Dziekanski inquiry could spur criminal charges, officer's lawyer tells court

December 4, 2009
By James Keller (CP)

VANCOUVER, B.C. — If a public inquiry into the death of Robert Dziekanski finds the RCMP officers who stunned him with a Taser used too much force and then lied about it, criminal charges are sure to follow, one of the officers' lawyers told the B.C. Court of Appeal on Friday as he sought to take that option off the table.

Three of the four officers are asking the province's highest court to prevent inquiry commissioner Thomas Braidwood from making findings of misconduct against them.

They argue that a provincial public inquiry can't make such findings against officers of the national police force, and doing so would amount to alleging criminal conduct.

The Crown decided in December 2008 not to charge any of the Mounties, but Braidwood has sent notices to the officers warning he's considering allegations made at the inquiry that they used excessive force and then tried to cover up what happened.

David Butcher, who represents Const. Bill Bentley, said those are effectively criminal allegations - assault, perjury and obstruction of justice - that are outside the scope of a public inquiry.

"It would seem to me that it would be highly likely that if this particular commissioner made findings of criminal conduct, there would be criminal charges," Butcher told the three-member appeal panel.

Butcher pointed to comments by the B.C. attorney general that the case could be reopened if new evidence arises, although one of the appeal judges questioned Butcher's conclusion.

"That doesn't speak highly of the independence of the Crown, does it?" said Justice Harvey Groberman. "Surely the Crown is expected to approach these matters with an independence that isn't unduly influenced by things like inquiry reports."

Butcher declined to elaborate for the court.

Bentley, Const. Kwesi Millington, Const. Gerry Rundell and Cpl. Benjamin Robinson asked the B.C. Supreme Court earlier this year to prevent the inquiry from findings of misconduct.

Their case was dismissed and three of the officers, with the exception of Robinson, are now appealing.

"The notices suggest that the commissioner is going to assess wrongdoing by measuring the conduct of federal actors against federal standards - something which we say is not constitutionally permissible (by a provincial inquiry)," said Butcher.

The officers' lawyers are also arguing that the notices they received about potential misconduct allegations didn't include enough detail and should be tossed out.

A spokesman for the province's Criminal Justice Branch declined to comment on Butcher's suggestion that prosecutors would act on the inquiry's findings.

Both the branch and the attorney general have said the case could be reopened if prosecutors receive new evidence, but they have been careful not to say whether anything uncovered at the inquiry would fit that criteria. They have also noted that testimony at the inquiry would be inadmissible in court.

Braidwood is expected to issue his final report into Dziekanski's death early next year.

The inquiry is one of several investigations launched in the wake of Dziekanski's death.

The Commission for Public Complaints Against the RCMP will release its own report on Tuesday, evaluating the actions of the officers, the subsequent homicide investigation and any RCMP policies that are relevant to what happened.

There are other cases before the courts, as well.

Dziekanski's mother, Zofia Cisowski of Kamloops, B.C., is suing the RCMP, the airport and the federal and provincial governments; Taser International is challenging findings from an earlier report from Braidwood that concluded the weapons can kill; and one of the officers is suing the CBC for libel.