11/28/2014 08:57 EST | Updated 01/28/2015 05:59 EST

Robert Dziekanski: Crown fights attempt to have officer's perjury charge dropped

The special prosecutor leading the trial of RCMP Const. Kwesi Millington says evidence of the Mountie's perjury in the testimony he gave at the Braidwood inquiry "simply leaps off the page."

Scott Fenton was challenging a motion from Millington's lawyer Ravi Hira that the officer should be acquitted for lack of evidence.  

Hira spent most of Wednesday this week arguing why the Crown had failed to provide evidence Millington lied at the 2009 inquiry.

Fenton and his co-counsel took less than two hours on Thursday to deliver their rebuttal.

The Crown alleges Millington lied 10 separate times when he testified at the inquiry into the death of Robert Dziekanski.

Two of those allegations deal with Millington's interpretation of the word "high".   Millington initially told homicide investigators Dziekanski had a stapler "raised high".  At the inquiry Millington testified he didn't mean to suggest Dziekanski had the stapler "raised in the air." 

Millington also testified that in his mind, a suspect told to "raise their hands high" would be complying by raising their hands above their waist but lower than their shoulders.

Crown calls stapler explanation "preposterous"

At Millington's trial Fenton was blunt, telling BC Supreme court Justice William Ehrcke that parts of Millington's testimony "defy common sense."

"The answers given by the accused are in the category of the absurd," Fenton argued. "They are on the face of  them — preposterous answers."

Fenton is not required to demonstrate the provability of the allegations. In order to successfully scuttle the motion to acquit Millington the judge has to be satisfied there is at least some evidence that a jury could use to come to a guilty verdict.

Fenton stated much of the evidence requires inferences to be drawn in order to conclude Millington lied.

For instance, all of the RCMP officers involved in the incident initially claimed Dziekanski had to be wrestled to the ground.

No evidence of collusion

Fenton argued that because all four were wrong about the same thing, they must have colluded.

However, the Crown has provided no evidence as to how that alleged collusion occurred.  

Evidence in the perjury trial of Const. Bill Bentley last year, was that the officers were never alone together before giving their statements. Bentley was acquitted.

Fenton also acknowledged the evidence of a key crown witness who alleges all four Mounties met secretly at her house before testifying, is entirely circumstantial.

When Janice Norgard came to the special prosecutor last year with her story, the Crown sparked an investigation by the Vancouver Police Department.  

The perjury trials were delayed while investigators combed through phone and email records, computers and electronic devices seized in search warrants.  No evidence of the meeting was discovered, but the indictments against three of the officers were amended to allege they had lied about the meeting. 

"What you have is evidence of a meeting," Fenton told the judge.

"There's a meeting on this day, and that's really her testimony. It certainly took a long time to go through it."

The defence says Norgard is mistaken. The accused admit they did meet, but it was after they'd finished testifying.

Justice Ehrcke appeared puzzled at a new interpretation of a major plank of the Crown's case. 

"I'm finding it difficult to understand your submissions," Ehrcke said from the bench.

Ehrcke reserved his decision, promising to rule January 12, 2015 on whether there is sufficient evidence to proceed with the trial.