Wrong address on warrant in shooting case
Jesse Michael Joe, 41, of Fredericton, challenges search, arguing it’s invalid due to error and thereby violated his privacy, but first he has to prove interest in property
A prosecution arising from a shooting incident late last year may go off the rails, because police listed the wrong address on a search warrant that netted key evidence in the case.
Jesse Michael Joe, 41, of Angelview Court in Fredericton, was scheduled to stand trial in provincial court Friday on several charges, mainly from events stemming from a violent incident in Hanwell late last year.
He’s accused of assaulting Daniel Gallant with a weapon (a two-by-four), pointing a firearm at Gallant, threatening to harm him, robbing him of jewelry while armed with weapons, and robbing him of those items while armed with a prohibited firearm, namely a 22-calibre rifle, all on Dec. 2.
But rather than proceed to the trial phase, the court instead went into a voir-dire hearing on the admissibility of evidence.
Defence lawyer T.J. Burke filed an application with the court seeking to challenge the validity of the search warrant at one of the locations involved in the case.
Crown prosecutor Rodney Jordan conceded the warrant, signed by a judge, was for the premises of 42 Elmwood Cres. in the Hanwell Trailer Park.
The problem was the location was actually 42 Elmdale Cres.
But before the defence could argue the items seized at that location should be excluded as evidence at trial due to the flaw in the warrant, it first has to establish that Joe has standing to challenge the warrant at all.
Jurisdictional chaos
RCMP Const. Andrey Bouchard Kirouac testified members of the RCMP and the Fredericton Police Force were dispatched to the Hanwell Trailer Park after receiving a report of a shooting at about 4 a.m.
Gallant would later tell police he’d been shot at, as had his brother, Corey Vaillancourt, in the course of a robbery, court heard.
“At the time, there had been some jurisdictional issues,” she said, noting the boundary denoting the city police’s area of responsibility and the Mounties’ goes right through the trailer park.
Initially, Bouchard Kirouac said, the incident was reported to have occurred at 27 Leafwood Cres., which falls under the Fredericton Police Force’s purview. But later, she said, it was learned there was another location involved - 42 Elmdale Cres., for which the RCMP is responsible - and it was there that the crime had begun.
The city police force took the lead at first, she said, but eventually, the RCMP took over.
However, before that happened, Bouchard Kirouac said, the Fredericton police had already begun preparing documentation to secure search warrants in the case.
Fredericton police Det. Debbie Stafford prepared the informations to obtain (ITOs) the warrants as well as the warrants themselves, the Mountie testified.
The Elmdale Crescent ITO listed the address correctly, court heard, but the search warrant itself referred to the location as 42 Elmwood Cres.
Bouchard Kirouac said she and the three other Mounties executing the warrant at the Elmdale Crescent mobile home all reviewed the warrant and signed off on it, with none of them noticing the mistake.
Joe was listed as a suspect in the investigation in the ITO, she said, and it indicated he had an association with the address.
They conducted the search the afternoon of Dec. 3, Bouchard Kirouac said, noting she was acting as the exhibit officer in the investigation. “We seized some different items that were listed on the warrant.”
Among the items they were looking for, she said, were a revolver, an AK-15-style rifle, ammunition, a broken piece of wood and blood evidence.
The officer said information gleaned later during the investigation indicated Joe was living at an Angelview Court apartment at the time of the robbery.
Court heard that at Joe’s bail hearing in mid-December, a girlfriend testified he lived with her at that apartment. Furthermore, Bouchard Kirouac said, Joe told another RCMP officer that he’d moved out of the Elmdale Crescent home and into Angelview Court on Dec. 1, the day before the robbery.
‘What does living in the residence mean?’
Where Joe was living at the time of his alleged offences was a key element. If he had an expectation of privacy at 42 Elmdale Cres., that would mean he would have standing to challenge the search warrant due to the incorrect address being listed.
The Mountie said Sarah Harper resided at the Elmdale address, and there was information that Joe had an on-again/off-again relationship with her.
When cross-examined by Burke on Friday, Bouchard Kirouac said she didn’t recall seeing any men’s clothing, sports apparel or spiritual Indigenous items that could have been associated with Joe.
Burke offered precedents with the court Friday showing that the wrong address on a search warrant, even if it’s the result of a simple clerical mistake, is a fatal error.
But to rule the warrant breached Joe’s Charter rights, he said, he first had to show Joe had an interest in the property.
While there was information that linked his client to the Angelview Court address, the defence lawyer said, that doesn’t necessarily mean his connection to Elmdale Crescent was eradicated.
“What does living in the residence mean?” Burke said.
There are various possibilities, he argued, such as Joe couch-surfing in more than one location, or perhaps he was out of Elmdale temporarily due to a fight with Harper.
He said the release order, listing Angelview Court as his residence, was issued Dec. 15, well after the events of Dec. 2.
“All of this stuff after the fact [is a] red herring on the part of the Crown,” he said.
Prosecutor Rodney Jordan said the Crown rejects Joe’s assertion he was residing at Elmdale Crescent at the time of the events in question.
All of the relevant information pointed to him having left that location behind by that point, he said.
Judge Lucie Mathurin reserved her decision on the standing issue to Aug. 28. Depending on that decision, she said, she’d deal with the validity of the warrant and the alleged Charter breach at that time.
While Joe was released after a bail hearing Dec. 15, he was charged with violating the conditions of his release order a month later and has remained in custody since that time.
The other defendant
Also accused in the same investigation is Blake R. Holt, 23 of Forest Hill Road in Fredericton.
He faces a variety of charges stemming from the events of Dec. 2, the most serious of which are two counts of discharging a firearm - at Gallant and Vaillancourt - with intent to wound, maim, disfigure or endanger the complainants’ lives.
Holt is also accused of robbing Gallant of jewelry and keys, and masking his face during the robbery in Hanwell.
Other related charges include flight from police in Harvey that day, theft of gas from Sun’s Convenience in Beaver Dam, dangerous driving, possession of a stolen 2012 Honda Civic, possession of a prohibited weapon (a 22-calibre rifle) without a licence, possession of that rifle with readily accessible ammo capable of being discharged, occupancy of a car in which he knew there was a prohibited firearm and breach of a release order barring him from driving.
Holt elected in April for a trial in the Court of King’s Bench before a judge and jury.
His preliminary inquiry - held to determine if there’s sufficient evidence to set the case over for trial at the higher level of court - is scheduled to begin Aug. 25 in provincial court.
Police issued an Alert Ready message over broadcast and cellphone networks Dec. 2 reporting that two suspects fled the scene of a shooting in the Hanwell Trailer Park in a blue 2012 Honda Civic and were believed to be armed and dangerous.
A news release reported that two victims at a mobile home were taken to hospital with non-life-threatening injuries.
Don MacPherson can be contacted at ftonindependent@gmail.com.
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