Manitoba's highest court has ordered a new perjury trial against two Winnipeg police officers who walked free on an unusual legal technicality.
Const. Peter O'Kane and Const. Jess Zebrun were cleared of any criminal wrongdoing in a February 2011 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 law.
It was a surprising 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 in late 2011 for a hearing before the Court of Appeal. And, in a decision released Thursday morning, the high court agreed the judge was wrong to dismiss the charges. The acquittal was overturned and a new trial ordered against both accused. No dates have been set.
Special prosecutor Robert Tapper had argued the Queen’s Bench Justice Brenda Keyser denied him the right to make a formal submission on the controversial issue of the identity of the two accused. He said the judge should have allowed him to reopen his case and set the record straight about identification of the two police officers charged. 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.
But defence lawyers insisted 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 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.