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The RCMP were correct not to charge RNC Cst. Joe Smyth for the shooting death of Don Dunphy in 2015, Justice Leo Barry concluded in his final report Tuesday.

Barry released a report with five key conclusions and five key recommendations from his inquiry. Dunphy was shot and killed in his Mitchell’s Brook home by a member of the Protective Services Unit, which was assigned to protect then-premier Paul Davis.

Conclusions:

(1) RCMP correct not to charge
The RCMP was correct in its decision not to charge Cst. Smyth. Despite some troublesome aspects of his testimony, I received no evidence to refute his version of events and there is forensic evidence to support it.

(2) Cst. Smyth used appropriate force in self-defence
Cst. Smyth demonstrated certain errors of judgment and noncompliance with aspects of his training but responded with appropriate force when Mr. Dunphy with no warning threatened him with a rifle. It would be improper speculation to decide whether Cst. Smyth may have avoided the need to use lethal force had he not made these errors.

(3) No evidence Cst. Smyth’s visit politically motivated
I received absolutely no evidence to support the allegation that the Premier’s Office directed Cst. Smyth to attend at Mr. Dunphy’s house or that Cst. Smyth’s visit was politically motivated.

(4) Tweet not a threat but warranted follow-up
The tweet was not a threat but still warranted follow-up because of the language used in this tweet and in previous ones.

(5) No evidence Mr. Dunphy raised stick, not gun
The ‘stick theory’ put forth by Meghan Dunphy, that Mr. Dunphy had
raised a stick rather than a rifle, had no evidence to corroborate it.

Recommendations:

(1) Better crisis intervention and de-escalation training
How to reduce lethal encounters between police and citizens?
Step 1: ensure police officers receive modern updated training in crisis intervention and de-escalation (defusing) of situations (the CID approach) to keep the use of force as a last resort.

Commentary: Had Cst. Smyth received better training in how to avoid the need to use force, he might have prevented the situation from escalating as it did or he might have been prompted to remove himself from the residence before lethal force was required. The
goal must be to train towards keeping the use of force as a last resort.

(2) Better supervision of the PSU
Step 2 in reducing risk: keep the Protective Services Unit (PSU) of the RNC ‘in house’ at RNC Headquarters, where its threat assessment operations may be properly supervised by senior officers. Commission of Inquiry Respecting the Death of Donald Dunphy

Commentary: The PSU in April 2015 was acting without proper supervision.

(3) Better promotion of Charter values
Step 3 in reducing risk: ensure police officers engaged in threat assessments are regularly reminded to scrupulously respect the requirement of s. 8 of the Canadian Charter of Rights and Freedoms to protect the sanctity of the home. Entry into private residences without a warrant should occur only with the voluntary and informed consent of the home owner.

Commentary: Informed consent requires that the officer properly identify him or herself, including rank and unit assignment. Cst. Smyth did not reveal he was with the PSU before entry.

(4) Better testing of police officer’s version
Require investigating officers in police-involved serious incidents to follow policy and maintain an attitude of suspicion, continuing with a rigourous and robust investigation, until the subject police officer’s version of events has been completely examined and tested.

Commentary: The RCMP were too quick to accept Cst. Smyth’s version of events in this case.

(5) Better investigation by a SIRT
Avoid the appearance of preferential treatment for police officers by arranging for the investigation of police-involved serious incidents by a civilian-led oversight agency, such as the Nova Scotia Serious Incident Response Team (SIRT), either by participation in a regional organization or through memoranda of agreements with other provinces.

Commentary: The success of civilian-led oversight in this Province will depend upon adequate long-term funding. Also, provision must be made for proper annual training. Given the relatively small population in the Province and the need for continuous training and on the job experience for investigators, a regional solution may be most effective.

The full report can be found online at: http://www.ciddd.ca/documents/final_report_june_20_2017.pdf

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