Pubdate: Fri, 23 Sep 2011
Source: Winnipeg Free Press (CN MB)
Copyright: 2011 Winnipeg Free Press
Author: Mike McIntyre


Manitoba's highest court is weighing whether to reinstate perjury
charges against two Winnipeg police officers who walked free on an
unusual legal technicality.

Const. Peter O'Kane and Const. Jess Zebrun were cleared last February
of any criminal wrongdoing in a decision that likely saved their
careers. Their lawyers successfully filed a motion for a dismissal of
the case, saying the Crown attorney failed to have any of his
witnesses properly identify the two accused in court, as required by

It was a stunning turn of events, considering there appeared to be no
dispute that the O'Kane and Zebrun who were sitting in court were the
same O'Kane and Zebrun referred to throughout the internal police
investigation on display for the jury.

The case returned to court Thursday for a hearing before the Court of
Appeal. Special prosecutor Robert Tapper wants the acquittal
overturned and a new trial ordered against both accused. Defence
lawyers Hymie Weinstein and Sheldon Pinx say the controversial
decision by Queen's Bench Justice Brenda Keyser should stand. The
Appeal Court has reserved its decision.

"How is this anything other than a technical issue?" asked Justice
Alan MacInnes. "We got a guy named O'Kane, not Smith, and a guy named
Zebrun, not Jones."

Tapper claims Keyser denied him the right to make a formal submission
on the controversial issue of the identity of the two accused. He
argues the judge should have allowed him to reopen his case and set
the record straight about identification of the two police officers
charged. He argues no damage was done because it was clear to everyone
the officers at the centre of the controversy were indeed O'Kane and

But defence lawyers insist Keyser was correct in finding there would
be "prejudice" to the two officers if she allowed Tapper the extremely
rare move of reopening his case.

Tapper also argued Thursday the trial judge should have accepted that
identification had already been proven because defence lawyers had
agreed to notebooks and phone records of O'Kane and Zebrun being
tendered as exhibits. Defence lawyers countered by saying Keyser's
decision likely only delayed the not-guilty verdict they expected the
jury to return.

The charges stemmed from an allegedly improper search of a downtown
hotel room and the seizure of nearly a kilogram of cocaine and $18,000
cash. O'Kane, 40, and Zebrun, 33, were arrested in January 2008 after
they allegedly took an illegal shortcut to arrest a known drug dealer.
The internal investigation of the officers' actions started in
November 2006 after the Crown stayed drug-trafficking charges against
the suspect and an accomplice when questions were raised at a
preliminary hearing about the validity of a police search warrant.

O'Kane and Zebrun were alleged to have lied to a magistrate to obtain
a search warrant, which they used to enter a room at the Fairmont
hotel and seize the drugs and cash.

When they testified at the accused drug dealer's preliminary hearing,
O'Kane and Zebrun claimed their suspicions about the hotel room
weren't based on an illegal sneak-and-peek, but rather on the
information of a mysterious informant. The pair told a judge they
never entered room 1707 at the Fairmont until after they obtained a
search warrant. They also gave different accounts in court of when
they first went to the hotel the day of the July 2005 arrests.
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