Monday, 13 April 2015


The public is aghast that a man who issued a number of innocuous tweets on Good Friday could be shot dead on Easter Sunday by the Premier’s bodyguard, an RNC Officer. 

What is troubling, is that an immediate Judicial Inquiry was not called, in the very same manner that inspired three previous Public Inquiries where deaths had occurred at the hands of the police. Had the Premier directed the Attorney General to commence such a process, the multitude of questions which abound might have been muted.

A man has been shot dead. The decision-making chain which led to his death began in the Premier’s Office. I can think of no Government that would not have ordered a Judicial Inquiry immediately, in the circumstances.

We need that judicial process to provide certainty that the rule of law has not been breached by the shooter and by others. 

In its place, the public is only getting to watch a PR campaign.

“I won’t be able to speak to any of the evidence of the case. I have to protect the integrity of the RCMP investigation.” The Telegram Reported RNC Chief Janes on April 7th.

But as the RCMP investigation came under scrutiny, it wasn’t tight-lipped at all.

By April 9th the Telegram reported: “The RCMP said that after the officer was invited in by Dunphy and they were talking for several minutes, Dunphy became agitated and pointed a rifle at the officer. At that point, the RNC officer shot and killed him.”

By April 9th, too, the Tweets first reported as threatening are now accurately interpreted, by the vast majority of those who have read them, as not threatening at all.  Public bewilderment on social media is palpable. The RCMP has appointed an “independent observer”, an 82 year old retired Judge to give credibility to the investigation (a matter to which I will return).

On April 10th the CBC reports: “RCMP said that...Dunphy pointed a long-barrel firearm at the lone officer. A .22-calibre rifle was found on the floor of Dunphy's home. During a forensic investigation, it was determined the gun was loaded.”

I am not recognizing a "tight-lipped" RCMP investigation here. 

Photo Credit: CBC
The narrative gets even stranger.

Most people would barely be able to string a few  sentences together having shot a man; but the shooter, also on April 10th four days after the fatal encounter, issues a 900 word letter to his “Friends and Colleagues”.  

It contains many disturbing elements in the context of police thinking and where policing is going in this Province. The Chief of Police should be asked if they are his views, too. The letter continues the narrative that the tweets constituted a threat and that the PSU investigation constitutes “protective policing”. The Officer does not demand an open Judicial Inquiry.

Mr. Dunphy is dead.  It is true we cannot bring him back but we can ensure that civilized society has regard for why he died and who is responsible.

Two fundamental issues demand to be aired.

First, why would the RCMP engage in a process that was suspect from the very beginning? 

Secondly, did the RCMP understand that in appointing retired Judge David Riche as an “independent observer”, that it might have unwittingly taken the heat off the Premier to do his duty and appoint a Judicial Inquiry?    

Let’s go back to the beginning.

Typically, when one local police force deals with another, causing a potential conflict, an external police investigator, like the Ontario Provincial Police (OPP), is chosen because of its size and expertise.  In this investigation, despite all its ramifications, the RCMP held fast.

The Head of the RCMP in NL must know that the Donny Dunphy tragedy has significant political implications.

The former Police Chief Joe Browne is the Premier’s Chief of Staff.  The Premier is a former RNC Constable; he has acknowledged he is a friend of the shooter and has been in contact with the Officer.

As to the Premier's Office, we need to know who handed Mr. Dunphy’s tweets to the RNC Officer and with what instructions. Did someone on the eighth floor send the RNC Officer to Mitchell’s Brook?  Did a member of the Premier's staff actively direct the PSU? This matter is important because any such overlap between law enforcement and other governmental operations (i.e. political) is against the law.  We need to know if the RNC Act has been violated.

These issues may be beyond the scope of an RCMP investigation.  But they are matters a Judicial Inquiry would necessarily investigate. In appointing retired Judge Riche, is the RCMP is trying to insulate itself from the RNC and what occurred prior to the visit by the Officer to Mitchells Brook?  We can only speculate but it is an important question.

Still, the RCMP is not off the hook by engaging retired Judge Riche.

A Member of the local RCMP detachment assisted in the RNC risk assessment on Donny Dunphy and said the man constituted a low risk.  Either that risk assessment was wrong or something happened inside the home to elevate the risk.  We don’t know which it is; but we do know the RCMP is party to the Dunphy case in at least that one respect.  

The Premier confirmed that the Force is sometimes engaged in PSU operations. That relationship must also be explained further.

Otherwise, on what basis can we assume the RCMP is not investigating itself?

The clarification of those matters would surely strengthen the RCMP's credibility in this sad situation; the RCMP has been around long enough to know when it should not be tight lipped.

This is not Ottawa, where an astute media is at the ready to titillate a national public as it examines the entrails of every word spoken by anyone connected with an important case.   Mitchells Brook is not likely to be staked out nor will the local or national media parse the tweets or the actions of the Premier’s staff and the PSU. Who is a dead Donny Dunphy from  Mitchells Brook anyway, alongside a Senator Mike Duffy?

For that reason the RCMP has additional responsibilities.  Intended or not, the appointment of retired Judge Riche, having been given no power to do anything except observe, offers all the "appearance of impartiality" and not the real thing.

What other conclusion can be drawn?

Judge Riche has been off the Bench for sixteen years.

He has not been asked to take over the RCMP investigation. 

He is not offered something as basic as a “Terms of Reference”; one that can be made public and survive that scrutiny.

Riche is given the role of “Independent Observer”, which lawyers advise is a new concept with no history in jurisprudence. 

The retired Judge has been given absolutely no tool kit.

The Judge has no authority to call witnesses, no authority to call for documentation, no authority to call people to testify, no authority to appoint Counsel (as would a Judge acting under the Public Inquiries Act); he has no authority to conduct research or to cross-examine witnesses and he has no authority to examine anyone under oath; nor can he cast his net to include the events leading to that fateful knock on Donny Dunphy’s door.

As much as the RCMP may have had good intentions, the appointment of retired Judge Riche will not give integrity to the investigation of the death of Donny Dunphy. 

It will just give an argument to those who would avoid the appointment of a person who should be given those tools!

It will not facilitate public examination...but it will prevent public examination. 

The tools of independent investigation requires that the Cabinet via the Attorney General ask the Chief Justice of the Supreme Court to appoint a Judge.

In his decision, the Chief Justice would not defer to Chief of Staff Joe Browne. He would not consult Premier Davis.  He would pay no deference to the Head of the RCMP, nor to the Chief of the RNC. 

Control of the investigation by the police forces and the politicians would be lost.  An independent investigation would get underway.

The chips will fall where they may. 

The politicians would be uneasy.  The RNC Chief might be fearful, too.

Frankly, I believe the public interest would have been better served had retired Judge David Riche refused the appointment; it is not the right role for him, he does not possess the right standing, he does not have the right authority.

The Premier may have forgotten the values to which he is sworn.

But Retired Judge Riche might want to consider how his limited role with the RCMP is the perfect foil for Premier Paul Davis to do nothing.

The rule of law is the public's only protection. Donny Dunphy may have been denied his most basic rights. Who will be next?

The RCMP should not facilitate Premier Davis' gambit to diminish those rights by failing to call a Public Inquiry.

It should also justify its role in continuing the investigation and explain why the OPP has not been brought in.