Fired constable Jeff Smiley won't be back in uniform if commission has its way

A former Fredericton police constable whose dismissal for misconduct was quashed by a judge remains off the city payroll, a city hall spokesman said Thursday.

Jeff Smiley lost his job last Dec. 2 after a New Brunswick Police Commission disciplinary hearing, when an arbitrator found him guilty of four complaints of misconduct and ordered his firing.

That decision was quashed last Friday after a judicial review by Justice Judy Clendening, who questioned the severity of the punishment and called it unreasonable.

Smiley is still off the payroll, according to city spokesman Wayne Knorr, and on Thursday, the police commission said it will challenge the former constable's reinstatement.

Must choose next step

Steve Roberge, the executive director of the commission, said it won't abandon its case against Smiley and has two options it can pursue.

The commission can restart the arbitration process with a new arbitrator or it can file an appeal of Clendening's decision, Roberge said. He expects a decision by the end of November.

Smiley went through a week-long police commission hearing a year ago over an allegation of discreditable conduct by committing domestic violence and three complaints related to firearms.

Arbitrator Cedric Haines upheld the claim of domestic violence and breaches of the police code of conduct and ordered Smiley fired from the Fredericton Police Force. Smiley applied for a judicial review of the decision. 

Clendening agreed with most of the arbitrator's reasoning behind upholding the claims against Smiley, but she said Haines didn't set out his reasons for such a "severe disciplinary action" and called this a "fatal flaw." She awarded $3,000 to Smiley for legal costs.

Assistant law professor Howard Kislowicz said Thursday that in administrative law, everything is about "reasonableness," but how much an arbitrator has to explain is a debate going on now in legal circles.

"It's a bit of a live question in administrative law right now, as to what kind of reasons are adequate to sustain a reasonable decision," he said.

"The Supreme Court has said things like, 'The court should not go on a line-by-line treasure hunt for error in an administrative decision,' and the arbitrator's decision in this case is one of those kinds.

"So the question arises: What level of reasons is adequate? Some would say you have to look at the whole record together and see if the arbitrator, in this case, made their reasons clear, so that a court on review, can decide whether the reasoning was reasonable."

$120,000 spent on case

Roberge told CBC News last year that the pursuit of Smiley's dismissal cost the commission and the city about $120,000.  

He said money will not be a factor in the commission's decision whether to file an appeal or hold another discipline hearing.

As to whether Clendening's ruling makes him concerned about the outcome of a judicial review underway in the dismissal of another Fredericton police officer, Cherie Campbell, Roberge said, "No."

"Cherie Campbell's case is very different than Smiley's case. And arbitrator Haines, I believe in that case, articulated his reasons for dismissal."

Campbell's firing was related to an alleged shoplifting offence in Maine.