News / Canada

Police shooting of Newfoundland man could have been avoided: oversight report

ST. JOHN'S, N.L. — A deadly confrontation between a troubled Newfoundland man and the police officer who gunned him down at home could have been avoided, says a report released Monday.

Retired judge David Riche, named by the Mounties to oversee their investigation of the killing on RCMP turf, also raises questions about a rifle found in the home of Don Dunphy and whether he fired more shots than needed.

"The shots to the head were not necessary to render him incapable of causing any harm," says his 23-page report released by a public inquiry into the shooting on Easter Sunday 2015.

"Why (Const. Joe) Smyth continued firing, especially the last shot which was very close to Dunphy's head and Dunphy was not moving, makes me wonder why this was done.

"Smyth says he was on automatic because that comes out of their (police) training."

Smyth, a member of the Royal Newfoundland Constabulary who served on then-premier Paul Davis's security detail, fired four shots at Dunphy. Pathology reports found that any one of three wounds, two to Dunphy's head and one to the left side of his body, would have been fatal.

Smyth went alone in an unmarked SUV to Dunphy's home in Mitchell's Brook, about 80 kilometres southwest of St. John's, after Davis's staff reported potentially threatening comments on social media.

Riche's report along with those of the RCMP, the Alberta Serious Incident Response Team, Saskatoon police and a decision by the RNC chief were released Monday.

The retired provincial Supreme Court justice was named as an RCMP observer to ease concerns about police investigating each other. The province has no civilian-led oversight team.

The RCMP concluded Smyth used appropriate force in the circumstances. It found no charges were warranted in an investigation reviewed by the independent, civilian-led Alberta Serious Incident Response Team.

Susan Hughson, director of the Alberta Serious Incident Respone Team, found "some minor shortcomings," but none brought the overall probe into question. Hughson also emphasized her team's role as reviewer, not investigator.

However, Riche said in his report that the matter "could have been handled differently."

"Smyth made the mistake of taking this matter on and deciding that he did not want assistance from anyone and that he would do it alone."

The RCMP report says Smyth assessed any risk as low after contacting local police and neighbours. 

According to Smyth's statement, Dunphy suddenly raised a .22-calibre rifle from the right side of his chair about 15 minutes into their conversation in Dunphy's living room. The interview had become increasingly heated when Dunphy called Smyth a "puppet" of the government after Smyth refused to sit down, noting garbage and some bugs on the floor.

An RCMP timeline says at about 2:13 p.m. Smyth yelled "no, no, no, no" and fired his pistol twice toward the "centre mass of Dunphy." It says Dunphy tracked Smyth with the rifle as the officer fled the livingroom, and that Smyth shot him twice in the head as he went.

The rifle fell to the floor, says the timeline. Smyth checked Dunphy at 2:15 p.m. but found no sign of breathing, then checked for subsequent threats in the home. Twelve minutes later, he called RCMP to report shots fired and request paramedics at 2:27 p.m.

Smyth stayed inside for another 15 minutes, "does a tentative clearing of residence" and another check on Dunphy, says the timeline. He then "regains composure" and gets a drink of water from his vehicle.

RCMP arrived on the scene at 2:55 p.m.

With no witnesses, RCMP relied on forensic analysis from the Office of the Chief Medical Examiner, the RCMP forensic identification section, and an external review by Bulletproof Forensic Consulting.

They "led to no evidence that disputes the statements of Const. Smyth," says the RCMP report. "There is no evidence to support any criminal charges in this matter."

Nor were there fingerprints on the "old and worn" rifle later found at Dunphy's feet, it says.

"There was no glossy finish on the wooden stock and grip of the rifle and the metal parts had corroded so that they were rusted and pitted. None of the surfaces of the rifle were receptive to the deposition of fingerprints."

The Mounties had earlier refused to release their full report, saying they did not wish to taint the inquiry process.

Dunphy was a reclusive injured worker who aired his frustrations with workers' compensation on social media.

Riche raises questions about the location of Dunphy's rifle just before he was killed. His daughter, Meghan, was at her father's house the day before and saw the gun on the floor behind the couch, says Riche's report.

He notes that Smyth said in one statement that the gun was "by the couch." But under questioning by the RCMP "changed his statement and said that was a mistake and really the gun was first seen by the chair."

"I conclude that there was no way anyone can determine where that .22 (-calibre) rifle was located on Easter Sunday when Dunphy was shot. Only Smyth would know," he concludes.

"Further, I would have liked to have had a polygraph done on Smyth to determine what his answers would be to certain questions as to exactly what had taken place between himself and Dunphy."

The law firm representing Meghan Dunphy declined Monday to comment.

Royal Newfoundland Constabulary Chief Bill Janes told a news conference Monday that Smyth is a respected officer who continues to work in traffic operations.

"I don't support any of the characterizations of Const. Smyth and I've seen no evidence of any wrongdoing on his part."

A commission of inquiry is to begin formal hearings early next year into Dunphy's death. Its purpose is not to find criminal or civilian responsibility but any new evidence uncovered could be investigated by police.

Follow @suebailey on Twitter.

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