No warrant necessary for arrest: officer
SYDNEY — A Cape Breton police sergeant told a police review board hearing Friday he was not concerned his officers had no warrant when they arrested a man accused of second-degree murder in May 2017.
Sgt. Dave Macgillivary of the Cape Breton Regional Police said he was not concerned because a criminal offence – a breach of a release condition — had been committed meaning no warrant was necessary.
In his testimony before a Nova Scotia Police Review Board hearing, Macgillivary said officers with Halifax Regional Police had requested Cape Breton police make the arrest of Christopher Garnier who was charged in the death of an off-duty Truro police officer. Garnier was later convicted of the crime and sentenced to life in prison with no parole eligibility for 13 years.
Prior to his trial, Garnier had been released on conditions that included terms allowing him to live at his father's place in Bedford and his mother's home in Millville.
Garnier was arrested on Feb. 19, 2017, at the Cape Breton home of his mother and later turned over to Halifax police who charged him with three counts of breaching his release conditions.
A subsequent Supreme Court trial on the breach charges resulted in Garnier being allowed to continue the terms of his release after the presiding judge ruled he had not intentionally breached his release.
He was charged after Cape Breton police conducted a compliance check at the home
in the early morning hours of Feb. 18, 2017.
Const. Steve Campbell testified earlier this week that he went to the home shortly before 1:30 a.m. and knocked at least six times on the door to the basement apartment where Christopher Garnier was staying but received no response. He was requested to make the check by Halifax police.
Campbell and Const. Terry Bork made two other home checks during the weekend and Christopher Garnier did present himself to the officers.
Garnier's father, Vince Garnier, later filed a complaint with Cape Breton police alleging, among other things, that the arrest was illegal because police did not have a warrant.
The hearing has now heard testimony from 11 witnesses and on Monday, a constable with Halifax police is expected to be the final witness.
During questioning by Vince Garnier, who is representing himself at the hearing, Macgillivary said his officers did no investigation to determine whether Christopher Garnier was in breach and that Halifax police never requested they secure a warrant prior to making the arrest.
Macgillivary said under the Criminal Code, a breach of a court order is a criminal offence and that no warrant was necessary for the arrest.
In complying with the request from Halifax for the arrest, Macgillivary said he relied on the information supplied in Campbell's occurrence report dealing with his home visit and with information from Halifax police.
Panel chair Jean Mackenna noted during the hearing that the judge who heard evidence in the breach trial concluded that the arrest was lawful.
Speaking during an interview after the hearing concluded Friday, Vince Garnier was steadfast in his position that police cannot enter a private residence without a warrant.
“All police officers ought to be aware of that fact,” said Garnier, a retired military police investigator and a former director of investigations for the provincial Department of Labour.
Garnier contends that Cape Breton police were operating under the misconception they did not need a warrant and failed to understand their authority when it came to making the arrest.
“This should be a concern to all,” he said.
In Canadian law, there are exemptions that can allow police into a home to make an arrest: police were already in pursuit of a suspect in attempting to make an arrest; there are exigent circumstances such as a concern for public or police safety or the possible loss or destruction of potential evidence and police are given permission to enter.
Homeowner Kim Edmunds, Christopher Garnier's mother, testified this week she did not give permission to the arresting officer to enter her home.
The arresting officer will not be testifying at the hearing as he was previously granted a medical exception but the constable who accompanied him, Troy Walker, testified that Edmunds invited both officers inside commenting it was cold outside.
In addition to Mackenna, the panel members include retired Supreme Court justice Simon Macdonald and Stephen Johnson.
Vince Garnier's complaint names four Cape Breton police officers, Const. Steve Campbell, Const. Gary Fraser, Const. Dennis Macsween and Const. Troy Walker, who are each represented by a lawyer at the hearing. The hearing continues Monday.