Tempis Fugit

It’s been a long time.   

The last words I wrote about the four Mounties who were blamed for the death of Robert Dziekanski left my fingers nearly five years ago, in January 2021.   

It seemed like an appropriate place to pause.  I’d spent more than a decade investigating the facts of the wide-ranging tragedy.  My book, Blamed and Broken, had been in people’s hands for two years. The Covid-19 pandemic (remember that?) was entering its second year. And I needed to navigate my own personal challenges. 

But most significantly, a  team of detectives from the Ontario Provincial Police had just begun a criminal investigation into allegations of obstruction of justice against senior government officials and leaders in the RCMP who were involved in the Dziekanski case.

A detective from Project Eastbourne, as the investigation was known, reached out to me asking if I would consent to giving a statement.  I understood why.  The book is a factual narrative that explores years of actions by people in the media, law enforcement and the legal system taken ostensibly in the name of pursuing “justice” and “truth” but which ultimately, in my opinion, produced very little of either. 

But I politely declined the invitation to participate directly in Project Eastbourne’s monumental task: the first ever criminal investigation of senior leaders of the RCMP. I explained to the detective that I could not continue to report on the subject if I was also giving evidence to a criminal investigation.  I suggested that the book, Blamed and Broken, represented the best information I could offer.  The detective understood.

In the years since, I’ve followed Project Eastbourne’s methodical, if glacial pace with interest.  

I was aware the detectives were criss-crossing the country, and seeking interviews with many of the people I wrote about in the book.  Ultimately, the OPP team travelled to five provinces, twenty-seven cities and interviewed more than 60 people.  Detectives amassed and analyzed more than ten thousand documents. It was all to establish whether criminal lines had been crossed when it came to the treatment of the four mounties who are colloquially known as the “YVR4”: Dziekanski died at YVR, the IATA code for Vancouver’s international airport. 

In the end, Project Eastbourne would spend twice as long looking at the facts as the late Thomas Braidwood did before declaring that the YVR4 were “patently unbelievable” thus priming the prosecutorial pump to charge all four with perjury.  

“We worked our asses off,” Detective Sergeant Anthony Donnelly told former RCMP Corporal Monty Robinson and Constable Gerry Rundel whose complaints sparked the precedent-setting criminal investigation.  Donnelly and other Project Eastbourne detectives personally delivered their findings to Robinson and Rundel in a rented boardroom in Burnaby B.C. in mid-November.  I know this because I was there. 

In the interest of full and transparent disclosure, I was invited to the meeting by Monty Robinson as a “support” person. I think that’s because he knows I understand as much about the case and the impact on all those involved as anyone, not including the YVR4 themselves. I retired two years ago and I am no longer an employee of any journalism outlet. Project Eastbourne detectives permitted me to attend, as long as I didn’t record anything or ask questions.  They did not allow me to view a copy of their report.  No one who was at that meeting gave me one.  A leaked copy was obtained by Toronto-based CTV  journalist Jon Woodward. He posted it online and made it public.  It is that public document which affords me the privilege of weighing in on it.  

Project Eastbourne Report.pdf

Download PDF • 11.04MB

As I read the report,  I was struck by how much of what the detectives found underscored and emphasized what I wrote about in 2019.  And as in my book, the findings in the OPP’s 281-page report raise troubling questions about the treatment of the YVR4 and how mistakes and biases - even of those who believed themselves to be well-intentioned - lead to misinformation, misunderstanding and arguably a miscarriage of justice. 

There were actually three distinct allegations that dictated the focus of Project Eastbourne. One was levelled at investigators in the RCMP’s Professional Responsibility Unit (PRU), a division that examines complaints about the conduct of officers. Robinson and Rundel alleged the PRU failed to initiate a criminal investigation after they brought what they believed was evidence of obstruction by their superiors.  

A second allegation focussed on some of those superiors including Commissioner Brenda Lucki, and deputy commissioners Jennifer Strachan and Brenda Butterworth-Carr (all now retired) for failing to initiate the same criminal investigation. 

