This is not an obituary

When I read that Tom Braidwood died this week at 89, I stared at the obituary in disbelief. It took a minute to register that the man whose legacy so significantly figured in my work as a journalist, had passed away. My thoughts flashed back to a day four years ago, when Braidwood invited me to his West Vancouver home to talk about the work that would define his legacy.

I had asked for the meeting because I was troubled by nagging questions about the death of Robert Dziekanski and the conclusions Braidwood reached about what happened. In his report, Braidwood made his opinion clear: the four Mounties who were called to deal with a deranged person at Vancouver International Airport ended up killing him and then lied about it. But by 2016, some six years after Braidwood issued his final word on the matter, I had questions about some of his findings, how he’d arrived at them, and how they’d been interpreted and misinterpreted by others.

In those intervening years, the RCMP’s former spokesman who was hounded mercilessly by an utterly false accusation that he’d lied about the incident, killed himself. The first of the four Mounties to go on trial for perjury for some of the answers he gave at Braidwood’s inquiry, had been acquitted in a spectacularly devastating decision for the prosecution which was upheld on appeal. This was no small development. Braidwood had been supremely confident in his scathing contempt for all four Mounties, variously calling them “patently unbelievable”, “self-serving” and insisted they had each “desperately attempted” to “mislead” him.

So, one of the first questions I asked Braidwood, as we sat in his study, was why he didn’t just call them “liars”.

“I was not allowed to conduct a criminal trial”, he told me. “I didn't want maybe some other judge in the court of appeal or something to say I had done something wrong.”

Braidwood knew there was a very real possibility someone might grasp on to a legal error and try to have his findings overturned. However, as he spoke, Braidwood gave no hint he was concerned any longer.

In fact, Braidwood freely acknowledged that he’d formed an opinion about the guilt of the officers before he’d heard a word of evidence. Even before he’d been asked to head the inquiry into what happened. How did an esteemed retired Appeal Court Judge – and seasoned, respected lawyer - allow himself to rush to judgement? The same way most people did. Braidwood watched the Pritchard video.

“I'm kind of a news freak”, he confessed, “and I'd have seen it as soon as it was available on the news.”

As a reminder, the full video is some ten minutes long. It shows a great deal of Dziekanski’s behaviour before the police show up. Dziekanski is irrational. He is sweating profusely. He’s breathing so hard you can hear him panting from 10 metres away. He smashes furniture and equipment. He threatens the only person to try to help: a calm, soft-spoken woman who offers an outstretched hand. When she turns her back on him, Dziekanski smashes a computer onto the glass wall that separates them.

But the sequence most people remember occurs with Dziekanski’s back to the camera, as he’s facing the four Mounties. You can’t see it, but one of Dziekanski’s hands is a fist, the other grips an open metal stapler like a weapon, held nearly chest high.

“Why? Why?”, Braidwood asked me rhetorically, referring to his own belief that the Mounties should have pulled up a chair when Dziekanski took this position.

“I mean a stapler in his hand! Give me a break. Four cops?” Braidwood gave out a laugh.

As he spoke, Braidwood made it clear to me he’d drawn some conclusions about what he saw on the news.

“I hear you saying that the tape convicted them essentially”, I suggested to him.

“It was everything”, Braidwood said without hesitation, adding “the tape was accurate.”

For reasons that are too numerous and detailed, I won’t go into why the term “accurate” to describe the Pritchard video is, at best, misleading. I spend a great deal of time in Blamed and Broken explaining why. The most anyone can say about the video is that it shows what it shows, and people will see what they want to see. Do you think police are trigger happy? It’s there in the video. Do you think Dziekanski was the author of his own fate? It’s there in the video. Furthermore, anyone who’s seen the video – and that includes Braidwood – sees what happened in a way the Mounties never could when it was actually happening because the police didn’t have the knowledge of how it was going to end. Watching the video, knowing Dziekanski dies at the end, influences what you think about everything you can see, and the things you can’t. This is understandable. People are human. They make mistakes. Braidwood was human, notwithstanding his experience as a judge.

But a large part of Braidwood’s inquiry was intended to explore the context around the video, precisely to avoid the human mistake of drawing conclusions without evidence.

As Braidwood continued to talk that day in his study, perhaps realizing his candour might undermine the case that has become his legacy, he assured me that in his long career he’d learned how to put feelings aside when weighing the facts. As someone who sat through the entire inquiry, I can tell you that Braidwood gave the bank of lawyers defending the police, the airport, and the Border Services Officers a fair amount of latitude in presenting evidence. But there were some red lines that Braidwood simply would not cross: he wasn’t interested in testimony that apportioned any blame to Dziekanski himself. He also made choices not to call witnesses that could have supported the Mounties’ testimony that their discrepancies were mistakes and not lies. Throughout the inquiry I had the sense that Braidwood was the archetypal trier of fact: fair, open-minded, and undecided until after a long deliberation of as much evidence as possible. But as he spoke in his study, I began to think my impression was overly simplistic, and perhaps even naïve. According to Braidwood himself, before he’d heard any facts about what happened, the video had already profoundly influenced how he saw the incident. It was at that point his old friend Wally Oppal, the Attorney General of BC, called and asked Braidwood to head up the inquiry.

