Pique'n yer interest 

No inquiry is a criminal court

The death of Robert Dziekanski remains one of the great unresolved tragedies of our time. It gave us indisputable, hypervisual proof that the national police force lied to us about shocking a newly-arrived immigrant to death, using weapons that hadn't been independently tested outside the experiments conducted by their manufacturer.

It should come as a triumph for justice, then, that the provincial Taser Inquiry looking into Dziekanski's death can find the Mounties guilty of misconduct, right?

Wrong - or at least I think so.

On Monday, the B.C. Supreme Court ruled that Judge Thomas Braidwood, who's overseeing the two-part inquiry into the Taser death, can rule that the RCMP officers involved in the incident were not justified in firing the volts that killed the Polish immigrant.

The ruling comes in spite of RCMP lawyers who feel the inquiry doesn't have jurisdiction to act as a de facto criminal court.

Appalled as I am by the incident, I have to agree with the lawyers - it's just not the job of an inquiry to administer justice.

Monday's ruling sets a dangerous precedent for commissions of inquiry. Future lawsuits to do with such bodies will look to this one if there are any issues related to jurisdiction. Our justice system, based as it is on common law, will allow future judges to look at this case and say emphatic "yeses" when deciding whether an inquiry can act as a court.

Now I'm not a lawyer. The closest I've come to passing the bar was when I walked by Tapley's on the way to the taxi loop last weekend. I'll get a plumbing certificate long before I obtain a J.D. But I know commissions of inquiry enough to say that the recent ruling is not a good thing for our justice system.

Part of my Master's thesis at UBC was an academic analysis of the efficacy of commissions of inquiry. I sought to answer the simple question of whether inquiries had any teeth anymore.

The question, it turns out, was flawed in itself. Inquiries don't have teeth and they're really not supposed to.

As stated in the federal Inquiries Act, the role of a commission is to perform an in-depth investigation into "any matter connected with the good government of Canada and the conduct of any part of the public business thereof." Its job is to make findings of fact and draw recommendations that it thereafter passes on to government.

Law scholars Robert Centa and Patrick Macklem see the focus of public inquiries as the re-jigging of government policy. They're there to examine existing policy and muster a lengthy breadth of research to review it.

Once completed, that research helps generate a report that can recommend changes to that policy that the government can then adopt or reject as it sees fit. The power of government to reject an inquiry's findings is a flaw in itself, as inquiries are expensive endeavours that can just as easily be heeded as swept under the rug. There's a hope that the research inquiries muster carry enough weight that they won't be ignored.

Canadian politicians, however, have turned the purposes of inquiries to their collective advantage and resorted to them as a last bastion of justice as well as playing fields to score political points at the expense of their adversaries. Policy isn't in their interests but political capital is, and inquiries are remarkably successful at keeping their subjects in the limelight.

Case in point: the Mulroney-Schreiber inquiry. Any party leaning left of the Conservatives didn't give two hoots about re-jigging government policy. The Liberals, NDP and Bloc Quebecois wanted a conservative placed on the stand and hoped the inquiry would find some criminal culpability in the almost two-year affair.

Mulroney has testified and as yet there's been no revelation of criminal wrongdoing - except perhaps on the part of Karlheinz Schreiber, who may have lied in the affidavit that got this inquiry moving to begin with.

Now people are singing the praises of the B.C. Supreme Court because it has enshrined in legal precedent the right of an inquiry to act as a criminal court. Braidwood now has the two-pronged duty of composing a report to the provincial government on the use of Tasers alongside his new duty of determining the guilt of the officers involved. He has all the power of a criminal court judge except sentencing.

In this one instance, I'll suck it up. The inquiry is likely the only place that these officers will ever see justice, as wrong as it is for them to have to face it there. Were it not for the weak oversight of the national police force, British Columbia wouldn't have to resort to a new order of justice to see it done.


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