Sunday, February 27, 2011

A Crown Attorney School first day mistake?

Robert L. Tapper, Q.C.
Called to the Manitoba Bar, 1974
Called to the Ontario Bar, 1981
Appointed Queen's Counsel, 1992
Listed in "Best Lawyers in Canada" in three categories: medical malpractice, personal injury and media/defamation law
Named by "Best Lawyers in Canada" as lawyer of the year, 2011 for injury law in Manitoba
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Good Day Readers:
What caught our attention in this story was the Justice who threw the case out - Her Ladyship Madam Brenda Keyser. During all those years Manitoba Metis Federation President David Chartrand, his Board of Directors and Canadian taxpayer financed defamation lawyer Murray Trachtenberg who prosecuted the case needlessly dragging us through the court system with their frivolous, extremely expensive SLAPP (Strategic Lawsuit Against Public Participation) lasting several years, it seemed at times as though we'd been inside just about every courtroom at the Law Courts Building and before just about every Queen's Bench Justice one of whom was "Keyser, J" as lawyers often designate judges in their filings. Suffice it to say she's good - she's very good!

www.ptlaw.mb.ca; mtrachtenberg@ptlaw.mb.ca

We (my lawyer Mr. Jeff Niederhoffer at the time and I) even made a brief appearance before then Queen's Bench Chief Justice The Honourable Marc Monnin. During October 2005 Counselor Trachtenberg sought a temporary, interim injunction preventing Co-Defendant Terry Belhumeur and I from publishing any internal MMF headquarters documents (including those of it's 6-Regional Offices, 7-"so called arms length affiliates" - even the Metis National Council, as well as, its Secretariat were thrown in for good measure) that might be in our possession. Talk about over kill! It was one of those production line days at the courthouse where Motions and other matters, involving totally unrelated cases, are batched together and considered by the same presiding judge during one Hearing.

Later (May 2006) "Our Learned Friend" filed a Motion for return to him of any and all such documentation. By that time I was now self-represented but argued before Madam Justice Deborah McCawley Counselor Trachtenberg should not be granted an order given this material was essential if we were to mount a vigorous defence. Unfortunately, I lost and was forced to:

"..... forthwith return to counsel for the Manitoba Metis Federation Inc. all copies of all internal documents ....."

In response to my concern if relinquished these documents could otherwise "miraculously" go missing, on multiply occasions Her Honour advised they could be subpoenaed for trial if necessary - she couldn't have me going to a possible Examination for Discovery with material in my possession possibly obtained "by questionable means."

Sure enough during September 2007 "Learned Friend" invited us to an Examination for Discovery. Even though he was shown and already in possession of multiple e-mail firmly establishing former Manitoba Legal Aid lawyer Lionel Chartrand (Metis - now a Crown Attorney in Wetaskiwin, Alberta), and at the time CyberSmokeSignals' General Legal Counsel, had clearly written the allegedly defamatory material while providing Messrs Belhumeur and I with no cautionary warning it might/could contain actionable words/phrases, Counselor Trachtenberg in his obsessive-compulsive anally fixated approach to the case chose to plow ahead ignoring the relevant evidence resting on the table before him. Why?

Not once in the thousands and thousands of pages of filings and correspondence did Counselor Trachtenberg once use the term, "alleged defamation." Isn't that something you learn in your first day of law school? We couldn't recall a trial being held and a finding of guilt. Rookie mistake!

In my case it amounted to 1,567 pages worth of potential evidence. I cannot speak for Mr. Belhumeur. However, I subsequently appealed that decision before a different judge presiding over one of many Pre-Trial Conferences (almost 30 - more than a serial killer would likely face) who at one point in the process was replaced. The only reason given? She was on leave.

So as you can see, we've been in many courtrooms before several judges. At one point we were asked if we'd ever been in court? We were able to reply prior to the MMF's vengeful, vindictive lawsuit we'd never so much as set foot in a courtroom going on to suggest to Her Ladyship should she have our name run through the system using any available data base at Her disposal she wouldn't find as much as an unpaid parking ticket.

Sincerely/Clare L. Pieuk

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LATEST NEWS: Winnipeg Free Press - ONLINE EDITION
Police perjury case ends after judge cites Crown error
By: Mike McIntyre
Posted: February 22, 2011

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)

WINNIPEG - A judge has thrown 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.

Constable Peter O'Kane and Constable Jess Zebrun were cleared Tuesday afternoon of perjury after their jury trial came to a sudden halt. The decision sparked a round of applause by numerous off-duty officers in court. It may also have saved the careers of the two accused.

Their lawyers filed a motion earlier in the day for a directed not guilty verdict, saying prosecutor Robert Tapper had failed to have any of his witnesses properly identify the two accused in court as required by law.

Queen’s Bench Justice Brenda Keyser (emphasis ours) agreed, saying the technical error by Tapper was enough to sink the case. Since defence lawyers weren’t consenting to the identification of their clients, Tapper should have ensured the issue was made crystal clear for jurors.

Tapper closed his case last week but fought the defence motion by seeking to re-open it. 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.

The allegations of perjury, which stem 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.

O'Kane and Zebrun told court the drug investigation began with a routine call about a disturbance. They found a drunk and disorderly Scott Guiboche and took him to the Main Street Project under the Intoxicated Persons Detention Act. The case changed focus when a routine pat-down search uncovered nine rocks of crack cocaine. The officers also found a swipe card for a room at the Fairmont.

Much of the evidence against the two officers involves a global positioning system from their cruiser cars and recorded conversations with a police dispatcher and court officials. A manager from the Fairmont is expected to testify the two officers asked for entry to the suite prior to obtaining a search warrant on the premise they were searching for a missing girl.

However, the manager was never directly asked by Tapper to identify Zebrun and O’Kane in court – an oversight that proved fatal to his case.

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