And a third allegation targeted former commissioners Bill Elliott, Bob Paulson and Deputy Commissioner Craig Callens for withholding or failing to disclose documents and information that Robinson and Rundel believed could have been exculpatory during the Braidwood Inquiry and at their subsequent perjury trials. 

By now it’s common knowledge that Project Eastbourne was unable to find the evidence needed to meet the very high bar for laying a single criminal charge of obstruction. In the parlance of the report’s authors, the OPP found “no evidence” and the allegations were “unsubstantiated.”

But the report is hardly a dead end. 

Detectives found that the PRU should have referred Robinson’s and Rundel’s complaints up the chain to see if they warranted a criminal investigation, “however, failing to do so does not constitute a criminal offence of Obstruct Justice,” the detectives wrote.   

As to the second allegation, Project Eastbourne detectives plumbed as deeply as they could to examine the words and actions of senior RCMP leaders when they themselves rebuffed calls from Robinson and Rundel for a criminal investigation.  

As I detailed in Blamed in Broken, Rundel wrote to then-Commissioner Brenda Lucki asking for one.  Lucki’s response created a problem. In her email to Rundell, Lucki told him “it would not be appropriate for me to launch any investigations” while Rundel and Robinson had civil claims against the RCMP.  This, of course, was nonsense.  There is no legal prohibition from investigating criminal allegations if the person making them is suing you.  

Project Eastbourne detectives determined the request for an investigation should have been turned over to the RCMP’s Criminal Operations unit. Reading the Project Eastbourne report it appears as if Lucki has no direct memory of these events. There are a lot of hypothetical “would have” assertions from Lucki in the report, suggesting she couldn’t independently recall exactly what she said or did or why.  That may be because Lucki could not produce any contemporary duty notes. She relied entirely on email.

However Lucki asserted that just because her digital signature is on an email message, that doesn’t mean she signed it personally. Project Eastbourne detectives also noted Lucki told them  “there was never any conversation in the Commissioner's office to prevent a criminal investigation or to sweep the matter under the carpet.”  Lucki’s former chief of staff  told detectives that Lucki’s response was drafted by the RCMP’s Legal Services. 

Two successive commanders of E-Division (BC) were also captured by the obstruction allegation.  Brenda Butterworth-Carr told detectives she recalled having discussions with Lucki about Rundel’s complaint, “and stated that she would have made notes on these discussions.”  The problem is Butterworth-Carr’s notes couldn’t be found. The RCMP apparently lost them after she retired. Alas, “without access to her notes, Deputy Commissioner BUTTERWORTH-CARR was reluctant to speculate on details of those discussions.”

Butterworth-Carr’s successor at E-Division (BC)  was Jennifer Strachan.  She also gave Rundel the brushoff when he asked her to investigate.  “I do not want to impact ongoing formal processes you are currently involved in” she wrote to him, “therefore (I) will not be responding further. I encourage you to avail yourself of formal processes on this issue.” Strachan’s reply was also apparently the product of Department of Justice advice. 

Les Rose, a retired Department of Justice legal counsel for the RCMP told Project Eastbourne detectives that in his opinion, “the response from Commissioner LUCKI to RUNDEL’s request for a criminal investigation was wrong and that Deputy Commissioner STRACHAN’s response was an Obstruction of Justice.”   The OPP’s legal analysis found otherwise. 

But while the allegation of obstruction was unsubstantiated, Project Eastbourne confirmed that the senior leaders failed to act.  

“Based on the evidence and the interviews conducted in this investigation, a Code of Conduct investigation and criminal investigation should have been initiated to investigate the actions of Commissioner LUCKI and Deputy Commissioner STRACHAN in relation to their response to the complainants in this matter”, the report’s authors wrote. 

The RCMP, citing a 1-year statute of limitations on pursuing a Code of Conduct investigations against members, declined to launch any against Lucki, Butterworth-Carr or Strachan.  Remarkably, the same time-limit didn’t stop Bob Paulson when he was Assistant Commissioner from ordering Code of Conduct notices against the YVR4 for merely having incomplete notes, three years after the fact. 

