There are several troubling aspects to Vancouver lawyer Richard Peck’s review of how prosecutors dealt with the RCMP’s airport stun-gunning of Polish immigrant Robert Dziekanski.
Peck recommended that the four cops be charged with perjury in connection with their testimony at retired justice Thomas Braidwood’s inquiry into Dziekanski’s 2007 death.
Braidwood’s report concluded that Cpl. Benjamin Monty Robinson and constables Kwesi Millington, Gerry Brian Rundel, and Bill Bentley made “deliberate misrepresentations”.
That was an easy call for Peck, a veteran criminal lawyer who is periodically called on by governments to evaluate legal issues.
Peck also concluded that there was “no substantial likelihood of conviction” against any of the officers in connection with the physical altercation with Dziekanski, which preceded his death.
Here are some things that bother me about this review:
”¢ It was released to the media shortly before 5 p.m. on a Friday afternoon, which appears like a deliberate attempt by the Ministry of Attorney General to minimize public awareness. It’s an old trick by communications staff to bury stuff they don’t want people to know about. This approach ensures that the topic is more likely to be considered old news, and hence, ignored on talk shows during the following week.
”¢ Peck was assigned to this task on June 18, 2010. I wonder if it was necessary to take this long for the Ministry of Attorney General to release the results.
”¢ The criminal justice branch issued a clear statement (actually, a questionable statement) about the Dziekanski case on December 12, 2008—and the spokesperson for the branch at the time was future police complaint commissioner Stan Lowe. This is what the public was told at the time: “There is a substantial body of independent evidence which supports that the Officers in question were lawfully engaged in their duties when they encountered Mr. Dziekanski, and the force they used to subdue and restrain him was reasonable and necessary in all circumstances. In light of this independent evidence, there is not a substantial likelihood of conviction in this case for any of the offences considered, in fact, the available evidence falls markedly short of this standard.”
”¢ It’s unknown if Lowe, as a member of the Crown counsel office, participated in the decision not to charge the RCMP officers, but he certainly defended this action. In the past, Peck has represented the Office of the Police Complaint Commissioner as outside counsel. Lowe is now in a position where he can retain Peck to perform work for the office in the future. I’m not saying that this influenced Peck’s decision not to recommend charging the RCMP officers for their role in the altercation with Dziekanski at the airport. However, if he had recommended charges in this area, it would have contradicted the decision of the branch, of which Lowe was then a part. Lowe might have even been the decision maker. In the legal arena, there is a common aphorism—enunciated by Lord Denning in a landmark 1924 case R. v. Sussex Justices, Ex Parte McCarthy—“Not only must justice be done, it must be seen to be done.” It’s a stretch to say that Peck did not want to get on Lowe’s bad side, but this perception may exist in the eyes of some critics of the RCMP and the criminal justice branch.
”¢ The criminal justice branch refused to publicly release a more detailed “clear statement” explaining why the officers were not charged in connection with the altercation. This is unusual, because ordinarily these statements are released when the recommendation comes forth from outside counsel. In this instance, the branch has justified this decision by saying that the document had to be withheld to “protect the integrity” of the perjury prosecutions. This is hard to fathom because the details regarding the altercation were separate from the statements made at the Braidwood inquiry. In addition, any defence lawyer could apply to a judge to have this “clear statement” deemed inadmissible in any criminal proceeding.
Peck’s review basically upheld the criminal justice branch’s earlier decision about the RCMP’s conduct at the airport. This earlier decision concluded that the available evidence (notwithstanding the videotape) fell “markedly short” of the standard for obtaining a conviction. Then Peck recommended perjury charges in the wake of Braidwood’s review, which is what generated the most news going into the weekend.
All in all, it was a good day for the Ministry of Attorney General.
Follow Charlie Smith on Twitter at twitter.com/csmithstraight.