Watching the live stream of the Commission of Inquiry Respecting the Death of Donald Dunphy is, well, disconcerting.

Today RNC Constable Smyth told the Inquiry he spent an hour scanning a years worth of Don Dunphy’s twitter stream before going to see Don Dunphy.  Of course we can’t actually see Don Dunphy’s twitter stream because it’s been taken down.  But the tweets still exist (there was a time when Twitter said all tweets would eventually end up in the Libary of Congress).  We are talking about *thousands* of tweets, here, tweets that law enforcement and lawyers have access to.

The Inquiry is told Don Dunphy tweeted an a wide variety of subjects across many issues, including human rights and social justice. Don Dunphy routinely tweeted or retweeted inspirational quotations from the likes of the Dali Lama and Albert Einstein.  Mr. Dunphy also talked about issues that directly concerned him.  An injured worker who felt ill served by government, with particular grievances with the Workplace Health, Safety & Compensation Commission of Newfoundland and Labrador, he talked about government failure.

Dunphy, 59, was a former truck driver who battled for years with workers’ compensation after being crushed at 28 by a backhoe on a construction site. The frequent Twitter user called himself “a crucified injured worker from NL Canada where employers treat (the) injured like criminals.”
Inquiry to ask: Why did Newfoundland police officer shoot Don Dunphy?

When apprised of a “disconcerting” tweet, Constable Joe Smyth, a member of the RNC protective detail for then Premier Davis, today told the Inquiry he made an assumption  Don Dunphy would react badly if he had he had gone to Mr. Dunphy’s house accompanied by a uniformed RNC officer.  Instead Constable Smyth went alone, driving an unmarked vehicle, dressed in plainclothes.  And when he got there, it seems he was deliberately cagey about why he was there.  And Don Dunphy ended up dead.

Today, Dunphy family lawyer, Bob Simmonds tried to find out the basis for the officer’s assumption, since Smyth agreed Don Dunphy had neither advocated or promoted violence in his tweets. In answer, Constable Smyth characterized Don Dunphy’s stated belief — that death of his wife and others were due to institutional failure — as “ideation”

One Wikipedia definition is:

“Ideation is the creative process of generating, developing, and communicating new ideas, where an idea is understood as a basic element of thought that can be either visual, concrete, or abstract.^[1] Ideation comprises all stages of a thought cycle, from innovation, to development, to actualization.^[2] As such, it is an essential part of the design process, both in education and practice.^[3]“

But clearly that is not the definition Constable Smyth intended.  “Ideation” is his reason for believing Don Dunphy needed “threat assessment” ASAP.  Which indicates his meaning is more likely “Paranoid Ideation.”

As Mr. Simmonds questions the officer about the urgency or appropriateness of interrupting Don Dunphy in his home, unannounced, at meal time on Easter Sunday:

“There is a duty and an expectation when you identify certain behaviours and follow up on those behaviors… an unresolved grievance that may or may not be grounded in reality.”

— Constable Smyth

When the officer says “may or may not be grounded in reality,” he implies Mr. Dunphy may suffer an inability to differentiate between reality and unreality.

This sounds to me as though the entire series of events culminating in this tragic death of Don Dunphy was built on the RNC Officer’s mistaken belief he was somehow competent to render a medical diagnosis of Mr. Dunphy based entirely on a superficial reading of the dead man’s Twitter feed.  What a frightening assumption for a law officer to make.  While I imagine there are folks at Workplace NL or elected officials in the government of Newfoundland and Labrador who might have disliked or disagreed with him, it seems the only person insinuating Don Dunphy was imagining things is the RNC Officer who shot and killed him on that Easter Sunday afternoon.

Constable Smyth’s subsequent ill advised email takes this hubris even further, as he wrote about being “too late” to “help” Mr Dunphy, or that the tragedy is “an opportunity to educate” the public about proactive “Intelligence based policing,” Constable Smyth even drew an outrageous comparison to the Ottawa shooting, explaining public officials need protection from “individuals and groups who will be disgruntled, and when desperation and instability is added to the mix you will have security concerns.”  Perhaps the worst of it was in the closing paragraph:

“Although I cannot regret my actions last Sunday, I unequivocally wish I could have visited Mr. Dunphy at a point in his life where another level of intervention may have been possible. Our lives can change or end in the blink of an eye. Please seize any opportunity to help those who need it.”

