Mounties' unseemly effort to muzzle public inquiry dismissed

June 16, 2009
By Ian Mulgrew, Vancouver Sun

The unseemly 11th-hour attempt by four Mounties to muzzle the public inquiry into the Taser-related death of Robert Dziekanski thankfully was quashed by the B.C. Supreme Court.

Justice Arne Silverman dismissed their claims that commissioner Thomas Braidwood had treated them unfairly, had strayed too far from his original mandate, had trespassed on federal jurisdiction and had no power to cast blame.

"In my view, [the four RCMP officers] are wrong," he said bluntly in an hour-long oral ruling Monday.

Before a courtroom full of journalists and spectators, Justice Silverman flatly rejected arguments that Braidwood had trodden on Ottawa's constitutional authority for the Criminal Code and its responsibility for managing a federal agency.

He said Braidwood, a former B.C. Court of Appeal judge, had dealt with the RCMP members not only in a fair and reasonable manner, but also in a way that was legally correct.

Everyone who has attended the inquiry could attest to that. Braidwood has been scrupulously patient, careful and unbiased.

This last-ditch attempt to gag him was an embarrassing affront to a respected retired jurist and to Dziekanski's grieving mother Zofia Cisowski, who has waited almost two years to learn why her son died.

Const. Gerry Rundel, Const. Bill Bentley, Const. Kwesi Millington and Cpl. Monty Robinson petitioned Silverman to overturn two of Braidwood's recent decisions -- the first, to send them notices saying he "may" find they committed misconduct and, the second, refusing to provide specific details of that misconduct.

The Mounties argued the allegations in the notices were tantamount to criminal charges of assault with a weapon, obstruction of justice and perjury and beyond Braidwood's terms of reference.

But Justice Silverman disagreed and said their conduct was vital to understanding what happened Oct. 14, 2007 at Vancouver International Airport. He noted the B.C. Public Inquiry Act specifically empowered a commissioner to make findings of misconduct in appropriate situations. He added that Braidwood was acting properly.

Art Vertlieb, counsel for the commission, welcomed the ruling. "This means the commissioner can continue with the important work he is doing," he said. "We'll be ready to go Friday [with final submissions]."

Silverman's decision was straightforward and full of common sense.

Everyone knew Braidwood's final report might parse responsibility and be critical of certain individuals and organizations that had contact with Dziekanski during the roughly 10 hours he spent in the airport.

For the four Mounties to claim he caught them by surprise with the notices of misconduct was ridiculous. They should have stood up at the beginning if they had concerns about the inquiry's scope.

Yet their growing concern about Braidwood's report is understandable.

Crown counsel last December decided not to criminally charge the officers who Tasered the Polish immigrant five times and physically restrained him.

Evidence at the inquiry, however, has revealed significant contradictions between an amateur video and the officers' notes and statements to homicide investigators, throwing a huge cloud over that prosecutorial decision.

The government of Poland also has since said it is mulling charges against the four, but is awaiting the inquiry's findings.

Braidwood hopes to begin writing his report by the end of the month and deliver it later this year. That timetable, though, still is not assured.

The Mounties have a right to appeal Justice Silverman's ruling.

Sad to say, I agree with Cisowski's lawyer, Walter Kosteckyj, and wouldn't put it past these four to continue trying to derail the inquiry by filing an appeal. They have nothing left to lose: Their reputations and credibility already are in tatters.

Their lawyers left immediately after the stinging defeat, declining to comment.