Topics covered in this advisory:
- How The Police Handle A Gun Call
- Your Right To Silence
How The Police Handle A Gun Call
The following is a typical scenario of how the police handle a gun call. This type of action has been used by several police forces and has been used for matters as simple as unsafe storage. If this occurs to you, your rights may have been violated.
You hear a knock on the door, your go and ask who is there and hear “Police, open up.” You comply, unlocking the door and turning the handle. As you open the door it seems to have resistance and does not open all of the way. That is because the police have secured the door with a rope.
There is usually one uniformed officer who asks who you are and wants to find out if the “suspect” is in the apartment. You are asked to open the door so they can see behind you. Typically people do. You are asked if you have guns. When you answer yes, 2 or 3 more police appear and enter. Typically these officers have little identification they are in dark colours, have bullet proof vests and may carry sub-machine guns.
They enter your apartment or home and you are ordered to sit down. Many times you will have a sub-machine gun trained on you as you sit. When you ask for a warrant they will either show it to you or say they do not need one.
As you sit the 2 or 3 officers not watching you will scour the home finding weapons and ammunition. They will be checking for unregistered restricted and prohibited weapons and unsafe storage.
After the search is done they will ask if this is all of the weaponry and ammunition. The guns will be seized and taken for identification to determine if they are stolen. Not all of these raids result in charges against you but the police will be trying to find something, that is their job.
These types of searches have been carried out upon allegations of unsafe storage, possession of unregistered, restricted or prohibited weapons or threats of violence with a weapon. The allegations are usually made by a disgruntled neighbour, spouse, or lover. These charges may be unfounded, but the police will act to ensure the safety of the complainant who made the allegations.
The best advice is to avoid arguments, don’t create enemies and re-examine all of your firearms compliance responsibilities. Be doubly sure that you are fully compliant.
Your Right To Silence
“Duct Tape Is Your Friend”
Shooters, being law-abiding citizens, are typically unfamiliar with the powers of search and seizure of law enforcement officers. This is because most shooters, be they hunters or target shooters, have scrupulously tried to avoid breaking the law so that their right to obtain firearms and use them is preserved. This lack of need to know has lead them to believe that they will not be subject to police and conservation officer searches.
This “it can’t happen to me” syndrome has lead to ignorance of this area of the law when faced with a demanding enforcement officer.
Most shooters are compliant and give voluntary statements in the belief that they did nothing wrong and the officer will be fair and tolerant. This has been true in the past and enforcement officers have a discretion that is sometimes exercised in favour of shooters.
This tolerance and discretion has become more limited as the political winds have changed. The career of enforcement officers is built on successful investigations and convictions. If any enforcement officer is investigating a criminal offense or a Fish and Game Act offense they have first formed the opinion that someone broke the law. When that officer starts asking you questions he/she is trying to find out if you are the person who broke the law.
The approach is that you are the transgressor and the object of the questions and search is to find evidence to convict you or your friends. Do not kid yourself; that is what the object is.
The enforcement officer has powers to investigate but remember, you have rights. Those rights are real and very important. The rights existed prior to the legislation, are codified by legislation and are upheld by learned judges. People fought to give you the rights you have and you must be aware of those rights and uphold them by your actions during an investigation.
This is not a game. The investigation of any crime is very serious to the victim, the investigator and the perpetrator.
The first and most important right is the right not to incriminate yourself. The Charter of Rights and Freedoms states this in section 7 which says:
“Every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principals of fundamental justice.”
This has a lot of importance. You are not to be conscripted into convicting yourself. The right to silence is the best way to state this. You may keep silent. Silent is silent. I put this: “Duct tape is the shooter’s friend.”
Pretend that you have put duct tape over your mouth. Do not be embarrassed by your own silence. Silence is golden. Do not feel the need to fill the void of silence. Do not feel that you have to respond to the allegations of the officer that your silence is an indication of guilt or that you are hiding something.
Silence is neither. Silence on your behalf is frustrating to the investigator who wants you to give evidence to convict you. The threats and intimidation you face will last only for a little while, then the investigator will give up and go away. He/she may come back or go to others but your silence has protected you.
Statements voluntarily given are difficult to remove from an investigation and court case.
Written statements, signed by you, are very hard to expunge. The officers’ notes contain the parts of the statement that show your innocence. Everything that tends to convict you will be written down fully and accurately. The simple act of owning or possessing the gun or ammunition can be very important.
What you saw or said is also critical. When the police want to build a case against you let them do it without your help. That is your right and their job. Accept that. What you think is an explanation of your actions will be offered up to the judge as a confession.
The prosecuting lawyer will not be sympathetic to your actions.
Almost all prosecutors want you to lose your guns and stop hunting. Few prosecutors are gun owners, shooter or hunters. Today many of the older judges remember hunting and shooting as a part of their lives even if they do not hunt or shoot today. This will change over time as the ranks of today’s lawyers who become judges, but right now there is more understanding from the judges than from the investigators and prosecutors.
EDWARD L. BURLEW, LL.B.
Barrister and Solicitor
16 John Street
Thornhill, Ontario L3T 1X8
MY COMMITMENT IS TO VIGOROUSLY ADVOCATE YOUR LEGAL RIGHT TO BEAR ARMS, TO PROTECT YOUR HERITAGE RIGHTS, TO HOLD TRUE TO THE TRADITIONS OF SPORTSMEN
This advisory was prepared October 1, 1998. Information in this advisory is general in nature and should not be acted upon without specific professional advice.