Winnipeg Free Press - PRINT EDITION

Sad disservice, pathetic plea, and nonsense

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Sometimes things hit three at a time. So it was on Monday in Winnipeg.

There was news about the Dziekanski inquiry in British Columbia, where a police officer who used a Taser to subdue Robert Dziekanski, testified about the perceived necessity to use the weapon.

The Free Press reported on the commencement of the trial of Vincent Li for the murder of Timothy McLean on a Greyhound bus last year.

In the same edition there was a report on the settlement approved by the government of Manitoba and the City of Winnipeg to members of the Taman family for the emotional trauma they endured in the aftermath of the death of Crystal Taman in a terrible accident.

Where does one start?

It is clear that the over-use of the Taser to subdue Dziekanski in the Vancouver airport was a monumental error. Sometimes these regrettable events occur, and police forces and the public will gradually recover from the shock that a few seconds of miscalculation can result in tragedy.

But this is different. In this case, the police officer made a written report suggesting that Dziekanski posed a genuine threat to the five police officers about to subdue him. The written report suggested that several volleys of the Taser were necessary to subdue Dziekanski. It was suggested that Dziekanski was still standing after the first three jolts from the Taser and he then had to be wrestled to the ground.

The evidence from an amateur video of the event established that the officer's notes were totally unreliable. The truth of the matter was entirely different.

The sad part of these revelations is that it reduces the credibility of RCMP officers, not only in this inquiry, but also in numerous cases still to come.

How can one rely upon the written observations of police officers in any case, when it is evident that they will twist the evidence to suit their purposes? Const. Kwesi Millington has done a disservice to the entire law enforcement establishment, and made it more difficult to win convictions in cases that, but for this kind of testimony, ought to be won.

The case of the accused Vincent Li attracted national, as well as local attention, for what is a very pedestrian matter. People were lined up to get inside the courtroom -- to see or hear what? To see and hear psychiatrists testify that Li did not know that his actions were legally or morally wrong by reason of a mental disorder, and accordingly he should be held not criminally responsible for his actions.

It has been plain for a year that this was one of those cases where treatment in a psychiatric facility rather than in prison is best for the accused, and for society. When the man did not know what he was doing, society would rather have him treated than punished, notwithstanding the pathetic plea to send him to prison for life after, if ever, he recovers his mental faculties.

Society should have confidence in the process of dealing with an accused person found not responsible because of mental disorder. There is a thorough process that begins within days of the trial decision and continues until, hopefully, the individual can be safely integrated into society.

There may be cases where recovery to that level never occurs, in which case continued institutionalization is a better protection for society than a life sentence in the penitentiary, which is foreshortened to something less than 20 years.

The third matter is the settlement in the sum of $300,000 to members of the Taman family for the tragic loss of Crystal Taman. It seems so reasonable to those who are untutored in the law. But the reality is, it is highly doubtful whether the Taman family had any valid case in law.

There was no breach of contract, for there was no contract between the parties. There was no breach of fiduciary duty, because there was no relationship of trust between the parties.

The case must be based on negligence on the part of the defendants, and yes, the Winnipeg police officers might have been negligent in the investigation of the accident, and, yes, the special prosecutor may have been negligent, at least in the eyes of some, in the fulfillment of his retainer.

But negligence in the abstract gives rise to no cause of action. It becomes actionable only when there is an accompanying breach of duty towards the plaintiffs.

I suggest that it is absolutely clear that the special prosecutor's duty is solely with respect to his retainer, and does not extend beyond that.

In short, there could be no liability towards the Taman family. The same is almost certainly true of the police officers. The $300,000 was a gratuitous payment that the government of Manitoba and the City of Winnipeg tried to justify on the grounds that the cost of proceeding would have been exceptionally large.

Nonsense! The attorney general must know that there is a simple procedure by way of a motion to determine whether there is a cause of action evident in the pleadings. I suspect there was none.


Charles Huband is a former justice on the Manitoba Court of Appeal and a former leader of the Manitoba Liberal Party.

Republished from the Winnipeg Free Press print edition March 5, 2009 A11

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