Human Rights/Criminal/Labour Law: The Perjury Prosecutions of Mounties in the Dziekanski Case

For some background on the case, please reference the following CBC News article:  http://www.cbc.ca/news/canada/british-columbia/robert-dziekanski-questioning-the-public-interest-in-prosecuting-mounties-for-perjury-1.2813288.

This is a tough case.  For those who have not reviewed the above link, or are otherwise unfamiliar with the case, there remain ongoing perjury prosecutions against Mounties involved in the TASER-induced death of a suspect, Robert Dziekanski, back in 2007.  The case represents an interesting, albeit not so rare, cross-section between Criminal Law, Human Rights Law and Labour Law.  Interestingly, I was involved — as lawyer — in two, similar matters.  In both cases, I was representing the police officers.  There was always an interesting di/trichotomy between my trio of roles as both Human Rights Lawyer and Labour Lawyer, especially as it pertained to representation of police officers involved in either administrative disciplinary and/or defence of criminal charges.

The troubling aspects of the case commence with the events leading up to Dziekanski’s death.  The use of TASERs, especially in what appears such brash and unbridled fashion, would appear to constitute an extreme, disproportionate use of force.  Surprisingly, the Crown refused to pursue charges of manslaughter against these officers.  The use of TASERs, the subject of so much publicity in both the U.S. and Canada, has shed light on both the dangers of the device, and its dangerous — at times, arbitrary — use against citizens.

Notwithstanding, it appears that the Crown instead decided to pursue perjury charges against the four RCMP troopers.  This is bizarre:  as Crown documents apparently support, there is no real chance to secure convictions on perjury due to the very nature of the offense.  Boiled down, per the Criminal Code, at secs. 131, 132, the charge requires that the defendant(s) knowingly and intentionally make a false statement of fact.  Further, I would inject that any such misstatement should be a material one — a misstatement that was essential to the underlying facts of the death of Mr. Dziekanski.  Already, the Crown failed on one of its prosecutions.

Now, that being said, even though I believe that the Crown will have difficulty securing convictions from any of these RCMP troopers, I do believe that there is a reasonable basis for proceeding with the prosecutions, based upon the events surrounding the case, and the public purpose to ensuring that these troopers are prosecuted in some regard.  Why?  The disproportionate use of force appears evident from the video footage.  Indeed, there is likely additional video footage; unfortunately, that footage — per at least one news report — was seized by law enforcement, and then lost.

So, the result is a man killed by — from the footage — the unlawful use of force by law enforcement; the failure of the Crown to prosecute on one front; and the failure of the Crown to be able to successfully prosecute on a lesser fronts.  I have defended police officers on use of force that falls squarely within the defined matrix; I do not see where — based upon the video footage — how, in this particular case, there was not more done to address the failure of law enforcement to conform to acceptable uses of force to apprehend a troubled individual who did not seem to present any real danger to the public at the time of his assault by RCMP.

On the more mild labour front, it would be interesting to discover what administrative charges were leveled against the four, and the status of their positions within law enforcement.  At present, I only know that one of the troopers has resigned his position with the agency.