Monday, 5 October 2015

Gun Control (part 1)

The mass shooting of nine people in a college in the State of Oregon in the United States on October 1, 2015 has brought home the seriousness of a nation having an overabundance of guns in the possessions of so many of its people. President Obama after hearing about that terrible event in Oregon said that there are so many guns in the hands of it citizens, there could be a gun for every man, woman and child in the United States. That means that there could be over 321 million guns in the United States. The vast majority of gun owners in the United States are law abiding. It is not those who commit crimes with guns. However, in my opinion, there are far to many guns in the homes of people in the United States. 

Canada on the other hand has no gun problem in comparison as to what is happening in the United States since Canada has strict gun laws. There are shootings in Canada of course but out of every 100,000 persons, Canada has 2 deaths whereas in the United States the ratio is 10 deaths per 100,000 persons killed by gunfire. 

This article is about a man in Canada who amongst other charges was charged with being in possession of a handgun when he had no permit to own one.

Erin McDonald (hereinafter referred to as M)   lived in Halifax, Nova Scotia. The police were called in response to a noise complaint in his home.  When M opened the door to the police, an officer observed that M had an object in his hand, hidden behind his leg.  The officer twice asked M what was in his hand.  Because M did not answer, the officer pushed the door open a few inches further to see.  The officer then barged into the room M was in. A struggle ensued and M was disarmed of a loaded handgun.  M was licensed to possess and transport the handgun in Alberta, but not in Nova Scotia as he erroneously believed he was.  

The trial judge hearing the case ruled that  Mr. MacDonald’s gun licence did not extend to his Halifax residence.  However, he found that Mr. MacDonald should be acquitted on the basis of an honest but mistaken belief that it did extend to the unit.  This belief was a mistake of fact which negated the mens rea (criminal intent) of the section 95 offence.  The Crown had to prove that Mr. MacDonald knew or was willfully blind to the fact that his possession was unauthorized.  It had failed to do so, as Mr. MacDonald genuinely believed that he was authorized to possess the firearm in the unit.  MacDonald accordingly set aside the verdict and substituted an acquittal on the section 95 charge.

The absence of criminal intent or outright carelessness is a defence when a crime is committed. 

As an interesting aside, in 1954 when I lived in Victoria, British Columbia, I purchased a Smith and Wesson revolver for target practice and I registered it with the RCMP (federal police force.)  As the years went by, I lived in other cities in British Columbia, Alberta, Saskatchewan, Manitoba and Ontario. At no time did I re-register the gun because I thought once it was registered in Victoria; I didn’t have to re-register it. I was wrong. In Canada, whenever you move, you have to re-register your guns. One day in 1962, the police on a tip learned that I possessed a handgun. They came to my apartment and found the gun and I was charged with being in possession of an unregistered gun. Later when they heard my explanation and observed that the gun’s firing pin was broken and there were no bullets in my apartment, they withdrew the charges but seized the gun.

At trial, the judge concluded that the officer’s pushing the door open further did not breach M’s section 8 Charter  right to be free from unreasonable search.  The trial judge however convicted M of careless handling of a firearm (under section 86 of the Criminal Code), possessing a weapon for a dangerous purpose (section 88), and possessing a loaded restricted firearm (section 95).  The trial judge sentenced M to three years imprisonment and gave him a ten‑year weapons prohibition.  He filed an appeal.

A majority of the Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s  Charter  rights when the officer barged into M’s  apartment without a warrant. Section 8 of the Charter guarantees that everyone has the right to be secure against unreasonable search or seizure.

However, the court upheld M’s Criminal Code convictions, but significantly reduced the sentences. The Court of Appeal allowed M’s appeal of his section 95 conviction and substituted an acquittal for that charge.

The Crown (prosecutor’s office) appealed the Court of Appeal’s decisions in part. The Supreme Court of Canada ruled in the following manner.

“The officer’s action of pushing the door open further constituted a “search” for purposes of section 8 of the Charter.  The action went beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his home.  Although the officer’s action constituted a search for section 8 purposes, that search was reasonable because the warrantless search falls within the scope of the common law police duty to protect life and safety and because the search constitutes a justifiable exercise of powers associated with the duty.” unquote

The officer was suspicious of M as he would be of anyone else when M opened the door to his apartment with one hand behind his leg. Generally when someone does that, he has either a knife in his hand or a gun. The officer had every right to be deeply concerned that he was possibly facing a dangerous man.  

