Tamsyn Burgmann, Vancouver, B.C. (Canadian Press) – Four Mounties who challenged a B.C. public inquiry’s jurisdiction won’t be spared from potentially being found at fault in the death of Polish immigrant Robert Dziekanski.
Judge Thomas Braidwood will keep his option to find misconduct against the RCMP officers involved, should that be where evidence leads him, the B.C. Court of Appeal ruled Tuesday.
The Appeal Court upheld a lower court decision rejecting the RCMP’s argument the judge should be barred from making such findings because his provincial inquiry doesn’t have authority over the national force.
Braidwood warned early this year that he wanted to consider whether to allege misconduct against the officers involved when he writes his final report. Although he notified the officers of the possibility, it doesn’t mean he will.
The officers took the issue to court, but the B.C. Supreme Court judge dismissed their claims. Three of the officers appealed.
Inquiry lawyer Art Vertlieb said the ruling simply recognizes that Braidwood is handling the process correctly.
“The Commissioner is clearly doing things the right way, he knows what he’s doing, he knows the limits of the law and he knows how to apply it,” Vertlieb said. “This just allows him to go ahead and finish up his work.”
The appeal decision hinged mainly on two key questions considered by the three-judge panel: whether Braidwood’s report would infringe on either federal jurisdiction over criminal law or on federal powers over the RCMP.
In her reasons, Justice Mary Saunders said findings by the inquiry that might include misconduct don’t equate to a criminal investigation, as lawyers for the officers suggested it would.
“It seems to me (Braidwood) is entitled to comment, if comment be warranted, on the response of public officials to the events,” she wrote in her decisions, which were agreed upon unanimously.
She also said the inquiry didn’t tread into the management or administration of the RCMP, noting she trusted Braidwood to stay within his boundaries.
“The Commissioner has demonstrated an appreciation of the limit upon his constitutional authority arising from the character of the officers as members of the RCMP,” she wrote.
“I would not anticipate he will stray over that line of demarcation and I see no basis upon which to interfere.”
Lawyers for the officers didn’t return calls for comment. David Butcher, the lawyer for one of them, has said in the past that their argument raises “legitimate and difficult constitutional issues.”
Butcher, who represents Const. Bill Bentley, added these kinds of issues often end up being heard by the Supreme Court of Canada.
Const. Kwesi Millington, the officer who fired the Taser, and Const. Gerry Rundel also filed appeals.
An RCMP spokesman declined to comment, saying the force itself never contested Braidwood’s jurisdiction.
Dziekanski, who didn’t speak English, died after he was zapped multiple times with an RCMP Taser at the Vancouver airport in 2007. Ten hours after arriving and not connecting with his family, he began acting erratically, throwing furniture and brandishing a stapler.
Braidwood’s inquiry heard from more than 80 witnesses, including the four officers, starting last January.
Among the allegations levelled at the inquiry were that the officers used the Taser when they shouldn’t have and that they lied about what happened to cover up their actions.
The officers argued in court that those allegations amount to criminal offences that are best left to the courts.
Last December, Crown prosecutors in British Columbia decided against charging the officers, saying they used reasonable force on Dziekanski, given his behaviour.
While the inquiry’s final report carries no legal consequences, findings that the officers acted improperly could increase pressure on the Crown to reconsider charges and would likely intensify criticism of the RCMP.
The report is expected early next year.
From the National Post
Braidwood can find fault against officers in Taser inquiry: court
Darah Hansen, Canwest News Service
VANCOUVER — A finding of misconduct may be considered against four RCMP officers involved in the Tasering of Polish immigrant Robert Dziekanski, the B.C. Court of Appeal has ruled.
Constables Bill Bentley, Kwesi Millington, Gerry Rundel and Cpl. Monty Robinson had earlier applied to the courts to have the notice of misconduct quashed, arguing the head of a provincial inquiry into Mr. Dziekanski’s Tasering and subsequent death has no authority over members of a federally regulated police force.
The case was dismissed initially by a B.C. Supreme Court judge. In a written decision released Tuesday, the Court of Appeal unanimously agreed to uphold the lower court’s decision.
Mr. Dziekanski, 40, died in the early morning hours of Oct. 14, 2007, after being Tasered five times by RCMP officers following a brief confrontation at the Vancouver International Airport.
A videotape of the incident taken by an airport bystander prompted public outrage. The footage shows Mr. Dziekanski screaming in pain and writhing on the airport floor, face-down, as he is handcuffed, restrained and repeatedly Tasered by police.
Inquiry commissioner Thomas Braidwood is writing his final report on the death and is expected to deliver it early in 2010.
The four officers were advised in April that Mr. Braidwood would consider several allegations of misconduct against them, including: failing to properly assess and respond to the circumstances in relation to Mr. Dziekanski; deploying the Taser in circumstances that did not warrant such deployment; failing to adequately reassess the situation before further Taser deployment; and deploying the Taser again without justification.
Const. Millington also faces three additional allegations.
The criminal justice branch decided last December not to charge any of the four Mounties in connection with Mr. Dziekanski’s death, although testimony this year at the public inquiry raised serious questions about the integrity of the RCMP investigation and the veracity of the officers, including Messrs. Rundel, Bentley, Millington, and Robinson.
Mr. Robinson also faces an unrelated charge of attempting to obstruct justice in connection with the Oct. 25, 2008, vehicle crash in Delta that killed Orion Hutchinson, 21.