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Mistaken information did not render arrest unlawful

May 4, 2021  By Mike Novakowski

The miscommunication of information relayed among officers did not invalidate an officer’s reasonable grounds for a warrantless arrest, so says the New Brunswick Court of Appeal.

In R. v. Currie, 2021 NBCA 12, a 9mm Berretta semi-automatic handgun, among other items, was stolen from the residence of a licensed gun owner. The owner informed the police that he suspected the thief was his stepson. Within a week, the police received confidential information that the stepson sold the gun to the accused, Vincent Currie. Now wanting to recover the stolen gun, police shifted their investigation to Currie who, although a suspended driver, was known to be in possession of a black Toyota Tundra and the subject a firearms prohibition order.

About eight days after the break-in, Currie’s Tundra was stopped for a tail light infraction. It also had an ATV in its bed. Currie, however, was not in the vehicle. A known associate of his was driving (Mr. Gratton), accompanied by a 16-year-old girl. The officer noticed a live 9mm round on the floor near the gas pedal. Gratton was arrested and the truck was searched. The stolen handgun was not found but more ammunition was; both 9mm and .22 calibre. The ATV was also found to be stolen. Gratton told police he was on his way to meet Currie on the Claudie Road to go four wheeling and drink some beer. The officer was familiar with the Claudie Road area as being somewhat remote and used for target shooting. The officer asked Gratton about target shooting but he did not answer.

The officer let other officers know what he had learned, giving the impression that Currie was target shooting somewhere on the Claudie Road. One of these officers subsequently relayed the information to a sergeant. Under the impression that Currie was target practicing and the stolen gun had not been found in the truck, the Sergeant gave the order that Currie was arrestable without a warrant for possessing the stolen handgun. An officer set up in the Claudie Road area and saw Currie driving a Mazda, leaving the area. Two passengers were in the vehicle. It was stopped and Currie was arrested.

The Mazda was searched and the stolen (fully loaded) Beretta was found in a bag under the passenger seat. A green container left on the passenger seat was also searched, revealing 119 live rounds of 9mm ammunition. Currie’s hands had gunshot residue on them. Later, DNA testing established his DNA on the handgun’s grip (along with two other unidentified people).

At Currie’s trial in Manitoba Provincial Court, the judge ruled that the sergeant had the necessary grounds to believe Currie was in possession of the stolen gun and to give the direction for his arrest to the other officers. The subsequent search was justified as an incident to arrest.

“I’m satisfied beyond any doubt that the police, in arresting Mr. Currie, had the… required reasonable and probable grounds to do so, looked at both subjectively and objectively taking into account all of the indicia of … his being in possession of that gun,” said the judge. “I’m also satisfied the subsequent search of both vehicles, which occurred at the police station within an hour or so after the arrest of Mr. Currie and Mr. Grattan, was simply a continuation of the legal search incident to arrest that took place at the scene of the high-risk takedown for the purpose of collecting evidence related to the purpose of the arrest.”

There were no Charter breaches, and Currie was convicted of six charges under the Criminal Code related to possessing the stolen handgun and ammunition. He was sentenced to four years in prison, less time served on remand.

Currie appealed his convictions to Manitoba’s highest court. In part, he argued that his warrantless arrest and the subsequent search were unlawful. Currie submitted that the information conveyed to the sergeant—that he was target practicing on the Claudie Road—was untrue; Gratton never said such a thing. Since this information was incorrect, the sergeant’s subjective belief was based on unreliable information and the objective element of his belief would have been unreasonable had the facts been properly conveyed to him. Thus, Currie asserted that the trial judge erred in determining that there were reasonable and probable grounds for his arrest.

Justice Green, authoring the Court of Appeal’s unanimous decision, upheld the decision of the trial judge. Currie’s warrantless arrest was not rendered unconstitutional because the information conveyed was mistaken.

“There was no suggestion [the officer who stopped the Tundra] had deliberately attempted to mislead his fellow officers,” said Green. “What is under scrutiny is whether [the Sergeant] had the requisite subjective belief, based on the information actually provided to him. In my opinion, he did. The potential miscommunication of a critical piece of information between [the officers] has no impact on the analysis of what [the Sergeant] understood to be the situation and how he acted upon that understanding. In my opinion, the trial judge made findings of fact supported by the evidence and correctly applied the proper legal test.”

The arrest was determined lawful, as was the subsequent search by police. Currie’s appeal was dismissed and his conviction was upheld.

Mike Novakowski is Blue Line’s case law columnist.

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