ST. JOHN'S, N.L. — A retired judge hired to independently observe an RCMP probe into the police shooting of Don Dunphy contradicted his own report Wednesday, saying he now believes the investigation was biased.
"To me, they weren't pursuing this as diligently as I would have thought," David Riche told a public inquiry into the shooting at the man's Newfoundland home.
Riche said his own official report on the investigation — which said the probe was fair and thorough — is mistaken.
He said he was also wrong to indicate Dunphy pointed a rifle at Const. Joe Smyth of the Royal Newfoundland Constabulary just before Smyth fatally shot him Easter Sunday 2015.
A loaded .22-calibre rifle was found near Dunphy's body.
Riche now says he believes Smyth opened fire after Dunphy reached for the metre-long wooden stick his daughter and friends have said he always kept to the right side of his recliner in case of a break-in at his home in Mitchell's Brook.
"Smyth reacted as he's trained to do in the case of danger and fired his pistol," Riche said.
Smyth has testified he shot Dunphy, 58, once in the left chest and twice in the head in self defence after he aimed a rifle at him from the right side of his chair.
Riche agreed under questioning by Commissioner Leo Barry that his latest conclusions aren't based on evidence heard since the inquiry started in January.
Riche said his beliefs are based on logic and the "balance of probabilities" after a long career hearing criminal cases on the bench.
Barry stressed that, with Smyth as the only witness to the shooting, the inquiry has to gather facts based on forensic tests along with testimony from experts and those who knew Dunphy and Smyth. He is to deliver a report and any recommendations by July 1 but will not make findings of criminal or civilian responsibility.
"You'd accept that we have to act on evidence?" Barry asked.
"Oh yes," Riche said. "But we don't have to believe it.
"Balance of probabilities."
Riche repeatedly said he thought his job as RCMP observer was to "get at the truth."
Riche frequently talked over commission co-counsel Kate O'Brien, at one point saying he was concerned his train of thought would be lost. She urged him repeatedly to allow her to finish asking questions.
Jerome Kennedy, the lawyer for Smyth, asked Riche if he strayed beyond the terms of his contract as an independent observer.
He suggested Riche acted more as a "Columbo"-style investigator and judge.
"I can't separate myself from it," Riche agreed, citing his years on the provincial Supreme Court.
He was appointed in 1982 and retired in 1999.
Riche said he went through volumes of RCMP evidence but was rebuffed when he questioned investigators.
"They wanted me to be a picture on the wall."
For example, Riche said he asked why Smyth was never given a lie detector test.
"'Oh no, we couldn't do that'," he said they responded. "But they didn't tell me why."
Riche said he also asked why Smyth didn't bring Dunphy before a judge if there was any crime but was told that would be "false arrest" as there were no legal grounds.
"I concluded that Smyth shouldn't have been there at all."
Smyth has testified that as a former member of then-premier Paul Davis's security detail it was part of his job to gather intelligence on potential threats. Home visits alone were not unusual, Smyth and other officers have testified.
Smyth says he made the visit to check out political comments Dunphy had made on social media, including one flagged "of concern" by Davis's staff.
Co-workers have described Smyth as a professional and respected officer who now works in traffic operations.
Riche asked Kennedy on Wednesday if he was having trouble understanding his testimony, saying someone had written a letter alleging Riche has dementia. It was unclear who wrote the letter.
Barry said it was not an issue to be sorted as part of the hearing.
Riche earlier testified he noticed in RCMP documents that Smyth told investigators at one point that Dunphy's .22-calibre rifle was by the couch.
Smyth, when re-interviewed about the discrepancy, said he misspoke and meant to say the rifle was by Dunphy's chair.
Riche said Wednesday that Smyth is the only witness to say the rifle was by the recliner before the shooting. Several friends of Dunphy's testified they never saw the weapon that had belonged to his late father. They'd only ever seen the stick.
Riche said that it, too, was a weapon that he now believes likely got Dunphy shot.
Dunphy's daughter Meghan has testified she saw the rifle just once, about three months before he was killed, behind the living room couch. She and friends have testified Dunphy was an injured worker who railed against workers compensation but was never violent or known to use guns.
Riche said he was never clear on what an independent observer does. He was hired by the RCMP to ease public concerns over officers investigating each other in a province that has no civilian-led police oversight team.
"Had I known what was involved in this then I wouldn't have touched it with a 10-foot pole."
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Sue Bailey, The Canadian Press