Paulson was himself a subject of interest for Project Eastbourne, along with former Commissioner Bill Elliott and the former head of E-Division Craig Callens.  Each faced allegations they withheld or failed to disclose internal RCMP documents that tended to exonerate the YVR4.   Paulson was deeply critical of the YVR4, despite the RCMP’s own Independent Officer Review (IOR).

2009 IOR YVR.pdf

Download PDF • 3.10MB

However, Paulson told Project Eastbourne Detectives he had no involvement in the YVR incident and had nothing to do with disclosures to the Braidwood Inquiry or the perjury trials. He said he never prevented anything like the IOR from being disclosed.

Bill Elliott is perhaps the largest RCMP character in the YVR narrative.  I wrote about his involvement in Blamed and Broken, so I won’t repeat it here.  It would not be unreasonable to characterize Elliott’s actions as being responsive to, if not motivated by public outrage directed at the RCMP. Elliott personally called the YVR4 in the immediate aftermath of Dziekanski’s death to offer his support. But as the public turned on them and the RCMP, Elliott’s support for the YVR4 appeared to evaporate.  

The Project Eastbourne detectives note that in 2010, when Elliott asked BC’s Solicitor General Kash Heed for an advance copy of Braidwood’s final report, Heed turned him down. 

“One week after this meeting with Commissioner ELLIOTT”,  Project Eastbourne detectives wrote, “Mr. HEED was advised by Assistant Commissioner MACINTYRE that he (HEED) was under investigation in relation to allegations of violations of the Election Act.” Heed was forced to step down. Two separate special prosecutors cleared Heed of the allegations. 

Elliott declined to speak with Project Eastbourne after detectives supplied him with documents they wanted to ask him about.  

Among the OPP’s other subjects were some of the same people interviewed by the Braidwood Inquiry’s legal staff ahead of the hearings, but who Braidwood saw no reason to call as witnesses.  These were experts who would have testified that the YVR4 complied with RCMP policy, training and tactics as they existed at the time. 

Former RCMP Superintendent Ward Clapham was the officer in charge of the Richmond Detachment where the YVR4 were based. Clapham didn’t make Braidwood’s witness list.  As reported by Project Eastbourne, Clapham said “he believes that the Braidwood Inquiry had a mandate to find fault and that the conclusion of the inquiry was predetermined.”

In my book and subsequent writing on the subject I’ve provided details of an interview I conducted with Thomas Braidwood after his Inquiry report effectively damned the YVR4 as liars. Braidwood acknowledged to me that he instantly knew the YVR4 had misconducted themselves the moment he saw the bystander video of the incident on the TV News. This was before his old friend, Attorney General Wally Oppal asked him to head the inquiry into what happened.  Braidwood also told me that all his years on the bench equipped him with the discipline necessary to set his personal feelings aside.  Project Eastbourne investigators were unable to interview Braidwood themselves. He died in 2020 before their investigation began.

Helen Roberts, the Department of Justice lawyer who represented the RCMP at the Braidwood Inquiry told the OPP that she felt “(Art) Vertlieb (lawyer of Public Inquiry), his legal team and perhaps Justice BRAIDWOOD, had concluded early on that the YVR4 members were fault and this undermined a fair and impartial hearing for them.” 

Some witnesses questioned  by Project Eastbourne agreed with Robinson and Rundel that a critical lack of leadership in the RCMP played a role in what happened to them.  

The OPP report confirms much of the chaos and bad decisions made by the RCMP I wrote about in Blamed and Broken.  

Bill Fordy was the Inspector in charge of operations with the Integrated Homicide Investigation Team (IHIT). Fordy now suggests IHIT investigators helped seal the fate of the YVR4.  They descended on the incident and hurriedly took lengthy statements from the stunned mounties.   The discrepancies in those statements, which I explored in some detail in Blamed and Broken, were not the gotcha prosecutors made them out to be. 

