If the past thirteen years examining the death of Robert Dziekanski have taught me anything, it’s that justice – however you define it – is neither swift, nor certain. This is often a revelation for people who find themselves either newly entangled with the law or simply read about a case that has gone unresolved for years. The timeline of the pursuit of justice in the wake of Dziekanski’s death is troubling proof.
It took two and half years for a public inquiry lead by the late Thomas Braidwood to form conclusions about what went wrong the night Dziekanski died. But rather than put a period to the tragic event in a sober and somber record of facts, a good deal of Braidwood’s report read like a charge assessment to Crown counsel. So, it was hardly a surprise when a special prosecutor – after another year of pondering - laid the only charges that might stick. Each of the four officers involved was accused of perjury. Not for anything they said or told investigators. But for their explanations at the inquiry about why there were discrepancies between their memories more than a year earlier, and the video of what happened.
You can read all about how and why that happened, and the tactics and strategies employed by lawyers on both sides in Blamed and Broken. Here’s the short version: it took a full decade after Dziekanski’s death for the justice system to reach the mind-bending result that two of the four officers were convicted of being in a conspiracy that - by the prosecutor’s own description - required all four as participants. Yet two were acquitted for lack of evidence. There’s a temptation to shrug and reduce this outcome to the way Supreme Court Justice Michael Moldaver did when Kwesi Millington and Monty Robinson appealed their convictions to the high court. “To suggest somehow (Millington's) judge erred”, Moldaver lectured Kwesi Millington’s lawyer, “because a couple of others took a different view assumes there’s only one reasonable answer in a particular case.” Missing from Moldaver’s analysis is any mention that in the convictions of Monty Robinson and Kwesi Millington, the judges in those cases wrote decisions that labelled ALL FOUR as guilty of a conspiracy to mislead. Put simply, the two judges who convicted Millington and Robinson also assigned criminal guilt to Gerry Rundel and Bill Bentley after they’d been acquitted. Neither Rundel nor Bentley were given an opportunity to stand in court and reply to the judges’ opinion. So, effectively a trial in absentia was given the blessing of a Supreme Court justice, and findings of guilt or innocence can be the product of how a judge “feels” about the evidence. Let's be clear. We’re not talking about a traffic ticket. Perjury is a serious crime punishable by up to 14 years in prison. And in their written decisions, the two BC Supreme Court judges assert that two men acquitted of the crime are still guilty. When all this became clear to me, I stopped referring to it as the “justice system", because journalism is about clarity and understanding that words are supposed to mean something. It's a legal system. So, it was never a surprise to me that Monty Robinson, after serving months in jail, feeling as if justice was never served, couldn’t let it go.
Since the publication of Blamed and Broken last year, I’ve continued to write about Robinson, Millington, Bentley and Rundel. I documented how Robinson and Rundel had both laid well founded complaints against the RCMP for withholding material - from the Braidwood Inquiry and from their criminal defence lawyers - which they believe could have helped them avoid years of criminal trials and in Robinson’s case, prison.
The documents they did eventually manage to wrench from RCMP files - thousands of pages – amplify what’s obvious to anyone who reads Blamed and Broken: inside the RCMP, the four Mounties involved in Dziekanski’s death were seen as having done what they were trained to do, to the best of their ability, but only until the weight of public opinion against the Force made supporting them a strategic liability. Even now, not all the documents they’ve sought have been turned over. Not even the Information Commissioner of Canada has succeeded, and so quietly, Rundel has filed an application for judicial review by the Federal Court of Canada. It is yet another potentially interminable and expensive piece in the sprawling puzzle that is the pursuit of “justice” in this case.
At the heart of Rundel’s and Robinson’s quest for documents, is something more. Late last year I noted how their public complaints which included allegations of obstruction by senior members of the RCMP were taken up as criminal files. It was a remarkable development given that just prior to the publication of Blamed and Broken RCMP Commissioner Brenda Lucki insisted criminal investigations implicating the RCMP “would not be appropriate” while Rundel and the others simultaneously pursued lawsuits over how they were treated by the Force. But a criminal file could be little more than a means to shuffle a complaint into oblivion. Not surprisingly, the officer in charge of the files - RCMP Assistant Commissioner Eric Stubbs - has been stingy with details about how the RCMP will investigate allegations that its most senior leaders contributed to the incarceration of two former members and the permanently scarred reputations of all four.
It turns out the RCMP will look to the same resource it employed when Dziekanski died and this story began: The Ontario Provincial Police. A dozen years ago, RCMP Chief Superintendent Dick Bent asked the OPP for an independent review of the job done by his own homicide investigators into Dziekanski’s death. The same ones who had essentially concluded the four Mounties involved had nothing to worry about. The OPP’s Criminal Investigations branch determined that “the investigation into the in-custody death of Robert Dziekanski was thorough and conducted in an unbiased manner.”
There is no indication how long the OPP will take to investigate Robinson’s and Rundel’s allegations, whether it will involve interviews with the list of officers they allege are responsible for much of what has befallen them, or what might be done with the result. I do know that no one reading the bottom line of the OPP’s report twelve years ago would have foreseen the long, slow, twisted path that’s lead to this. We’re talking about a legal system after all, in which justice is neither swift, nor certain.