But Oppal’s connection to the case didn’t end there. When the subsequent criminal trials against the Mounties appeared to falter, Oppal personally accompanied a woman claiming to have evidence the Mounties had lied, to the special prosecutor’s office. Oppal sat in on her interviews with the prosecutor and the Vancouver Police detectives assigned to investigate her remarkable story. Years later it turned out to be false, but not before her useless testimony wasted the court’s time, public money and clouded the cases against the officers she had accused. You can read all about it in Blamed and Broken.

It was fitting and proper this week for Oppal to offer praise and tributes for his old, dear friend Braidwood. I read his comments in an obituary written by Vancouver Sun journalist John Mackie.

“He was really a fair judge”, Oppal is quoted. “He was a sound person, objective…”

But it was something Oppal said in characterizing Braidwood’s magnum opus that stopped me.

“It was controversial”, Oppal says in the story, “the police had Tasered a guy to death…”

It occurred to me that Wally Oppal either hasn’t read Braidwood’s report or has forgotten or misunderstood it. In any case that off-hand comment misrepresents what Braidwood - the fair and objective former judge – actually wrote:

“We will never know, with absolute certainty, what caused Mr. Dziekanski’s death.”

Braidwood did run through a list of possible causes, finding it “unlikely” the Taser itself caused Dziekanski’s fatal cardiac arrhythmia. But Braidwood also cherry-picked what he thought was relevant in the video that in his own words was “everything.” He discounted what everyone can plainly see: Dziekanski manic, sweating, panting, yelling and threatening the only person to offer to help him. Braidwood reasoned that because Dziekanski wasn’t already collapsed and dead on the floor before police arrived, that the stress and fatigue from being “trapped” in an airport for more than 8 hours had nothing to do with his death.

What Braidwood ultimately landed on was that the combined effects of the Taser and the struggle with police were factors. But Braidwood’s own caveat about being less than certain, combined with his gymnastic approach to other evidence makes it impossible to conclude that “the police had Tasered a guy to death.”

And it was my candid, unguarded conversation with Braidwood years after he’d written his report that helped me understand why it really wasn’t surprising that he laid the blame for Dziekanski’s death on the actions of the police and no one else. He just didn’t like them.

“Just on an emotional basis”, he told me, “after Dziekanski was laying there on the ground, one of the policemen – I think it was the coloured policeman…what was his name? I forget.”

Before I could answer, Braidwood continued.

“He began to bang that stick on the ground.”

I realized Braidwood was referring to the collapsible baton which Constable Bill Bentley had extended when Dziekanski had turned to face them with a fist and a stapler.

“He wasn’t the black officer”, I told Braidwood. "That was Bill Bentley. Red hair.”

“Bentley”, Braidwood said, correcting himself before getting to his point.

“Just as if there was no emotion or regard for this fellow on the ground. I just thought that he was so detached from what they had done. It was a small matter but it kind of got to me…”

As Braidwood spoke, I was genuinely puzzled why he seemed unaware of the evidence at his own inquiry that explained why Bentley had to use what seemed like a great deal of force to collapse his baton. They’re designed that way. And Bentley was detached? Bentley had called for the ambulance. Bentley called again when he noticed Dziekanski’s lips turning blue. He began taking statements from witnesses until he was told to stop because homicide investigators were taking over. I would later come to learn that far from having no emotion or regard for Dziekanski, Bentley and the other three Mounties that night went on to deal with profound symptoms of depression and PTSD. But putting that aside, if Bentley’s completely routine and insignificant action of collapsing his unused baton had been so offensive, why didn’t Braidwood raise that when Bentley was testifying? Why harbour a belief that Bentley had been callous and detached but not put that allegation to him when he had a chance to give evidence in his own defence? Was that fair? Was that objective?

“I watched the tape a thousand times”, Braidwood told me after confessing his dislike of Bentley for what he did with his baton. He said it as if that made his opinion less open to question. Braidwood hadn't considered that watching a man die over and over again might actually harden the initial opinion he’d formed. The one he said he could put aside.

I have no idea whether Tom Braidwood ever read Blamed and Broken. I’m sure if he did, he didn’t think very much of it. Certainly not enough to tell me. I was curious what the four who were the subject of Braidwood’s condemnation thought of his passing. Not surprisingly, each told me in their own way that Braidwood was wrong. His opinions of them set off a cascade of consequences that will haunt them forever. Even though court verdicts and lawsuits call Braidwood into question, his report, a decade old next month, continues to define their lives and serve as a reservoir for misunderstandings such as the one Wally Oppal uttered this week.

It would be unfair and unreasonable to expect tributes from the four men Braidwood sentenced to life as pariahs. They’re human, after all. So was Braidwood.