Fredericton police officer Jeff Smiley fired again

The New Brunswick Court of Appeal has restored an arbitrator's decision to fire Const. Jeff Smiley from the Fredericton Police Force for misconduct.

In a ruling released on Thursday, the court overturned a lower court's decision to quash Smiley's firing in 2015.

Smiley has also been ordered to pay costs of $2,000 on the appeal and $3,000 on the judicial review.

Smiley's lawyer T.J. Burke declined to comment.

Chief Leanne Fitch said she was informed of the decision Thursday afternoon.

"I will be speaking with legal and the city regarding next steps," she said, declining further comment.

New Brunswick Police Commission executive director Steve Roberge could not immediately be reached for comment.

• Police commission seeks to appeal decision quashing firing of Jeff Smiley

The case dates back to 2014, when Smiley was charged with assault related to incidents alleged to have occurred on Feb. 17.

The charge was withdrawn by the Crown prior to trial, but Smiley had signed an undertaking in connection with that charge to abstain from possessing a firearm and to surrender to police any firearm in his possession.

Smiley was later accused of breaching that undertaking. A trial was held on Dec. 9, 2014 and the breach charge was dismissed.

The chief had filed a Police Act complaint against him, however, and an investigator appointed by the New Brunswick Police Commission determined there was sufficient evidence he had breached the code of professional conduct.

Smiley was accused of:

• Discreditable conduct for allegedly committing domestic violence upon his common-law partner "on a number of occasions over the period of [their] relationship.
• Counselling another officer not to disclose that he had firearms in his possession while bound by an undertaking to turn over all firearms.
• Improper use and care of firearms for having an expired licence.
• Improper use and care of firearms for having a 12 gauge pump action shotgun loaded with two shells in the magazine.

An arbitration hearing was held and arbitrator Cedric Haines found Smiley guilty on Dec. 2, 2015, of all four counts and ordered he be fired.

Smiley sought a judicial review and on Nov. 18, 2016, Court of Queen's Bench Justice Judy Clendening quashed the arbitrator's decision.

Although she upheld Haines' findings of misconduct, she ruled Smiley's dismissal was unreasonable and that Haines hadn't given sufficient reasons for the sanction.

Other possible sanctions allowed for under the Police Act range from a verbal reprimand, to orders to undertake treatment or training, suspension without pay and reduction in rank.

The New Brunswick Police Commission subsequently appealed, arguing Clendening had erred in her decision and Smiley cross-appealed.

Arbitrator's reasons for sanction 'adequate'

A three-justice appeal panel, composed of Bradley Green, Barbara Baird and Raymond French, heard arguments on Feb. 24.

Green, who wrote a 23-page decision on behalf of the panel, said the arbitrator's reasons for the sanction of firing were "at the heart" of the appeal.

"In my respectful opinion, the reviewing judge was in error when she quashed the arbitrator's decision on the basis that his reasons for imposing the sanction of dismissal were inadequate," wrote Green.

The arbitrator's decision to impose dismissal was clearly within the range of possible reasonable outcomes.- Court of Appeal

"Had she not treated 'adequacy of reasons' as a standalone ground of judicial review, and had she looked to the arbitrator's decision as an organic whole, having regard to the totality of the evidence and the arguments presented, she would have been forced to conclude the arbitrator's decision to impose dismissal was clearly within the range of possible reasonable outcomes."

Green acknowledged Haines did not provide "extensive reasons" for his decision on sanction.

"Had he done so, the outcome of the judicial review process may well have been different," given the fact Clendening upheld his findings of misconduct, wrote Green, noting he "would have come to the exact same disposition."

Still, while Haines' reasons for imposing dismissal as the sanction "may not be perfect, they are adequate," said Green.

"And there exists a rational connection between the evidence before the arbitrator, the arguments presented, and the decision rendered," he added.