Ex-cop’s assault conviction quashed
Nova Scotia Court of Appeal orders new trial for Glace Bay resident
HALIFAX — The Nova Scotia Court of Appeal has quashed a former Halifax Regional Police officer’s conviction for assaulting a homeless man, saying the trial judge erred in relying on the alleged victim’s interpretation of a video of the incident.
Gary Basso, 40, punched the intoxicated man in the face, allegedly breaking his nose, during an arrest outside a homeless shelter in Halifax on the night of Feb. 25, 2018.
Basso was found guilty in June 2019 of assault causing bodily harm following a trial in Halifax provincial court and was sentenced last January to 90 days in jail, to be served on weekends, and a year’s probation.
He filed a notice of appeal of his conviction and sentence in February, claiming Judge Laurel Halfpenny MacQuarrie made numerous errors in law in her handling of the evidence.
The case was to be heard Monday in the Appeal Court, but the Crown conceded beforehand that the appeal of the conviction ought to be granted and a new trial ordered.
“The Crown came to the conclusion that one of the grounds of the appeal was so strong that the Crown had no legal basis to refute it,” Crown attorney Jim Gumpert told the threemember appellate panel Monday.
That ground of appeal alleged the judge misapprehended the evidence of the complainant, Patrice Simard, who was on his knees in front of the constable when Basso punched him.
The encounter was captured on surveillance video that was played at trial.
The officer had been dispatched to the Metro Turning Point shelter to deal with a man who would not leave the property after being kicked out of the building for drinking vodka in his bed.
Basso testified that he acted in selfdefence after Simard punched his left leg and came at him with his arms extended.
Simard told the court he had very little memory of the incident. After watching the video at trial, he said it looked like he was just trying to retrieve his treasured backpack, not punch Basso.
In her verdict, Halfpenny MacQuarrie found Basso used excessive force against Simard that was “neither proportionate, nor reasonable, nor necessary.”
The judge said the video was “the best evidence” presented at trial and she watched it “too many times to count.”
She 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 Const. Basso, nor make any movement towards being assaultive in nature.”
Basso’s lawyer, James Giacomantonio, argued on appeal that the judge was wrong to treat Simard’s interpretation of the video footage as evidence in support of her reasoning on the central issue of whether Simard had punched the officer.
That mistake resulted in a miscarriage of justice that required a new trial, Giacomantonio said, and the Crown agreed.
“In these circumstances, we agree with the submissions of the appellant and the Crown, quash the conviction and order a new trial,” Chief Justice Michael Wood said for the Appeal Court panel. “As a consequence, the sentence imposed is vacated.”
Basso, who now lives in Glace Bay, will appear in provincial court Jan. 18 to set new trial dates.
Wood released Basso on a new $3,000 bail order, with his wife as surety, and prohibited him from having contact with Simard.
The police force fired Basso a few hours after he was sentenced in January. He had been on the force since 2004.
In an interview Monday, Giacomantonio said his client is prepared to contest the charge at trial a second time. “He maintains his innocence,” the lawyer said.
When asked whether Basso plans to apply for reinstatement with the police force, Giacomantonio replied: “It’s too soon to say anything about that at this point.”