VANCOUVER - The rights of an RCMP officer involved in Robert Dziekanski's death would be violated if a statement he made to homicide investigators is admitted into his perjury trial, his lawyer argued Wednesday as she attempted to keep a key piece of the Crown's evidence out of the case.
Const. Bill Bentley is accused of lying six times at the public inquiry that examined what happened when Dziekanski was stunned with a Taser at Vancouver's airport. Bentley was among four officers who confronted Dziekanski, and all four have been charged with perjury.
Three of Bentley's alleged lies relate to a statement he gave to homicide investigators several hours after Dziekanski died in October 2007 — specifically, testimony during the inquiry in which he explained apparent inaccuracies in that statement.
But Bentley's lawyer told a pre-trial hearing on Wednesday that Bentley was compelled to give the statement, because he was ordered to speak with investigators by a superior and he believed he would be reprimanded if he didn't comply.
"Bentley believed he would be in trouble if he did not provide" the statement, defence lawyer Maegan Richards told a B.C. Supreme Court judge.
"You've heard evidence of a strong state presence (when Bentley and the other officers were asked to provide statements), and I suggest that Const. Bentley is an individual who has been the subject of coercion."
Richards also argued Bentley believed he was not free to leave the RCMP attachment near the airport where the interviews were conducted.
Because of that, Richards said Bentley was effectively detained, which she said should have triggered a warning that his statement could be used as evidence and he should have been provided access to a lawyer. Bentley was not given any warnings that his statement could be used against him.
Provisions in the charter prevent self-incriminating statements from being used in court, she noted.
The court has already heard the officers were told they were required to give a statement under a policy known as "duty to account" — a vague term that wasn't defined in any law or policy, but which officers generally interpreted as an obligation to provide an account of a critical incident such as an in-custody death.
Bentley and three other officers responded to 911 calls about an erratic man throwing furniture at Vancouver's airport in the early morning of Oct. 14, 2007. Within seconds of arriving, one of the officers stunned Dziekanski with a Taser. The Polish immigrant died shortly after.
The case prompted a high-profile public inquiry into Taser use and the circumstances of Dziekanski's death. All four officers, including Bentley, were called to testify.
In his statement to a homicide investigator, Bentley said Dziekanski appeared to be looking for a weapon and that the man started to back up and appeared as though he was "looking for something to grab" in the seconds before he was stunned with the Taser. He also told the investigator two other officers took Dziekanski to the ground.
A video shot by a witness appeared to contradict those statements, his perjury trial has heard, and Bentley was forced to explain the discrepancies during the inquiry.
He told the inquiry that when he said Dziekanski was looking for a weapon, he meant to say Dziekanski was moving his head from side to side.
When he said in his statement that Dziekanski was backing up, Bentley told the inquiry he was referring to the moment Dziekanski grabbed a stapler.
And when asked about why he told the homicide investigator that two officers took Dziekanski down, when it's clear on the video that the Taser caused Dziekanski to fall to the ground, Bentley said he had no explanation for the error.
The Crown alleges each of those explanations were lies, and prosecutor Scott Fenton told the court Wednesday that Bentley's police statement will be essential to proving that.
Fenton rejected the defence argument that Bentley was coerced or detained, pointing out the officers were told before their statements that they weren't considered suspects.
He also noted the charter provision regarding self-incriminating statements includes a specific exemption for perjury charges.
"It is the Crown's theory that those inaccuracies became evident only after the objectively reliable footage from the video," said Fenton.
Judge Mark McEwan did not make a ruling on the admissibility of Bentley's statement. Instead, he told the court he will wait until he hears another application from the Crown, which is seeking to introduce the police statements made by the other three officers involved in Dziekanski's death.
Bentley, Const. Kwesi Millington, Const. Gerry Rundell, and former corporal Benjamin (Monty) Robinson were each charged with perjury in May 2011.
They are standing trial separately.