Off-duty Barrie officer was defending herself in bar fight, lawyer tells tribunal

·4 min read

A Barrie police officer who has pleaded guilty to a charge of discreditable conduct under the Police Services Act and not guilty to a second charge is fighting to keep her job.

Const. Lesley Johnston pleaded guilty to fraud under $5,000 two years ago for working part-time for $15 per hour while collecting WSIB (Workplace Safety and Insurance Board) benefits during a leave from the Barrie Police Service in 2016 due to post-traumatic stress disorder diagnosis.

A disciplinary hearing has heard that she earned a total of $6,915.54 which was not taxed and she did not claim during the part-time job which she later repaid. Johnston was handed a conditional discharge and 12 months probation in criminal court.

Her recent guilty plea for discreditable conduct is related to the fraud conviction.

The second accusation arose from what the prosecution called a “drunken bar brawl” in which Johnston became involved two days after the court appearance for fraud in 2019. With that discreditable conduct charge, Johnston is accused of acting in a disorderly manner that is likely to bring discredit upon the reputation of the Barrie Police Service.

“Instead of walking away… Const. Johnston decides the best thing to do is throw the punch and, predictably, we know what happens after that,” prosecuting lawyer David Migicovsky told the hearing on Tuesday.

Johnston contends in the tribunal hearing that although she threw the first punch during the off-duty encounter, she was defending herself and is not guilty of the discreditable conduct charge. She wasn’t charged criminally in the fight.

The tribunal heard Johnston and her partner at the time had gone to a Midland restaurant where they had dinner, drinks and watched a hockey game. They then went to another restaurant for drinks.

While leaving the second restaurant, Johnston got into a verbal argument with another woman, which degraded in a physical fight, the tribunal heard. The other woman was subsequently charged after spraying Johnston and others with bear-spray.

The tribunal relied upon agreed of facts of the basic events of the evening and played audio recordings of three interviews that were conducted with Johnston about the fight during the two-day hearing, which started last week.

Migicovsky said Johnston escalated the verbal altercation to a physical altercation just two days after promising to keep the peace following the criminal conviction. Instead of walking away, he added, she stood her ground and punched the other woman in the face.

The test for discreditable conduct is whether a reasonable person finds the behaviour of the officer brings discredit upon the reputation of the police service.

As pillars of the community who possess powers that other people don’t have, police officers have the responsibility to display a certain behaviour in the community both on and off duty, Migicovsky said. And involvement in bar fights, he added, is not acceptable.

“Const. Johnston had a choice. … It would be unreasonable, we say in the extreme, to find that the only option she had was to go ahead and throw the first punch,” he said. “By any definition, that’s not self-defence and that’s not what the public expects of police officers.”

But defence lawyer Kate Robertson said Johnston had the right to defend herself.

“To accept the prosecution’s interpretation… would subject officers to a new, overly broad standard of liability,” she said. “When we are confronted with quickly unfolding situations, every single one of us is entitled to latitude… when the need to self-defence arises.

“This concept of latitude is at the heart of self-defence jurisprudence," Robertson added.

Robertson said Johnston was faced with a woman who used her body to push her 10 to 20 feet away from the exit as the woman emitted spit while yelling at her, ultimately using bear spray. Johnston had bruising on her face as well as scratches on her chest.

The body block and spitting while yelling, Robertson added, constitute assault, although the woman was only charged with using bear spray. That threatening behaviour, she added, created a threat allowing Johnston to defend herself.

“It is not discreditable to act in self-defence,” she said.

The next tribunal date is scheduled for May 13 when hearing officer Terence Kelly, retired deputy chief of the York Regional Police, is expected to announce when he will render his decision.

Marg. Bruineman, Local Journalism Initiative Reporter, barrietoday.com