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New trial ordered for Joe Smyth

RNC Const. Joe Smyth was in provincial court in St. John's Tuesday, where he was given a suspended sentence for obstructing justice by issuing a false traffic ticket.
RNC Const. Joe Smyth. - Rosie Mullaley file photo/The Telegram

RNC officer wins appeal against obstruction of justice conviction

ST. JOHN'S, N.L. —

The province's Court of Appeal has overturned the conviction of RNC Const. Joe Smyth on a charge of obstructing justice and has ordered him a new trial.

In a decision filed Tuesday afternoon, Justice Lois Hoegg ruled the provincial court judge who convicted Smyth earlier this year failed to determine Smyth had purposefully attempted to obstruct justice when he gave a ticket to a motorcyclist on May 12, 2017. Two other Newfoundland and Labrador Supreme Court justices concurred with Hoegg's ruling.

"Although the judge referenced the law stipulating that the offence was one of specific intent, he did not apply that law to the facts and argument before him," Hoegg wrote. "He did not refer in his reasoning to the requirement for willfulness to obstruct justice to be proved or evidence of willfulness, or evidence from which he could infer such willfulness."

Provincial court Judge Mike Madden gave Smyth, 41, a suspended sentence and a year of probation in April, having found him guilty of the obstruction charge after a trial.

Smyth had been charged after he stopped a motorcyclist, Sayed Husaini, on Torbay Road in St. John's and issued him four traffic tickets, including one for running a red light. Footage from Husaini's Go-Pro camera presented as evidence in court revealed the light had been green.

Sayed Husaini
Sayed Husaini

Madden had acknowledged Smyth had been investigating reports of an individual recklessing operating an orange-coloured motorcycle in traffic at the time and there were unexplained gaps in the Go-Pro footage, but determined it to be "inexplicable" that Smyth could have believed the light was red. The circumstances on the road that day would have left "any competent driver" to come to the conclusion that the light was green, the trial judge ruled.

The issue of what "any competent driver" would have concluded about the light is not the issue, Hoegg said.

"The issue is Mr. Smyth's subjective intention to obstruct justice," she wrote. "The judge's reasons respecting the colour of the light, without more, do not, in my view, equate to willfully obstructing justice by knowingly issuing a ticket for which there are no reasonable grounds."

What is needed, Hoegg wrote, is evidence of the prospect of personal benefit to Smyth or the absence of good faith.

Smyth's lawyer, Jerome Kennedy, had argued at trial that his client made a mistake and hadn't intended to obstruct justice. He questioned the credibility of Husaini — who refused to answer certain questions on the witness stand and who owns an orange-coloured motorcycle — and argued the case only ended up in criminal court because Husaini had found out the officer was Smyth.

Smyth was a member of then-premier Paul Davis's security detail on Easter Sunday in 2015 when he was sent to investigate tweets Mitchell's Brook resident Donald Dunphy had posted referring to government members. Smyth shot and killed Dunphy during an interaction at Dunphy's home, and was later cleared of wrongdoing after a public inquiry. 

The Crown at Smyth's trial argued the timing of the lights and the heavy flow of traffic through the intersection would have made it highly unlikely for Smyth to honestly mistake the light for red.

The appeal judge noted Smyth's evidence had not changed from his initial notes about the tickets and his statement to an Alberta Serious Incident Response Team (ASIRT) investigator, to whom he acknowledged his mistake and hadn't tried to explain his actions. There was no evidence Smyth had tried to conceal his actions or that he had any specific desire to punish Husaini, Hoegg wrote, and the Go-Pro video revealed Smyth had acted professionally during the traffic stop. Smyth had taken about 45 minutes to get to Torbay Road to investigate reports about the motorcycle, Hoegg wrote, since he executed a different 19-minute traffic stop en route.

"Although the judge referenced the law stipulating that the offence was one of specific intent, he did not apply that law to the facts and argument before him." — Justice Lois Hoegg

"This does not show the zealousness one might expect to see if Mr. Smyth was 'out to get' Mr. Husaini," she ruled.

"One is left to question why Mr. Smyth would deliberately issue a fourth ticket, knowing that it was based on false information, if he felt he already had reasonable grounds to issue the other three," Hoegg continued.

Madden's reasoning seemed to be that the evidence the light was green was so overwhelming that it was impossible for Smyth to be mistaken about it, she stated.

"With respect, this is not enough."

Hoegg overturned Smyth's conviction and ordered a new trial.

— With files from Glen Whiffen and Rosie Mullaley

Twitter: @tara_bradbury


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