A
FINE LINE BETWEEN TEMPORARY
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What's
the difference between "temporary" and "short interruption"? Quick!
You have 10 minutes to respond. That is the amount of time it took
for the Supreme Court of Canada (SCC) to hand down a tailor-made,
five-paragraph judgment in two official languages--typos, poor punctuation
et al--that convicted Allen Carlos of three counts of improper firearms
storage. I daresay
the answer to the riddle will lie once again with the Supreme Court.
Some poor soul will be driven into the highest court to untangle the
obfuscation created with an incomplete ruling of what constitutes
"storage" as opposed to "in use". The summary-type
decision quoted no law. I have never seen an important court decision
that did not reference law to substantiate the reason for the ruling. This
one was presented orally by M. Justice Arbour in Only
seven of nine justices heard the Crown's "as of right" appeal
against the Carlos,
the defendant, has been heralded as a folk hero and "martyr for
democracy" over the last two years while dysfunctional firearms
laws were tested on him. The popular independent prospector was found
innocent of all charges in both territorial and Yukon Court of Appeal. The Crown
pushed the case to the SCC over the meaning of "storage",
a word not defined in any firearms legislation. Instead of referring
the matter back to elected legislators, the burden fell on a lone
citizen to bear the brunt for Parliament's negligence. Presently,
the court of last resort is obliged to take criminal cases where a
single dissenting vote has been cast in the lower court. The matter
is supposed to deal with a point of law; not entertain political or
social issues of a vindictive nature. The "as
of right" case dated back to B.C.-based Madame Justice Ryan,
who wanting to be certain why she was hearing the case, opened her
appeals court in Whitehorse last May 29, asking quizzically if it
isn't legal to have a loaded gun in the privacy of your own home?
Which it is when you are at home. Yet her
later ruling stated that Carlos was either "using" the firearms
in question or had "stored" them. "There is no middle
ground." Thus,
the job fell to the SCC to decide whether the Yukon Court of Appeal
erred in finding that the firearms in question had not been "stored"
within the meaning of Criminal Code Section (CCs) 86, and whether
the Court failed to enter guilty verdicts against the defendant with
respect to all three of the offences with which he was charged. "The
case against Allen Carlos has been an exercise in bureaucratic excess
and vindictiveness," wrote Edmonton-based defence lawyer Richard
Fritze, whose letter appeared in the May issue of "Canadian Access
to Firearms". "Acting
on unproved and contradictory complaints (one from a secretary in
the CFO's (Chief Firearms Officer's) office long after Carlos had
been 'marked' for special treatment), a search warrant was obtained. "Carlos
was home and was handling his firearms when the police arrived and
executed the warrant. The charges under CC ss. 86(1) and 86(2)--careless
storage and storage contrary to the Regulations--were thrown out. "The
last federal election returned the Liberals to power and, coincidentally,
an appeal was launched. This, too, failed. "One
dissent was registered in the appeal, the basis of which is the rather
fatuous statement that (a thing) is 'either in use or it is in storage--there
is no middle ground'." Shifting
to my opinion, the penultimate paragraph in the SCC ruling contains
weasel words that uphold the concept of "middle ground". "There
are obviously circumstances where a SHORT INTERRUPTION in the use
or handling of firearms would still constitute use or handling rather
than storage," it said. "In
this case however, the respondent took steps to put away and hide
his weapons such that the characterization of his actions was that
he stored them, albeit TEMPORARILY, rather than continue his use and
handling of the firearms in plain view of the police." (Emphases
are added.) It is
easy to second guess your own or someone
else's action in hindsight. But that last statement conjures up images
of a very unsafe situation, as was put forth by an interpreter in
an insightful commentary regarding the Crown's contention. "The
Crown is correct in that the case hinges on whether the guns in question
were in storage or in use at the time they were located," the
interpreter conceded. "In
the Crown's opinion they were in storage as there is 'no middle ground'
between active use or handling and storage. "It
would seem from this that the Crown is taking a position that if the
gun leaves the owner's hand for so much as one millisecond, then it
must no longer be in 'use or handling' and is therefore 'in storage'. "I
would suggest, if this is the case, then every gun user in The interpreter
ventured that every firearm user has at one time or another "let
go" of his firearm, if only for a moment, to adjust something
or turn to open a box of ammo. If the
Crown is saying that every firearm in "use" is then supposed
to be placed back in "lawful" storage then he suggested
the Crown had best start plans to build enough jails to imprison half
the population of this country. To counter
