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ST. JOHN'S, N.L. —

The Crown has chosen not to proceed with a new trial for RNC Const. Joe Smyth, The Telegram has learned.

Smyth’s case is scheduled to be called for a 10-minute status proceeding in Provincial Court in St. John’s Tuesday, where the Crown is expected to present no evidence for a new trial. If that happens, the case will be dismissed.

Smyth, 40, was convicted earlier in the year of an obstruction charge for giving a motorcyclist a false traffic ticket in May 2017, but that conviction was overturned and a new trial ordered by the Newfoundland and Labrador Court of Appeal in early November.

A month ago, prosecutor Lloyd Strickland, who is the province’s assistant director of public prosecutions, told The Telegram the Crown respectfully disagreed with the Court of Appeal’s ruling and was assessing whether or not to proceed with a new trial within the parameters of the appeal decision.

“Our ability to appeal the decision is limited because it was unanimous. Absent an appeal, that decision will guide the Crown and the courts in this province, including our assessment of the case against Joseph Smyth,” Strickland said at the time.

The Telegram has learned the Crown has since decided against the merit of a retrial. The province’s Special Prosecutions Office has also decided not to appeal the case to the Supreme Court of Canada.

Smyth had been investigating reports of an orange motorcycle travelling at speeds up to 200 km/h in the St. John’s area for about a month when he received information on May 12, 2017 of an orange bike on Torbay Road. He headed in that direction, stopping for about 20 minutes along the way to issue another driver a speeding ticket.

Smyth located Sayad Husaini, who had previously been identified by other RNC officers as the driver of the orange Repsol in question, on Torbay Road. He pulled him over and issued him four different traffic tickets, including one for running a red light. Footage from Husaini’s Go-Pro camera later revealed the light had been green.

Husaini testified he believed Smyth had been out to get him, since he had gotten away from the police officer in a pursuit a month earlier. Smyth testified he had genuinely believed the light was red until he was shown the Go-Pro footage by an investigator with the Alberta Serious Incident Response Team (ASIRT), which had been called in to investigate. Smyth acknowledged to the investigator that he had made a mistake.

Strickland argued at trial that the timing of the lights and the heavy flow of traffic through the intersection would have made it highly unlikely for Smyth to honestly mistake the light for red. Provincial court Judge Mike Madden agreed, determining it to be "inexplicable" that Smyth could have believed the light was red. The circumstances on the road that day would have left "any competent driver" to come to the conclusion that the light was green, he ruled. He gave Smyth a suspended sentence and a year of probation.

On appeal, Justice Lois Hoegg, in a written decision with which two other judges concurred, sided with arguments made by defence lawyer Jerome Kennedy when it came to a lack of intent by Smyth to commit a crime.

Hoegg said the original trial judge had failed to consider the issue of intent and whether or not Smyth had willfully attempted to obstruct justice when he handed out the ticket. Overturning the conviction, Hoegg said evidence of the prospect of personal gain for Smyth or the absence of good faith is needed to find him guilty of obstruction.

Smyth was a member of then-premier Paul Davis's security detail on Easter Sunday in 2015 when he was sent to investigate tweets Mitchell's Brook resident Donald Dunphy had posted referring to government members. Smyth shot and killed Dunphy during an interaction at Dunphy's home, and was later cleared of wrongdoing after a public inquiry.

Dunphy’s death, the inquiry results and Smyth’s conviction on the unrelated obstruction charge have been emotional issues for many members of the public, with people voicing strong opinions on both sides. Kennedy has long maintained that Smyth was charged with obstruction only because of his identity. Strickland has stressed Smyth’s name had nothing to do with the decision to prosecute him for obstruction of justice, which he said was based on the results of the ASIRT investigation.

Twitter: @tara_bradbury

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