Mike on Crime

By James Keller
THE CANADIAN PRESS
VANCOUVER — The RCMP officers who stunned Robert Dziekanski at Vancouver’s airport are continuing their legal battle to block a public inquiry from finding them at fault in his death.
One of the Mounties has filed an appeal of a lower court decision that dismissed their application and the three other officers are expected to follow suit.
The officers challenged inquiry Commissioner Thomas Braidwood’s authority to make any findings of misconduct against the federal police officers — something the commissioner has warned he’ll consider when he writes his final report into what happened.
At a lengthy B.C. Supreme Court hearing in June, the officers argued that a provincial inquiry has no jurisdiction over a federal police force.
The judge dismissed the application, and now the officers are taking their case to the B.C. Court of Appeal.
“The appeal raises very legitimate and difficult constitutional issues,” David Butcher, who represents Const. Bill Bentley, said in an interview Tuesday.
“Almost every one of these public inquiries raises issues of some kind that are taken at least to the Court of Appeal and often to the Supreme Court of Canada.”
The officers also argued the allegations levelled at the inquiry — that they used the Taser when they shouldn’t have and that they lied about what happened to cover up their actions — amount to criminal offences that are best left to the courts.
Braidwood’s notice to the officers doesn’t necessarily mean his report will substantiate the allegations, but he is required to tell them well in advance if he wants the option left open.
Last December, Crown prosecutors in British Columbia decided against charging the officers, saying they used reasonable force on Dziekanski, who had been throwing furniture around the airport arrivals area before they arrived, and then picked up a stapler as the officers approached.
And while the inquiry’s final report carries no legal consequences, findings that the officers acted improperly could increase pressure on the Crown to reconsider charges and would likely intensify criticism of the RCMP.
The lawyer for the officer who fired the Taser, Const. Kwesi Millington, filed his appeal on Monday, and Butcher said he was in the process of doing so on behalf of Bentley.
Lawyers for Const. Gerry Rundel and Cpl. Benjamin (Monty) Robinson couldn’t be reached for comment. Butcher said that while he can’t speak for them, he assumes they will be filing their own appeal notices.
The officers will ask the Appeal Court to prevent Braidwood from making any findings of misconduct against them, or, failing that, to force the commissioner to provide specific details of the allegations being considered.
The federal government will receive notice that a constitutional issue will be raised during the appeal, and has the option to intervene in the case.
Neither the RCMP nor the Justice Department took part in the Supreme Court challenge and didn’t take a legal position.
The RCMP referred calls for comment to the federal Justice Department. A spokeswoman for the department declined to comment on the appeal.
The inquiry was expected to finish with closing submissions last week, but the surprise disclosure of an internal RCMP email that appeared to contradict some of the officers’ testimony put the hearings on hold until September.
Butcher said it’s not clear when the appeal will be heard. He said he doesn’t believe the officers will ask for an injunction to further delay the inquiry, which they had asked for in their initial lawsuit.
“I doubt very much it could be heard before September, but I think it could quite probably be heard before the report is ready,” he said.
The inquiry heard from more than 80 witnesses, including the four officers, between January and May. It was the second of two provincial inquiries announced in the wake of Dziekanski’s death.
A report from the first — a study commission held last year that broadly examined Taser use in B.C. — has been handed over to the provincial government and could be public within weeks.