Mounties ask B.C. court to bar Taser inquiry from finding misconduct

The four RCMP officers involved in stunning Robert Dziekanski with a Taser at Vancouver's airport are asking a B.C. court to bar a public inquiry into his death from making findings of misconduct against them.

The inquiry's commissioner has warned the four officers that he will consider some of the allegations levelled against them during the inquiry, specifically that they acted improperly and then tried to cover up their actions.

The inquiry, which began in January and wrapped up testimony last month, heard from more than 80 witnesses about what happened when Dziekanski was stunned with a Taser on Oct. 14, 2007.

The officers testified they stunned him several times because the Polish immigrant, who minutes earlier had been throwing furniture, was aggressive and threatening them with a stapler.

'They don't want to be held responsible and clearly they feel that the pressure is on, so these are all last-ditch efforts.' — Walter Kosteckyj, lawyer for Robert Dziekanski's mother

The officers' lawyers want the B.C. Supreme Court to prevent the inquiry from finding misconduct, arguing, among other things, that a provincial inquiry doesn't have the power to make findings against federal police officers and that such findings are outside the inquiry's original terms of reference.

"Disappointing," David Butcher, one of the officers' lawyers, said outside court Monday when asked to respond to the notice.

"We're bringing a constitutional question as to whether a provincial inquiry has authority to make findings of misconduct against RCMP officers, which are federal."

A hearing has been set for Friday.

Crown prosecutors decided last year not to charge the officers, but their actions have been under intense scrutiny at the inquiry.

Potential allegations

Inquiry commissioner Thomas Braidwood has sent notices to Const. Kwesi Millington, Const. Bill Bentley, Const. Gerry Rundel and Cpl. Monty Robinson, which outline some of the broad allegations made against  them during the inquiry by several lawyers.

The notice that was sent to Rundel on April 30 is contained in public court documents and the potential allegations against him include:

• When he arrived at Vancouver's airport, he failed to properly assess the situation and failed to react appropriately in confronting Dziekanski.
• The notes in his police notebook and the statements he gave to homicide investigators misrepresented Dziekanski's behaviour and what happened in an effort to justify the officers' actions.
• Rundel continued to misrepresent what happened when he testified at the inquiry.
• During his testimony, he offered "a self-serving and misleading" interpretation of his notes and statements.

Similar allegations are included in the notices to the other officers.

Reg Harris, who represents Robinson, the supervising officer on duty that night, said the notice sent to his client includes additional allegations, although he wouldn't elaborate.

In their testimony before the inquiry, each officer denied they acted improperly or tried to cover up what happened.

Walter Kosteckyj, who represents Dziekanski's mother, Zofia Cisowski, said the Mounties appear to be trying to avoid responsibility.

"These officers were under contract to the province of British Columbia, they were being paid by the people of the province of British Columbia," he said in an interview Monday.

"They don't want to be held responsible and clearly they feel that the pressure is on, so these are all last-ditch efforts."

Kosteckyj, who said he was only informed of the officers' petitions by reporters on Monday, said he'll be asking the court for a chance to intervene.

"I think that there's grounds to find misconduct here," he said. "I'll be looking to make submissions, as I expect others will."

The inquiry cannot make findings of criminal or civil wrongdoing, but findings of misconduct may add to growing public pressure for prosecutors to reconsider their decision not to charge the officers.

In announcing their decision last December, the Crown said the officers were acting lawfully and responded with reasonable force in the circumstances.

But there have been calls for prosecutors to take another look, including from Cisowski.

Specifically, critics point to inaccuracies between what's shown on an amateur video of the incident and what's contained in the officers' notes and statements.

B.C.'s former attorney general has said the Crown has the power to reconsider charges if they receive new evidence.

Findings of misconduct would also add to the public relations nightmare Dziekanski's death has become for the RCMP.