Vancouver, B.C. (Canadian Press) – The four RCMP officers involved in stunning Robert Dziekanski with a Taser at Vancouver’s airport are asking a B.C. court to bar a public inquiry into his death from making findings of misconduct against them.
The inquiry’s commissioner has warned the four officers that he will consider some of the allegations levelled against them during the inquiry, specifically that they acted improperly and then tried to cover up their actions.
The notice doesn’t necessarily mean Thomas Braidwood will make such findings, but he is required to give notice if he wants the option left open and he’s done that.
The inquiry, which began in January and wrapped up testimony last month, has heard from more than 80 witnesses about what happened when Dziekanski was stunned with an RCMP Taser at Vancouver’s airport on Oct. 14, 2007.
The officers testified they stunned Dziekanski several times because the Polish immigrant, who minutes earlier had been throwing furniture, was aggressive and threatening them with a stapler.
The officers’ lawyers want the B.C. Supreme Court to prevent the inquiry from finding misconduct, arguing, among other things, that a provincial inquiry doesn’t have the power to make findings against federal police officers and that such findings are outside the inquiry’s original terms of reference.
“Disappointing,” David Butcher, one of the officers’ lawyers, said outside court Monday when asked to respond to the notice.
“We’re bringing a constitutional question as to whether a provincial inquiry has authority to make findings of misconduct against RCMP officers, which are federal.”
A hearing has been set for Friday.
Crown prosecutors decided last year not to charge the officers, but their actions have been under intense scrutiny at the inquiry.
The notices from the commissioner outline some of the broad allegations against Const. Kwesi Millington, Const. Bill Bentley, Const. Gerry Rundel and Cpl. Monty Robinson — allegations that were made during the inquiry by several lawyers.
The notice sent to Rundel April 30 is contained in public court documents and the potential allegations against him include:
* When he arrived at Vancouver’s airport, he failed to properly assess the situation and failed to react appropriately in confronting Dziekanski.
* The notes in his police notebook and the statements he gave to homicide investigators misrepresented Dziekanski’s behaviour and what happened in an effort to justify the officers’ actions.
* Rundel continued to misrepresent what happened when he testified at the inquiry.
* During his testimony, he offered “a self-serving and misleading” interpretation of his notes and statements.
Similar allegations are included in the notices given to the other officers.
Reg Harris, who represents Robinson, the supervising officer on duty that night, said the notice sent to his client includes additional allegations, although he wouldn’t elaborate.
Those allegations were put to the officers during their testimony, particularly by the lawyers for Dziekanski’s mother and the government of Poland, and each officer denied they acted improperly or tried to cover up what happened.
The inquiry cannot made findings of criminal or civil wrongdoing, but findings of misconduct may add to growing public pressure for prosecutors to reconsider their decision not to charge the officers.
In announcing that decision last December, the Crown said the officers were acting lawfully and responded with reasonable force in the circumstances.
But there have been calls for prosecutors to take another look, including from Dziekanski’s mother, Zofia Cisowski.
Specifically, critics point to inaccuracies between what’s shown on an amateur video of the incident and what’s contained in the officers’ notes and statements. The officers initially said Dziekanski was violent and yelling before he was stunned, but the video appears to contradict that version of events.
Outgoing Attorney General Wally Oppal has said the Crown has the power to reconsider charges if they receive new evidence.
Findings of misconduct would also add to the public relations nightmare Dziekanski’s death has become for the RCMP.
According to a Harris-Decima poll done in March for The Canadian Press, the case has damaged public confidence in the national police force, which has offered apologies while still standing behind the actions of the officers and the use of Tasers.
It’s not clear how the officers’ applications — and any subsequent appeals — could affect the timing of the inquiry and its final report.
Currently, closing submissions are scheduled to begin later this month and a report could be ready by the fall.
Meanwhile, a report from the first phase of the inquiry held last year examining Taser use in general is expected to be handed over to the provincial government by the end of the month.
The only problem is with those vexatious and frivolous actions of for officers is that taxpayers give them blank cheque. They are suspended with pay and do not qualify for Legal Aid, why they are getting it.
I have seen people starting, what Courts called vexatious and frivolous actions, who got stack with tens of thousands of Coourt costs plus legal expenses of the defendants.
I met people who decided to renounce their Canadian Citizenship and go back to Europe, as a protest against cover up of Dziekanski’s killing.
Does it tell you anything?
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That is the great thing about experts and talking heads, you can always find somebody to support your position, no matter which way you turn your tinfoil hat.
