VANCOUVER, B.C. - 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 notice doesn't necessarily mean Thomas Braidwood will make such findings, but he is required to give notice if he wants the option left open and he's done that.
The inquiry, which began in January and wrapped up testimony last month, has heard from more than 80 witnesses about what happened when Dziekanski was stunned with an RCMP Taser at Vancouver's airport on Oct. 14, 2007.
The officers testified they stunned Dziekanski several times because the Polish immigrant, who minutes earlier had been throwing furniture, was aggressive and threatening them with a stapler.
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.
The notices from the commissioner outline some of the broad allegations against Const. Kwesi Millington, Const. Bill Bentley, Const. Gerry Rundel and Cpl. Monty Robinson - allegations that were made during the inquiry by several lawyers.
The notice sent to Rundel 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 given 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.
Those allegations were put to the officers during their testimony, particularly by the lawyers for Dziekanski's mother and the government of Poland, and each officer denied they acted improperly or tried to cover up what happened.
The inquiry cannot made 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 that 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 Dziekanski's mother, Zofia 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. The officers initially said Dziekanski was violent and yelling before he was stunned, but the video appears to contradict that version of events.
Outgoing Attorney General Wally Oppal 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.
According to a Harris-Decima poll done in March for The Canadian Press, the case has damaged public confidence in the national police force, which has offered apologies while still standing behind the actions of the officers and the use of Tasers.
It's not clear how the officers' applications - and any subsequent appeals - could affect the timing of the inquiry and its final report.
Currently, closing submissions are scheduled to begin later this month and a report could be ready by the fall.
Meanwhile, a report from the first phase of the inquiry held last year examining Taser use in general is expected to be handed over to the provincial government by the end of the month.