Legal Questions over Gun Seizure

Friday, October 06, 2006 04:01 AM

Sergeant Hunter of the RCMP in Dease Lake says he will return the six or seven rifles seized from three couples at Telegraph Creek late last week.

A RCMP officer from Telegraph Creek seized the rifles from two Prince George couples and a couple from Williams Lake. (See previous story) One was awaiting for their PAL, two others were expired and at least one rifle had not been registered. Hunter says he will release the guns if the people involved provide him with a valid PAL or some form of registration of these firearms. They also can appear in Dease Lake to argue the matter. Sergeant Hunter says court is held in Dease Lake four times a year.

The police say they have the right to seize the rifles under section 117, subsection 3 of the criminal code. A number of legal opinions suggest that the amnesty overrides that section and a judge could very well throw the whole issue out until such time as a clear determination is made to the public.

Sergeant Hunter says, "Bulletin 70" which outlines the amnesty, is confusing and the public could very well be under the impression that they have an amnesty. Opponents on the other hand say there is no confusion and the mater could very well hit the courts given the fact that the RCMP have admitted that upwards of 70 to 80 guns have been seized in the Dease Lake area. For your information, here is "Bulletin 70". You decide …..

Special Bulletin for Police No. 70
August 28, 2006
Notice
The information contained in this bulletin is considered accurate the date of publication. The information has not been updated to reflect any changes to the Firearms Act and related regulations.

Amnesty for Some Long-Gun Owners
Snapshot
* There is an amnesty for individuals who possess non-restricted firearms without a valid license and/or registration certificate if they held a license that expired after January 1, 2004.
* The amnesty period is from May 17, 2006 until May 17, 2007.
* During the term of the amnesty, protected individuals cannot incur criminal liability under the Criminal Code for unauthorized possession of a non-restricted firearm.
* Affected owners must comply with the licensing and registration requirements of the Firearms Act, or lawfully dispose of their firearms, by the amnesty deadline.

On May 17, 2006, the Minister of Public Safety announced an amnesty for certain individuals who are in possession of a non-restricted firearm without a valid license or registration certificate. The Canada Firearms Centre (CAFC) has received several calls from police, seeking more information about the amnesty. The purpose of this bulletin is to answer some questions that police may have.

Who is protected by the amnesty?
The amnesty applies to individuals who possess non-restricted firearms without a valid firearms license or registration certificate if the individual held a license that expired after January 1, 2004.
The amnesty does not protect individuals who:
* never held a firearms license; or
* whose most recent license or Firearms Acquisition Certificate expired before January 2004; or
* Who possess restricted or prohibited firearms without a valid license and/or registration certificate?
What protection does the amnesty provide?
Individuals protected by the amnesty cannot incur criminal liability under the Criminal Code for unlawful possession of a non-restricted firearm. Other offences pertaining to non-restricted firearms (for example, unsafe storage) continue to apply.
What is the term of the amnesty?
The amnesty term is from May 17, 2006 until May 17, 2007.
How does the amnesty affect individuals who were charged for unauthorized possession of a non-restricted firearm before May 17, 2006?
The amnesty is not retroactive. Charges laid before May 17, 2006 continue to apply.
Now that the amnesty is in place, what are police supposed to do when they receive a notice from the Registrar, indicating that a particular individual is in illegal possession of firearms because their licence has expired and their registration certificates have been revoked?
Police officers have certain powers of discretion. It is not the CAFC’s place to attempt to override those powers. However, here are a few things to keep in mind when deciding what action to take:
* Before taking any action, check the class of the firearms listed on the notice of registration revocation. The amnesty only applies to non-restricted firearms, not to restricted or prohibited firearms. If you are not sure about the class of a firearm listed on a registration revocation notice, please contact us through one of the means set out below. We will be happy to assist you.
* Individuals protected by the amnesty cannot incur criminal liability for possessing a non-restricted firearm without a valid licence or registration certificate. However, they are still in unauthorized possession of the firearm and police have the authority to seize the firearm at their discretion . We suggest that you conduct a risk assessment. In conducting your risks assessment, you may wish to include whether the person is of interest in your area, prior convictions or arrests, and any other information that may be a cause of concern relating to public safety. Please note that the Canadian Firearms Information System only conducts automatic, continuous, public safety checks on individuals with a valid licence.
* Your agency’s legal counsel may advise you further on what action to take if you still have questions.
Our agency is holding non-restricted firearms that were seized from owners who did not have a valid licence or registration certificate. Now that the amnesty is in place, may we return the firearms to the owner?
Once firearms have been seized from an individual, they should not be returned until the individual complies with the law and obtains the necessary licence and registration certificate. Alternatively, if the owner transfers and registers the firearms to a properly licensed business or individual, or to a public agency, the firearms may be released to the new owner.

Dease Lake police say they have authority to seize their guns under this authority.
Criminal Code Section 117.03

(1) Notwithstanding section 117.02, a peace officer who finds

(a) a person in possession of a firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and a registration certificate for the firearm, or
(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it, may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

Return of seized thing on production of authorization

(2) Where a person from whom any thing is seized pursuant to subsection

(1) claims the thing within fourteen days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,
(a) an authorization or a licence under which the person is lawfully entitled to possess it, and
(b) in the case of a firearm, a registration certificate for the firearm,

Now does the statement by the Federal government published in May of this year in which it is outlined that an old PAL was sufficient supersede the Criminal code in an older statute?. What was the law on September 29th-2006, is the seizure illegal ?

Stay tuned….

