Crown blows case, cops walk

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Hymie Weinstein, left, and Sheldon Pinx were all smiles as they left the courthouse to speak to media Tuesday after a judge threw out all charges against two Winnipeg police officers accused of lying under oath to provincial justice officials because the Crown failed to have witnesses identify the accused in court. (JOE.BRYKSA@FREEPRESS.MB.CA)

The truth behind perjury allegations against two Winnipeg police officers will likely never be known after a prosecutor's legal error led to the sudden collapse of a high-profile jury trial.

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

Court of Queen's Bench Justice Brenda Keyser agreed, saying the careless oversight by Tapper was enough to sink the prosecution and result in acquittals for both constables. As defence lawyers weren't conceding the identification of their clients, Tapper should have ensured the issue was made crystal-clear for jurors.

"This was something so basic. Day 1 of Crown attorney school they taught you to prove identity, prove jurisdiction," Zebrun's lawyer, Hymie Weinstein, said outside court. "All Mr. Tapper had to do was ask one witness: 'Have you seen Mr. O'Kane or Mr. Zebrun in the courtroom?' And if they pointed to him and said, 'yes, that's Mr. O'Kane, yes, that's Const. Zebrun, identification is proven. And every Crown, with respect, knows that. You've got to prove identification."

Tapper closed his case last week but fought the defence motion by seeking to reopen it and set the record straight. He argued no damage was done because it was clear to everyone the officers at the centre of the controversy were indeed O'Kane and Zebrun. Outside court, he said he never thought identification was an issue because defence lawyers had agreed to notebooks and phone records of O'Kane and Zebrun being tendered as exhibits.

"I'm not very happy. I can assure you I'll be testing this in the Court of Appeal very promptly," Tapper said. "This case was not treated on its merits. It was a technicality. I believe when we had these exhibits entered, we had established identity."

Tapper expects to file paperwork with the high court by the end of the week.

"The paint's not dry on this wall," he vowed.

Tapper was appointed by the province to act as special independent prosecutor in the case. A government spokesman said Tuesday they had no further comment on the issue.

The police officers' defence teams said Keyser's decision likely only delayed the inevitable not-guilty verdict they expected the jury to return.

"They strongly maintained their innocence. They were equally looking forward to the case going to the jury," said Sheldon Pinx, O'Kane's lawyer.

Winnipeg Police Association president Mike Sutherland said the surprising end of the trial was "bittersweet. It does put something of a question mark surrounding these acquittals."

O'Kane and Zebrun have been on administrative duties since their arrests but are expected to fight to return to normal active duty, he said. Convictions for perjury likely would have meant immediate dismissal.

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 are alleged to have lied to a magistrate about how they obtained the 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.

A night manager from the Fairmont told jurors last week he couldn't be sure either accused entered the suite prior to obtaining a search warrant.

Michael Hrechka said the officers arrived at the hotel saying they were searching for a missing girl. He said one of the officers who might have gone into 1707 introduced himself as Const. Peter O'Kane.

Hrechka said he then filled out a hotel incident report, including the names of both O'Kane and Const. Jess Zebrun in it.

However, Tapper never directly asked the manager to identify Zebrun and O'Kane in court -- an oversight that proved fatal to the Crown's case.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition February 23, 2011 A3