Was Dziekanski Tasering misconduct? Braidwood won't say

VANCOUVER — It was the first question put to Thomas Braidwood at his news conference on Friday, and the most significant. The nut of it lay in the preamble, rather than in the query itself. Judge Braidwood had just released his meticulously constructed and damning 460-page analysis of events leading to the death of Polish immigrant Robert Dziekanski.

“You found misconduct,” declared Global television reporter John Daly, before getting to the gist of his question, which I’ll confess I didn’t quite catch. I had stopped listening and was looking for Judge Braidwood’s reaction instead.

Seconds earlier, Judge Braidwood stopped half an inch short of calling the four RCMP members involved in the 2007 Vancouver airport tragedy incompetents, liars and thugs. But he hadn’t alleged “misconduct” on their part. And nowhere does the word “misconduct” appear in his report.

Yet the retired judge didn’t correct Mr. Daly. Why not?

Last year, his commission of inquiry counsel fought the four RCMP officers all the way to the B.C. Appeal Court to protect his authority to determine misconduct. A finding of misconduct would surely influence any future prosecution, should one ever come. But Judge Braidwood didn’t go that far.

Why is that, another reporter pressed.

“I think I was blunt enough, full enough, and hopefully accurate enough that those reading it can draw their own conclusions,” Judge Braidwood replied.

This is an eminent jurist who doesn’t make mistakes. Judge Braidwood chooses his words carefully, deliberately. In those exchanges Friday, he seemed to be playing a bit coy. He allowed to pass suggestions that there was misconduct, without making them himself. I think he had realized at some point, preparing his report, that he didn’t need to. The report would be strong enough. After his press conference Friday, B.C. Attorney-General Mike de Jong announced the appointment of a special prosecutor to consider charges against the four officers. The special prosecutor will start with the full Braidwood report, and go from there.

The special prosecutor will read how the RCMP constable who zapped Mr. Dziekanski five times with his Taser “deliberately misrepresented” the incident in his police report. To the same passage — indeed, the same sentence — Judge Braidwood added the words “overstated,” “prejudicial, and “self-serving.” That’s some pretty strong stuff.

There’s his description of the senior officer’s “refusal” to remove handcuffs from Mr. Dziekanski as the 40-year-old lay dying on the airport floor, post-Tasering, post-police dog pile. This refusal was “unjustified,” wrote Judge Braidwood.

There’s much more. The negatives pile up. “Unprofessional,” wrote Judge Braidwood. “Factually inaccurate.” “Shameful conduct by a few officers.”

The judge also made it clear Friday that the public should not focus only on missteps made by the four officers. While he did not have the authority to ascribe blame or recommend charges, he was certainly able to make findings of fact and point fingers wherever warranted.

He came down hard on the Canada Border Services Agency, in particular on one of its Vancouver airport officers. Robert Dziekanski’s death could have been avoided had the CBSA worked differently than it did on that night in October 2007.

Mr. Dziekanski arrived at YVR from Poland “fatigued, confusedand stressed,” writes Judge Braidwood. “He was disheveled and sweating profusely around the face. I do not find any of this remarkable, given his fear of flying, the long trip, and his inability to speak English.”

After clearing customs and immigration, Mr. Dziekanski wandered inside the airport’s international arrivals area for hours.

“One would think that the Canada Border Services Agency would want, for its own security purposes, to maintain tighter control than this on the movements of arriving passengers,” Judge Braidwood writes in his report. “The fact that Mr. Dziekanski went unnoticed for more than five hours points to inadequate services to ensure that passengers move through the customs and immigration processes in an orderly and prompt manner.”

Judge Dziekanski’s mother, Sofia Cisowski, waited with a friend in the airport’s public meet and greet area. Her son had arrived from Poland and was still inside the customs zone, she was sure. They managed to speak via telephone to a CBSA officer inside, Tina Zadravec; she told them she could not find a man matching Mr. Dziekanski’s description. She’d looked. She refused their offer to take down Mr. Dziekanski’s name and run it through a flight manifest. But this would have confirmed that Mr. Dziekanski had indeed landed.

As Judge Braidwood concluded, “it was ill-considered and cavalier for her, not having taken those steps, to advise [Ms. Cisowski’s friend] that in all certainty Mr. Dziekanski was not there and that they might as well go home.”

They went home. “Had they been told to wait outside, [Mr. Dziekanski] would be alive today,” Judge Braidwood said Friday.

Ms. Zadravec, the CBSA officer, would later spot Mr. Dziekanski seated in a chair. She told police weeks later that she thought he might have been drunk. Other witnesses said the same. But Mr. Dziekanski wasn’t drunk. He did become agitated. He would soon be dead.

Judge Braidwood made eight recommendations in all. Most, if not all, likely will be implemented. And while his work is over, this RCMP business isn’t. Judge Braidwood could have gone further, but the door’s been left open a crack.

National Post

bhutchinson@nationalpost.com