Cherie Campbell, fired Fredericton police officer, appeals dismissal

The lawyer for a firedFredericton police officer argued Wednesday that forcing Cherie Campbell to be tried twice for an alleged shopliftinginfraction in Maine was an abuse of process and shouldn't be allowed.

T.J. Burke made the argument in a judicial review of the New Brunswick Police Commission arbitrator's ruling in January that resulted in Campbell being fired.

Campbell initiated the action against the Fredericton Police Force and Fredericton Police Chief Leanne Fitch, who filed the complaint against her with the police commission.

She is attempting to have the ruling by arbitrator Cedric Haines quashed.

In the January ruling, the arbitrator in Campbell's disciplinary hearing said the officerintentionally took $20 worth of makeup from Marden'sSurplus & Salvage store in Houlton, Me., on Dec. 2. 2014.

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It was also ruled Campbell used her position as a police officer to try and obtain favourable treatment after her arrest.

"Nobody is above the law, including police officersand no preferential treatment ought to be sought or given because of one's position," states the ruling.

The decision also said the theft of a small amount of makeupis not a serious offence "in the grand scheme of things."

"[But] theft by a police officer, even when off duty, constitutes a serious breach of the standard of conduct expected of a police officer," states the decision.

Campbell went to trial in Maine on the shoplifting charge and it ended up in a hung jury. The matter ended up being settled out of court without a finding of guilt or innocence.

Tried twice for same offence?

In Wednesday's hearing in the Court of Queen's Bench in Fredericton before Justice PauletteGarnett, Burke argued Campbell was essentially tried twice for the same offence.

"That is a fundamental error of law," said Burke.

Burke argued the hung jury in Maine amounted to a finding of innocence because Campbell does not have a criminal conviction.

JamieEddy, who represented the police commission in Wednesday's judicial review hearing, said it is reasonable to have a hung jury in a criminal case, or even an acquittal, and still hold a disciplinary hearing.

Seeking favour?

In challenging the finding that Campbell attempted to curry favour from the investigating Maine police officer by pointing out she, too, was a police officer, Burke argued "it's common" for police officers to identify themselves as such in formal situations.

Garnett told Burke "You are barking up the very wrong tree" if he was arguing that such behaviour is acceptable because everybody does it.

"I would never, if stopped by the police, tell them I'm a judge. Never," said Garnett.

Burke said he was arguing the police do have discretion in when to lay charges.

"She didn't say, 'Cut me a break, I'm a lawyer,'" said Burke.

Garnett countered that to reference that they are a police officer is to try and influence the outcome.

In presenting the commission's arguments, Eddy noted that Campbell never testified during the disciplinary hearing to explain why she mentioned she was a police officer.

Given that, the arbitrator had to basethe intent on the impressions of other witnesses, said Eddy.

"It really turns on the detective's impressions," said Eddy, noting the Maine detective testified Campbell wanted him to "drop the charge because she was a police officer."

Burke also challenged whether loss of employment should be the penalty for the arbitrator finding that she did commit the theft and tried to use her influence as a police officer.

Eddy countered that the arbitrator has the authority to impose any penalty ranging from a verbal reprimand to a dismissal.

Whether the penalty imposed by the arbitrator is reasonable is something for Garnet to decide, said Eddy.

However, the judge can't just decide she would have ruled differently, said Eddy.

"This is a discretionary decision on the part of the arbitrator" that is reasonable, he said.

Garnett did not give a timeline for delivering her decision.

Police officers crowd court

Campbell sat in the hearing with anotherformer Fredericton police officer, Jeff Smiley, who was also fired for discreditable conduct.

Smiley has also applied for a judicial review of the police commission arbitration ruling that resulted in his dismissal.

That judicial review is scheduled to be heard in July.

About20 members of the Fredericton Police Force filled the courtroom for Wednesday's hearing. Some of them had to remain in the hallway because of a lack of seating in the courtroom.