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.
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| 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.
