Wednesday, 29 February 2012

When justice is blind, deaf and dumb

On February 22nd 2912, I read a very interesting article written by Lorne Gunter that was published in the National Post about the crime of protecting yourself from criminals. I rarely literally copy another writer’s work in my blog but when another writer has done such a good job in writing an article, I choose to put it in my blog so that others will appreciate what the author is trying to portray. Now here is his article.

Just when was Ian Thomson guilty of unsafe storage of a firearm? Mr. Thomson is the Port Colborne, Ont., man currently standing trial in a Welland, Ontario courtroom after he and his home were attacked by fire bombers in August 2010. (That's correct, in the topsy-turvy world of Canadian criminal justice, Mr. Thomson and his home were the ones attacked and yet he is the one on trial.)

Having dropped other more serious charges such as dangerous use of a firearm because they concluded there was no reasonable chance of winning a conviction, Crown prosecutors have nonetheless bullied ahead with unsafe storage charges against Mr. Thomson.

One can only speculate on the Crown's motives, but many prosecutors are so opposed to private citizens owning guns and, especially, using guns to defend themselves, their loved ones or property, that it is easy to believe prosecutors are running Mr. Thomson through the ringer in an attempt to discourage other homeowners from following his lead. They have conceded they cannot get a conviction against the retired crane operator and former firearms instructor for shooting at the three men who were trying to burn down his house with him in it, but perhaps they are hopeful their decision to drag Mr. Thomson through months of emotionally draining and expensive court proceedings will cause other homeowners to conclude armed self-defence isn't worth the hassle.

But back to my original question: Just when was Ian Thomson guilty of unsafe storage?

Was it when three masked thugs began lobbing Molotov cocktails at his secluded rural home, while also shouting death threats in a pre-dawn assault? That's when he ran to his locked gun safe, retrieved one of his legally registered pistols and loaded it with ammunition.

Or was he guilty of unsafe storage when one of the bombs set fire to his veranda and another broke through his kitchen window? That's when he went outside and fired three times - once at the feet and twice over the heads of his attackers - in a successful attempt to ward them off.

Or was he guilty of unsafe storage when he then ran back into his home, got a second locked-up gun, loaded it and left it on his bed? Not knowing whether his attackers would return, he wanted to be sure he was prepared, so he decided to fortify his bedroom as his last line of defence. Was that unsafe in (the) prosecutors' opinion?
Perhaps (the) prosecutors feel it was unsafe that Mr. Thomson; again, wary that his attackers might come back - tucked the first pistol in the waistband of his pajamas while he went outside and used a garden hose to the extinguish the fire on his porch and another that was burning his dogs' kennel. Perhaps they believe he should have returned his weapons to their safe before turning on the hose. Let the house burn rather than violate Canada's obsessive gun laws.

Prosecutors have concocted a theory that Mr. Thomson must have had his two pistols loaded and in his nightstand before the attack began because, to their minds, he never had enough time once the gasoline bombs began raining down to go to his safe, unlock it, remove his pistols, load and fire them.

Recall, though, Mr. Thomson is a former firearms trainer, experienced with the operation and handling of pistols. On Monday he and his lawyer used a video to demonstrate for the court that he was certainly capable of retrieving his guns from safe storage and loading them in the time available. (So much for the Crown's theory.)

But even if we accept that the Crown's version is not merely a desperate, hole-riddled stretch-of-the-imagination to justify its 17-month persecution of an innocent man, what would have been unsafe about keeping a gun in a bedside table in an area where police admit it can take 15 minutes or longer to respond to emergency calls?

The safe-storage provisions of the Criminal Code; passed at the same time the gun registry was made law, are so poorly drafted that they permit prosecutors to go after any gun owner who so much as takes his firearm out of its case to admire it. Few unsafe-storage charges stick; judges tend to throw them out. So they have largely become bludgeons prosecutors can use to intimidate lawful gun owners.
Just ask Ian Thomson.