Fordy told Project Eastbourne that “he now believes that IHIT should have waited to take statements from the YVR4 members, so they could have time to rest. The YVR4 members should have been cautioned and should have consulted with legal counsel, knowing they may be facing jeopardy and the nature of that jeopardy.”

Reg Harris was Monty Robinson’s lawyer at the Braidwood Inquiry. Harris is now a BC provincial court judge and he responded in writing to Project Eastbourne’s questions. Harris suggested IHIT was sloppy, which put the burden on Robinson to explain the discrepancies when he testified at the inquiry. 

“The IHIT officer conducting the interview failed to ask fulsome questions, never followed up on apparent inconsistencies, nor did he seek clarification; he merely relied on (ROBINSON) who had just been through a chaotic event wherein a life was lost, to give a narrative. The IHIT officer who took the statement did a poor job and did not consider (ROBINSON’S) emotional state. As such, it is entirely understandable that the testimony of ROBINSON at the BRAIDWOOD inquiry was more detailed.”

Les Rose, the retired legal counsel for the RCMP was blunt. 

“Mr. Rose feels that the rush from IHIT to get a statement from the YVR4 members to appease the public immediately led to professional demise of them all”, the OPP investigators wrote.  

Before Braidwood even issued his scathing report painting the YVR4 as self-serving liars, RCMP brass appeared to do everything they could to build a firewall between themselves and institutional failures of IHIT and the RCMP’s reliance on the Taser and its flawed training. 

Former Deputy Commissioner Bob Paulson told the OPP investigators he now believes the Braidwood Inquiry was driven by a political motive. But back in 2010 Paulson ordered that each of the YVR4 be given a disciplinary performance notice, known as a 1004, referred to as a “ten-oh-four”.  This is in part because the YVR4’s notes were incomplete. There is a one-year limitation on issuing such notices, but Paulson ordered them anyway nearly three years after the fact. 

“Most of the senior commanders interviewed by Project Eastbourne  agreed they should not have been issued” the OPP detectives wrote.  Those 1004s were later withdrawn. 

Project Eastbourne also waded into the issue of the so-called Doust opinion, commissioned by RCMP from BC lawyer Leondard Doust, a renowned and unimpeachable legal expert in the area of perjury. 

Doust.pdf

Download PDF • 710KB

Doust looked at all the evidence Braidwood had seen, and he confidently concluded nothing the YVR4 said at Braidwood’s inquiry met the bar for perjury. 

However, the RCMP brass appeared to hedge their bets.  Before Braidwood issued his final report condemning the YVR4, the RCMP beat him to it by staging a public apology and signing a settlement with Dziekanski’s mother worth more than a million dollars.  

OPP investigators wrote that “The RCMP public acknowledgement of wrongdoing by the YVR4 members before the conclusion of the Braidwood Inquiry was wrong and did not serve any purpose.” 

Didn’t it though? I think it arguably made the YVR4 appear even more like rogues and bad apples who did not represent the RCMP.  It’s hard to believe that wasn’t what the RCMP was going for in its highly controlled, highly public gesture. 

A number of Project Eastbourne witnesses told detectives they believed the YVR4 were seen by the RCMP as necessary casualties in a war of perception to protect the RCMP. 

Kash Heed was B.C.’s Public Safety minister and Solicitor General  in 2010.

“Mr. HEED believes the YVR4 members were blamed for the YVR incident to protect the image of the RCMP” the OPP wrote,  “and to appease the public pressure in relation to this incident. He does not believe the YVR4 members should have been charged for perjury.”

But they were charged, and if you haven’t read Blamed and Broken then you don’t know what happened next. 

Project Eastbourne’s mandate did not involve reevaluating the perjury trials or the evidence. However, a thorough investigation of the obstruction allegations did involve gaining a thorough understanding of those trials in order to determine whether the RCMP failed to provide any exculpatory information to the YVR4.  And in their investigation the OPP detectives learned for themselves some of the things I saw sitting in the courtroom gallery. 

