Mounties want Dziekanski Taser inquiry barred from finding misconduct

VANCOUVER — Four RCMP officers who Tasered and restrained Robert Dziekanski are asking a B.C. Supreme Court judge to stop Commissioner Tom Braidwood from making any findings of misconduct against them after an inquiry into the death.

The Braidwood public inquiry into Taser use, and the death of Polish immigrant Dziekanski in Vancouver airport, has heard from more than 80 witnesses, including the four RCMP officers, since January and will hear closing arguments starting June 19.

Now RCMP lawyers have turned to an outside court to launch a petition that could delay the commission schedule.

"We say he (Braidwood) doesn't have jurisdiction to make findings of misconduct because it's a provincial inquiry and these are federal officers," said David Butcher, the lawyer for Const. Bill Bentley, the first officer to face Dziekanski at the airport on Oct. 14, 2007.

"I will be taking the position my client acted in accordance with his training and the law on the night in question."

The 28-page petition will be argued in court on Friday and Butcher noted it would be "presumptuous" to speculate how long the Supreme Court could take to rule on the issue.

But Walter Kosteckyj, lawyer for Dziekanski's mother Zofia Cisowski, said the RCMP lawyer's "last-ditch effort" will be "an additional burden to my client, and only add more uncertainty and delay."

"The RCMP is well-funded, unlike my client . . . and the officers knew from the beginning the inquiry had the power to find wrongdoing and the commissioner has been clear about that from the outset," said Kosteckyj.

Kosteckyj noted "these officers are paid by B.C. taxpayers and they came to this commission saying they welcomed the inquiry and that the evidence would clear them. Now at the last minute they're arguing lack of jurisdiction."

Kosteckyj said he was informed of the petition only by reporters but will seek intervener status on Friday.

Dziekanski was Tasered within seconds of the officers' arrival and crashed to the floor, where he was Tasered four more times by Const. Kwesi Millington. By the time paramedics arrived, Dziekanski was lifeless and blue.

All four officers changed their evidence at the inquiry in the face of video by bystander Paul Pritchard, which showed Dziekanski glad to see police and calm until police gave him conflicting commands.

On April 30, commission counsel Art Vertlieb wrote to Ravi Hira, lawyer for Const. Kwesi Millington, that it was possible under the Public Inquiry Act and commission rules "to make a finding of misconduct against a person."

Vertlieb's "notice of misconduct" said that Millington "failed to respond appropriately" to Dziekanski and fired the Taser when he "could not have honestly perceived that Mr. Dziekanski's behaviours constituted a threat to the safety of yourself and others."

Vertlieb's letter is part of the public documents RCMP lawyers filed in court.

Warning notices of possible misconduct findings were sent to all four RCMP officers.

But Vertlieb made it clear to the RCMP that "no determination has been made whatsoever" as to misconduct by the officers and that the notice was a legal warning intended to give the lawyers time to address specific points.

Hira noted that the RCMP officers "appeared under subpoena and were happy to co-operate (with Braidwood) but in this matter, he's acting outside his jurisdiction. I'm concerned about my client's rights."

All four officers were cleared in late 2008 of any criminal charges by B.C.'s Criminal Justice Branch, but the RCMP's behaviour leading up to Dziekanski's death has provoked intense public scrutiny and criticism.