RNC Chief Joe Boland seems to be too biased to proceed with a disciplinary hearing for Cst. Joe Smyth, Smyth’s lawyer argued in Newfoundland and Labrador Supreme Court Thursday.
Lawyer Jerome Kennedy filed an application with the court earlier this week, asking a judge to ban the police chief from proceeding with the hearing and to disqualify him from any further involvement with a motorcyclist’s public complaint against Smyth.
Furthermore, Kennedy wants Boland’s decision to proceed with an internal investigation of the complaint quashed altogether.
Smyth, 41, is facing three charges within the RNC of engaging in conduct unbecoming of a police officer during a interaction with motorcyclist Sayad Husaini on May 12, 2017. In particular, Smyth is alleged to have been rude to Husaini, neglected to diligently perform his police duties, and falsified notes related to the traffic stop. He is set to have a disciplinary hearing next month.
However, Kennedy alleges statements Boland has made in the past about Smyth’s case reveal he is too biased to preside over the hearing, which should be sent to the Police Complaints Commission instead.
“One of the most basic principles of procedural fairness is that an individual is entitled to a fair and impartial hearing,” Kennedy wrote in a letter to Boland last month. “Procedural fairness cannot exist when a decision-maker has reached adverse conclusions prior to a hearing.”
Husaini filed a complaint against Smyth, alleging he had falsified his notes and acted aggressively when he pulled him over for a traffic stop. Boland called in the Alberta Serious Incident Response Team (ASIRT) to investigate, and Smyth was eventually charged with obstruction of justice for issuing the tickets knowing Husaini didn’t deserve most of them. In particular, Smyth had ticketed the motorcyclist for running a red light. Footage from Husaini’s Go-Pro camera later revealed the light had been green.
“One of the most basic principles of procedural fairness is that an individual is entitled to a fair and impartial hearing. Procedural fairness cannot exist when a decision-maker has reached adverse conclusions prior to a hearing.” - Jerome Kennedy
At trial, Smyth testified he had genuinely believed the light was red until an ASIRT investigator showed him the video footage. Provincial Court Judge Mike Madden didn’t accept that Smyth had simply made a mistake, finding him guilty of the obstruction charge and giving him a suspended sentence and a year of probation.
The province’s Court of Appeal later overturned the conviction, siding with arguments made by Smyth’s lawyer when it came to Smyth’s lack of intent to commit a crime, and ordering him a new trial. The Crown opted not to proceed with a new case and the charge was dismissed Dec. 17.
Kennedy had long maintained that Smyth had been charged with obstruction only because of his identity, though the Crown vehemently denied it. Smyth was a member of then-premier Paul Davis's security detail on Easter Sunday in 2015 when he was sent to investigate tweets that 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.
As per RNC policy, once the criminal case was concluded, an internal investigation began, and Smyth was informed at the beginning of February that it was underway. Kennedy responded with a seven-page letter to Boland, asking him to disqualify himself and any officer under his command from investigating the public complaint, due to bias.
Kennedy pointed to the wording of a media statement Boland had issued when Smyth was first suspended without pay in connection with the complaint.
“I want to assure the public that misconduct by an RNC police officer is not acceptable and will not be tolerated within this police service. I will continue to hold any officer who does not represent our values accountable for their actions,” Boland said in that statement in 2018.
More importantly, Kennedy wrote, is a letter written by Boland to Smyth a year ago, after Smyth was convicted, reinforcing reasons why he was still suspended without pay.
“I would suggest it’s ironic that Mr. Kennedy is asserting that the chief of police is seeking delays in proceedings when we have lawful proceedings and this whole application aims at disrupting.” - Wendy Zdebiak
“On at least four occasions you refer in your letter to the fact that dismissal from employment was a likely result of the (internal proceedings) if Cst. Smyth were found guilty of this disciplinary offence,” Kennedy said. “These types of comments are telling in establishing that your approach to this matter is predetermined.”
Kennedy told the chief he was surprised the public complaint was still an issue, given Smyth had been cleared of the criminal charge.
In an e-mailed response, RNC lawyer Wendy Zdebiak said Boland had found “absolutely nothing” in Kennedy’s letter to suggest he was biased. Boland would not be removing himself from the disciplinary hearing, she wrote, and would not be handing it over it to the Police Complaints Commission.
In court Thursday morning, Zdebiak asked for a postponement of Smyth’s application for an injunction until Husaini had been given the chance to participate.
“I don’t see how Mr. Husaini’s interests would be disregarded if he’s not appearing on this motion. I do agree that it seems Mr. Husaini ought to be served with the original application,” Justice Daniel Boone said.
Kennedy accused the RNC of attempting to delay the court proceedings until after Smyth’s internal disciplinary hearing, when it would be too late to continue.
“I would suggest it’s ironic that Mr. Kennedy is asserting that the chief of police is seeking delays in proceedings when we have lawful proceedings and this whole application aims at disrupting,” Zdebiak responded.
“Disrupting because I’m standing up for my clients rights?” Kennedy shouted.
“Just because Mr. Kennedy shouts doesn’t mean he’s right,” Zdebiak said.
“She’s as biased as the chief of police,” Kennedy replied. He later apologized for the remark.
Lawyers will present their arguments March 24.