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Wednesday, December 30, 2009

Mounties should just take their punishment

December 30, 2009
Ethan Baron, The Province

When it comes to evading responsibility for an innocent man's death, some of our guardians of law and order are leaving no legal loophole unexplored.

Officers involved in the killing of Robert Dziekanski have been desperately seeking a way to avoid being found to have acted with misconduct before, during and after the death of the Polish immigrant at the Vancouver airport in October 2007.

Thomas Braidwood, who heads the inquiry into Dziekanski's death, in April issued an advisory that his final report -- expected early next year--may include findings of misconduct against the four officers.

Braidwood noted that such a result wouldn't constitute disciplinary action against the officers.

Misconduct findings could include: failure to properly assess and respond to Dziekanski's situation in the airport; unjustified use of a Taser, repeatedly; misrepresentation of facts in notes, statements and commission testimony; and providing misleading information about witness notes and statements to the commission.

In their first try to weasel through a loophole, the four Mounties, Cpl. Benjamin Robinson and constables Gerry Rundel, Kwesi Millington and William Bentley, argued in B.C. Supreme Court that the misconduct notice wasn't specific enough. And they contended that because the Braidwood inquiry was enabled by the provincial Public Inquiry Act, it didn't have jurisdiction over federal police. They wanted the court to prohibit Braidwood from issuing findings of misconduct.

B.C. Supreme Court Justice Arne Silverman shut them down, ruling in June that Braidwood was correct in stating that while RCMP management and supervision fall under federal jurisdiction, it is not an intrusion into that jurisdiction for provincial authorities to allege misconduct by individual officers.

But like zombies in a bad horror movie, these Mounties keep getting knocked down only to rise again, mumbling gibberish. Rundel, Millington and Bentley took their case to the B.C. Court of Appeal.

The trio claimed that misconduct findings require analyzing their conduct against criminal law standards and RCMP training and policy, thus falling within federal jurisdiction. They also tried the specifics angle again. The three appeal court justices agreed with Silverman's ruling and on Tuesday snapped the loopholes shut.

Braidwood has no authority to recommend criminal charges, which must be laid by Crown counsel. The Crown reviewed evidence in the case and decided not to lay criminal charges. I asked Crown counsel spokesman Neil MacKenzie whether findings by Braidwood of misconduct could lead the Crown to reverse that decision, but he said he didn't want to speculate.

The RCMP have never contested Braidwood's authority to find misconduct-- the officers themselves brought their cases through the courts. But the actions of the federal force during the fallout from Dziekanski's death have eroded public confidence in the RCMP.

These pitiful attempts by officers involved to clear themselves in the face of overwhelming evidence of wrongdoing is causing further damage. They may take their cases to the Supreme Court of Canada, bringing further disgrace to the Mounties. Or they could do what all good zombies should, in the end -- just stay down.

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