Court hears arguments about taser inquiry's scope

June 13, 2009
IAN BAILEY, Globe and Mail

The head of an inquiry into the death of Robert Dziekanski has the authority to make findings of misconduct against four Mounties involved in a notorious airport encounter with the Polish immigrant, a lawyer for B.C.'s Attorney-General argued yesterday.

Craig Jones's submissions before a B.C. Supreme Court judge were a challenge to assertions, disclosed earlier this week, from lawyers for the officers that Thomas Braidwood does not have the authority to make such findings.

When the lawyers announced they planned to go to court, their submissions aired the fact that Mr. Braidwood, a former judge, had told them and their clients that he might make findings of misconduct against them.

In notices to the officers, he said he could make findings of inappropriate responses and actions at the scene of Mr. Dziekanski's death, improper or misleading behaviour during the investigation, and misleading testimony.

Mr. Jones said Mr. Braidwood virtually has a duty to point out inconsistencies.

"If Commissioner Braidwood concludes that the events of Oct. 13-14, 2007, unfolded in a particular way, and his findings in this regard are contrary to accounts and explanations subsequently offered by the [police], either during the subsequent investigation or during the hearing, then as a matter of course he must describe those accounts and explanations and provide his reasons for rejecting them," Mr. Jones told Mr. Justice Arnie Silverman.

"If the reasons for rejecting are based on his conclusion that the [police] testimony was false, he is obligated to say so."

That includes talking about their credibility, Mr. Jones said.

The lawyers are seeking to delay the inquiry or bar the release of a final report until there is a decision from the Supreme Court.

Since January, the inquiry has heard 86 witnesses as part of its mandate to provide Mr. Dziekanski's family and the public with a complete record related to his death.

Mr. Dziekanski, 40, died on Oct. 14, 2007, after a confrontation with the officers, who were dispatched to the international arrivals area of Vancouver Airport where Mr. Dziekanski was acting erratically. He had become lost in the terminal after travelling to Canada to begin a new life with his mother in Kamloops. He was tasered and wrestled down by police.

The use of the stun gun has sparked an ongoing debate about the police use of such devices.

Closing arguments in the inquiry are supposed to begin next Friday.

The police lawyers have suggested the provincial inquiry established in February, 2008, lacks the authority to make findings of misconduct against members of a federal police force.

However, Mr. Jones noted that the Constitution establishes provincial responsibility for the control and supervision of law enforcement in the province.

But his submission to the court noted that the potential misconduct findings would not constitute formal discipline of the officers or affect the management and organization of the RCMP.

The RCMP in B.C. has said, through a spokesman, that it respects the jurisdiction of the inquiry.

The Crown has ruled out charges against the officers, stating they acted with reasonable force.