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I have more trust in medical information from independent experts with proven expertise and respected standing in the medical research community. People like Dr. Chambers and Dr. Kerr who testified at the Braidwood Inquiry.
But thanks for your contributions. We needed more predictable knee jerk responses from people with their own versions of facts.
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The crown looked at the evidence and determined no charges so it isn’t that they were going to avoid the inquiry if they were charges pending it is that they couldn’t participate if charges are pending. Secondly, the lawyers are being lawyers. Just like cops hate defence attorneys that put forward sometimes rediculous defences these officers deserve the best defence available. Even if some of the public (not the majority) don’t agree.
The RCMP may have been able to handle this better but keep in mind they are human and were trying to investigate what happened at the same time as trying to keep the media/public updated. Also, keep in mind the media blew this story out of proportion and forgot to blame who was to blame, CATSA, CBSA, the Vancouver Airport and Dzienkski himself. This is not an RCMP caused situation this is a systemic failure at the airport that resulted in a sad situation. 9 hours in an airport looking for your mom in a foreign country without speaking the language on top of the hours spent on a plane (which he was scared to be on) could cause huge amounts of stress and shock to anyone. Read a couple papers (peer-reviewed articles) on human stress response and systemic shock and you might realize this wasn’t an RCMP murder.
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I have to agree SC. You always have to examine the other sides of the issue, and even place yourself in a similar position to some to realize that the law applies to everybody. Laws and case law result from specific situations and are then applied in all circumstances touching on the relative issues.
Some people would prefer that certain issues be dealt with summarily because of the emotional nature or notoriety of the situation. The very reason we have rules, regulations, statutes, and case law is to define the impartiality and ensure fairness. All are equal under the law and as you point out, their legal representatives would be remiss if not negligent to exercise their rights. “Their” rights are our rights as well.
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DT, I know you don’t like historical references but this one is fairly recent. According to Will Rogers, if you find yourself in a hole, the first course of action is to stop digging.
Read editorial reactions today (Globe & Mail, National Post, Van Sun and others.) and ask yourself if the hole got deeper in the last few days.
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Don’t get in too much of a flap, its all legal and is with respect to constitutional issues that are being touched on. The move has to be made before conclusion of the inquiry for legal reasons.
Your analogy is incorrect.
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Look, I’m very critical of how the 4 officers behaved in the death of Robert Dziekanski and their and the Mounties handling in particular of the aftermath. Having said that, I am in no way dismayed by the steps taken by the lawyers representing the four.
Mr. Justice Braidwood has put them on notice of a potential finding of misconduct. The terms he operates under require that of him. He has followed them.
Now counsel acting for the officers in this inquiry (and let’s recall it is not a trial, but an inquiry which may or may not lead to a trial) have countered with a lawful manoeuvre to protect their clients.
One doesn’t have to be “in their corner” to agree with that approach. For justice to occur there must be not only facts and evidence supporting the conclusion in any given case but also a fair process made up of rules and procedures.
Clearly Mr. Justice Braidwood feels he is within his mandate to make a finding of misconduct and he is following the process as he believes it applies in giving notice. And just as clearly lawyers representing the officers feel there may be a procedural bar to his potential finding and they are following the process as they understand it in appealing to the court to stop him from doing so.
So I am just going to take a breath and not become too worked up. Personally I think Mr. Justice Braidwood is a pretty smart guy. I also would be willing to bet a cup of coffee he is within his terms of reference to make a finding of misconduct if he so chooses. I think the court will uphold him.
But sometimes judges make mistakes. That’s why there are courts of appeal and why some rulings are overturned. So if the lawyers for the officers think they have a case, they would be negligent in their representation if they did not advance it. And I’m perfectly comfortable with that.
Sometimes strong feelings take over one’s judgment. I know I have felt the temptation to brand the lawyering tactics of those whose case I strongly reject and sometimes resent as ’sleazy’ or ‘oily’…and the more clever the tactic the more ‘oily’ it seems to become. And at the same time I have this knack of conferring the mantle of ‘brilliant lawyering’ or ‘inspired’ on the clever and effective tactics of lawyers who champion causes to which I cleave. Funny how that works with us humans. Anyway, I bet Mr. Justice Braidwood who I believe to be smart and very sincere is not losing sleep over this one. If I am right and if he is willing to let the challenge be decided in court then so am I.
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I wonder how the police would react if a common criminal proposed, “I’ll show up for trial but only if I’m found not guilty.”
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In my opinion if those officers are not charged it will be a HUGE miscaridge of justice.
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