Alberta Justice is refusing to explain why a senior Crown prosecutor appeared to mislead the court about the extent of an assault by a Mountie on a prisoner.

Fort Saskatchewan Crown prosecutor Kevin Fotty resigned as of last Friday. In an email Monday, Alberta Justice spokeswoman Carla Jones said Fotty’s resignation had nothing to do with his conduct in the prosecution of Bonnyville RCMP Const. Shawn Kropielniski for the assault of Eric Ouellette.

"The review of the Ouellette file has been completed, and we have every confidence in the way the Crown handled the case," Jones said in an email.

Jones said Alberta Justice would not explain what happened in this case because it "could quickly lead to a form of ‘trial by public opinion.’

"We prosecuted (Kropielniski) as we would any person where we believe the evidence offers a reasonable likelihood of conviction and prosecution is in the public interest," Jones said.

Call for public inquiry

But University of Manitoba Prof. Arthur Schaefer, an expert in justice ethics, said there should be a public inquiry.

"(Fotty’s) description (of the assault) appears to minimize it in a way that borders on deception, even lying," Schaefer said. CBC showed him a video of the assault, obtained through Freedom of Information, and the court transcript.

Schaefer said Alberta Justice clearly applied a double standard in this case. He said if a citizen had committed such an assault, "there would be very serious consequences.

"The police are professionals," Schaefer said. "They’re supposed to have more self-restraint and be more in control of their emotions than the average citizen.

"So if they’re not, and the department of justice of the province of Alberta views this as a minor matter to be minimized instead of to be presented honestly to the judge, then I think that is a deep concern. The problems may not be just one rogue RCMP officer and one incompetent or duplicitous Crown attorney. The problems may be more systemic."

Prisoner assaulted

On Nov. 7, 2009, Kropielniski stopped a suspected drunk driver on the main street of Bonnyville, a town of 6,000, about 200 kilometres northeast of Edmonton.

Kropielniski arrested 21-year-old Eric Oullette, an oil-field worker from Cold Lake. Oullette blew 0.14, nearly double the legal blood-alcohol limit and was charged with drunk driving.

Oullette admits he was unco-operative with Kropielniski and repeatedly goaded the officer by criticizing the quality of policing in the town.

There is no sound on the video, but Oullette can be seen sitting on a chair in a detachment hallway. He gestures once with his arm toward Kropielniski who is standing over him, effectively facing the wall-mounted camera.

Kropielniski suddenly grabs Oullette with both arms and pushes him sideways off the chair to the floor. He then appears to hit Oullette’s head against the cinder-block wall, then picks him up by the front of his shirt and pushes him up against the wall. The two men are face to face.

"He’s trying to intimidate me, trying to get me to agree with him." Oullette said. "And I must have said something wrong. He pretty much loses it on me."

While an auxiliary constable grabs Oullette in a chokehold, Kropielniski delivers two elbow hits to Oullette’s head. Oullette is then bent double by the two officers.

"Basically, I was just trying to stay on my feet, because if I hit the ground I don’t know what is going to happen," Oullette said.

Oullette did not file a formal complaint with the RCMP until nearly five months after the assault. He said his lawyer did not think it would provide a defence in his drunk-driving case. But as it turned out, once local Bonnyville prosecutor Jeff Rudiak viewed the tape, he dropped the drunk-driving charge.

Assault complaint against Mountie

Oullette said the RCMP began an investigation immediately after he filed his complaint. Kropielniski was charged with assault in September 2010. It wasn’t the Mountie’s only assault charge.

Court records obtained by CBC show that on Jan. 29, 2010, Kropielniski is alleged to have assaulted 33-year-old Jordan Soloway, again in the Bonnyville detachment, with the assault again captured on video.

Fotty packaged together the Oullette and Soloway assaults and shipped both to Fort Saskatchewan without either victim’s knowledge.

CBC has obtained a transcript of the May 13 court proceedings in Fort Saskatchewan. Fotty tells Judge Marilyn White about the events that led up to the attack by Kropielniski. The prosecutor said Ouellette was sitting in a chair with Kropielniski standing beside him.

"Oullette farted and made a waving motion towards Kropielniski, at which time Kropielniski pushed Ouellette off his chair and a scuffle ensued."

Contradictory versions of events

But that version of events is contradicted by Kropielniski’s own official RCMP occurrence report, obtained by CBC. In the report, Kropielniski said Ouellette farted, was then "patted down" for objects in his clothing, and was then introduced to the breathalyzer technician.

"Ouellette was told to have a seat and became verbal, telling members that he wasn’t going to sit down. Writer (Kropielniski) grabbed Ouellette and he started to wrestle. Members had to take Oullette down to the ground until he complied with instructions to sit in the chair."

Oullette denies passing gas, but even if he had, Kropielniski’s own statement said it did not precipitate the attack. But that was not the impression Fotty left with Judge Marilyn White. She clearly viewed it as an instigating, or mitigating factor.

"I do appreciate it was a very short duration of a reaction to a very rude and provocative act," White said, "but tragically, it was criminal and therefore brings you in front of this court."

Schaefer said the video does not show Ouellette waving towards Kropielniski. He makes one gesture with his left arm before he is attacked. Oullette said his arm gesture was to accentuate a point he was making.

White, however, had no chance to determine this for herself.

Video not working

According to the court transcript, Fotty told the judge the video was not working so he described the assault.

"What can be observed from the video is Mr. Ouellette sitting on a chair. Mr. Kropielniski uses both hands and pushes him off the chair onto the ground. He then goes down and grabs Mr. Oullette and pushes him up against the wall.

The Court: And that constitutes the assault?

Mr. Fotty: That constitutes the assault."

With Fotty having portayed the assault as minor, Kropielniski’s lawyer, Rob Beeman, did the same.

"He lost his cool and as Mr. Fotty has told you, this is what I would describe as a very, very minor type of assault that took place," Beeman told White.

Beeman assured the court the RCMP continued to support Kropielniski and a criminal record would not affect his continued employment with the force.

After accepting the joint submission, White sentenced Kropielniski to a one-year suspended sentence.

Despite two charges of assaulting prisoners in custody, the RCMP put Kropielniski back on active duty in Bonnyville. But after CBC began its investigation, Kropielniski was assigned to desk duty, where he remains while he awaits an internal disciplinary hearing.