For example, in the case of former constable Kwesi Millington, who fired the taser the night Dziekanski died, the OPP wrote that  “Defence counsel for MILLINGTON attempted to call an expert on trauma at the perjury trial, but the judge did not allow it, noting that an expert was not required, and he could assess trauma himself.”

A number of witnesses, including lawyers for the four, maintained that if not for errors made by the RCMP and IHIT going all the way back to the day Dziekanski died, there would have been no basis for even laying perjury charges. 

Even Wally Oppal, the former Attorney General who tapped his friend Thomas Braidwood to lead the inquiry, told OPP investigators that he now agrees with the conclusions of Len Doust who saw no case for perjury charges against the YVR4.  And that’s what makes Oppal’s involvement in the prosecutions so curious. 

As I detailed in Blamed and Broken, Oppal personally accompanied a witness to the office of the Special Prosecutor Richard Peck. 

Peck, who is Oppal’s long-time friend, had just lost the first of the four criminal cases against the YVR4.  Constable Bill Bentley was acquitted by BC Supreme Court Justice Mark McEwan who found there simply was no direct evidence of perjury.  It didn’t just take the wind out of the prosecutor’s sails…Peck’s ship appeared to be foundering.  That’s when Oppal walked into Pecks’ office with another friend of his, Janice Norgard. 

At the time, Norgard was involved in a hostile separation from her spouse who just happened to be Bill Bentley’s cousin.  After Bentley was acquitted, Norgard suddenly remembered the YVR4 met around her kitchen table years earlier, before they appeared at the Braidwood Inquiry. If true, that would certainly have meant the YVR4 lied when they testified they had not met prior to the inquiry.  

But it wasn’t true. 

The meeting Norgard recalled happened long after the YVR4 had testified. But special prosecutor Peck shoehorned Norgard’s incredible testimony into the remaining trials even after it became clear her story was not reliable. 

Some Project Eastbourne witnesses focussed on Oppal’s conduct in all of this.  He didn’t  just escort Norgard to his personal friend and prosecutor Richard Peck. Oppal also sat in on Norgard’s  interviews with the police and prosecutors.  

Former RCMP legal counsel Les Rose told Project Eastbourne detectives that Oppal created a horrible and toxic perception that he was lending credibility to Norgard. 

“Mr. Rose noted he was surprised this issue was not investigated by the Law Society as a complaint for suborning perjury”, the OPP wrote in the report. 

“The involvement of Mr. OPPAL in this interview was unorthodox and a conflict of interest” the report’s authors added.  

For his part, Oppal told Project Eastbourne investigators there was nothing untoward about his involvement.  Oppal told them he never had any discussions about the YVR4 with special prosecutor Peck.  Oppal said he attended Norgard’s interviews to support her because she was “distraught and emotional”.  I wrote about all this in Blamed and Broken.  The Vancouver Police recorded their interview with Norgard.  I saw it.  All I can add is that Oppal must indeed have been a calming influence on Norgard, because she doesn’t appear to be either “distraught” or “emotional” in the video.  She appears confident. She chuckles. 

Project Eastbourne detectives asked Oppal to square his involvement with the reality that Norgard’s trial testimony wasn’t believable. Oppal told them Norgard “is an honest person but may have made honest mistakes in her testimony.”  

It occurs to me that the same could be said for the YVR4. They may have made some honest mistakes in their testimony.  And yet here we are. 

The subjects of interest in Project Eastbourne clearly get a benefit of the doubt that was not afforded to the YVR4.   For instance, the OPP writes of former Commissioner Lucki’s dismissal of Rundel’s call for this very investigation that  “there is no evidence that her decision was improper, even if it was mistaken. There is no evidence that her decision was based on any intent to obstruct justice.”

There was also no evidence the YVR4 attempted to mislead homicide investigators or the Braidwood Inquiry either.  And yet here we are. 

Project Eastbourne also considered the elephant in the room: the two members of the YVR4 who were found guilty of perjury and subsequently spent time behind bars were the black officer (Millington) and the indigenous officer (Robinson).   Project Eastbourne found no evidence that racism played a role in the prosecutions or convictions. But OPP detectives also make it clear their investigation was not an attempt to re-examine the conduct of those trials.  What can be said is detectives did not discover any documents or hear any first hand evidence that would prove racism played a role in the outcomes.

