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Sentenced local Mountie to get a new trial
A new trial has been ordered by B.C.'s Court of Appeal for a local Mountie sentenced in the 2009 shooting of a Chemainus man, Crown counsel has confirmed.
The appeal court ruled the lower-court judge — the late Josiah Wood — erred in excluding evidence from an expert witness when he determined, in Duncan court, that North Cowichan/Duncan Const. David Pompeo was guilty of aggravated assault.
In a unanimous ruling from a three-member panel, the appeal-court judges also agreed the lower-court judge assumed an active role in assisting prosecution during the trial, raising issues of trial fairness.
The lengthy trial heard Pompeo was with another officer when they stopped Bill Gillespie's car on Sept. 18, 2009 because they believed he was driving while prohibited.
Pompeo told the court he shot Gillespie because he thought the man was reaching for a weapon in his pocket. The bullet from Pompeo's pistol is still lodged inside Gillespie.
Pompeo was sentenced to two years probation and 240 hours of community work, following his December sentencing by Judge Wood.
But the appeal court has ruled the case should go back for another trial.
That ruling follows February arguments to the appeal court by Pompeo's lawyer.
In Friday's appeal-court ruling, Justice Groberman states the issue at trial was whether Pompeo's actions were authorized by s. 25 of the Criminal Code, R.S.C. 1985, c. C-46.
"(That legislation) allows peace officers to use lethal force in limited circumstances. The trial judge found the requirements of s. 25 were not fulfilled, and that the shooting was criminal," Groberman says.
But Pompeo contends the judge (Wood), in finding him guilty of the offence "misapplied the law and misapprehended the evidence."
"He also says the trial was unfair in two respects: first, because the judge refused to admit certain expert evidence tendered by the defence; and second, because the judge interfered in the proceedings by taking an active role in assisting the prosecution of the case," states Groberman.
"I am persuaded that, in the circumstances of this case, the judge's refusal to allow one of the expert witnesses tendered by Const. Pompeo to testify was prejudicial to the defence, and is a reversible error requiring a new trial.
"I am also of the view that certain of the judge's interventions raise issues regarding trial fairness."
Groberman's Aug. 8 decision is backed by appeal court Justice Bauman, and Madam Justice Garson.
Crown counsel Neil MacKenzie emailed the News Leader Pictorial Friday confirming the new trial has been ordered, but explained Crown's comments are limited at this point.
"Given the matter remains before the courts, the Branch is limited in what can be discussed in relation to the case. "The Crown will carefully review the Court of Appeal decision and will consider the legal options that are available before deciding on the next appropriate step," MacKenzie says.
"This was a unanimous decision of the Court of Appeal, so an appeal by Crown to the Supreme Court of Canada could only be pursued if that court granted leave to appeal - the Crown has no automatic right of appeal to the Supreme Court in these circumstances.
"At this stage, however, I can't speculate about the next steps in the case."
Taxpayer costs of Pompeo's first trial are unavailable, the Leader has reported.