Top court upholds damages for charter breaches

July 23, 2010
CBC News

The Supreme Court of Canada has upheld $5,000 in damages against British Columbia for breaching the charter rights of a Vancouver lawyer strip-searched by police who wrongly thought he was going to throw a pie at Jean Chrétien.

However, in the unanimous landmark ruling Friday, the top court set aside damages of $100 against the City of Vancouver stemming from the seizure of lawyer Alan Cameron Ward's car.

The ruling means that people whose rights have been infringed can seek damages even if they suffered no actual loss and even if the authorities acted in good faith.

Ward was arrested in August 2002, when Vancouver officers thought he was going to throw a pie at Chrétien, then prime minister.

Police placed Ward in handcuffs and escorted him to a police van. A cameraman from a local TV station filmed the arrest, and the footage was later broadcast on the evening news.

Ward was well known within the court system and had built a respected career representing people who have accused police of misconduct, often for free.

He spent several hours in jail and, despite his objections, was strip-searched. He sued both the province and the city.

In an interview with CBC News, Ward said Friday he was relieved that his "eight-year odyssey is finally over" and was pleased with the decision.

'Charter rights really have some meaning'

"It is an important decision that makes it clear that charter rights really have some meaning, and in certain cases when they're violated people can recover a meaningful remedy."

The decision may have application in a variety of contexts, Ward added.

"Recently we've all heard about the G20 arrests, and if people are able to prove that they were wrongly detained or arrested or in some cases perhaps even strip-searched, they may be able to recover monetary compensation, which would also act as a deterrence in certain cases. It may also have application, for example, to people who were wrongly convicted and have faced terms of imprisonment."

Ward recalled the day he was arrested as "very upsetting."

He said he had been willing to settle the whole matter with an acknowledgement by the authorities of a mistake and an apology. Instead the province and city "dug in their heels," Ward said. "They must have spent … hundreds of thousands of dollars in legal fees and legal time fighting this case over the last eight years."

Ward said he is grateful for the top court decision, and it is sufficient in lieu of an apology now.

Officers said they thought Ward was going to throw a pie at then prime minister Jean Chrétien, pictured above, in 2002. (Sean Kilpatrick/Canadian Press)
In the ruling, Chief Justice Beverley McLachlin wrote that the strip search violated Ward's charter rights, and compensation was required.

Strip searches 'degrading'

"Strip searches are inherently humiliating and degrading and the charter breach significantly impacted on [Ward's] person and rights. The correction officers’ conduct which caused the breach was also serious," McLachlin wrote.

"With respect to the seizure of the car … the object of compensation is not engaged as [Ward] did not suffer any injury as a result of the seizure."

In January 2007, B.C. Supreme Court judge ruled Ward's charter rights were infringed for wrongful imprisonment, the strip search and the unreasonable search of his vehicle.

The court ordered the province to pay him $5,000 for the strip search and Vancouver to pay for wrongful imprisonment and the unreasonable seizure of his vehicle.

The B.C. Court of Appeal refused to overturn the award, saying the strip search "amounted to a significant charter breach."

The city and the B.C. government appealed the damages to the Supreme Court of Canada.

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.

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.

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.

Ottawa spends more than half a million to defend RCMP, officers at Taser inquiry

October 18, 2009
James Keller (CP)

VANCOUVER, B.C. — The federal government spent more than half a million dollars defending the RCMP and the actions of the four officers who stunned Robert Dziekanski with a Taser at Vancouver's airport.

The force and each of the four officers had lawyers at the public inquiry into Dziekanski's death, which began in January and finished with closing submissions last week.

The Polish immigrant's fatal confrontation with police on Oct. 14, 2007, has been a source of intense criticism for the RCMP and the four officers and for police use of Tasers, fuelled in large part by an infamous amateur video of the incident.

The Justice Department had billed the RCMP more than $373,000 in legal fees to represent the force at the inquiry as of July 31, according to documents obtained under federal access to information laws.

