Kim Burnett, wife of Const. Jeff Smiley, to testify Wednesday

Kim Burnett is expected to testify on Wednesday at the arbitration hearing of her police officer husband, Const. Jeff Smiley.

Smiley's hearing is before the New Brunswick Police Commission, after a complaint was made by Fredericton Police Chief Leanne Fitch.

• Jeff Smiley domestic assault probe initiated by Fredericton police chief

Smiley is facing four counts of inappropriate conduct:

• Discredited conduct for domestic assault of Kimberly Burnett
• Being party of a breach of authority by counselling fellow officer not to disclose he had firearms
• Improper care of firearms by allowing his licence to expire for personal firearms
• Improper use and care of firearms by failing to turn in two shotguns, including one loaded with two shells.

The opening day of the arbitration hearing before lawyer Cedric Haines on Monday heard it was the police chief who informed her officers of a possible "domestic" situation involving Smiley and his wife, Kim Burnett, on Feb. 26, 2014.

Burnett did not initiate the domestic assault complaint that night, but Fitch suggested officers look into the situation based on information from her brother-in-law, who lived near the couple.

Burnett eventually gave a statement to officers that night, and Smiley was charged with domestic assault and signed an undertaking to turn in his weapons. In the process, Smiley said his personal firearms were at his parents home in Nova Scotia and officers accepted that.

In testimony on Tuesday,  Smiley's former police partner testified that Smiley told her to pretend she knew nothing about the whereabouts of his guns if she was asked. 

Const. Samantha McInnis said Smiley called her on the night of his arrest to tell her that he and Burnett were breaking up, and that he "never laid a hand on her," and he had decided to go to Nova Scotia and he began to pack.

McInnis was at Smiley's home that night when he took a green, metal gun case out of the closet with two long guns that he packed to take to Nova Scotia.

McInnis said she left Smiley's home around 10 p.m., but later got a phone call around 2 a.m. from Smiley, who told her he was being arrested and would need a place to stay. McInnis offered to let him stay in the spare room at her home.

Smiley upset after arrest

McInnis says Smiley was very upset when he arrived at her home. He didn't mention the firearms restriction.

McInnis testified that Smiley eventually told her about the guns in his trunk, saying, "You know how much my firearms mean to me."

Smiley said he had put the long guns in the trunk and planned to take them to Nova Scotia. McInnis said he stated: "If you're asked, you don't know about them."

McInnis said she told Smiley she wouldn't lie about it, but it wasn't until later she found out a condition of his release was he wasn't allowed to possess firearms.

Smiley was charged with domestic assault and breaching an undertaking for possession firearms in criminal court. However, both those charges were dismissed in court over a jurisdictional dispute.

McInnis and Smiley were the first on a scene of a dramatic river rescue in January 2012, when they helped pull an elderly woman from the St. John River after her vehicle slid into the freezing waters. They both received bravery awards for their efforts.

McInnis's voice trembled in the hearing Tuesday, as she talked about the river rescue. She said because of the bond with Smiley over that incident, she found it difficult to testify.

A third officer involved in the rescue, Cpl. Dwight Doyle, testified Monday that he has post-traumatic stress disorder and was concerned Smiley may have it, also.

Police take possession of guns

Staff Sgt. Matt Myers of the force's major crime unit testified he became involved in the case on Feb. 27.

Myers was concerned Smiley's firearms had not been obtained from Nova Scotia and was in charge of tracking down the guns.

"I became aware that Smiley's possession and acquisition permit had expired," said Myers.

Smiley was then called into the station and eventually told Myers his hunting guns were in his vehicle in the trunk.

"Are you telling me that your firearms are here and not in Nova Scotia?" Myers said he said.

Myers said he told Smiley he was under arrest for breach of an undertaking, to which he said Smiley said something like "Don't do this."

Myers said he asked to have the RCMP investigate and asked for higher-ranking officers. Two mid-level officers began an investigation

Myers said he questioned why only one assault was in the information provided to RCMP, and the not the 20 alleged assaults, but was told by the RCMP there wasn't enough substance to prove the others.

During cross examination, Smiley's layer, T.J. Burke, suggested that Kim Burnett never said she felt assaulted or abused.

Myers said Const. Karla Forsythe believed that what she was told by Burnett constituted minor assault.

Myers said he initially wrote an email that said the guns were properly stored. He said it was only later they found the shotgun had two rounds in it.

Burke said there was no evidence the guns actually worked. There was no weapons charge laid by RCMP. 

RCMP Const. Jennifer Simon also testified on Tuesday. She searched Smiley's vehicle.

She said a number of guns were removed and taken to a 'secure bond room' in Oromocto. After that she recorded the details of each gun.

She admitted there were no photos of the ammunition reportedly taken out of a shotgun that was in Jeff Smiley's trunk.

RCMP Const. David Penney then testified he found two rounds in the magazine of a shotgun.

Under cross-examination it was revealed that in the list of evidence from the RCMP, there was no mention of shotgun shells. It does list a box of various types of ammunition.

The arbitration hearing is taking place before the New Brunswick Police Commission at the Wu Conference Centre on the University of New Brunswick campus.

The arbitrator can rule based on a "balance of probabilities," as opposed to "proof beyond a reasonable doubt."