Inquiry can find misconduct against RCMP involved in Dziekanski death: judge

James Keller, Vancouver, B.C. (Canadian Press) – The commissioner heading the public inquiry into Robert Dziekanski’s death can consider the conduct of four Mounties that night, a judge has concluded, rejecting the officers’ arguments that he has no jurisdiction to do so.

The officers asked B.C. Supreme Court to prevent Commissioner Thomas Braidwood from making findings of misconduct when he writes his report into their fatal confrontation with Dziekanski at Vancouver’s airport on Oct. 14, 2007.

The court challenge threatened to further delay the hearings, but Justice Arne Silverman flatly rejected the officers’ claims, setting the stage for closing submissions at the inquiry to begin as scheduled on Friday.

Braidwood had warned the Mounties he might consider allegations made at the inquiry that they acted improperly and then lied to justify their repeated use of the Taser.

The officers claimed the inquiry had strayed away from its original purpose, wrongly focusing almost exclusively on their actions, and had no power to make what amounted to criminal allegations of assault, obstruction and perjury.

“None of the allegations in these notices (of misconduct), if they are substantiated, come close to a finding of criminal liability,” Silverman said.

Silverman also noted the inquiry has examined a broad range of topics, from airport policies to the availability of translators to the actions of border officers.

“The inquiry does not, in my view, focus on the conduct of these officers,” he said. “Certainly that is one aspect the commissioner may look at.”

The officers’ lawyers also claimed that because they were federal police officers, governed by federal legislation, a provincial inquiry had no jurisdiction to pass judgment on them.

The notices only meant Braidwood was considering the allegations, not that he had decided to assign blame.

The Mounties’ lawyers asked the court to either quash the notices altogether and prohibit Braidwood from finding misconduct, or to demand the commissioner provide a more detailed description of the allegations.

Silverman pointed to provincial legislation that gives Braidwood the power to make findings of misconduct, and he said the potential allegations should be clear to the officers’ lawyers, who have been present throughout the inquiry.

Lawyers for the officers left court without speaking with reporters and they didn’t say whether they would consider an appeal.

If the officers decide to appeal Silverman’s decision, it’s not clear how that might affect the timing of closing submissions, but the lead counsel for the inquiry said he’s planning to be at the hearings on Friday.

“It allows the commissioner to carry on with arguments and then work to getting a report so people will know what this is all about,” Art Vertlieb said outside court on Monday.

“It’s an important decision for the commissioner and everybody to get this work to a conclusion.”

It was the lawyer for the Polish government, Don Rosenbloom, who made most of the allegations that Braidwood is considering, bluntly accusing the officers of lying during the inquiry.

“We want the process to continue, we want Mr. Braidwood’s rulings as soon as possible,” Rosenbloom said after Monday’s decision.

“I’m comforted that the commissioner has given notice that he is at least considering these allegations.”

Neither the RCMP nor the government of Canada intervened or took a position in the officers’ legal challenge.

The court challenge could have further delayed a public inquiry that was supposed to have been finished by now.

The inquiry, ordered soon after Dziekanski’s death, was originally scheduled to begin last year, but was postponed several times while prosecutors decided whether to lay criminal charges against the officers.

The RCMP said at the time that neither the force nor the officers could participate with the threat of criminal charges hanging over them.

That changed last December when Crown prosecutors announced they wouldn’t be charging the four Mounties.

The Braidwood commission, which finished hearing evidence in May after four months of testimony, was the second of a two-part inquiry announced after Dziekanski’s death.

The first was a study commission held last year that broadly examined Taser use in the province. A report from that phase is expected to be in the hands of the provincial government by the end of the month.