Judge mulls misconduct ruling in taser case

June 8, 2009
Ian Bailey, Globe and Mail

The head of a provincial inquiry into the death of Robert Dziekanski is reserving the option to level misconduct rulings against four Mounties involved in a fatal confrontation with the Polish immigrant.

In the case of Constable Kwesi Millington, who fired a taser during the Oct. 14, 2007, encounter, Thomas Braidwood says he may conclude that the officer failed to properly assess the circumstances around Mr. Dziekanski and failed to properly respond to them.

“You initially deployed the conducted energy weapon against Mr. Dziekanski … when such deployment was not justified given the totality of the circumstances you were facing at the time,” says the notice, going on to suggest the officer could not have “honestly perceived” Mr. Dziekanski's behaviours were a threat.

Mr. Braidwood says he may also accuse the officer of misrepresenting Mr. Dziekanski's behaviour in his notes and testimony to the inquiry.

These are among the options disclosed Monday in court documents as lawyers for the officers asked the B.C. Supreme Court to rule that Mr. Braidwood lacks the power to make such findings against federal police officers.

“We take the position that a provincial inquiry does not have the jurisdiction to make misconduct findings against the RCMP,” said lawyer David Butcher, representing Constable Bill Bentley.

Mr. Braidwood, who has been at the helm of the continuing inquiry since it was established seven months after Mr. Dziekanski's death, has not actually decided to lay such findings of misconduct, but has itemized them as possibilities.

That prompted the lawyers to announce their legal gambit. During a brief B.C. Supreme Court hearing Monday, the case was put over to Friday.

The officers have received notices of misconduct that vary by their role in the arrest of Mr. Dziekanski, who, tired and angry after being lost for hours at Vancouver International Airport, began acting in an erratic manner.

The police reacted when Mr. Dziekanski began wielding a stapler. The 40-year-old labourer was subjected to five blasts from a taser, and tackled by the officers. He subsequently died.

A similar notice to Constable Bentley warns that Mr. Braidwood may, among other things, conclude the officer “failed to respond appropriately to the circumstances you faced at that time in relation to Mr. Dziekanski,” “misrepresented” Mr. Dziekanski's behaviours and the manner in which events unfolded “for the purposes of justifying your actions and those of your fellow officers” and “placed a self-serving and misleading interpretation” on portions of notes and statements to regional homicide investigators.

Commission counsel Art Vertlieb, who filed the notices to lawyers, Monday declined comment on the situation, pending Friday's hearing.

Reg Harris, lawyer for Corporal Benjamin Robinson – who was the senior officer on the scene – said he wants to clarify Mr. Braidwood's authority.

“That's primarily what we're trying to do.”

He said lawyers for each officer are taking their own approach to the matter, but “the positions are generally the same with slight factual distinctions.”

Mr. Harris acknowledged the court action launched by the lawyers has allowed the media to report on Mr. Braidwood's blunt assertions.

“That was certainly a consideration that went into filing the documents at Supreme Court.

“Having said that, I am certain the news media would take extreme caution in ensuring the public is well informed that these are merely possibilities at this stage,” he said.

The Crown has ruled out criminal charges against the four officers, suggesting they acted lawfully in dealing with Mr. Dziekanski.