New trial ordered for former Halifax officer accused of assaulting homeless man
Trial judge should not have used the victim's interpretation, Court of Appeal rules
A former Halifax police officer accused of assaulting a homeless man in February 2018 has had his conviction overturned and been granted a new trial, after the Nova Scotia Court of Appeal ruled Monday the trial judge should not have used the victim's interpretation of the incident.
Laurence Gary Basso was found guilty in June 2019 of assault causing bodily harm in relation to an incident outside a Halifax shelter that was captured on video surveillance.
Basso, who was then a constable with the Halifax Regional Police, was called to the Metro Turning Point Centre on Barrington Street to remove Patrice Simard. Simard had been caught drinking in his bunk, a violation of the shelter's rules.
Surveillance footage showed Basso punching Simard in the face, which Basso said during the trial was in self-defence because Simard had punched him in the leg. Simard's nose was broken in the incident.
The three-member Court of Appeal panel, led by Chief Justice Michael Wood, overturned his conviction Monday morning.
While there were five grounds of appeal raised by Basso, Crown lawyer Jim Gumpert said one of the grounds of appeal "was so strong the Crown had no legal basis to refuse it. That ground allowed an allegation of a misapprehension of evidence by the trial judge."
Judge Laurel Halfpenny-Macquarrie had ruled that Basso was not justified when he hit Simard.
"In the trial judge's decision, she found that Mr. Simard had very little recollection of the night and in particular what took place from when the appellant was standing in front of him, until Mr. Simard felt he was in handcuffs," Gumpert said on Monday.
"The Crown has come to the conclusion that the trial judge was incorrect in using Mr. Simard's opinion and or interpretation of what he saw in the video as evidence. The Crown also agrees that the misapprehension of evidence played an essential role in the reasoning process resulting in a conviction."
Simard testified during the trial that based on what he could see in the video, the officer had taken his backpack and he was simply trying to grab it back.
"On my knees, hitting a police officer, that doesn't make any sense," he said at the time.
The panel reviewed the entirety of the record and agreed the trial judge improperly relied on Simard's interpretation of the alleged assault.
Basso was sentenced to three months in jail last January. Halifax Regional Police confirmed at that time that Basso had been fired.
That sentence has now been vacated and a new trial ordered.
Basso must not have any contact with Simard, as well as notify the court of any change of address or employment.
He will return to court on Jan. 18 for arraignment and to set a new trial date.