so warrants a reversal.

GROUND OF APPEAL

(a) On July 19, 1981, at approximately 400 hours, it is alleged that Constable Batorski assaulted Constable Kane by shoving him into lockers in the Locker Room at the Church Street Police Station. The evidence of all witnesses indicates that the incident giving rise to the charge arose out of needling between Constable Kane and Constable Batorski that finally got out of hand. The evidence discloses that eventually Constable Batorski became agitated and appeared angry towards Constable Kane.

After the initial period of needling which took place in the lunch room, Constable Kane left the area for reasons unrelated to the exchanges with Constable Batorski and went to the washroom. Shortly thereafter, Constable Batorski followed and encountered Constable Kane within the locker room. There was a further exchange and Constable Kane said he was pushed by Constable Batorski with both hands twice into the lockers, and told by Constable Batorski to "get off my case". Constable Batorski denied shoving Constable Kane, but indicated that, when Constable Kane attempted to leave the locker room, Constable Kane shoved past him, thus bringing the two into contact.

4It is evident from the conviction that Superintendent Moody preferred the evidence of Constable Kane over Constable Batorski. I am satisfied that there was sufficient evidence to support his preference and support the finding that an assault had occurred. While the physical aspect of the assault appears to be quite trivial, it, nevertheless, was done in anger, and obviously, to intimidate Constable Kane.

GROUND OF APPEAL

(b) Constable Batorski's record was introduced before the Board of Commissioners of Police and it is obvious that they did reflect upon same in reaching their judgement. Two of the earlier convictions are for offences of a similar nature, but it is obvious from the fact that they were both treated as minor offences, and that the punishment was very lenient, that the incidents giving rise to the charges could not have been very serious.

5Counsel for the appellant, with the acquiescence of Deputy Chief Walsh, did advise in general terms as to the background of the two charges. To examine prior convictions in some detail would be tantamount to retrying the earlier charges. It is however, obvious from the facts, as outlined by Counsel for the appellant, that it was quite reasonable to treat the earlier charges as minor offences.

6It is difficult to appreciate how much Constable Batorsky's earlier convictions weighed on the minds of the members of the Board of Commissioners of Police. In any event, I do not think that the appellant's past record plays a significant role in the disposition of this appeal.

GROUND OF APPEAL

(c) Pursuant to the arrangements made by Counsel for the appellant, Constable Batorski was examined by Dr. R.E. Johnson, a Psychiatrist, on June 4 and June 14. With the consent of Deputy Chief Walsh, Counsel for the appellant filed the reports of Dr. Johnson, dated June 8 and June 16. The reports deal, to some extent, with the problems experienced by the constable, and helped to explain some of his conduct over the last few years. Dr. Johnson suggests in conclusion that there would not be any psychiatric indicators suggesting an inability for the Constable to function effectively as a police officer.

7Counsel argued that Constable Batorski's past record was not nearly as bad as the prosecution would maintain, particularly when the facts leading up to the earlier charges are reviewed. He further suggested that if an assault took place in this incident, it was of such a trivial nature that the greatest penalty administered against Constable Batorskt should be no more than a forfeiture of leave or days' off. Deputy Chief Walsh, on the other hand, argued that th record indicated a propensity on the part of Constable Batorski to threaten and demonstrated a pattern of conduct, and that the original penalty of dismissal, as ordered by Superintendent Moody, and supported by Judge Scott, should be restored. In this respect, there was no cross appeal and, in any event, I do not believe that the Commission has jurisdiction to entertain a cross appeal by the prosecution. I am of the view that the incident was sufficiently serious to warrant a penalty which would act as a reminder to Constable Batorski that he must exercise greater selfcontrol.

8I am not satisfied that the Board's order of a reduction in rank was excessive, but I believe it is incumbent upon the Board, in ordering such a penalty, to put a time limit on same, otherwise part of their decision is, in fact, delegated to the Chief or other superior officer. In the circumstances, I would order that the punishment be varied to a "Reduction in Rank to a Third-Class Constable for a period of nine months"-

9The appeal as to the conviction is dismissed and the penalty is varied, as stated.