Judge reserves decision in Jeff Smiley hearing over firing

The judge hearing arguments in the review of former Fredericton police officer Jeff Smiley's attempt to get his job back has reserved her decision after a day of arguments.

Court of Queen's Bench Justice JudyClendeningheard from lawyers for Smiley, who argued against an arbitrator's ruling in a discipline hearing called by the New Brunswick Police Commission, which saw him fired last December.

Judge Clendening offered no date for her ruling, saying"Obviously I will reserve my decision. It could be awhile as my schedule is pretty full for the next two months."

Smiley's lawyer, Daniel Leger,argued in court Tuesday that the Police Act makes a differentiation between police conduct on and off duty and he shouldn't have been fired for alleged off-duty incidents.

• Const. Jeff Smiley dismissed from Fredericton Police Force

ArbitratorCedric Haines ruled in December 2015 that Smiley be fired over four counts of breaching the professional conduct standards for police officers.

Smiley was charged with four counts of breaching the code of professional conduct for police:

• Discreditable conduct by committing domestic violence.
• Counselling a fellow officer not to disclose he had firearms in his possession.
• Two counts of improper use and care of firearms.

After a four-day hearing last fall, the arbitrator found Smiley guilty of all four counts and issued the order that he be dismissed.

On Tuesday, Leger argued Haines made assumptions that "quasi-criminal acts" took place.

Leger also said the Police Act differentiates between conduct while on duty and off-duty conduct, stating that is the "pillar of his argument."

"The code is structured to show differences in the code between on-duty and off-duty circumstances," said Leger.

Smiley should not have been fired for discreditable conduct because he was off-duty at the time of the alleged offences, said Leger.

Leger also pointed out Smiley was never convicted of a crime, but Haines assumed crimes had been committed without Smiley receiving due process.

Firearms finding

Leger said having an expired firearms acquisitionlicence may have violatedthe Firearms Actbut was not a violation of the Police Act by Smiley.

The 12-gauge shotgun in Smiley's possession had two shells in its magazine, not in its chamber, said Leger.

Leger also argued when the RCMP located Smiley's guns they "were not investigated by presumed experts" and Haines assumed there were violations.

Hainesmade multiple "incorrect and unreasonable" assumptions about Smiley's alleged violation of the Firearms Act, said Leger.

Domestic violence allegation

Smiley was never tried in court on the allegation he domestically assaulted his common law wife.

Legersaid Haines had no jurisdiction to find Smiley guilty of domestic violence crimes, adding the Fredericton police only investigated a "minor scale" domestic disturbance.

It was also noted the RCMP never investigated further into domestic violence accusations, the Crown did not proceed with charges, and victim services never looked into domestic violence allegations.

Leger states Hainesdetermined there was domestic violence "despite all of that."

Also representing Smiley was lawyer T. J. Burke, who argued that arbitrator Haines allowed "an abuse of process."

Burke said some of the evidence Hainesallowed should not have been considered, regarding the firearms.

Although charged with firearms offences in February 2014, Smiley was found not guilty in December of that year.

Burke notedthe judge who oversaw the trial of Smiley in relation to illegal firearms possession called his arrest illegal.

He read the judge's statement that said"the investigation was fundamentally flawed and resulted in Smiley being illegally arrested."

He said that showed an"abusive of process that persists in this case."

N.B Police Commission responds

Jamie LeMesurierrepresented the New Brunswick Police Commission in the afternoon at the hearing.

He argued that the arbitrator in the original hearing had the authority under the Police Act torule "based on a balance of probability standard."

His decision is described as "final and binding" in the act as well.

He said Burke'sabuse of processargument is not valid, as thearbitrator's process falls under that of "reasonableness."

A judicial review involving another former officer who was fired from the Fredericton force, Cherie Campbell, took place last week. Justice Paulette Garnet reserved judgment in that case.

Campbell was in the court Tuesday for Smiley's judicial review, just as Smiley was presented at Campbell's hearing last week.