11/27/2014 09:08 EST | Updated 01/27/2015 05:59 EST

Robert Dziekanski: Const. Kwesi Millington's lawyer calls for perjury acquittal

The lawyer for one of the RCMP officers involved in the death of Robert Dziekanski has argued his client should be acquitted of perjury for lack of evidence.

Const. Kwesi Millington is charged with one count of perjury for parts of the testimony he gave at the 2009 inquiry into Dziekanski's death. The indictment against Millington lists ten separate allegations of lies in that testimony.

They include allegations that Millington lied when he testified he was "surprised to learn" he and his fellow officers did not have to wrestle Dziekanski to the ground, and that he believed Dziekanski was still standing when Millington fired a Taser at him for a second time.

The special prosecutor concluded its case on Wednesday and Millington's lawyer immediately launched a "no evidence" motion.  Ravi Hira spent most of the day arguing why he believes "the Crown has not advanced anything more than suspicion", using "circumstantial" evidence.

"Const. Millington should not be called to defend himself", Hira told B.C. Supreme Court Justice William Ehrcke.

One allegation in particular sparked a protracted debate between Ehrcke and Hira.

Millington is alleged to have lied when he testified at the Inquiry that if he instructed a suspect to "raise their hands high, that person would be in compliance by raising his or her hands above the waist, but lower than the shoulders."

Hira argued the allegation fails to reflect what Millington actually said in his testimony, which included a caveat that the person's hands would have to be open, and displayed in a surrender fashion.

"This isn't Alice in Wonderland," says judge

Hira also insisted the concept of compliance for a police officer would be different than for an average person.

Ehrcke interrupted, saying "This isn't Alice in Wonderland", adding that it doesn't take experts to determine the definition of "high".

"I'm suggesting all of us are experts in the English language", Ehrcke said.

"It's implausible to suggest an officer would be satisfied if a suspect only put their hands above their waist."

As with the other officers involved in Dziekanski's death, Millington is accused of lying at the inquiry when he denied he met with the others before testifying.

The Crown's key witness alleges her ex-spouse, Brian Dietrich arranged a meeting between all four officers involved in the incident just before the inquiry. 

However in an agreed statement of facts delivered in court Wednesday, the Crown acknowledges that search warrants executed on Dietrich's email provider and phone records, forensic analysis of seven computers, hard drives and other electronic devices, and an examination of more than 400 text messages from the time, yielded no evidence to support the allegation of a secret meeting.

Later today the Crown will begin to address the motion for Millington's direct acquittal.