Richard Peck cleared prosecutors by recommending perjury charges against Mounties in Dziekanski death

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      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.

      Ӣ 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.

      Comments

      13 Comments

      David R.

      May 7, 2011 at 5:06pm

      It wasn't so long ago that a shop-keeper was arrested for dealing with a shop-lifter by making a citizen's arrest. He had to defend himself in court. These officers commited a far worse infraction than the shop-keeper and aren't charged at all; it fact it appears as if there's been an attempt at a complete whitewash of the whole thing.
      One of the officers, Cpl. Ben Robinson is to stand trial for being involved in a crash that killed a 21yr old in 2008.

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      Greg Klein

      May 7, 2011 at 5:13pm

      This article is the type of thing that’s sorely missing from our mainstream media. The Sun’s Ian Mulgrew did criticize Peck’s delay two days before the story broke, quite possibly prompting Friday’s leak and the AG’s 5 p.m. press release. Mulgrew also noted that Peck had defended the Criminal Justice Branch at the Frank Paul inquiry while he was also retained to review the Dziekanski case. (However Mulgrew didn’t mention the above-noted fact that Peck has represented the Office of the Police Complaint Commissioner.) But I haven’t seen such a thorough review and analysis, or such tough questions, about police accountability issues outside the Straight.

      The B.C. government is supposedly about to implement Thomas Braidwood’s recommendations for an Independent Investigation Office, which would conduct civilian investigations into allegations of serious police misconduct. The government has already announced the possibility of putting the IIO under the police complaint commissioner’s jursidiction, instead of the Ombudsperson’s jurisdiction as Braidwood recommended. That’s one of a number of reasons why I think the goverment will thwart Braidwood’s intentions.

      Meanwhile the mainstream media ignore the issue, except for a few compliant reporters at the Times Colonist and Vancouver Courier, who’ve written stories from the OPCC point of view.

      http://www.bcpolicecomplaints.org/bc_ontario6.html

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      Phaedrus

      May 7, 2011 at 5:40pm

      "To lie, stonewall and cover-up".

      The official motto of the RCMP.

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      Ken Lawson

      May 7, 2011 at 5:57pm

      I watched Penner on Voice of BC there is absolutely no reason why those in Criminal Justice Branch cannot be fired this is the second bungling on their part. Penner clean house these people are not worth the pay and half do not know what their doing, pure and simple incompetance whatelse can you say of them

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      r.anderson

      May 7, 2011 at 11:34pm

      there is one justice for us folks and always a different one for rcmp,they get away with murder........

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      dave jones

      May 7, 2011 at 11:39pm

      I'm not surprised. Police get off on assault charges if there's even the slightest reason for them to believe force was justified. In this case I think they had been told Dziekanski had been throwing things around before they arrived at the scene. As for something like manslaughter I don't think there's any reason to even suspect the officers meant to harm Dziekanski or could have known their actions would kill him. It's a shame nothing will be done about the subsequent investigation into his death. Surely prosecutors and other police officers must have seen that the four RCMP members' account of what happened did not correspond with what was on the video. If they didn't see the discrepancies it would be good to know why not.

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      Coach Dobbs

      May 8, 2011 at 11:00am

      This matter just gets worse. Firstly there is no argument that this was a case of a cruel, unwarranted and unprovoked attack on a confused, helpless man.ie: shoot first, think later. If it had been security personnel instead of police they would have long since been fired and criminally charged, no question.
      It exposes the reluctance of prosecutors to charge police because of the relationship they have and the obvious efforts to protect police at all costs.
      Equally disgusting however, is the fact that the RCMP don't even have the guts to deal properly with these guys and fire them, even after they displayed total incompetancy in being unable to recall the basics of training. Instead, they have since been promoted.
      So remember that whenever you call the RCMP there is a pretty good chance that the member who arrives to assist has probably come from the same incompetant gene pool.

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      TheMan

      May 8, 2011 at 12:22pm

      In other words, one group of lawyers is sticking up for another group of lawyers, and everything is being blamed on a few cops, not the whole system. Got it.

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      John Harvey

      May 8, 2011 at 6:52pm

      Gregg Klein as usual is spot on.again. Somehow Gregg my true evidence comments have not News and Views commentary been shown here.

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      David Wilson

      May 8, 2011 at 7:39pm

      it's ok to kill and innocent man in public, but it's not ok to lie about it? doh!?

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