By: Wendy Gillis News reporter, Published on Sat Nov 15 2014
After a night of drinking with four fellow Peel cops, officer Cody Smith sped off in his pickup, took the QEW in the opposite direction of his home, then swerved all over the road before slamming into a guardrail.
Then, realizing concerned citizens had pulled over to check on him, the rookie officer stepped out of his demolished truck and promptly flashed his new police badge, telling them they could go home.
Calling the move an “arrogant and totally inappropriate use of his police badge,” Ontario Court Justice Lesley M. Baldwin rebuked Smith in a ruling last week, stating the officer intended to “flee the scene.”
In a judgment critical not only of Smith, but also four fellow Peel Regional Police officers and the OPP cop who made the arrest, Baldwin found Smith guilty of impaired operation of a vehicle on the morning of Aug. 3, 2011.
“The bad driving in this case was serious. It is fortunate that there was no bodily harm or fatalities,” Baldwin wrote.
The accident occurred after a night of drinking with Peel officers Steve Vanderhorden, Sean Creaner, Bryan Young and Jamie McKean; McKean had been Smith’s training officer for the previous three months, while Young was Smith’s supervisor.
Smith could not be reached for comment, despite attempts made to contact him through his lawyer, Peel police and the Peel police association.
Sgt. David Kennedy, spokesperson for Peel police, told the Star in an email that Smith is no longer employed by the force, though he did not provide further detail.
Vanderhorden, Creaner, Young and McKean also could not be reached for comment. Kennedy did not respond to emails asking to speak with the officers. An employee who answered the phone at the homicide bureau, where McKean recently worked, said he is no longer employed by the force.
The following account is based on court testimony and the judge’s Nov. 6 judgment.
The officers had all worked the 7 a.m. to 5 p.m. shift on Aug. 2, 2011, then gathered at McKean’s Oakville home before riding in McKean’s new boat. They went first to a Port Credit restaurant, then to Toronto Island, then returned to McKean’s to spend some time around the pool. Except while on the boat, the men were drinking throughout the night.
Smith left McKean’s home in the early hours of Aug. 3, taking the QEW west — the opposite direction of his Mississauga home — for 15 to 20 minutes.
Just before 2 a.m., truck driver Joseph Grist spotted Smith’s pickup driving “erratically,” swerving from lane to lane without signaling. Grist said he was about to call the police to report an impaired driver when Smith rammed into the QEW guardrail near Burlington.
Baldwin lauded Grist for his “great attention and skill” in avoiding a collision between Smith’s truck and his nearly 19-tonne vehicle, which he brought to a stop only about 2 or 2.5 metres from Smith’s truck.
Grist — “understandably upset and frustrated” when Smith flashed his badge, Baldwin wrote — then called the OPP and stayed on scene to ensure the accident was reported; another driver pulled over following the crash, but left after Smith showed his badge.
Grist noticed the smell of alcohol on Smith’s breath, watched him stumble around the roadway, and heard the officer say he intended to call a towtruck. At one point, Smith got back into his truck, started it up, and then tried to drive away.
“The rims weren’t even on the vehicle anymore. He couldn’t go anywhere,” Grist testified in court.
OPP Const. David Vittie arrived on scene after 2 a.m., approached Smith’s pickup and noticed broken beer bottles in the truck. He saw beer dripping from the truck’s doors onto the highway.
“While I was speaking to him the male had a strong odour of an alcoholic beverage coming from his breath as he spoke,” Vittie testified.
Smith was arrested for impaired operation; an “over 80” charge — driving with a blood alcohol concentration over 80 mg per 100 ml of blood — was added later.
Vittie did not handcuff Smith when he arrested him, one of several “professional courtesies” Vittie extended to his fellow officer, including not placing him in a cell at the OPP detachment, court heard. Vittie also gave Smith a ride home at the end of the night, a rare move that saw him work two hours of overtime.
Sgt. Peter Leon, spokesperson for the OPP, said Vittie is currently on leave and “not available to respond.”
Baldwin said Vittie’s provision of professional courtesies came at the expense of doing his job. Vittie, who has over 20 years of police experience, did not properly document the conversation he had with Smith about his right to a lawyer, as required.
The lack of documentation “left this Court in a state of confusion as to what was said at the scene” about accessing a lawyer, Baldwin wrote.
The judge found Smith not guilty of the over-80 charge as a result.
“I find that Officer Vittie was too preoccupied providing Mr. Smith, a fellow police officer, with every ‘courtesy’ he thought he could in this case … that he did not perform his most important duties with respect to recording critical conversation or conversations regarding access to counsel.”
Baldwin also had harsh words for Smith’s four drinking buddies and fellow officers, who testified that Smith had not been drinking so heavily that it was unsafe for him to drive.
McKean, who went to bed about an hour before Smith left his house, said the last time he saw him that night, Smith showed no signs of impairment.
Young, who stayed over at McKean’s house, was the last to see Smith before he left McKean’s home. He testified that he recalled Smith was not drinking when the group was back at McKean’s house.
“I remember him being completely, in my view, sober to drive,” Young testified.
Neither Young — who was “a particularly argumentative and partisan witness,” the Crown asked Baldwin to note — nor the other three officers defending Smith could offer a detailed account of how much anyone had to drink. None wrote notes about the night’s events after realizing they might be called as witnesses.
“These witnesses wanted to use their professional experience to persuade the Court of the correctness of their viewpoint, but quickly took refuge in the fact they were off-duty when pressed as to why they did not take notes when they knew they could be witnesses,” Baldwin wrote in the ruling.
“They wanted to use their professional experience in assessing impairment in a context where they were not, in fact neutral, professional, 100% alcohol free on-duty observers.”
Wendy Gillis can be reached at firstname.lastname@example.org
Commentary by the Ottawa Mens Centre
This is one of the rare cases where a cop charges another cop.
Most of the time when this occurs, the officer is driven home and no charges are laid.
Flashing of badges is common place in Ontario
and it works wonders for getting off charges,
unless of course, you wife happens to work for the same Police force
and she has just made false allegations for
the purpose of diverting attention from her violence
towards the children and father.
Ottawa Mens Centre