Lawyers for the officers had together cost the RCMP about $200,000 by the end of August, according to the documents.

Those figures were tallied during a three-month summer break, which was ordered in June to investigate an internal RCMP email that raised questions about the officers' testimony. Since then, there have been several days of hearings in September and final submissions this month.

And lawyers for three of the officers are heading to the B.C. Court of Appeal in December to challenge the inquiry's authority to make findings of misconduct against them.

The RCMP and the four Mounties were named in a lawsuit filed by Dziekanski's mother earlier this month, although it's not clear who will pay the officers' legal fees in that case.

The officers' lawyers were hired just days before the inquiry was set to begin in January, and the inquiry has taken far longer than anticipated. Initially, the hearings were expected to be finished by the spring.

Ravi Hira, who represents Const. Kwesi Millington, the Mountie who fired the Taser, said it wasn't his place to comment on the RCMP's decision to pay the officers' legal fees.

"In terms of cost, you have seen the length of the inquiry, you know the amount of time that we're talking about here," said Hira.

The RCMP couldn't be reached for comment.

The force has always stood firmly behind the actions of the officers, and that position has been reflected at the inquiry.

In its written final submissions, handed over to the inquiry two weeks ago, the federal government maintains the officers used an "acceptable" level of force that was consistent with RCMP policies and training.

Walter Kosteckyj, who represents Dziekanski's mother at the inquiry and in her recently filed lawsuit, said regardless of his criticisms of the officers, it's important to ensure they've been adequately represented at the hearings.

"I would be a hypocrite to say they're not entitled to be properly defended," Kosteckyj said in a recent interview.

"And no one can say they didn't get the best legal help necessary, no one can come back and say these guys were railroaded or weren't treated fairly. That's important to the process."

The B.C. government ordered a two-phase public inquiry a month after Dziekanski died.

Commissioner Thomas Braidwood held the first part last year, broadly examining Taser use by law enforcement agencies in British Columbia. He released a report from that phase during the summer, concluding Tasers can kill but are a necessary tool for police.

The second phase, examining Dziekanski's death in detail, has now wrapped up and Braidwood's final report is expected to be made public next year.

By August, the provincial government had spent $3.99 million since the first phase began, said Leo Perra, executive director for the commission. That total could increase by another million by the time the commission's work is finished, he said.

Perra said most of that cost goes to salaries, including Braidwood - who is paid about $1,700 a day - the inquiry's own lawyers and support staff. That money also pays for facility costs.

"Commissions of inquiry aren't particularly provided with a budget, because nobody knows where they're going and exactly what's going to happen," said Perra.

Kosteckyj said it's been money well spent.

"Every once in a while we have to shine a light on the things that are bothering us and the things that don't seem right, and here, we put this under a microscope," he said.

"People have to know that in certain circumstances, when you're involved in things, there is going to be full scrutiny and this makes everybody better."

Officers appeal misconduct decision in Taser inquiry

June 20, 2009
The Canadian Press/CTV

VANCOUVER -- The RCMP officers involved in Robert Dziekanski's death are appealing a court decision that allows a public inquiry to make findings of misconduct against them.

The four Mounties challenged Commissioner Thomas Braidwood's authority to allege misconduct against officers on the federal police force -- something the commissioner has warned he'll consider when he writes his final report.

But a B.C. Supreme Court judge dismissed their claims, and now the officers are taking the case to the B.C. Court of Appeal.

A lawyer for the officer who fired the Taser, Const. Kwesi Millington, has already filed his appeal and the others are expected to follow.

David Butcher, who represents Const. Bill Bentley, says the case raises important constitutional questions about such a provincial inquiry's authority over federal police officers.

Prosecutors in B.C. decided last year not to charge the officers but Braidwood is considering a number of allegations made during the inquiry, including that they lied about what happened at the airport that day.

The inquiry is currently on hold until September as lawyers investigate an internal RCMP email that surfaced earlier this month that raised questions about the officers' testimony.