Violation of rights or cop doing his job? Final submissions to Dunphy Inquiry

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Alberta team investigating complaint against RNC officer who fatally shot Don Dunphy

Don Dunphy's death was "unnecessary and preventable" according to the final arguments from his daughter's lawyer to the judicial inquiry into a 2015 shooting by a Royal Newfoundland Constabulary officer.

What's more, the death of the 58-year-old Mitchells Brook man could have been avoided if the recommendations of another judicial inquiry 14 years ago had been followed, Erin Breen argues.

The lawyer for Const. Joe Smyth, meanwhile, says the police officer was just doing his job as a member of the then-premier's protective services unit.

"What seems to have been forgotten by many members of the public is that Donald Dunphy pointed a rifle at Cst. Smyth and Cst. Smyth was forced to defend himself, thereby causing Mr. Dunphy's death," Jerome Kennedy wrote in his summation.

Final arguments were posted online Monday meeting a deadline set by the inquiry.

Smyth shot Dunphy on April 5, 2015 — Easter Sunday — after going to the injured worker's home to speak with him about social media posts that criticized politicians.

Smyth said he fired at Dunphy four times in self defence after Dunphy pointed a rifle at him.

Erin Breen, who represented Megan Dunphy, said her client does not believe Smyth murdered her father but she does believe he made a tragic mistake.

As she testified at the inquiry, Dunphy asserts her father likely raised a stick, or cane, towards Smyth and the officer fired his pistol when he mistook that stick for a gun.

Kennedy argues that the evidence provided at the inquiry doesn't support that theory.

"On April 5, 2015, Cst. Joe Smyth was simply doing his job as a police officer," he said.

Another inquiry into police shootings in 2000

Breen argued Dunphy would not have died if police had followed the recommendations of the 2003 Luther inquiry into the police-shooting deaths of Norman Reid and Darryl Power.

The two men were killed by RCMP officers, just 51 days apart in 2000 — Reid, 44, in his yard in Little Catalina, Power, 23, outside his mother's house in Corner Brook.

Recommendation 15 of the Luther inquiry called on regional health boards to establish mobile units to respond to mentally ill persons in crisis where no criminal offence is alleged. That way, intervention would be made not by a police officer but by an experienced mental health worker.

On the stand at the inquiry Meghan Dunphy testified that she did not believe her father was mentally ill but Breen said she still believes a mobile health unit would have been a better option than police.

"She accepts that he [Dunphy] was a person in crisis and that Const. Smyth subjectively believed him to be mentally ill prior to their personal encounter," wrote Breen.

"Ms. Dunphy submits that if Constable Smyth was properly trained and supervised and Luther Recommendation Number 15 was properly implemented and practiced, he would not have entered the home of Mr. Dunphy as he did on April 5, 2015."

Violation of Dunphy's rights

"Constable Smyth could only enter Mr. Dunphy's home lawfully with Mr. Dunphy's valid, informed and voluntary consent. Ms. Dunphy submits that her father's consent was not valid or voluntary as it was not informed, by the deliberate choice of Constable Smyth, who believed he was dealing with a vulnerable man." she wrote.

"Ms. Dunphy submits that Smyth's actions comprise a form of egregious state conduct that grossly violated her father's constitutional rights." 

Meghan Dunphy, who has filed notice of a civil lawsuit against Smyth and the RNC, is calling on Commissioner Leo Barry to make recommendations that ensure there are "necessary checks on the discretionary exercise of police power, particularly with respect to the practice of police home visits for non-criminal matters."

Smyth lawyer is defending his client's decision to visit Dunphy and enter his home.

"It is clear that, in accordance with the role and mandate of the Protective Services Unit, Const. Smyth had the duty and obligation to follow up on Mr. Dunphy's tweets," said Kennedy. 

RCMP investigation slammed

Meghan Dunphy's lawyer also wrote that the RCMP investigation of Don Dunphy's death "was not thorough or objective."

"The evidence before the Commission supports that the RCMP immediately accepted that Constable Smyth's actions were 'by the book' before evidence had been evaluated," wrote Breen.

Dunphy is calling on inquiry commissioner Justice Leo Barry to recommend the establishment of a civilian investigative body.

In their final submission, lawyer for the RCMP defended their client's investigation of the shooting death.

"Over the course of the Inquiry's hearing, it was said many times that "hindsight is 20/20" and that no investigation is perfect," wrote lawyers Lori Rasmussen and Mark Freeman.

"While any police force investigating a fellow law enforcement officer raises a perception of bias and tunnel vision, particularly in the minds of the public, it is just that: a perception, and perception is not the measure of the quality of the investigation." they wrote.

"It is not the mandate of this Commission to decide if the optics of this investigation were less than desirable, but rather, whether there were any deficiencies important enough to have affected the outcome. While the RCMP acknowledges there may have been weaknesses in the investigation, none rose to the level of a material deficiency."

Justice Leo Barry's report is due later this year.