this Draconian concept, some deep thought was given to CC s. 86(1)
which says: "Every person commits an offence who, WITHOUT LAWFUL
EXCUSE..." "Al
Carlos was using his firearms with 'lawful excuse' at the time the
police came to his house," the interpreter reminded. "If
he stopped 'using' them momentarily to let the police in, then he
may have still been 'using' them (in an interrupted fashion) or he
may have been 'storing' them for a short period of time." To the
interpreter, the question of usage or storage seemed secondary compared
to the more primary question of whether or not Carlos was doing either
with or without "lawful excuse". If he was acting with "lawful
excuse" then how is a crime being committed? "No
one at trial seems to imply that he was committing a crime before
the police showed up at his door. How then does he find himself transiting
from 'lawful excuse' to 'without lawful excuse' simply by TEMPORARILY
stopping what he was doing in handling his firearms to answer the
police knocking at the door?" To interject
as a way of explanation, the police were knocking at the door on Federal
mining inspector Sandra Orban, who has an attitude but has never exchanged
a single word with Carlos, claimed the prospector threatened to shoot
any government people who came onto his mining property packing guns. Orban's
pal, Julie Nordmann, manager of the federal mining land-use office,
filed a companion incident report with the police in January, 1999. What
eventually turned into a poisoned warrant stated Carlos was a "threat
to society and to his family". Yet he was never charged with
uttering threats or anything of a violent nature that would have to
be proved in court. Instead,
it was while the police were on their fishing expedition to seize
his valuable firearm collection, they found and charged Carlos with
what they believed to be three "storage" violations. Here,
the interpreter pursued a microscopic analysis of s. 86(1) "in
a careless manner or without reasonable precautions for the safety
of other persons." He believed
Carlos's attempt to hide the firearms from the police before letting
them in to be a reasonable response to that part of s 86(1). Leaving
the loaded guns out in plain view and then letting the police in the
house and leading them into the room with the guns,conjures up some
images of a very unsafe situation, he emphasized. Or, suppose
Carlos decided to follow the Crown's concept of legal usage by not
letting the guns out of his hands. Retaining physical control of the
guns and answered the knock at the door with three loaded pistols
in his hands opens the conceivable potential for a tragic response
from four armed police officers. Following
the Crown's concept of maintaining "lawful" usage or handling
by retaining physical possession of the guns while opening the door
to armed police officers would be foolish as well as dangerous, the
interpreter stressed. The alternate
would be for Carlos to attempt to return the guns to "lawful"
storage by ignoring the police at his door until he had unloaded three
pistols; triggered-locked three pistols; and returned three pistols,
plus ammunition, to the storage vault in the basement. What
a joke. "This presupposes that four armed police officers with
a search warrant are going to simply stand around on the front step
of Carlos's house doing nothing for the five to 10 minutes this operation
takes." The police
would not be very pleasantly disposed to Mr. Carlos when he finally
opened the door, the writer surmises. "He might find himself
arrested for interfering with the execution of a search warrant of
some such charge, in spite of the fact he was trying to comply with
the Crown's concept of 'lawful' storage." Or, the
hyped police officers, trained for emergency response, might respond
to the delay in answering the door as the In the
interpreter's estimation, this would not be a particularly safe situation
for Carlos of his family. "Consequently,
the course of action Carlos followed in hiding the loaded guns from
plain sight and then letting the police in the door as quickly as
possible may have been the most expedient course of action available
to him to comply with s 86(1) in looking to the 'reasonable precautions
for the safety of other persons'--both the police, Carlos as well
as his family," said the interpreter. On this
basis, thousands consider Carlos's actions to be "lawful excuse",
regardless of whether his actions constitute "usage and handling"
or "storage". As proof of the supporters' strong convictions,
a national fund-raising effort has been launched and is sweeping across
the country to raise $80,000 plus for his legal needs. Besides
his sentencing for firearms storage infractions worth jail time and
a criminal record to this man whose never
had a speeding ticket nor any previous encounters with the law, he
still faces a gun prohibition hearing. Maybe the public will finally
hear from Orban, Nordmann, Tina Thomas, secretary in the CFO's office,
Pauline Drapeau, the female gun-packing fisheries and oceans officer,
and the other feminists. Your
dollar can help immensely if it is one of those deposited every other
minute into the mailbox of Paul Rogan,
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