A former Halifax Regional Police officer who punched an intoxicated homeless man in the face while on duty in February 2018 is appealing his conviction and his sentence for assault causing bodily harm.
And Gary Basso has applied to the Nova Scotia Court of Appeal for bail pending the outcome of his appeal.
Basso, 39, lost his job Jan. 31, a few hours after a judge in Halifax provincial court gave him a sentence of 90 days in jail, to be served on weekends, and a year’s probation.
Judge Laurel Halfpenny-MacQuarrie also imposed a 10-year firearms prohibition.
The judge rejected the defence’s request for a conditional discharge, saying it would have been “unfathomable” for her to find that it was in the public’s interest for Basso to avoid having a criminal record for his actions.
Basso, who now lives in Glace Bay, served the first four days of the jail time this past weekend at the Cape Breton Correctional Facility in Gardiner Mines.
He will appear in Appeal Court in Halifax on Thursday to seek bail, and the Crown is expected to consent.
Lawyer James Giacomantonio is asking that Basso be released on a $3,000 bail order with his wife as surety.
Basso was dispatched to the Metro Turning Point homeless shelter in Halifax on the night of Feb. 25, 2018, to deal with a man who was refusing to leave the property after being kicked out of the building for drinking vodka in his bed.
Patrice Simard was on his knees in front of the officer when Basso struck him in the face, allegedly breaking his nose.
The interaction was captured on surveillance video that was played at trial.
Basso, who joined the force in 2004, testified that he acted in self-defence after Simard punched his left leg and was coming at him with his arms extended.
Simard told the court he had very little recollection of the encounter. After seeing the video in court for the first time, he said it appeared he was only trying to retrieve his treasured backpack, not punch Basso.
In her verdict last June, the judge concluded Basso used excessive force against Simard that was “neither proportionate, nor reasonable, nor necessary.”
Halfpenny-MacQuarrie 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.”
She said “inaccuracies and omissions” in Basso’s police notes and reports caused her great concerns about his account of the incident.
The judge acquitted Basso on a charge of committing public mischief, with intent to mislead Const. Sue Conrad to continue an investigation, by authoring false police notes to divert suspicion from himself and onto Simard, who was initially charged with assaulting the officer. She said there was no evidence that Basso knew Conrad would have carriage of the file.
In a notice of appeal filed last Wednesday, Basso claims the judge erred in her interpretation and application of the standard of proof, thereby denying him the benefit of the presumption of innocence.
He says Halfpenny-MacQuarrie failed to properly assess his evidence and whether it gave rise to a reasonable doubt as to his guilt and failed to consider “alternative reasonable inferences consistent with innocence that were supported by the whole of the evidence and absence of evidence.”
Basso also says the judge erred in her apprehension of material evidence, resulting in a miscarriage of justice, by treating Simard’s interpretation of the video footage as evidence in support of her reasoning on the central issue of whether Simard punched the officer.
In addition, he claims she applied a higher degree of scrutiny in assessing the credibility and reliability of defence evidence compared to the Crown’s evidence and failed to provide “sufficiently intelligible” reasons for her decision on the issues of standard of proof, the defence of justification and causation with respect to bodily harm.
Finally, Basso asserts the judge erred by imposing a sentence that was unduly harsh and outside the acceptable range. He says the custodial sentence was not the least restrictive punishment available to meet the purposes and principles of sentencing and the firearms prohibition did not allow an exception to retain a firearm for employment.
Basso wants the conviction quashed and replaced with a verdict of acquittal, or a new trial ordered. If the conviction is upheld, he would like the sentence “decreased substantially.”