My own opinion

As we all know, not all prosecutors have enough brains in their skulls to recognize that what they are doing is counter productive. Some of them act against the interests of society in the name of justice. In doing so, they drag that statue that represents justice through the mud the prosecutors have created until the statue of justice is no longer recognizable.

Let me ask you this rhetorical question. If you saw two gangsters trying to burn your house down and you had a firearm in your home which you could load and then go outside to confront the gangsters and make them stop what they are doing, would you go outside with a loaded firearm? Of course you would. But the police who charged Mr. Thompson and the prosecutor who is prosecuting him would insist that instead of confronting the fire bombers with a loaded gun, you should stay inside your burning house and phone the cops. What I find most offensive is that we as members of society are paying these dunces a salary.

We as human beings are born ignorant of the ways of the world. But as time moves on, our ignorance goes through a metamorphosis which results in us all becoming more or less intelligent and cognizant of the ways of the world. However, stupidity is something that many people acquire on their own initiative and like a bad cold—it just lingers in their heads.

I am going to refer you to a case that was heard before the Canadian Supreme Court in 2004.

An inmate (Kerr) in a Canadian prison had agreed to meet another inmate (Garon) for a meeting. Kerr was concern for his safety since Garon was the head of a gang in the prison. Garon had threatened Kerr with death in the past and it was for this reason that Kerr brought to the meeting a shiv (homemade knife) and an ice pick which he concealed in his clothing.

A physical altercation ensued, during which each stabbed the other multiple times and as a result, Garon died from his wounds. Kerr was charged on July 9, 2001 with the second degree murder of Garon, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, and with possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(1) of the Code.

At his trial, the judge accepted Kerr’s evidence to the effect that he was defending himself against what he perceived to be a lethal attack. The judge found that Kerr’s evidence was compelling and consistent with the physical evidence at the scene and the observations of other witnesses.

The judge acquitted Kerr on the charge of second degree murder on the basis that his actions constituted self-defence. The judge found that Kerr believed that his life was threatened, and that his belief was perfectly justified at the time. He also acquitted Kerr of the charge of being in possession of a weapon on the basis that he possessed his weapons for purposes of deterrence and defence.

The prosecutor appealed and the Court of Appeal set aside the acquittal and Kerr subsequently appealed to the Supreme Court of Canada.

The Supreme Court ruled that Kerr did not possess his weapons for a purpose dangerous to the public peace. It agreed with the trial judge’s finding that Kerr possessed his weapons on the day in question for the purpose of defending himself against an imminent attack by specific individuals. The court found that his purpose was not, in all the circumstances, dangerous to the public peace, since the attack was clearly unavoidable. Kerr was subject to credible threats of an imminent assault, in an environment from which there was simply no possibility to escape and in which, as found by the trial judge, it was futile to seek protection. It is also particularly relevant that the trial judge specifically found that Kerr’s actual use of the weapon constituted justifiable self-defence.

The court also said that an accused who otherwise satisfies the requirements of the offence should be excused from criminal liability where the possession of a weapon is necessary for defending himself. The usual limits on the common law defence of necessity apply. First, the defence of necessity is limited to situations of clear and imminent peril. Thus, necessity would not excuse the possession of a weapon simply because the accused lived in a high-crime neighbourhood or finds himself among a dangerous prison population. Second, the act must be unavoidable in that the circumstances afford the accused no reasonable opportunity for a legal way out, such as escaping or seeking police protection. Finally, the harm inflicted must be less than the harm sought to be avoided.

Since the man who was confronting the gangsters who were fire-bombing his home wasn’t shooting them and was only trying to scare them away from his home, the harm of scaring the gangsters was far less that him burning to death in his home or being attacked by the fire-bombers.

Quite frankly, I expect Ian Thompson to be acquitted just as Kerr was acquitted. Of course, it is also possible that his trial judge has mush for brains not unlike Kerr’s prosecutor.

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