Dziekanski case: Police watchdog rejects complaints by Mounties
Alleged intimidation, witness tampering would not constitute misconduct, says commissioner
B.C.’s police complaint commissioner has taken what he calls a “principled decision” and declined to investigate allegations against Vancouver Police Department detectives levelled by an RCMP constable and a former Mountie.
In March, Const. Gerry Rundel and retired corporal Monty Robinson — both of whom were charged with perjury after their testimony at the Braidwood Inquiry — complained that VPD officers used "intimidation” and "leading questions" when investigating an allegation that all four Mounties involved in the death of Robert Dziekanski had met secretly before testifying at the inquiry in 2009.
Rundel and Robinson also noted that the VPD inexplicably allowed former attorney general Wally Oppal to sit in on the interview its officers conducted with Janice Norgard, the key witness who made the allegation.
Both Rundel and Robinson felt Oppal should not have been present during the primary collection of evidence against them.
As attorney general, Oppal launched the Braidwood Inquiry and appointed its commissioner, Thomas R. Braidwood, who ultimately accused some members of the RCMP of being “self-serving” and “unbelievable.”
"There is evidence to support misconduct and witness tampering," Rundel wrote, referring to Oppal, in his complaint.
But in separate written decisions obtained by CBC News, Police Complaint Commissioner Stan T. Lowe rejected the claims because even if substantiated, the allegations “would not constitute misconduct,” under section 77 of B.C.’s Police Act.
That section is fairly broad in defining misconduct and includes such things as “discourtesy” and bringing discredit on the force.
But Lowe makes it clear his office made no effort to substantiate the claims.
“We are careful not to weigh the evidence at this stage,” he wrote to Rundel, Robinson and VPD Chief Constable Jim Chu.
“But in exercising our gatekeeping function we must ensure we have considered all the relevant circumstances which provide an accurate context to the matter,” Lowe said.
Interrogation technique, photo lineup questioned
Rundel and Robinson alleged VPD detectives used leading questions in their interrogation of witnesses, and threatened one with obstruction of justice if he revealed he’d been questioned by police.
They also complained the investigating officers failed to use a proper photo lineup to establish whether Norgard actually saw any of the Mounties at the alleged secret meeting in her house.
Lowe wrote that police officers have “broad discretion in the manner and method of questioning”.
“The fact that an officer may ask a leading question, not adhere to best practice in conducting a photo identification, choose an aggressive tact in questioning … would not alone constitute misconduct as defined by the Police Act. “
However, Lowe does suggest that police who go too far run the “risk that their exercise of discretion may have an impact on the admissibility and weight of the evidence obtained as a result.”
The allegation that all four Mounties involved in Robert Dziekanski’s death lied about meeting before giving testimony is the basis for the new perjury indictments filed earlier this year.
Lowe offered no explanation for why Oppal was present when police interviewed Norgard, but wrote “Mr. Oppal’s presence … is not prohibited by statute or common law.”
Lowe said such a situation “is by no means common practice, but may be necessary as determined by an investigator.”
He added that calls from Rundel and Robinson for a review of how police were conducting their investigation are “speculative and potentially premature,” because the investigation is still ongoing, and elements of their complaints are best suited to be aired during their perjury trials.
Robinson’s trial is scheduled for May.
Rundel’s case is expected to be heard in October.
When contacted by CBC News, both declined to comment on the commissioner's decision.
VPD spokesman Const. Brian Montague told CBC News “it would be inappropriate … to speak to the lawful actions of the officers conducting an investigation.”
The Office of the Police Complaint Commissioner did not respond for a request for comment.