To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question.  These factors include: the importance of the duty to the public good; the necessity of the infringement for the performance of the duty; and the extent of the infringement.  The duty to protect life and safety is of the utmost importance to the public good, but an infringement on individual liberty may be necessary when, for example, the officer has reasonable grounds to believe that the individual is armed and dangerous.  That infringement will be justified only to the extent that it is necessary for the officer to search for weapons.  In other words, the powers of the police are limited.  Courts must consider not only the extent of the infringement, but how it was carried out.  Restraints on safety searches are particularly important in homes, where such searches can often give the police access to a considerable amount of very sensitive personal information. However in this instance, the police weren’t searching for sensitive personal information. They originally attend M’s apartment to ask him to tone down the noise.
No one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some police interference with individual liberty is necessary to carry out that duty.  When the performance of a police duty requires an officer to interact with an individual who they have reasonable grounds to believe is armed and dangerous, an infringement on individual liberty may be necessary. 
 In this case, because one of M’s hands was behind his leg, the officer had reasonable grounds to believe that there was an imminent threat to public and police safety and that the search of M was necessary to eliminate that threat.  The manner in which he carried out the search was also reasonable.  The trial judge found that the officer pushed the door open no more than was necessary to find out what M had behind his leg.  The officer twice asked M what he had in his hand but received no answer.  In these circumstances, it is hard to imagine a less invasive way of determining whether M was concealing a weapon and thereby eliminating any threat.  In my respectful opinion, itfollows that M’s rights under section 8 of the Charter were not violated. 

The infringement on individual liberty will be justified only to the extent that it is necessary to search for weapons.  Although the specific manner (be it a pat-down, or, as in this case, the further opening of a door) in which a safety search is conducted will vary from case to case, such a search will be lawful only if all aspects of the search serve a protective function. In other words, the authority for the search runs out at the point at which the search for weapons is finished.  A warrantless search is presumed to be unreasonable unless it can be justified. That must be borne in mind in determining whether the interference with individual liberty involved in a safety search is reasonable.

The Supreme Court ruled that as for a section 95 Criminal Code conviction, the Court of Appeal erred in requiring the Crown to prove that M knew that his possession and acquisition licence and authorization to transport the firearm did not extend to his Halifax home.  That requirement is inconsistent with the rule, codified in section 19 of the Criminal Code, that ignorance of the law is no excuse.  Section 95 is a mens rea (criminal intent) offence, but does not include knowledge of  an unauthorized  possession.  Rather, knowledge of possession, together with intention to possess in a particular place, can be enough for a conviction if the person possessing the gun knows he should have registered it when he moved.

In my own gun case of 1962, had I gone to trial, I may have been convicted of possessing an unregistered gun because me not knowing that I had to re-register it every time I moved, would not be a valid excuse since my ignorance of that particular law is no excuse. However, if I raised the defence of lack of criminal intent, the charge may very well have been dismissed. In any case, it never went to trial because the officer exercised his discretion not to charge me with that offence.

A mistake of law is brought about when a person misinterprets the intent of the law. If he or she does that, it is no defence to that charge. A mistake of fact is when a person is told by an official that he can do what he is doing. If the person continues doing that, the mistake of fact is a defence.

The Supreme Court ruled that M’s subjective belief that he could possess the firearm in his Halifax home was a mistake of law and that mistake was no defence.  Therefore, M’s section 95 conviction was restored and the matter remitted back to the Court of Appeal both for sentencing and for assessing the constitutional validity of the mandatory minimum sentence under  section  95. The minimum sentence for that crime is three years imprisonment since it was his first offence.

It was an anomaly of the Supreme Court to suggest that the Court of Appeal might find the compulsory three-year minimum sentence in conflict with the Charter. I am wondering why the Supreme Court didn’t make that decision instead of passing it onto the lower court. 

Quite frankly, I think that the sentence for possession of the gun should be greater than three years. Three years for being in possession of an unregistered gun is the minimum sentence but when the gun is also loaded, the court has the authority to increase the penalty.  Holding a loaded gun is extremely risky because such a person who has that gun in his hand may suddenly fire it at someone who has no intention of causing harm to the person holding the gun in his hand.

If you are careless in what you do, having a loaded gun on your person is no different that driving a car when you are drunk. In both instances, something bad is sooner or later going to happen.   

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