Joe Smyth asks court to remove RNC chief from complaint hearing
RNC officer claims his boss is biased against him
Royal Newfoundland Constabulary officer Joe Smyth is heading to court in an attempt to remove his boss from a public complaints hearing that will determine his future.
In court filings, Smyth's lawyer, Jerome Kennedy, claims Chief Joe Boland has displayed bias and already prejudged the embattled officer's guilt.
Boland, who has been chief since 2017, counters that is not the case. He is refusing to step away from the public complaint hearing.
Lawyers for both sides were at Supreme Court in St. John's on Thursday. Kennedy had argued for an injunction to stay the April 16 hearing until a decision was made on whether Boland could lead the process.
Justice Daniel Boone set the matter over to March 24, so a judgment could be released prior to the scheduled hearing.
At issue is a public complaint filed by Sayed Husaini, who was also the subject of Smyth's criminal proceeding.
Smyth was charged by ASIRT in July 2018 after a traffic stop on May 12, 2017. Smyth gave motorcyclist Husaini a ticket for running a red light, an offence that was disproved by video evidence.
Provincial court Judge Mike Madden convicted Smyth but the Court of Appeal swiftly overturned the verdict and ordered a new trial.
Hearing set for March
Smyth, who has been with the force for 18 years, had his suspension from the force lifted in December 2019 after Crown prosecutor Lloyd Strickland announced he would not be proceeding with a second trial, and asked the charge of obstruction of justice be dismissed.
At the time of Smyth's courtroom win in December, the RNC said Smyth would be assigned to administrative duties until the public complaint process is complete.
Husaini has alleged Smyth falsified traffic violations and notes, and that the officer threatened, harassed and intimidated him.
Smyth asked that Boland recuse himself from investigating Husaini's internal complaint, and for any officer under Boland's command to do the same.
Smyth is also asking that the matter go straight to the Public Complaints Commission.
Letter points to bias, lawyer says
Court filings from Kennedy point to a 32-page letter written by Boland in the wake of Smyth's conviction, on April 25, 2019.
"The application also refers to the chief of police's repeated comments in his letter of April 25, 2019, that dismissal from employment is reasonably likely if the applicant is found guilty of a disciplinary offence," court documents say.
"These comments, by themselves, should preclude the chief of police from having any involvement in a disciplinary hearing."
Through his lawyer, Boland said he would not disqualify himself and that "absolutely nothing" in the letter sent to Smyth amounted to an apprehension of bias. The chief said that at no time did he state, either during the press conference or the written media release, that he believed Smyth was guilty of misconduct.
Further, the chief denied Kennedy's assertion that the Alberta Serious Incident Response Team was asked to investigate the allegation because of the publicity surrounding the Donald Dunphy Inquiry.
The report from the judicial inquiry into the 2015 shooting death of Don Dunphy by Smyth concluded in June 2017 that the officer used appropriate force.
Ironically enough, the inquiry's recommendation for independent oversight is what led Boland to call in ASIRT, an outside agency, the letter said.
The case will return to Supreme Court on March 24.
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