Judge erred in letting officers walk: appeal

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This article was published 11/03/2011 (5627 days ago), so information in it may no longer be current.

A Manitoba judge has been accused of making numerous legal errors in allowing two Winnipeg police officers to walk free on perjury charges based on a technicality.

Special prosecutor Robert Tapper filed an appeal Thursday seeking to overturn the decision by Queen’s Bench Justice Brenda Keyser and have a new trial ordered against the two accused. No date for a hearing has been set.

Const. Peter O’Kane and Const. Jess Zebrun were cleared last month 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 Tapper failed to have any of his witnesses properly identify the two accused in court, as required by law.

Keyser agreed, saying not identifying the accused was reason enough to acquit both constables.

In documents filed Thursday, Tapper said Keyser denied him the right to make a formal submission on the controversial issue of the identity of the two accused. He claims 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 Zebrun.

“(Keyser) erred in law by not allowing the Crown to reopen its case for the limited purpose of formal in-dock identification of the accused… based on a misapprehension by Crown attributable to conduct of counsel for the accused,” Tapper wrote.

He also said Keyser 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. Tapper said the judge didn’t accept “or appreciate that by agreeing to the admission of certain exhibits… that identification of the accused had been admitted.”

The police officers’ defence teams said 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.

A night manager from the Fairmont told jurors during the trial 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 Keyser ruled proved fatal to the Crown’s case.

www.mikeoncrime.com