Inquiry can fault officers: appeals court

The judge conducting a provincial inquiry into the death of Robert Dziekanski can find misconduct against the RCMP officers involved, the B.C. Court of Appeal ruled Tuesday.

VANCOUVER — The judge conducting a provincial inquiry into the death of Robert Dziekanski can find misconduct against the RCMP officers involved, the B.C. Court of Appeal ruled Tuesday.

The Appeal Court upheld a lower court decision rejecting the RCMP’s argument that Thomas Braidwood had no jurisdiction to make the findings because his provincial inquiry doesn’t have authority over the federal force.

Braidwood warned early this year that he wanted to consider whether to allege misconduct against the four officers involved when he writes his final report.

The RCMP took the issue to court, but the B.C. Supreme Court judge dismissed their claims. Three of the officers appealed that decision.

In her reasons, Justice Mary Saunders said findings by the inquiry that might include misconduct don’t equate to a criminal investigation, as lawyers for the officers suggested it would.

She also said the inquiry didn’t tread into the management or administration of the RCMP.

, noting she trusted Braidwood to stay within his boundaries.

“It seems to me (Braidwood) is entitled to comment, if comment be warranted, on the response of public officials to the events and to his process, thereby to advance the public interest of confidence in the administration of justice,” she wrote in her decisions, which were agreed upon unanimously.

“The Commissioner has demonstated an appreciation of the limit upon his constitutional authority arising from the character of the officers as members of the RCMP,” she wrote.

“I would not anticipate he will stray over that line of demarcation and I see no basis upon which to interfere.”

Lawyers for the officers could not immediately be reached for comment, but David Butcher, the lawyer for one of them, has said in the past that their argument raises “legitimate and difficult constitutional issues.”

Butcher, who represents Const. Bill Bentley, added these kinds of issues often end up being heard by the Supreme Court of Canada.

Dziekanski died after he was zapped multiple times with an RCMP Taser at the Vancouver airport in 2007.

The Polish immigrant had been acting erratically, throwing furniture and brandishing a stapler, after being stranded at the airport for hours.

Braidwood’s inquiry heard from more than 80 witnesses, including the four officers, starting last January.

Among the allegations levelled at the inquiry were that the officers used the Taser when they shouldn’t have and that they lied about what happened to cover up their actions.

The officers argued in court that those allegations amount to criminal offences that are best left to the courts.

Last December, Crown prosecutors in British Columbia decided against charging the officers, saying they used reasonable force on Dziekanski, given his behaviour.

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.

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