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 – but 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 cliché as a way of ending his verbal assault – and 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.
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Cabot Martin writes from St. John's