Racism aside, it’s clear to a number of people Project Eastbourne interviewed, that those convictions were nonetheless wrongful. 

Brian Dietrich told OPP investigators that lawyers representing the YVR4 told HIM the judges involved made up their minds before the trials were conducted. 

Lawyer Glenn Orris who represented Rundel at his criminal trial and Kwesi Millington at the Supreme Court of Canada believes the convictions were wrongful. 

Peter Wilson, who successfully argued for Bill Bentley’s acquittal, told OPP investigators he doesn’t believe the convictions of the others were “wrongful” per se.  He just believes “no one should have been convicted.”  This opinion, as with many aspects of the case, appears to be something only lawyers can fully appreciate. 

Project Eastbourne detectives acknowledge the value of Blamed and Broken in their report. But it was the relentless demands for a criminal investigation by Robinson and Rundel after the book’s publication, that eventually triggered it. 

Today, both say the OPP’s conclusion that the evidence does not support charges, is not the disappointment it might seem.  On the contrary, they say Project Eastbourne has validated their complaints. 

“It shows wrong-doing being done”, Robinson told me. 

“It does what the RCMP refused to do”. 

Project Eastbourne also clearly establishes the YVR4 acted according to their training, and raises serious questions about the propriety of the prosecutions.  

“When I started it was like climbing Everest in shorts”, Robinson says of his campaign for vindication, adding that  “I’m there now. I just can’t plant the flag.”

Gerry Rundel says the result is extremely important to him. 

“We,  the YVR4 and our  families lost many years to a lie perpetrated by the RCMP”. 

“Thanks to OPP the truth is now out; and justice needs to follow.”

It’s hard to say what that “justice” would look like now.   The RCMP hasn’t publicly acknowledged that is has had the Project Eastbourne report for months. It has said nothing publicly about its contents. 

Both Rundel and Robinson have outstanding civil claims against the RCMP stemming from what happened to them. The Project Eastbourne investigative file could potentially lend support to their contention that they were damaged.  Rundel was acquitted of perjury but Robinson was not. He could use the OPP’s findings to leverage a claim of wrongful conviction or seek a formal pardon. 

OPP detectives were unable to interview the other two men whose lives were upended by what they thought would be a routine call in 2007.  

Kwesi Millington fired the Taser the night Dziekanski died. Although he was convicted of perjury and spent time in prison, he also sued the Mounties and reached a confidential settlement.   I asked Millington about his thoughts on Project Eastbourne. He declined to share them.  

Bill Bentley managed to rebuild his career in the RCMP after prosecutors failed to overturn Bentley’s acquittal more than ten years ago.  While Project Eastbourne detectives suggest in their report that Bentley didn’t want to talk to them because of a nondisclosure agreement he may have signed with the RCMP,  Bentley told me that’s not the case.   

“The incident and ensuing legal and return-to-work challenges  resulted in the loss of 10 years of my life to depression and anxiety”, Bentley said 

Bentley says he didn’t feel he had anything relevant to share regarding an investigation into obstruction of Justice by senior RCMP officers. 

“To prepare and participate in an interview would trigger a lot of bad memories and moments that would set me back mentally.  I knew for my own mental health, not participating was the best choice I could make.”

As I sat down to write about all this for the first time in years, it felt sisyphean. The day Robert Dziekanski died, I was called in to work on a day off and I left my infant son who wasn’t even a year old at home with his mother.  Today my son is in his second year of university. 

The Greek poet Menander is credited with being the first to come up with the notion that “time heals all wounds.”  After 18 years it’s not clear there’s been much healing in this case. 

A less known but more literal translation of Menander’s wisdom is that “time is the healer of all necessary evils.” 

But I think what Project Eastbourne shows is that time doesn’t heal wounds as much as it makes it more difficult to investigate what caused them.   And also that not every evil that hasn't been healed by time, was necessary.