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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