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Wednesday, December 30, 2009

Taser inquiry can rule on RCMP misconduct

December 30, 2009
ROBERT MATAS, Globe and Mail

RCMP officers at the centre of the Robert Dziekanski tasering affair have lost another round in their effort to stop a provincial inquiry from reaching any decision about allegations of misconduct.

A three-member panel of the B.C. Court of Appeal has rejected an appeal of a lower court decision that ruled inquiry Commissioner Thomas Braidwood has jurisdiction to reach conclusions on the allegations. The appeal court decided that the provincially appointed commissioner was neither infringing on federal powers over the RCMP nor deciding on criminal activities by delving into the allegations against the Mounties.

The ruling allows Mr. Braidwood to continue working on his much-anticipated report concerning the high-profile incident. Commission lawyer Art Vertlieb said yesterday that the commissioner continued to work on his report while the court case was proceeding and intends to complete it by early next year.

Lawyer Ravi Hira, who represented one of three RCMP officers involved in the appeal, said in an interview that his advice to his client will be to wait for Mr. Braidwood's report before deciding whether to seek leave to appeal to the Supreme Court of Canada. He has not had a chance to receive instructions from his client but his view is that the RCMP should see what Mr. Braidwood says, he said.

"The court has instructed the commissioner not to transgress into matters of criminal law or RCMP management," Mr. Hira said. "All we ask for is that the boundaries are clear and people act within the boundaries."

Mr. Dziekanski died on Oct. 14, 2007, shortly after he was repeatedly tasered at Vancouver airport. He had just arrived from Poland and spoke no English. He became increasingly agitated and confused after several hours at the airport.

Mr. Braidwood, who was appointed to inquire into the man's death, heard evidence from 87 witnesses earlier this year, including from four officers - Constable William Bentley, Constable Kwesi Millington, Constable Gerry Rundel and Corporal Benjamin Robinson - who responded to a call from the airport.

Mr. Braidwood notified the RCMP officers in April that he may make findings against them that could amount to misconduct based on the allegations. The RCMP challenged his authority to consider the allegations. After the B.C. Supreme Court dismissed those claims, Constables Bentley, Rundel and Millington asked the appeal court to overturn the decision.

Madam Justice Mary Saunders, who wrote the 19-page ruling on behalf of the panel, said that Mr. Braidwood was entitled to comment, if comment was warranted, on the response of public officials to events.

"The Public Inquiry Act under which the Commission is established expressly permits a commissioner to report on misconduct," she stated "The larger view of the administration of justice permits a provincially appointed commission to reflect on matters that bear upon public confidence in the administration of justice, of which the response of the police officers in this situation is a significant consideration."

The commission's terms of reference involve more than an inquiry into the validity of actions taken by four officers, she added. Although the officers' actions are a critical component to understanding the events, "the inquiry is neither a discipline investigation nor an inquiry into RCMP policies or training," she said.

The allegations include failing to properly assess and respond to the circumstances faced in relation to Mr. Dziekanski, tasering Mr. Dziekanski initially in circumstances that did not justify it, and tasering him again without reassessing the situation and in circumstances that were also not justified.

The officers also allegedly misrepresented facts in notes and statements, including in evidence given before the commission, and provided misleading information of witnesses' notes and statements in evidence before the commission. They allegedly misrepresented Mr. Dziekanski's behaviours and the manner in which events unfolded at the airport in order to justify their actions, Judge Saunders recounted in her ruling.

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