Appeal filed Thursday in police perjury case

A Crown appeal will be filed Thursday morning in the case of two Winnipeg police officers who were cleared of perjury charges on a technicality.

A Crown appeal will be filed Thursday in the case of two Winnipeg police officers who were cleared of perjury charges on a technicality.

A notice of appeal will be filed in Manitoba's highest court on behalf of independent prosecutor Robert Tapper, who is seeking a retrial in the high-profile case.

Consts. Jess Zebrun and Peter O'Kane were acquitted of perjury and being unlawfully in a dwelling house after a lower-court judge ruled Feb. 22 that Tapper had failed to prove the officer's identity in open court.

Court of Queen's Bench Justice Brenda Keyser also refused a request to allow Tapper to reopen his case.

The Crown's appeal asserts that the judge made six specific errors in acquitting the officers, who were arrested after a prolonged internal police investigation into a botched drug investigation at Winnipeg's Fairmont Hotel in July 2005.

The Crown alleges they lied under oath at a preliminary hearing into a man arrested in that investigation.

Slightly less than a kilogram of crack cocaine and about $18,000 in cash were seized from the room as part of the investigation.

Both officers were put on desk jobs after they were charged in January 2008 following a lengthy internal police investigation. Their current status with the service is unknown.

Notebooks, phone records at issue

Key to the appeal is Tapper's contention that he proved the officers identities because jurors in the case were given copies of their notebooks and cellphone records. The notebooks were entered as exhibits in the trial without contest from O'Kane or Zebrun's lawyers.

"The exhibits were agreed to be their notebooks and their cell phone records. At the end of my case, the defence stands up and says, ‘well, you didn’t prove the accused are the accused … and not just people who strangely somehow had the same names,'" Tapper told CBC News in an interview a day after the trial abruptly ended.

Tapper said Wednesday he will rely on comments made by defence lawyer Sheldon Pinx in front of the jury on the trial's first day. They heard there was no contest about the notebooks being tendered as an exhibit.

In a trial transcript obtained by CBC News, Pinx said: "The exhibits, so the jury is aware, are going in with the consent of both counsel on behalf of our two clients."

Keyser made a mistake in law, Tapper states, "by not accepting or appreciating that by agreeing to the admission of certain exhibits relating to records of the [officers], and by the specific statements of counsel for the [officers] in relation to the admission into evidence of said exhibits that identification of the [officers] had been admitted " according to the appeal documents.

"It had nothing to do, whatever, with whether they lied under oath or were unlawfully in a dwelling home," Tapper said.

"It had to do with whether or not the Crown — me — proved their identity — not in the sense of who entered into the particular hotel room, which was the substance of the offence, but their identity in the sense of whose notebooks these were and whose cell phone records that these were."

No date to hear the appeal has been set.

"I'm pushing for this thing to be heard as fast as humanly possible," Tapper said.