Two Winnipeg Police officers accused of perjury had their charges tossed out of court on Tuesday after the Crown failed to prove their identities to a jury.

Defence lawyers Hymie Weinstein and Sheldon Pinx argued for — and won — a dismissal because independent Crown prosecutor Robert Tapper failed to have any witnesses identify Consts. Jess Zebrun or Peter O'Kane in open court in front of a jury

Queen's Bench Justice Brenda Keyser agreed with the defence motion and threw the case out. She refused a request from Tapper to reopen the case.

He said after court he plans to appeal and may file documents by Thursday.

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

Zebrun, 33, and O'Kane, 40, were accused of giving misleading or false statements under oath at a 2006 preliminary inquiry of two men accused of drug trafficking. The case fell apart when the perjury allegations came to light.

Zebrun and O'Kane have been working desk jobs away from the public since they were charged in January 2008 following a lengthy internal police investigation into a botched drug investigation at the Fairmont Hotel in July 2005. More than 600 grams of crack cocaine and $18,000 in cash were seized, but the Crown alleged the officers illegally entered the room prior to obtaining a search warrant.

Both pleaded not guilty when their trial started Feb. 14.

'Dismayed'

Tapper said after court he believed the officer's identities weren't an issue because of a pre-trial agreement with defence lawyers Hymie Weinstein and Sheldon Pinx that the officers' notebooks and cell phone records would be admitted as evidence without contest.

He said he was "dismayed" by the court's decision. "I thought I had an admission," Tapper said.

Weinstein and Pinx said there was never any agreement that the identification of the officers was not a live issue. Both continued to maintain that the Crown's case featured conflicting testimony from witnesses that would have likely resulted in an acquittal.

"We never agreed to anything beyond just simply, 'you don't have to call the officers in this particular case to produce the notebooks," Pinx said after court.

"All Mr. Tapper had to do was ask one witness: 'Have you seen Mr. O'Kane or Mr. Zebrun in the courtroom?,'" Weinstein said. "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.

"Day one of Crown attorney school they taught you, 'prove identity, prove jurisdiction'," Weinstein said.

Asked if they were concerned about the public perception about the case being dropped, Pinx suggested the officers were treated no differently than any other member of the public would be.

"The public has to understand that in ... any case, one of the issues that has to be addressed is 'are the people in the courtroom in fact the people who committed the crime?," he said. "If the Crown fails to establish that, those people in the community would get the benefit," Pinx said.