A FINE LINE BETWEEN TEMPORARY
AND SHORT INTERRUPTION

 

by Jane Gaffin

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 Ottawa on April 17, immediately following an hour and a half of Crown and defence arguments.

 

Only seven of nine justices heard the Crown's "as of right" appeal against the Whitehorse resident. For some unknown reason, Justice L'Heureux-Dube, who will retire later this year, did not sit. In keeping with an odd number, Justice Major, a former Albera judge, bowed out.

 

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 Canada will be imprisoned before this is over, including the police," he added.

 

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 February 15, 2000, thanks to a complaint stale-dated by five months before it was filed with the RCMP a year prior to the raid.

 

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 U.S. police do on TV shows by shooting off the lock and busting down the door, rushing in with guns drawn.

 

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, 7225-7th Avenue, Whitehorse, Y1A 1R8: or into the Al Carlos Trust Fund, Bank of Montreal, 111 Main Street, Whitehorse, Y1A 2A7, Transit 0998, account no. 8075-985.

 

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