Former N.B. public safety officer seeks to throw out evidence at trial for improperly storing gun

A former officer with New Brunswick's Department of Public Safety has applied to have some of the evidence against him thrown out on the grounds that the search which yielded it violated his Charter rights.

Michael Breau was in Fredericton provincial court Monday afternoon for what was scheduled to be a trial on the charge that he improperly stored his public agent firearm in Rusagonis, N.B. on March 29, 2022.

But defence lawyer Emily Cochrane applied to have key evidence for that charge thrown out, arguing the police officer who found it violated Breau's right to freedom from unreasonable search.

"Whatever her reasons were, your honour, the fact of the matter is she enters the home with no consent and she conducts this search, and that's a serious breach, and it has high impacts on Mr. Breau's right to privacy, especially in his home," said Cochrane, arguing before Judge Kelly Winchester.

Officer testifies finding gun

Cochrane's application prompted a voir dire to be held to determine whether or not the evidence that resulted in the charge should be admissible in the case.

As part of the hearing, RCMP Const. Rachael Alexander, took to the witness box to testify about how she ended up discovering and seizing Breau's service weapon.

Alexander testified that on March 29, 2022, she was called by a colleague to Breau's home in Rusagonis to assist in Breau's arrest on a charge that he criminally harassed a woman that same month.

Alexander said when she arrived, her colleague, Const. Gregory Ledoux, had already arrested Breau in his driveway, and was about to take him back to the station for processing.

Alexander said Breau was concerned about his children — one was already at home and the other was set to arrive shortly on the school bus.

Alexander said Breau asked her to call his wife to tell her to return home to be with the children, which she agreed to.

Alexander said while Ledoux took Breau back to the station, she volunteered to stay at the home, and was there when Breau's son came home on the school bus.

She said while the two children were inside in the living room, she stood in the doorway, "chit-chatting" with them when she noticed a coat rack in the living room that had a police department patch on it.

She also noticed a police vest and duty belt on the same rack, and she walked into the house to take a closer look.

Once at the coat rack, she said she lifted up the items, at which time Breau's service firearm became visible, hanging off his duty belt.

"I said, 'Oh my god' to myself because all I could think of is 'I don't know how long that's been there,'" Alexander said.

She said she called Ledoux to report what she found, and then put the firearm in the trunk of her police cruiser to take back to the station.

Violation doesn't merit throwing out evidence: Crown

Crown prosecutor Scott Morrison said even though the Crown concedes that Breau's Charter rights were violated by the search, it doesn't warrant having Alexander's evidence tossed.

Morrison said Alexander should not have gone in the house, but she did so over concerns for the children's safety.

"We're talking about a loaded firearm left at home in the presence of children," Morrison said.

"There's a high public interest in seeing this prosecution carried to its conclusion. It's not a minor violation. You're talking about a significant risk to the child left in that home."

Before Monday's voir dire was heard, both parties agreed to have the harassment charge resolved by way of a peace bond. Meanwhile, another charge, that he fraudulently obtained data from the motor vehicle database, was stayed.

As for whether Alexander's evidence should be admissible in his trial, Winchester reserved her decision until Sept. 24.