Jerome Kennedy has a strong opinion about why, of all the police-issued tickets that are disputed in traffic court, his client's case ended up in criminal court.
"Tickets are written every day," the St. John's defence lawyer said during the trial of Const. Joe Smyth in provincial court Wednesday.
"We're here because it's Joe Smyth."
Smyth is the RNC officer who shot and killed Don Dunphy on Easter Sunday 2015 and was later found by an inquiry to have used appropriate force and acted in self-defence.
He's on trial for an obstruction of justice charge, which was laid as a result of a traffic stop in the spring of 2017. The 40-year-old is accused of issuing a ticket knowing that no violation had occurred.
But Kennedy believes Smyth was unjustly charged and that there's no direct evidence to prove he intended to issue a false ticket.
As a result, instead of calling any witnesses of his own, Kennedy began Day 3 of the trial by filing a motion for a directed verdict, asking Judge Mike Madden to render a decision in the case based on the evidence that's already been presented.
"The Crown has to prove (Smyth) deliberately did this … and the evidence is just not there," Kennedy said before citing law. "A simple error in judgment (by Smyth) or inadequate exercise of discretion will not be enough (to constitute a conviction for obstruction)."
The traffic stop occurred at around 5 p.m. on May 12, 2017.
Smyth pulled over a motorcyclist, Sayed Husaini, who was riding an orange Honda Rypsol racing bike along Torbay Road and issued the driver four tickets, including one for running a red light at the intersection of Torbay Road and Highland Drive. However, footage from the driver's Go Pro camera, which was mounted on the motorcycle at the time, clearly shows the light was green.
After the driver made a public complaint, the RNC agreed to have Smyth investigated by the Alberta Serious Incident Response Team (ASIRT) and he was subsequently charged.
Smyth, who had been travelling in the opposite direction when he spotted the motorcycle, told investigators he perceived the light to have been red. He admitted he had made a mistake and said there was no malicious intent.
However, Crown prosecutor Lloyd Strickland said Smyth knew full well the rider — whose motorcycle was similar to the one that sped away from him about a month prior and that he was looking for — didn't run a red light.
"It was done knowing the ticket was false," Strickland said. "It comes down to that."
Replaying the Go Pro camera footage in court Wednesday, Strickland points out that judging from the heavy flow of traffic going in the opposite direction, along with the evidence regarding traffic light timing from a city traffic expert, the court can infer that Smyth had to have known the light going in the opposite direction was green.
"Speeding is a matter of judgment, but we're talking the difference between a red light and a green light," Strickland said. "It is so basic. It's a very basic call. It's a very basic thing to notice."
He said Smyth's claim that he simply made a mistake is not conceivable.
"It's an error that's almost unbelievable," Strickland said.
"What's unbelievable," Kennedy said in redirect arguments, "is that we're here (in criminal court)!"
Kennedy said the heavy flow of traffic coming in the opposite direction may have been residual traffic from Highland Drive or another side street, which had turned onto Torbay Road.
Madden will render his decision on the directed verdict on Jan. 21. If it's denied, the trial will continue.
Twitter: @TelyRosie
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