I am. Only 17 days to go.

Columnist Ian Mulgrew doesn’t pull his punches when he writes about legal issues, and he landed an uppercut right on the button when he criticized the Crown’s “dithering” in a case arising from a fatal accident involving a member of the RCMP (“Prosecutors drag feet on whether to charge cop in biker’s death”; The Vancouver Sun, November 18, 2009). The way the criminal justice system handles fatality cases involving police officers is an affront to the bedrock principle that the system must treat everyone equally and operate without fear or favouritism.

Mulgrew’s example, the case arising from the tragic death of Orion Hutchinson in October of 2008, is not an isolated example of the interminable and unconscionable delays inherent in the investigations of fatalities involving the actions of BC police officers. Take the death of Jeff Berg, an unarmed man who died October 22, 2000 after being beaten and kicked by a Vancouver police officer. Although there was no doubt who was involved in the homicide and what had happened, Crown Counsel did not make its decision that charges would not be appropriate until December 9, 2002, more than two years later. Or how about the case of Kevin St. Arnaud, an unarmed man shot by a Mountie in Vanderhoof on December 19, 2004. After receiving the RCMP’s investigative report, the Crown decided charges were not appropriate on February 15, 2006, nearly 14 months later. Or the case of Ian Bush, the young Houston man shot in the back of the head by a Mountie in the Houston RCMP detachment office on October 29, 2005. Again, the RCMP investigated itself and the Crown finally decided on September 5, 2006 that charges were not appropriate. As if those cases don’t prove the point, there’s the case of Robert Dziekanski, whose death on October 14, 2007 was captured on the notorious videotape that’s reverberated around the world. There was no mystery as to what had occurred and who was involved. Yet it wasn’t until December 12, 2008 that Crown spokesman Stan Lowe (now the BC Police Complaint Commissioner) announced the prosecutors’ decision, widely scorned by critics, that nobody would be charged.

Had any of these cases involved just ordinary civilians, the Crown would have made charge approval decisions within a matter of hours, not months or years.

Delay is one thing, the quality of the eventual decisions is quite another. As far as I have been able to tell from my research, BC Crown Counsel (unlike those in other jurisdictions) have never prosecuted a police officer for an offence arising from a death caused by the intentional application of force. That suggests either that BC police have achieved a level of perfection not found elsewhere or that our criminal justice system is deeply flawed in the way it addresses such cases.

There is a widespread perception that BC police are above the law, that the system treats them differently than it treats ordinary citizens. The solution to this serious problem is simple and right in front of our collective noses. The public must demand that cases of death or serious injury arising from the actions of police officers are immediately investigated by trained civilians. We must also insist that prosecutorial decisions are handled by independent lawyers who do not work with the police on a routine basis. Nothing less than these two basic reforms will restore public faith in our legal system.

The Berlin Wall came down. (My hair was a bit longer and darker)

Update: The case of City of Vancouver v. Ward was heard on January 18, 2010 before all nine Justices of the Supreme Court of Canada. No fewer than 25 robed lawyers were in attendance. Judgment was reserved.

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It can be disconcerting when one’s name is bandied about in print, as mine was in recent Vancouver Sun columns by Ian Mulgrew (October 23, 2009) and Law Society President Gordon Turiff (October 29, 2009).

Mulgrew wrote about my 2002 arrest and the legal odyssey that has followed and Turiff used the case to stress the importance of lawyers’ independence. I will refrain from saying too much about the matter now, as the case is before the Supreme Court of Canada, but I will say this: it has been an eye-opening experience to have had my fundamental rights and liberties trampled by agents of the state and then to have had insult added to injury by the authorities’ subsequent behaviour.

Seven years ago, I was handcuffed, thrown in a police wagon, strip-searched and jailed, and my car was seized from where it was lawfully parked, all because Vancouver police were apparently concerned that I matched the description of someone who had been overheard using the word “pie” in the same sentence as the phrase “Prime Minister”. I arrived home after the ordeal to learn that footage depicting me being bundled away in handcuffs had been shown on the evening news.

After consulting an experienced lawyer, I requested an apology to set the record straight and clear my name. The matter should have ended there. However, no apology was forthcoming, so I sued. I hired lawyers and as the trial date approach, I offered to drop the case for a formal apology. The matter should have ended there. But again, the authorities refused to provide an apology. Four lawyers defended my claim, at taxpayers’ expense, and the six day trial resulted in a judgment in my favour. The matter should have ended there. It didn’t, because the Province and the City of Vancouver instructed their lawyers to appeal. The Court of Appeal upheld the trial judgment. The matter should have ended there. It didn’t; the defendants sought and obtained leave to appeal to the Supreme Court of Canada and their two related appeals will be heard in Ottawa in January.

As Mr. Mulgrew expressed so clearly, I have been dragged through years of litigation without any apparent regard for the cost involved. The City of Vancouver, in particular, is spending taxpayers’ money on an appeal that arises from the trial judge’s decision to award me $100 for the unreasonable seizure of my car.

As a lawyer, I have devoted my professional life to the pursuit of justice for my clients. Concepts of fundamental rights and liberties, and the independence of the legal profession, are near and dear to me. However, these may be hollow notions indeed when those with unlimited resources can use them to crush the individual.

Last night, CTV aired W5’s excellent examination of three recent RCMP-involved fatalities in British Columbia. The review of the deaths of Ian Bush, Kevin St. Arnaud and Robert Dziekanski ought to disturb everyone who is concerned about the administration of criminal justice in this province.

As one who has too much experience in this area, I can confirm that when police cause death through the use of force, our criminal justice system does not respond adequately. Reform is overdue.

Two changes could go a long way to fixing the perception that police are above the law: have a civilian unit investigate all cases where police are involved in serious injury or death and have an independent prosecutor review the investigative results to make a charge assessment. Nothing short of this will suffice.

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The four-part W5 story “Beyond Justice: When the RCMP pulls the trigger” can be found on www.ctv.ca.