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Thursday 23 April 2015


Guest Post written by Cabot Martin

There was a time, as they say, that I tended to agree with most of The Telegram’s Russell Wangersky’s editorial pieces.

But he had one in the Monday Telegram that, how do I put it, was pretty far out.

Says we are not in a “police state” unless they are dropping pregnant women out of planes and disappearing thousands of people without a trace – heavy darts.

Davis, it seems, cannot be put in the same category as Pinochet, Franco and Marcos - so don’t cheapen the debate by using the term.

Well excuse me.
Cause, while I don’t use the term, I understand where most using it seem to be coming from – concern and anger trumps grammar.

And anyway, my “Police State” alarm goes ring, ring, ring at a much lower pain threshold than Pinochet, Franco or Marcos.

Seems I’m not alone. If you check any online definition of “police state “ you will find (thank God) that the drop and disappear requirement is not there.
But spying and enforcement by police to effect political objectives is – universally - always there.

Maybe Mr. Wangersky could at least concede that things are getting a little “policeish” around here?

Now if that were the end of the matter, I could just say , well Wangersky has inexplicably gone off the rails on the biggest issue around – too much Duffy/ Ottawa.

But he goes on in effect to say - don’t worry, be happy, – sure the reason why Davis hasn’t called an “inquiry” yet is that Davis is a former police officer.
And the police are all over this “process” thing - they’ll do a police investigation and then and only then can Davis decide whether to do a follow-up inquiry.
“.. procedurally, the time isn’t right yet.” Wangersky intones – after setting us straight on “police states”. 

Indeed, he gets through the whole piece without once referring to the Public Inquiries Act – the heart and soul of bringing adequate light on the Danny Dunphy tragedy.

Starting to sound like Justice Minister Darin King – who I am finally starting to understand.

The trick is to remember with King is that he does not speak in coherent sentences Рbut rather in strings of disjointed words that go on and on until he gets to a point where he can see an off ramp - his way clear to insert some clich̩ as a way of ending his verbal assault Рand hopefully the interview.

This breathless act was on full display on the radio on Wednesday afternoon where he tried to paint himself as a key player in the Dunphy matter by emphasising his role under the restrictive Fatalities Investigations Act (the FIA).
I, not Cabinet, he trumpeted, will decide whether or not to call an inquiry.
Followed, immediately, by some short mumbled reference to the alternative of an inquiry sanctioned by the Lieutenant Governor in Council (Cabinet ) under the much broader Public Inquiries Act – a process, he seems to infer, that would not “add value”.

Sneaky. Sneaky. Sneaky.

Which brings up the rather bizarre , but apparently real, point that if and when Cabinet does decide to even debate the establishment of a true and proper Public Inquiry (under the Public Inquiries Act) that the Premier (at least) will have to recuse himself from the debate and decision because it seems his actions and/or some of his staff’s actions would be the proper and vital subject of such Public Inquiry.

Recuse is legalese for “leave the room”.

Mr. King seems to concede this “conflict” point when he said yesterday that he could not comment on whether a member of the Premier’s staff had any role in the writing of the now infamous RNC “shooter’s letter” because the matter was under police investigation - a simple “as far as I know” denial would have sufficed.

No need to resort to a version of the the old lawyer’s slippery dodge “Sorry. Can’t comment. The matter is before the Courts” .

In absence of a court ordered publication ban, lawyers should really be saying  “Don’t want to comment.”; not “Can’t”.   

To continue in the bizarre vein – let’s again consider Mr. Wangersky’s assertion in Monday’s article,  that, in what he apparently thinks are “non-police states”, being the totality of states that do not disappear their citizens , a full, proper “Public Inquiry” can only be considered following the conclusion of  a police investigation and moreover there is almost certainly going to be a “judicial inquiry” - as a matter of course -  as day follows night - because Premier Paul Davis is a former police officer and it’s all about process. “Police officers”, he states, “ have process drummed into them from the very start of their training.” 

Wow !

He goes on to assert:

“And, most likely, you don’t call a judicial inquiry until the formal investigation is done, if for no other reason that you’re prejudging that something is being done incorrectly in that investigation.”

Before we go further, another important point of terminology – strictly speaking there is no such thing as a “judicial inquiry” – there are just inquiries by judges appointed under a particular act – there is no separate “Judicial Inquiries Act”.

This is not a matter of semantics but an important point because the breadth and depth of any Inquiry will depend on where the inquiring judge or judges get their powers – under the restrictive Fatalities Investigations Act? or under the much broader Public Inquiries Act?

And this is a far more important point than some weird concern over use of the phrase "police state".

From what Mr. King is apparently saying (his mumbling has me at something of a disadvantage), Government seems to be angling to prevent any invasion of the 8th floor by appointing an inquiry under the restrictive scope of the Fatalities Investigations Act.

 – enabling them to say “ What’s the problem - we gave you a “judicial inquiry” didn’t we?

But the FIA is restrictive; the really big inquiries, the ones whose recommendations later generations benefit from and remember, the Super Bowls of inquiries, take place under the Public Inquiries Act --- where everything is truly on the table.

The Lieutenant Governor in Council (Cabinet – minus Premier?) can appoint a multi-member  “Commission of Inquiry” under Part 1 of the Act  or, as an alternative , appoint a single judge under Part 2.

The best choice would seem to flow from the nature of the issue. The broader the issue, the broader the membership -  but put a judge in charge in any event – the police will have lawyers.

So maybe the choice between a Part 1 Public Inquiry and Part 2 Public Inquiry can wait – but that logic does not prevent the Government from immediately biting the bullet and creating an all-party consensus by admitting that nothing less than full Public Inquiry under the Public Inquiries Act is, in this extraordinary case, the only way to go.

Indeed the Terms of Reference of such an Inquiry should be debated in the House of Assembly before being set in stone.

In this case, where an armed member of the Premier’s “bodyguard” kills a man in his house over a tweet that screams “threat” to only the truly paranoid  - it’s not about whether the RCMP did something  “incorrect” in their investigation – the public has far bigger fish to fry.

It’s about the Premier’s Protective Services Unit (PSU) taking “proactive” measures with deadly consequences; who are these guys ?  what do they do?  who gives the orders?

What’s hard to understand?

Public Inquiry time.

And if we are going to get all focused on process, how about Government making an immediate “process” announcement as follows?

(1) Sorry – we were wrong- the RCMP are obviously in an apparent (if not real) conflict – we have called in the OPP to do the normal police investigation into the shooting death of Mr. Dan Dunphy.

(2) Moreover, in view of the important issues involved, the OPP report will be submitted at the earliest possible date as part of the evidence to be considered by a full and proper Public Inquiry with broad Terms of Reference with the Commissioner (Judge) or Commissioners having the right to seize and demand all relevant records and other evidence and to call and cross-examine witnesses under oath.

(3) The Terms of Reference of the Public Inquiry will be debated in the House of Assembly prior to being finalized.

There, now that wasn’t hard was it?

And tell Premier Davis he can come back into the Cabinet room now. 
Cabot Martin writes from St. John's