A three-day suspension without pay was issued yesterday to a police officer for a "takedown" where a prisoner suffered permanent brain injuries.
The suspension was issued by retired Supreme Court justice Robert Hutchison, acting as an adjudicator, who determined Victoria police Const. Greg Smith used "unnecessary force" on Apr. 23, 2004, when he was booking then-24-year-old Thomas McKay at Victoria jail cells for public drunkenness and disorderly conduct.
The handcuffed McKay twisted Smith's fingers during booking, leading Smith to execute a "takedown" where McKay's head struck the concrete floor, fracturing his skull and causing permanent damage.
In the January ruling, Hutchison found that while Smith's takedown of McKay constituted a "split-second" breach of conduct, the Office of the Police Complaint Commission (OPCC), representing the public's interest, "must be ever-vigilant at the straying, even for a split second, from proper police behavior." Smith's penalty was only announced this week because the adjudicator needed time to hear submissions from counsel and the OPCC after the January ruling.
In Hutchison's reasons for his decision on the three-day suspension, he noted a successful civil suit filed on behalf of McKay by his father was significant "fiscal reproof" on the manner in which prisoners are treated, as evidenced by the force's change in policies.
Two days after McKay was injured, the cell floors were padded. Subsequently, changes were made to jail cells, now supervised around the clock by an on-site sergeant. Previously, a watch commander on another floor was responsible for the cells. Jailers who were previously contract workers have now been made employees so police could administer more stringent screening in their hiring procedures. The cellblock's camera surveillance system was also upgraded.
Friday's decision brings to a close a lengthy thrust and parry between Victoria police and the OPCC.
Twice, Victoria police ruled Smith was not in default of the Police Act's code of conduct. After the first ruling, the Office of the Police Complaint Commission asked for the decision to be reconsidered, but then acting-chief Bill Naughton refused. The OPCC then called for a public hearing by an impartial adjudicator.
McKay's lawyer, Chris Considine, said the decision proves the province's police complaint oversight process works. "Notwithstanding that the police were reluctant to take steps initially, the police complaint commissioner was prepared to investigate and direct that an inquiry take place," Considine said. "Hopefully, this will protect other people in the future."
Victoria police Chief Jamie Graham, who inherited the case from his predecessors, said he agrees with Hutchison's finding. "There is no decision more difficult than the one to decide what is an appropriate level of discipline," Graham said.
Counsel for Victoria police and Smith argued for a two-day suspension without pay, along with retraining in use-of-force on Smith's own time, that he write a 1,000-word essay on takedown techniques and be available to lecture on use-of-force to new recruits.
The OPCC, however, called for a one-year demotion for the then five-year first-class constable that would bring him down to a second-class-constable rank.
Bruce Brown, spokesman for the OPCC, said the office accepts the adjudicator's decision. "The adjudicator is a very experienced jurist who has clearly articulated his reasons."
