Judge Mark McEwan interrupted the Crown's final submissions several times Wednesday at the trial of Const. Bill Bentley, to raise doubts about the prosecution's theory that similar errors between the officers' notes and police statements prove they collaborated to get their stories straight.
The Crown alleges the officers then attempted to cover up their initial deceit by lying at the public inquiry when they were forced to explain discrepancies between their initial accounts and a now-infamous amateur video of the officers stunning Dziekanski with a Taser at Vancouver's airport.
But McEwan noted the officers' statements did vary and also pointed out several civilian witnesses made the same sorts of mistakes as the four Mounties.
"They don't have the exact same stories — I've compared them," said McEwan, who is hearing the case without a jury.
"In context, they sound like four stories told by four people who saw the same thing. There are some differences."
McEwan also said the explanation Bentley offered during his testimony at the inquiry in February 2009 — that he was confused by a fast-moving situation — may be reasonable.
"I put some stock in his observation that a lot of things happened in a short amount of time," said McEwan.
"We're parsing this down very closely. It's 30 seconds. What happened in 30 seconds, as you can tell from the (civilian) witnesses, it's confusing."
The four officers — all of whom face perjury charges — were called to Vancouver's airport early the morning of Oct. 14, 2007, after Dziekanski started throwing furniture in the international arrivals terminal. Within seconds of arriving, one of the officers stunned Dziekanski multiple times with a Taser.
Bentley wrote in his notes and told a homicide investigator that Dziekanski grabbed a stapler and came at the officers screaming before he was stunned. He also said two officers wrestled Dziekanski to the ground.
Both of those points were clearly contradicted by the video, which emerged a month later.
At the inquiry, Bentley said he believed he was accurate when he wrote the note and suggested the account was merely out of sequence, because Dziekanski did scream once he was stunned.
He said he had no explanation for why he initially said two of his fellow officers took Dziekanski to the ground, other than to concede it was incorrect.
Those explanations were all lies, said Crown lawyer Scott Fenton.
All four officers initially claimed Dziekanski was physically taken to the ground, and at least two said he appeared to be "fighting through" the Taser stun.
McEwan replied that, even in those cases, there were differences.
The judge said Bentley qualified his account of how Dziekanski ended up on the floor by saying he "believed" two officers took him down, while Const. Kwesi Millington, who fired the Taser, was more definitive and said the officers "wrestled" Dziekanski to the ground.
Fenton acknowledged the officers used different language, but he said they all described something that didn't happen: officers physically taking Dziekanski down.
Fenton said four police officers who experienced the events first-hand wouldn't have all made the same mistake by coincidence.
Again, the judge disagreed that collusion between the officers was the only explanation for the errors.
"Experiencing a traumatic event means sometimes you have less of an appreciation of what happens than someone who is watching it," said McEwan.
The defence has yet to present final submissions. Bentley's lawyer is scheduled to address the judge Thursday morning.
The trial started earlier this month, with the Crown calling several witnesses from the airport but mostly relying on a comparison of the four officers' statements and police notes.
The defence, which did not call any evidence, has denied Bentley colluded with the other officers and has said his initial errors were honest mistakes that were the product of a fast-paced incident and the trauma of having been involved in an in-custody death.
Bentley, Millington, Const. Gerry Rundell, and former corporal Benjamin (Monty) Robinson, were each charged with perjury in May 2011.
The remaining three officers are standing trial separately. Those trials, scheduled to be heard by juries, are set for November of this year and February 2014.
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