A Saanich police officer who persuaded a drunken, combative man to leave his house, then arrested him for being intoxicated in a public place, has been cleared of deceit and will be reinstated as a first-class constable.

On Monday, a public hearing ordered by the Office of the Police Complaint Commissioner found Const. David Smit did not make false statements to his supervisors after the May 20, 2011, incident.

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A Saanich police investigation in 2012 found Smit was deceitful and abused his authority when he falsely arrested the man by pretending he had been found intoxicated in a public place. Smit was suspended for seven days without pay for abusing his authority. His rank was reduced to third-class constable on the deceit allegation.

In his five-page decision released Monday, adjudicator Jakob de Villiers upheld the finding that Smit abused his authority and agreed that a seven-day suspension without pay was a proper and adequate punishment. He found the case for deceit was not proved.

“My client is grateful that he has been cleared of the most serious and troubling allegations of deceit,” said Smit’s lawyer, Richard Neary. “He was deeply troubled, because at no time did he ever intend to deceive anyone. He accepts the finding with respect to the impropriety of the arrest, but maintains that something needed to be done and he was simply trying to do the right thing ... It was just a matter of not going about it in the right way.”

Smit had appealed the findings of misconduct and requested the public hearing, which began in May and sat for about 10 days.

On the evening of May 20, 2011, police received a telephone call from a woman, complaining that her intoxicated husband had assaulted her son. When Smit arrived at the house, the woman met him at the door and asked Smit to intervene to prevent another assault.

Smit, wrongly, did not believe he had the legal power to arrest the father for assault, said de Villiers.

“He was, however, of the opinion that if the father were to be found in a public place while under the influence of alcohol, he could lawfully be arrested pursuant to the Liquor Control and Licensing Act, held in custody until he sobered up and then released with or without a charge,” de Villiers wrote in his decision.

Smit misunderstood the law, de Villiers said. He did have the right to enter the house and had grounds to arrest the father for assault. Instead, Smit asked the father to come outside onto the public sidewalk and arrested him for being found drunk in a public place.

“Whatever Const. Smit’s motive for the arrest was, it was unlawful and dishonest, and he ought to have known that,” de Villiers wrote.

The incident came to the attention of a superior officer, who became outraged by what he perceived to be improper conduct. The supervisor ordered the father released and returned home, without considering whether he might be detained for assault. When the father returned home, the mother and son left for a friend’s home for the night.

Disciplinary proceedings ensued against Smit.

During a meeting after the incident, Smit was in emotional distress and struggling to articulate, de Villiers found. Although Smit inadvertently misstated the facts, he did correct himself and his superiors were not misled, the adjudicator found.

“It is clear that he, understandably, was very upset by the hostile allegations against him,” de Villiers said.

Smit made the arrest not for any improper personal purpose but to prevent further violence and protect the mother and son, he found. “The father had nothing to complain about. His violent conduct and threats deserved consequences. He was lucky he was not prosecuted for assault.”

ldickson@timescolonist.com