Mounties' bid to block criticism 'an affront' to Dziekanski
By Ian Mulgrew, Vancouver SunJune 13, 2009
Four Mounties claim public inquiry commissioner Tom Braidwood has overstepped his authority and urged the B.C. Supreme Court to prevent him from releasing a report critical of their conduct in the Taser-related death of Robert Dziekanski.
In a lengthy and complex hearing Friday, lawyers for the officers told Justice Arne Silverman the provincially ordered commission has no legal authority to cast aspersions and has exceeded its mandate.
"This is difficult and heady stuff," said Ravi Hira, who represents Const. Kwesi Millington, the officer who jolted Dziekanski five times with the conducted energy weapon on Oct. 14, 2007.
But he said recent letters from Braidwood warning the officers about potential findings of misconduct make it clear the inquiry has widely diverged from its original purpose.
David Butcher, lawyer for Const. Bill Bentley, said Braidwood can make factual findings and describe events, but not make judgmental comments or characterizations that imply criminal conduct or civil liability.
"There is a federal mechanism for the process that this commissioner wants to undertake in a provincial inquiry," Butcher said.
Hira said the warning notices should be quashed and Braidwood prohibited from drawing conclusions that amount to criminal charges of assault with a weapon, obstruction of justice and perjury against the officers.
Suggestions that the officers fabricated evidence, colluded with each other, lied under oath and misled investigators were unsupportable, he maintained.
Regardless, Hira was adamant that the four had a right to know the particulars of the allegations against them and to respond.
Three other Mounties -- two media relations officers involved in the incident and the head of the investigation into Dziekanski's death -- are also obviously worried about Braidwood's findings.
They have asked for standing to allow lawyers to make submissions before Braidwood writes his final report.
It is believed they, too, received warning notices from the inquiry, although Braidwood's counsel said such correspondence was confidential and could not be confirmed or denied.
Perhaps more important at the Supreme Court hearing, though, was the absence of the federal government.
Although Ottawa and the Mounties promised to cooperate with the inquiry into the death of the 40-year-old Polish immigrant at Vancouver Airport, neither has sent lawyers to oppose the officers' 11th-hour attempt to derail it.
Until now, federal ministers have refused comment, claiming they couldn't talk about the Dziekanski tragedy because of Braidwood's investigation.
That may have been a good political response to sidestep the controversy, but it was legally bogus, according to the argument made by the four Mounties.
Their lawyers say Ottawa's deference to the provincial inquiry is at odds with the constitution and common law.
"We don't know why Canada isn't taking a position [in court], but that doesn't detract from our position or detract from our right and ability to make the argument," Hira said.
Lawyers for the commission, the B.C. attorney-general, the B.C. Civil Liberties Association and Dziekanski's grieving mother all defended Braidwood's right to make findings of misconduct.
Craig Jones, acting for the province, said Ottawa wasn't present at the hearing because it did not contest Victoria's jurisdiction, and the RCMP has also officially recognized the inquiry's authority.
He said the Public Inquiry Act specifically allows a commissioner to make findings of misconduct. There are restrictions on provincial jurisdiction -- to prevent infringement on federal interests or the rights of an accused -- but they don't apply here, he added.
Jones insisted there was a difference between a provincial inquiry that makes findings of criminal responsibility as a peripheral facet of its work and a commission constituted with criminal conduct as its key focus.
Walter Kosteckyj, appearing for Dziekanski's mother, Zofia Cisowski, said this last-ditch effort by the Mounties to avoid blame was an affront to his client and the public. "This is not a hidden agenda, [the issue of misconduct by the officers] was right up front," he said.
Kosteckyj said that delaying the inquiry or preventing Braidwood from drawing his own conclusions "would be intolerable in the circumstances."
Justice Silverman extended the court's sitting time into the night to finish hearing submissions. He said he would issue a decision Monday so as not to interfere with the commission's schedule.
A former Court of Appeal justice, Braidwood had hoped to hear final submissions beginning June 19 and to start writing his report by the end of the month.
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