— CBC: RNC officer who shot Don Dunphy wishes better intervention possible

Mr. Dunphy’s “behavior” had been exclusively verbal.  And the only evidence of”escalation” seems to be in Constable Smyth’s perceptions.  Yet even he admits that, before he himself went out to Mitchells Brook, N.L., there was no foundation to suggest Don Dunphy posed an imminent threat.   Constable Smyth says he went to Don Dunphy’s home as part of his “threat assessment” process, to afford Mr. Dunphy an opportunity to explain his Twitter comments.

As Mr. Simmonds points out, Mr. Dunphy was simply exercising his right to free speech.  His right to express his dissatisfaction with government.  Why should Mr. Dunphy have to account to law enforcement for free speech in a free country?

And yet Constable Smyth goes on to describe Don Dunphy’s Twitter feed as “following a pathway to violence.”

As it happens, Constable Smyth is not a psychiatrist or even a psychologist, but a police officer who has taken some courses.  A police officer who continues to believe himself competent to unilaterally make such assessments of citizens.  This is seriously problematic.

After establishing Constable Smyth had no legal right to be in Don Dunphy’s home without Mr. Dunphy’s permission, Mr. Simmonds asked the constable why, when it became clear Don Dunphy no longer wanted him there — when Mr. Dunphy was, according to Constable Smyth’s words, “frothing at the mouth” — why didn’t the officer just leave?

Constable Smyth explained he didn’t leave because Don Dunphy didn’t explicitly tell him to leave.  And Don Dunphy died.

Even if you are willing to assume everything Constable Smyth believes everything he has testified to be true, how can any officer incapable of recognizing when an interview subject wants him to leave possibly be competent to make mental assessments of citizens?

Civil Rights Exist To Protect Citizens

The Don Dunphy Inquiry is bigger than Newfoundland and Labrador; this tragedy shines a light on a danger facing all of Canada.

When people are afraid someone is listening, free speech is no longer a right, but a dangerous practice.  When law enforcement monitors innocent law abiding citizens on social media platforms like Twitter, citizens whose only “crime” is the exercise our Charter rights to free speech, our Charter rights are under attack.

Tom Mahoney, Executive Director, WorkplaceNL told police Constable Smyth said:

“The worst thing about these situations is these guys you know tend to be in their house, they tend to feel free to say what they like, but they don’t realize there are consequences.“

Mr. Simmonds questioned Constable Smyth as to the “consequences for free speech.”  He also wanted to know why, absent any other evidence, did he decide Don Dunphy was a person of interest requiring ASAP investigation based solely on the fact he spoke his mind about politics and politicians online.  But Constable Smyth repeatedly denied infringing Don Dunphy’s right to free speech.  But what else can you call it when an agent of law enforcement takes what you say on social media and uses it to unilaterally judge you?

Privacy– freedom from having to worry that the government is not watching and listening to us without good reason (what the law calls probable cause) is an important part of how citizens stay safe from government over reach and injustice in a democracy.  That’s why an Injured workers group asks why WorkplaceNL gave Don Dunphy information to police. Injured citizens are among society’s most vulnerable, so when injured workers are obliged to turn over personal information to government agencies that are supposed to help them, they don’t expect that information to be handed over to police at the drop of a hat.  And they are right to be concerned, as the Don Dunphy tragedy clearly illustrates.  Surely Don Dunphy isn’t the only injured worker venting about their frustrations on social media.  Social media networks exist because human beings create community, not to make it easier for police to judge our every word.  Apparently Constable Smyth failed to learn that in his social media course.

If Canadians are not free to say what we like in our house, even if we are talking online, where do we have free speech?  Canadian democracy is Built on the Canadian Charter of Rights and Freedoms.  Now I’m not a lawyer, but it certainly seems to me as if Don Dunphy’s Charter rights were breached twice:

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

… (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

~ and ~

Legal Rights
Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

On the national front, the Federal Government’s failure to amend or repeal the law that gives federal law enforcement “lawful access” to monitor innocent Canadians online (formerly known as Bill C-51) is a virtual guarantee that such miscarriages of justice, and indeed similar tragedies, will undoubtedly happen again as a matter of course.  Is this acceptable to you? It isn’t to me.

Don Dunphy spoke up for what he believed is right, but the man was silenced forever.  Perhaps even worse, to me, as both a writer and a believer in free speech, is that the words he wrote on Twitter have been silenced as well.

All Canadians need the full protection of the Charter.  Otherwise the Charter isn’t worth the paper its written on.

 

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The Inquiry continues tomorrow ~ January 24th, 2017 ~ with what will probably be the final cross-examination of Constable Smyth.   

Commission of Inquiry Respecting the Death of Donald Dunphy Livestream:
http://www.ciddd.ca/
Watch Live:
http://video.isilive.ca/nfld/remote.html