ST. JOHN'S, N.L. — Royal Newfoundland Constabulary Chief Joe Boland has recused himself from overseeing a disciplinary hearing for Const. Joe Smyth, a week before lawyers were scheduled to make arguments on the topic in Newfoundland and Labrador Supreme Court.
Smyth’s lawyer, Jerome Kennedy, and Boland’s lawyer, Wendy Zdebiak, appeared in court by video Monday morning, and had been scheduled to address Kennedy’s application to the court to ban the police chief from proceeding with the internal disciplinary hearing. Kennedy is alleging Boland is too biased to oversee the process and wanted the court to ban 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 and is asking for the judge to issue a declaration regarding the chief’s alleged bias.
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When proceedings began, the court heard Boland had filed a letter a week ago, recusing himself from Smyth’s disciplinary hearing based on new evidence that had come to light. Boland reportedly detailed that evidence in his letter, though it has been sealed until Justice Daniel Boone decides whether or not it will remain part of the permanent record.
Kennedy is arguing that it shouldn’t, saying Boland’s information is irrelevant to the proceedings at hand and is inflammatory to Smyth.
Zdebiak is arguing it must, saying it’s required for context and to make it clear for the record that Boland is not backing away from the disciplinary process because he is conceding a bias. He withdrew in the public's best interest, Zdebiak said.
Zdebiak said the entire application is moot at this point, since Boland no longer has anything to do with Smyth’s disciplinary review, which is now in the hands of a public complaints commissioner. She said she’s concerned Smyth will somehow attempt to use the judge’s ruling, if it is in his favour, to discredit the investigation that led to his disciplinary hearing.
The investigation report alleges Smyth, 41, should be found guilty within the RNC of engaging in conduct unbecoming of a police officer during an interaction with motorcyclist Sayad Husaini on May 12, 2017.
“This comes right to the heart of the concern of the (chief),” Zdebiak said. “A declaratory order by the court in relation to finding the chief having some reasonable apprehension of bias could affect proceedings down the road, in which case it could be taken out of context as some way to suggest that any reliance on (the internal investigator's) findings has no merit for some reason. That’s a concern, exactly, here.”
Kennedy suggested the issue isn’t moot at all, since Smyth will undoubtedly have future interactions with Boland on the job.
The judge asked Kennedy how the issue has any impact on their future interactions.
“You’re not asking me to decide that the chief has made up his mind about Const. Smyth, but that the chief has made up his mind about this case?” he asked. “How does it matter to Const. Smyth, in his future dealings, whether I make this decision or not?”
Kennedy responded by saying the issue of a potential bias isn’t related to a single incident, but has been a continuing theme in Boland’s actions regarding Smyth.
“What this man has been through, sir, is pretty serious stuff in terms of the way he has been dealt with,” Kennedy said of his client. “This is a pattern here, which is alleged by (Smyth) to have an effect on his ability to function as a police officer. Therefore the issue really takes on a significance and importance.”
Boone will rule on some matters in the case on Thursday.
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. His disciplinary hearing is set for later this month.
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 while 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.
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.
Smyth is alleging statements Boland has made since his original arrest have shown a biased against him and a pre-judging of his guilt when it comes to the internal charges.
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.
