Monday, 21 December 2020


 Guest Post by Ron Penney

“Justice must not only be done it must also be seen to be done” 

The recent controversy about the interactions between the Chief of Police and the former Premier and present cabinet ministers brings to mind the aphorism quoted above, which comes from a decision arising from an apprehension of bias in the judicial setting, but has equally applicability to actions of the police.

Our police forces have immense power and the mere fact that you are under police investigation, even if it doesn’t result in charges,  can be a life altering experience, which is why confidence in a police force can be seriously eroded if the general public isn’t confident that that there isn’t political pressure to commence an investigation, end an investigation or interfere during the course of an investigation. 

I have read the Information to Obtain a General Warrant (ITO), the Hansard of the question period when this matter was the subject of questions in the House of Assembly, the statement issued by the Director Public Prosecutions, and the press reports of recent press conferences with the Attorney General and the Chief of Police. 

My interest and concern arises from my former role as Deputy Minister of Justice and Deputy Attorney General during the Peckford administration. 

If you have some free time over the holidays, here is a link to the ITO.

First, what the ITO reveals is a police force in total disarray, riven by petty jealousies over promotions. No wonder there isn’t any traffic enforcement, one of my pet peeves. They are spending all their time plotting against one another and not doing what they are paid to do. The pettiness is beyond the pale. 

Royal Newfoundland Constabulary Chief Boland
That in itself is cause for concern about the leadership of the Chief of Police, aside from what the ITO reveals about what led up to the criminal investigation into Sherry Gambin Walsh and her dismissal as a cabinet minister. 

But part of the reason is the long delay in approving the promotions by the government. Promotions are important in all organizations, but particularly in military and quasi military forces, such as a police force. Promotions mean more money, more power, and more status, as members climb up the organization towards the ultimate position, in this case, Chief of Police. The longer promotions are delayed the more opportunity there is for mischief. 

In 1999 the Supreme Court of Canada recognized that the police should enjoy independence from government “while engaged in a criminal investigation.” 

So there are two principles at play when one thinks about what has occurred here. One is justice being seen to be done, the other is that there should not be political interference in criminal investigations. It doesn’t matter whether there was actual interference in a criminal investigation, what matters is whether a reasonable person could conclude that there could have been.  I think that standard has not  been met based on what we know now and why an independent inquiry led by a judge is absolutely essential in order to restore confidence in the RNC and the administration of justice in Newfoundland and Labrador. 

In this regard I’m pleased to see that the Attorney General has said he would be pleased to have an investigation so the Premier should oblige him. 

This need not be a long and drawn out affair. It should be relatively easy to examine those involved in the issue and come to conclusions about their actions of those and whether they respect the principle of no political interference in criminal investigations. 

So what do we know now and what is in dispute. 

We know that the Chief of Police was rightfully concerned about the leaking of information from the cabinet decision on promotions. And we know where that leak came from. 

We also know that the Chief of Police reached out to cabinet ministers about the leak, which was his first big mistake. If that had happened when I was Deputy Minister of Justice, I would have been very upset with the Chief and his or her continued tenure would have been in doubt. 

The Chief of Police reports to an Assistant Deputy Minister of Justice, so any concerns he had about the leaking of a cabinet decision should have been made to that official, not to cabinet ministers.

There is a dispute as to what one of those Ministers, Bernard Davis, said to the Chief of Police about the investigation, and there are various versions of the conversation. The ITO states that, based on a recorded interview the Chief said the Minister asked about the “investigation” and the Chief responded that he could not comment on that, which was the right thing to say. It is very easy to determine the truth of that by listening to the tape. A judicial inquiry has the power to get that tape and we can all hear it and make up our own mind. 

I recognize that the Minister isn’t legally trained and was put in this position by the Chief of Police, who should know better. Once the Chief reached out to him it would have been the natural thing to do to make enquires of the Chief as to what was the upshot of their conversation. 

The Chief excuses his behavior by saying that when he spoke to the Minister there was no “investigation”. He is splitting hairs. Once he suspected a cabinet leak, which he did, he knew that there was a potential breach of the Criminal Code. So he really commenced an investigation the second he made that fateful call. The referral to the RCMP flowed directly from that suspicion and what was learned as a result. 

The second thing that should cause great concern was the meeting between the Chief of Police and the former Premier on the investigation. That meeting was inappropriate. The Premier ought never to have asked for the meeting and the Chief should never have attended. By so doing the appearance of “justice being seen to be done” has been irretrievably lost. 

This is exacerbated by the explanation of the Chief that he did so “because he believed this could take down a minority government”, according to the investigating officer. Since when it is the business of a Chief of Police to take political considerations into account when investigating a suspected crime. 

Only a judicial inquiry can ascertain how this meeting came about and who knew about it. 

I have no problem with the Premier being advised by the Minister of Justice of the  investigation. A Premier has the right to know if one of his Ministers is under investigation but once he meets with the Chief there arises a reasonable apprehension of possible political interference in the investigation. I recognize that ultimately there was an RCMP investigation and a decision not to lay a charge but had a charge been laid all of this would have come out and might have raised a possible defense. It could have prejudiced a successful prosecution. 

The other matter which has come to light is the recent complaint of Joe Smyth to the RCMP about the Attorney General. I accept the assertions of the Director of Public Prosecutions and the Chief of Police that there has been no political interference in their decisions but again confidence in their independence is shaken when a message sent by former Minister Sherry Gambin Walsh to her confidant in the RNC, Paul Didham, states that “AP wanted Smyth behind bars and he played a part in this charge” has come to light. Mr. Smyth alleges that AP is Andrew Parsons. 

The Minister has taken great umbrage to this allegation, as anyone would, and it appears has caused the Director of Public Prosecutions to quickly issue a denial of political interference in prosecutions and the Chief of Police to deny that there was political interference in police investigations. 

I doubt there will be a formal police investigation into this allegation and feel that the only way we will know whether there was personal animus towards Mr. Smyth by the Minister of Justice and, if so, were the senior members of the Department of Justice and the Chief of Police aware of that animosity, is through an independent inquiry. If that is the case, it goes again to the principle that “justice must be seen to be done”. 

Mr. Premier,  call a judicial inquiry to get to the bottom of all of this in order to restore confidence in our criminal justice system, and temporarily relieve the Attorney General and Chief of Police of their duties until the inquiry finishes its work. If they are exonerated they can be reinstated. If not they must be dismissed.