Decision not to charge in taser case stands on ever more shaky ground

March 7, 2009
GARY MASON, Globe and Mail

Recent allegations of fraudulent statements and a planned cover-up are leading to loud calls for a new look at the December decision by the B.C. Crown counsel's office to clear the four RCMP officers involved in the tragic encounter with Polish immigrant Robert Dziekanski.

Citizens who were outraged when the decision was made not to press charges against any of the officers are even more incensed after hearing three of them testify at a hearing into Mr. Dziekanski's death. They learned that notes and verbal statements the officers gave to investigators weren't an accurate reflection of what happened that night.

At the inquiry, a lawyer acting for Mr. Dziekanski's mother, Zofia Cisowski, and another representing the government of Poland, suggested the officers lied to cover up actions they knew were excessive and inexcusable. A charge the officers deny.

Attorney-General Wally Oppal has been deluged with letters and e-mails urging him to reopen this case. Canadians have also written to Prime Minister Stephen Harper and Public Safety Minister Peter van Loan asking them to intervene.

We now know the information upon which B.C.'s Criminal Justice Branch based its decision to clear the officers was erroneous. Just consider this one sentence in the statement issued by the branch in announcing its decision on Dec. 12:

"At this juncture, the evidence of independent witnesses, police officers and digital video were materially consistent in relation to the events which followed."

This is a fairly important aspect of the Crown's rationale for not proceeding with charges - everyone agreed as to what happened. One problem though: it's completely false. Many of the details the officers provided to justify their actions were not true, we have recently learned. In fact, the litany of inaccurate or misleading statements the officers gave RCMP investigators is long and disturbing.

They didn't have to taser Mr. Dziekanski a number of times because he refused to go down, as they told investigators. The victim wasn't tackled to the ground by officers because the taser wasn't working on him. The man collapsed in a writhing, yelping heap after he was blasted the first time - and before he was jolted four more times.

Mr. Dziekanski wasn't yelling and wielding a stapler above his head as he moved towards the officers - as they suggested in notes and interviews. He held a garden-variety stapler in his hand at waist height, while not yelling or advancing in a menacing manner.

And those are just a few of the inconsistencies in the officers' statements that have come to light. But they are important because they go to the heart of the central question in this case: did their actions constitute excessive force under Section 26 of the Criminal Code? And crucial to answering that question is determining the circumstances leading up to any confrontation between a police officer and a civilian in the first place.

I tried to find out whether the Criminal Justice Branch was aware of the problems in the officers' statements when it made its decision to clear them. A spokesman for the branch said: "The evidence was the evidence available to the Crown at the time. I don't want to engage in a disagreement with any element of it."

Whatever that means. In other words, the branch doesn't want to say. Why? It might be because the Crown based its decision on the investigative work of the RCMP. What is the likelihood that the RCMP pointed out the enormous problems inherent in the verbal statements and written reports given by its own officers? Did the RCMP report to the Crown mention that many of the officers' statements simply did not jibe with the video evidence? Did that raise alarm bells anywhere?

I also asked the branch spokesperson what it would take for the Justice Department to take another look at this case in light of the testimony given by the officers in the past two weeks. He said it would take the original investigative agency - the RCMP - coming forward with new information that changes the complexion of the case and warrants the Crown taking another look.

What are the chances of that happening?

I'm afraid this case is just another example, number 7,340, of why the police should not investigate themselves. The public doesn't trust the police, and especially the RCMP, to do a proper job. And the information that has recently come to light in the Robert Dziekanski case is precisely why.

"At this point, the decision is the decision," the Criminal Justice Branch spokesman told me.

My guess is that could change. The provincial government has been embarrassed by this matter, and I wouldn't be surprised if the Attorney-General did something about it once the Braidwood inquiry wraps up.