Saanich police officer fights reprimand at public hearing

Officer doing what he felt was needed to diffuse a heated, alcohol-fuelled situation, says lawyer

The lawyer representing a Saanich police officer who is alleged to have coaxed a man out of his home to arrest him for being drunk in public says his client was doing what was necessary to diffuse a heated, alcohol-fuelled situation.

Richard Neary said last week Const. David Smit’s arrest of a man involved in a domestic dispute on May 20, 2011 was made with the best intentions.

“Any errors in judgment or missteps were honest mistakes (as part of) dealing with a pressing need to ensure the safety (of the people involved),” Neary said.

Smit’s actions are currently being scrutinized in a public hearing by the Office of the Police Complaints Commissioner through a hearing in downtown Victoria. Smit requested the hearing after being demoted and reprimanded by Saanich police.

It’s alleged the constable misled his sergeants about how the arrest was made and changed his story, which Neary chalked up to Smit having difficulty articulating the circumstances surrounding the arrest.

“He went from a state of mind thinking he’d done the right thing, to being attacked … by his supervisors. That … left him extremely shocked and dismayed,” Neary told public hearing adjudicator Jakob de Villiers.

When Smit attended the Saanich home where the dispute was taking place, he found two of the three people who lived there outside. Those people can’t be named due to a publication ban.

The officer learned the third person, a man who was involved in a dispute that had ended, was still inside the home.

Neary said Smit felt arresting the man until he sobered up would help reduce any risk of him endangering himself or the other two people.

Smit knocked on the front door and the man answered. He asked the man to step outside and Smit led him off the property to the public boulevard, where he was immediately arrested, said public hearing counsel Bradley Hickford.

The man was arrested under the Liquor Control and Licensing Act for being in a state of intoxication in a public place. Hickford told de Villiers that charges very rarely stem from such an arrest, and it’s typically used by officers to take a drunk person who is in a public place out of a situation where they could harm themselves or someone else. They are released once they have sobered up.

Hickford said Smit told his supervisors he “found” the man in a public place, as opposed to telling them he “led” the man to a public place in order to make the arrest.

“This was not a valid and legal arrest,” Hickford said.

Once Smit explained to his superiors the circumstances surrounding the arrest, the man was immediately released and driven back to his home. He was returned home within an hour of being arrested.

The OPCC hearing is examining misconduct allegations of abuse of authority and deceit.

A Saanich police investigation in 2012 proved the deceit and abuse of authority allegations, and Const. Smit was suspended without pay for seven days, and his rank was to be demoted to third-class constable.

An officer is allowed to request a public hearing in circumstances where the discipline decision results in dismissal or a reduction in rank. Smit contacted the OPCC in January 2013.

The public hearing is scheduled for two weeks of testimony.


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