A lawyer for the Mountie who repeatedly stunned Robert Dziekanski with a Taser says the Crown shouldn't be allowed to argue that officers colluded to get their stories straight on the night the man died, because another perjury trial already determined that didn't happen.
Const. Kwesi Millington was among four RCMP officers who confronted the Polish immigrant at Vancouver's airport on Oct. 14, 2007, and all four were later charged with perjury for their testimony at a subsequent public inquiry.
One of the officers, Const. Bill Bentley, was acquitted in a trial last year. The Crown's case against Bentley depended almost entirely on the theory that all four officers worked together on a story to tell investigators and then lied to the inquiry to cover it up.
As Millington's perjury trial began on Monday, his lawyer told a judge it would be an abuse of process to allow the Crown to present a theory that another judge already rejected.
"The Crown is wanting to re-argue the very same issue — collusion — that has been conclusively decided," Ravi Hira said in B.C. Supreme Court, as Millington watched from the prisoner's dock.
"The Crown should be stopped from relitigating the issue."
In the Bentley case, the Crown argued similarities between the four officers' notes and statements proved they worked together to concoct a story.
But the judge ruled the Crown failed to prove Bentley lied at any point during the inquiry. The judge said there were other reasonable explanations for what Bentley wrote in his police notes and told homicide investigators.
Millington is accused of lying several times when he testified at the public inquiry over three days in March 2009. Specifically, he is accused of misleading the inquiry when he recalled what happened and when he said he didn't discuss the event with the other officers.
Hira's application seeks to prevent the Crown from alleging Millington colluded with his fellow officers before writing his police notes or talking to investigators. The application didn't deal with the Crown's separate allegation that Millington colluded with the other officers before testifying.
Hira said it would be "undermine the integrity of the judicial process" if two judges issued rulings that contradicted one another.
The Crown had yet to reply, but a prosecutor told the court Millington's trial would hear different evidence than Bentley's case and that Hira's application was premature.
Millington entered a not guilty plea on Monday.
Former corporal Benjamin (Monty) Robinson is scheduled for trial in late May, while Const. Gerry Rundel's trial is set for the fall.
The remaining trials are all scheduled to be heard in front of a judge alone.
The Crown has filed an appeal of Bentley's acquittal, though no appeal date has been set.
The four officers were called to Vancouver's airport after a 911 call about a man throwing furniture in the international terminal.
A bystanders video shows that within seconds of arriving, Millington stunned Dziekanski several times with a Taser. Dziekanski, who spoke no English and had been in the airport for almost than 10 hours, died on the airport floor.
The case prompted a public inquiry that heard from dozens of witnesses throughout 2009, including the four officers.
Each told the inquiry that Dziekanski was stunned because he posed a threat.
Commissioner Thomas Braidwood released a report in 2010 that said the officers used excessive force and then displayed a "willingness to repeatedly misrepresent what happened," to homicide investigators and at the inquiry.
Braidwood did not have the power to make legal findings of wrongdoing, and his conclusions can't be used against the officers.
A special prosecutor was appointed following the release of Braidwood's report and the officers were charged with perjury in 2011.
The inquiry's recommendations led to widespread changes to how police forces across Canada, including the RCMP, use Tasers.