VANCOUVER - The federal government doesn't think the inquiry into the death of Robert Dziekanski while in the hands of the RCMP should be able to find misconduct against the federally controlled force or Canada Border Services Agency.
But federal lawyers seem prepared to let the inquiry take the individuals involved in Dziekanski's death to task.
Retired judge Thomas Braidwood has notified the RCMP he may find misconduct against the four officers who were at the Vancouver airport the night Dziekanski died two years ago Wednesday.
The officers' lawyers have challenged Braidwood's power to make findings against them, and Ottawa has vigorously argued the provincially-mandated inquiry doesn't have the jurisdiction to criticize federal bodies such as the RCMP and border services.
But in its final submission, the federal government also said "individual findings of misconduct can be made by a provincial commission of inquiry in respect of actions by federal public servants in British Columbia, so long as they do not relate to the administration and management of federal institutions."
Lawyers for the federal attorney general have argued adverse findings against the RCMP or border services agency treads on a constitutionally entrenched principle of interjurisdictional immunity.
But the lawyer for B.C. disagreed, noting in the province's final submission that recent Supreme Court of Canada judgments have eroded the concept of interjurisdictional immunity.
Craig Jones argued the province has constitutional authority over policing and Braidwood's inquiry is directed at maintaining or enhancing public confidence in the administration of justice.
His submission says the onus is on the federal government to demonstrate the area over which immunity is claimed is an "inviolable, essential core of the federal interest," and that the inquiry would impair its activities.
"In the present case, Canada has not suggested any way in which this commission's findings might affect, let alone impair, any 'essential or vital elements' of the RCMP or CBSA (border services)," the submission says.
"The inquiry may end up commenting on the polices or management of the RCMP, but it certainly is not designing policies or engaging in the management of the force. Any effect on these core activities is purely incidental."
Braidwood, who's expected to issue his final report early next year, has heard evidence criticizing how four RCMP officers dealt with Dziekanski, who died in the early hours of Oct. 14, 2007, after being stunned by a Taser.
Dziekanski, who'd arrived about 10 hours earlier on a flight from Poland but became upset after missing a rendezvous with his mother, was shot repeatedly with the high-voltage weapon seconds after the Mounties arrived.
He died in handcuffs a few minutes later on the floor of the airport's international arrivals area.
The inquiry heard contradictory accounts of what happened and evidence suggesting RCMP spokesmen and senior officers gave misleading information to the media before an amateur video of the incident surfaced.
A memorial service commemorating the second anniversary of Dziekanski's death was held Wednesday in Vancouver.
