VANCOUVER - A public inquiry into Robert Dziekanski's death has diverted widely from its original purpose as it considers what amounts to criminal allegations against the four Mounties involved, the officers' lawyers say.
Inquiry Commissioner Thomas Braidwood heard from more than 80 witnesses between January and May.
Closing arguments are scheduled to begin next Friday, but the officers' court challenge could delay that.
The officers who confronted Dziekanski at Vancouver's airport and stunned him repeatedly with a Taser are asking B.C. Supreme Court to prevent the inquiry from making findings of misconduct against them.
Braidwood has given the officers notice he might consider allegations made at the inquiry, specifically that the four men acted improperly and then lied to cover up their actions.
While the notice only means Braidwood is considering the allegations, not that he has decided the officers are at fault, the officers' lawyers want the court to remove that option.
The officers' lawyers are also asking the judge to delay the inquiry if he can't make a final decision by next week.
Ravi Hira, lawyer for the officer who fired the Taser, noted that the inquiry's original purpose was to provide a full record of what happened and make recommendations to prevent similar tragedies in the future.
He said assessing the officers' conduct and making what are essentially criminal allegations goes far beyond those original terms of reference.
"(The inquiry's) purpose was to provide Mr. Dziekanski's family and the public with a complete record of the circumstances of ... Mr. Dziekanski's death," said Hira.
"The focus of the inquiry very quickly became the conduct of these four officers and that's it."
While B.C.'s Public Inquiry Act gives the commissioner the power to make findings of misconduct, Hira noted that direction was not included in the original terms of reference from the provincial government.
But Craig Jones, who represents the B.C. government, argued the inquiry is not over-reaching its authority.
Jones told the court that the original terms of reference are broadly worded to include anything related to Dziekanski's death.
"We say these terms are very broad and include the authority (to assess) whether the officers misconducted themselves," he said.
In a confidential notice to the officers, lawyers for the inquiry list the broad allegations that were made against them during the hearings.
The allegations include that the officers failed to properly assess the scene when they arrived at Vancouver's airport, that they responded inappropriately by stunning Dziekanski several times with a Taser, and that they later lied to investigators and to the inquiry to justify their actions.
Hira said those are all criminal offences -- assault, obstruction of justice, perjury -- that are outside the scope of a provincial inquiry, which cannot assign criminal or civil responsibility.
The lawyers are also making a constitutional argument that a provincial inquiry doesn't have the authority to make findings against federal police officers of the RCMP.
David Butcher, another of the officers' lawyers, said legislation that governs the RCMP allows the federal government or the police complaints commissioner to hold their own inquiries.
"There is a federal mechanism for the process that this commissioner wants to undertake in a provincial inquiry," said Butcher.
Walter Kosteckyj, lawyer for Dziekanski's mother, told the court that it shouldn't delay the lengthy public inquiry any further".
"My client and the people of B.C. have waited a year and a half ... and to deny a quick resolution and the arguments to proceed as scheduled would be intolerable," he said.
Kosteckyj said it shouldn't come as a surprise to the officers that they could be found to have acted improperly.
"We all knew going in that the issue of misconduct was alive," said Kosteckyj.
Last December, Crown prosecutors announced their decision not to charge the officers, saying they acted with reasonable force when they confronted Dziekanski, who minutes earlier had been throwing furniture.
But the testimony at the inquiry that appeared to be inconsistent with an amateur video of the confrontation and with the officers' own statements to investigators led to calls for prosecutors to rethink that decision.
A decision out of this hearing is expected as soon as Monday, which would allow closing arguments to go ahead next Friday.
Braidwood had hoped to submit his report this fall.
A report from the first phase of the inquiry, which was held last year and examined Taser use in general, is expected to be handed over to the provincial government by the end of this month.
