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A Halifax Regional Police officer’s punch to the face of an intoxicated, homeless man in February 2018 was “an excessive use of force,” a judge said Wednesday in finding him guilty of assault causing bodily harm.

“It was neither proportionate, nor reasonable, nor necessary,” Judge Laurel Halfpenny-MacQuarrie said of Const. Gary Basso’s strike to the head of Patrice Simard.

In a lengthy decision delivered in Halifax provincial court, the judge rejected Basso’s testimony that he acted in self-defence after Simard, who was on his knees, punched him on the left thigh and was coming at him with his arms extended.

Halifax Regional Police Const. Gary Basso leaves court Wednesday after being found guilty on a charge of assault causing bodily harm. - Ryan Taplin

Halfpenny-MacQuarrie said surveillance video of the interaction between Basso and Simard outside the Metro Turning Point homeless shelter on the night of Feb. 25, 2018, was “the best evidence” presented at trial, and she watched it “too many times to count.”

“At the most, Mr. Simard was leaning toward Constable Basso to get the bag that Constable Basso was in control of and was moving from side to side in front of Mr. Simard,” she said.

“It looked like a game of fetch to this court. If it was Constable Basso’s intention to give Mr. Simard his backpack, why move it away?”

Simard, who had been kicked out of the shelter for drinking vodka in his bed, testified that he has little recollection of the encounter. After seeing the video in court for the first time, he said it appeared he was only trying to retrieve his treasured backpack, not punch Basso.

The judge said Simard’s explanation was “logical and supported by the movement on the video. I accept that that is what he did and he never punched Constable Basso, nor make any movement towards being assaultive in nature.

“I reject Constable Basso’s evidence that Mr. Simard punched him in the leg.”

She said “inaccuracies and omissions” in the officer’s notes and reports “cause me great concern as to his accurate recollection of the punch.”

Simard was examined by a paramedic at the police station on the night of the incident and went to hospital the next day but was not diagnosed with a broken nose until five days later. The judge said she was satisfied that the injury was caused by the blow from Basso.

And she found that when the French-speaking Simard said he was sorry to officers at the police station, he was referring to the situation he was in, rather than apologizing for his actions.

“The judge relied very heavily on the video, called it the best evidence of the event itself, and put considerable weight on the fact that Constable Basso’s evidence contradicted what is incontrovertible in the video." - Peter Dostal, Crown attorney

Basso was also accused of committing public mischief by, with intent to mislead Const. Sue Conrad to continue an investigation, authoring false police notes to divert suspicion from himself and onto Simard, who was initially charged with assaulting the officer.

Halfpenny-MacQuarrie acquitted Basso on that charge, saying there was no evidence that he knew Conrad would have carriage of the file.

Basso, 38, will be sentenced Oct. 7. He has been suspended with pay since March 2018, and a spokesman for the force said Wednesday no additional steps are likely to be taken until after the court process has concluded.

Outside court, defence lawyer James Giacomantonio said he and his client were disappointed with the decision.

“It’s not what we were hoping for,” Giacomantonio told reporters.

The lawyer said the case has been stressful for Basso.

“It’s been hard on him,” Giacomantonio said. “I think he continues to feel like he was doing his best, put in a tough situation that night. But we just got the court’s ruling and we’ll prepare for sentencing.”

He said it’s too early to say if there are grounds for an appeal of the verdict.

As for Basso’s future with the police force, Giacomantonio said “that’s something that happens after this court process is done, so I can’t comment on how they are going to approach it. I suspect they are certainly keeping tabs on what happened today.”

Crown attorney Peter Dostal filled in for Sylvia Domaradzki, who prosecuted the case but could not be present for Wednesday’s decision.

“It’s a very happy day for the Crown,” Dostal said. “We’re quite pleased with the judge’s analysis and we really think she got the case right.”

Dostal said the Crown viewed the case as “the use of self-defence to mask what is ultimately an abuse of authority on the part of this particular officer on this particular day.

“There are many great officers in HRP and RCMP who work very hard every day … to execute their duties lawfully with trust, with ethics. It’s a very important duty that they have to ensure that the public is safe and that they treat everyone fairly.”

Dostal described Simard as a particularly disadvantaged and vulnerable individual – a homeless man who was intoxicated and out in the cold in the middle of the winter.

He said the courts are seeing more and more instances where surveillance video is “helping remove ambiguity” in people’s versions of events.

“This is a perfect example of that,” Dostal said. “I don’t believe this case would have gone the way that it (did) but for the fact that we had the video showing what really … happened at the time.

“The judge relied very heavily on the video, called it the best evidence of the event itself, and put considerable weight on the fact that Constable Basso’s evidence contradicted what is incontrovertible in the video.

“So this is an example of an increased ability to detect malfeasance, criminal activity, in many environments, not simply with police but across the board.”

Dostal said Gord Vail, who investigated the case for the province’s Serious Incident Response Team, would be contacting Simard to notify him of the outcome of the trial.

“He’ll be invited to file a victim impact statement,” the prosecutor said of Simard. “I hope that he may consider attending to read that statement to the court, so the court can fully understand the impact that this event had on him.”