Robert Dziekanski: Questioning the public interest in prosecuting Mounties for perjury

More than three years after the Mounties involved in the death of Robert Dziekanski were indicted for perjury, the prosecutions against them have lumbered on with no end in sight while the legal bills — paid for by the public — have steadily climbed.

• MORE ON THIS STORY | Robert Dziekanski: RCMP drops discipline against officers

Dziekanski, 40, died after he was Tasered multiple times during a confrontation with four RCMP officers at Vancouver International Airport on Oct. 14, 2007. The incident was captured on amateur video, fuelling a public outcry and prompting the government to order an inquiry headed by former justice Thomas Braidwood.

The perjury charges, stemming from what the four RCMP officers said at the inquiry, and not what they did the night Dziekanski died, have gone through several revisions over the years.

​On Monday, when the trial of former corporal Monty Robinson begins, the court is unlikely to hear that the special prosecutor has had doubts about how solid the case is against him. Robinson led the ill-fated team of Mounties that confronted Dziekanski in the airport arrivals area. 

Last year Robinson was given a choice. He could stick to his story that he didn't mislead the inquiry into what happened or admit he lied and get a conditional sentence.

• Mountie in Dziekanski Taser death not guilty of lying
• Mounties in Robert Dziekanski case face new perjury allegation from Crown

The plea bargain could have brought an end to years of pursuit by prosecutors in exchange for the judicial equivalent of a slap on the wrist. All Robinson would have to do is testify that the officers under his command the night Dziekanski died also lied at the inquiry. Details of the offer appeared in documents obtained by CBC News.

Robinson won't speak about it, but it's clear he rejected it.

Secret offers

CBC News has also learned Const. Bill Bentley was offered a similar deal after he was acquitted of perjury last year. Prosecutors bartered with Bentley to drop their appeal of the verdict in exchange for Bentley's testimony against the other three officers.

Bentley turned it down. The secret offers could suggest the Crown was desperate for a conviction and less than confident it had sufficient evidence to secure one against any of the Mounties.

If true, it raises a question as to how lawyers working for B.C.’s Criminal Justice Branch manoeuvred around one of the two requirements for conducting a prosecution: namely that there must be a substantial likelihood of a conviction.

B.C’s Criminal Justice Branch wouldn’t comment on the plea bargains, but spokesman Neil McKenzie told CBC news that in general attempts by prosecutors to strengthen a case in this way don’t imply that there isn’t enough evidence to proceed.

Long before the parties stepped into a court room, Crown and defence lawyers had a confidential legal opinion on the case forecasting acquittals.

RCMP insider's perspective

RCMP Staff Sgt. Mike Ingles is intimately familiar with the case.

"I don't think there's any evidence, at least nothing I've seen," Ingles said in an interview with CBC News, his first on the subject. 

"Bill Bentley was acquitted and I've read through that decision. I've read through the Braidwood reports, and I don't see it, but I'm not privy to all of what the Crown may have."

Ingles is a staff relations representative, elected by RCMP members from around the Lower Mainland.

In the early morning hours of Oct. 14, 2007, Ingles sat down with three of the Mounties involved in Dziekanski's death.

​His job was to tell the rookies what was going to happen. He advised them of their right to speak to a lawyer before giving statements to homicide investigators.

Ingles says the officers were adamant they didn't want to wait.

"If you didn't do anything wrong," Ingles recalls of their attitude at the time, "why wouldn't you just give a statement and tell what occurred?"

It is a detail that was downplayed in the public furor over Dziekanski's death and the calls to fix blame.

What is also overlooked is that the perjury charges which flowed from the Mounties' testimony at the inquiry have nothing to do with the officers' actions the night Dziekanski died.

Const. Kwesi Millington, for example, is accused of lying for telling the inquiry that when Dziekanski grabbed a stapler and held his hands high, he simply meant Dziekanski held his hands above his waist.

The prosecution hasn’t come cheap.  B.C.'s criminal justice branch refuses to say how much the public has paid for special prosecutor Richard Peck who was hired four years ago. Since then, Peck's Vancouver firm has employed a team of lawyers, including at least one from Ontario.  

The RCMP is equally tight-lipped about the legal bills for the four Mounties. Documents obtained by CBC News suggest they are substantial.

In 2012, former Minister of Public Safety Vic Toews signed off on $200,000 in legal fees for Robinson alone. That was when Robinson's trial was expected to be held last year.

The final tally is likely to be in the millions, so on what basis is the special prosecutor plodding ahead?  

The lies each officer is alleged to have uttered at the inquiry are varied and plentiful. All the prosecutors need to do is convince a judge that just one of them is valid to secure a conviction.  

'It's difficult to prove perjury'

A witness who came forward after Bentley's acquittal breathed new life into the prosecution. Janice Norgard says her ex-husband — Bentley's cousin — used her home for a meeting by all four Mounties just prior to their testimony at the inquiry.

If true, the officers — who testified they never met before the inquiry — could very well be guilty of perjury.

At the start of Const. Kwesi Millington's trial earlier this year, Crown Counsel Eric Gottardi summed it up for the court.

"If the accused are prepared to get together to coordinate their version before the Braidwood inquiry," Gottardi told the judge, "surely they were prepared do the same thing before being interviewed by IHIT [Integrated Homicide Investigation Team]."

The kink in that legal equation is that the evidence has suggested the four officers were never alone together before giving their statements to IHIT.

James Morton is the past president of the Ontario Bar Association and the author of a number of books on the laws of evidence.

"From what I've seen and what I've read, I would not be surprised if after several more years there are acquittals on everything."

Morton says perjury is often used as an attempt to convict someone who is felt to have slipped through the cracks in another proceeding.

"It's difficult to prove perjury and it may be this is more of a gotcha kind of falsehood, if it is indeed a falsehood."  

While Morton doesn't think it's unreasonable for prosecutors to consider the notoriety of the case and the fact that the accused are police officers, there are limits.

"Prosecutions that go on for the better part of a decade with limited chance of success do not strike me as being particularly in the public interest."  

Staff Sgt. Ingles acknowledges that the death of Robert Dziekanski was regrettable. In the seven years since, all four officers have been sidelined, and suffered from post traumatic stress disorder in some form.

"It takes a tremendous toll," Ingles says while being careful not to divulge personal medical details of the four officers.  He joins Morton in believing the prosecutions are not in the public interest.

"Psychologically, physically, you get beaten down. I don't think anyone should be subject to scrutiny over events, over minutes, for closing in on a decade by the time we get this brought to a conclusion.”