Previous Story - Next Story

Email |

Print |

Facebook |

Twitter |

Digg |

Del.icio.us

Posted on Friday, October 06, 2006 04:01 AM in News by 250 News

Return to Home

Comments

Posted by: Akimoya on October 6 2006 8:08 AM

Actually, the way the law is written, the "Governor in Council" (read: Minister of Justice) can do pretty much whatever they want to do with an Order in Council, when it comes to Part III (Firearms and Other Weapons) of the Criminal Code of Canada:

=================================================================
http://laws.justice.gc.ca/en/F-11.6/239621.html#Section-119

Firearms Act s 119(6)

Part III of the Criminal Code

(6) For greater certainty, a regulation
may be made under Part III of the Criminal
Code without being laid before either House
of Parliament.

=================================================================
http://laws.justice.gc.ca/en/C-46/267189.html#Section-117.14

CCC s 117.14 Amnesty period

117.14 (1) The Governor in Council may,
by order, declare for any purpose referred to
in subsection (2) any period as an amnesty
period with respect to any weapon, prohibited
device, prohibited ammunition, explosive
substance or component or part designed
exclusively for use in the manufacture of or
assembly into an automatic firearm.

(2) An order made under subsection (1)
may declare an amnesty period for the purpose
of

(a) permitting any person in possession of
any thing to which the order relates to do
anything provided in the order, including,
without restricting the generality of the
foregoing, delivering the thing to a peace
officer, a firearms officer or a chief
firearms officer, registering it, destroying
it or otherwise disposing of it; or

(b) permitting alterations to be made to any
prohibited firearm, prohibited weapon,
prohibited device or prohibited ammunition to
which the order relates so that it no longer
qualifies as a prohibited firearm, a
prohibited weapon, a prohibited device or
prohibited ammunition, as the case may be.

(3) No person who, during an amnesty
period declared by an order made under
subsection (1) and for a purpose described in
the order, does anything provided for in the
order, is, by reason only of the fact that
the person did that thing, guilty of an
offence under this Part.

(4) Any proceedings taken under this
Part against any person for anything done by
the person in reliance of this section are a
nullity.

=================================================================
http://canadagazette.gc.ca/partII/2006/20060531/html/sor95-e.html

Order In Council
Registration: SOR/2006-95 May 17, 2006

CRIMINAL CODE

Order Declaring an Amnesty Period (2006)
P.C. 2006-385 May 17, 2006

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 117.14(1) (see footnote a) of the Criminal Code, hereby makes the annexed Order Declaring an Amnesty Period (2006).

=================================================================

Take note in particular of section CCC s 117.14(4) :

(4) Any proceedings taken under this
Part against any person for anything done by
the person in reliance of this section are a
nullity.

If these people meet the criteria specified in the Order In Council that created the amnesty, then any and all actions taken against them are a legal "nullity" - they are immune.

Posted by: YamaDooPolCat on October 6 2006 9:59 AM

Anyway, back in the real world.

Ramboo shows up while these people were having trouble launching their boat. Kind of wandered out the bush sounds like. Instaed of stepping forward to help some tourists in trouble, Ramboo goes for his gun.

The law works really slowly and Ramboo is certainly aware that most of the effect of the law is to inconveniece or at least used to drive people crazy. Clearly Ramboo was really out to provoke a fight with people that were badly distracted with their own troubles and very vulnerable.

Ramboo is a winner, and probably hoping for more of the same.

Posted by: thereasonableman on October 6 2006 11:01 AM

Police state this:

The police say they have the right to seize the rifles under section 117, subsection 3 of the criminal code.

The section they have just quoted states this:

...may seize the firearm...unless its possession ...or the person is under the direct and immediate supervision of another person who may lawfully possess it.

I.E.: If one of them had a valid PAL or POL, they were entitled to keep all the guns and be left alone to fix their boat trailer.

However, what does it really matter what the law says if they (a) don't follow it and (b) don't keep up on it.

A side point to the story, why is the Dease Lake Detachment taking it upon themselves to seize every gun they can (70 or 80 by their own admission), during a period when there is so much question about the legal issues, and therefore no real interest in pursuing such things until there is clear direction provided ?

Lastly, I totally concur with Yamadoo. This guy started his introduction looking for a fight.
I believe the same thing happened with Ian Bush and Don Lewis. They were provoked into a fight, then shot in self-defence.

We should have made these kind of guys members of the Crips or the Bloods, not the RCMP.

Management's lack of action in this regard makes them and the cops that shelter them just as bad.

If I was running the show they would not just be fired, but F'N Fired !

Once again Don M, don't call me anti-police, I have very good personal reasons why this bothers me. I have earned the right to be critical, and I know I am right.

Ask some older retired mounties what they think of the state of affairs. Most will tell you they won't work with that organization today.

Posted by: wrinkledawg on October 6 2006 12:17 PM

We should be seeing a lot more of this thanks to the ASS KISSERS THAT VOTED LIEBERAL. As far as I am concerned they can shove their amnesty where the sun don't shine.
Gun control is being able to hit yer target.

Posted by: Chadermando on October 6 2006 1:34 PM

I wonder if the problems with the RCMP are due to their racial profiling when doing their recruiting. Picking members not on qualifications, but rather on their ethnicity trying to meet a quota.

That aside one clear problem they do have is relocating Eastern Canadians with a racist view of red neck BC to small outposts in BC where they rule with no oversight. I'd be willing to bet every single one of these incidents involves an officer from Ontario east. Most of those types see it as punishment to serve in Northern BC and take their anger out on the people they are suposed to protect until they can get a transfer elsewhere.

IMO we need an inquiry board that oversees all police force disciplinary issues across the country. In addition to that it is about time we think about getting a provincial police force made up of local BC'ers that respect the population as their neighbors and friends.

Enough of the 'occupation force' that is above the law.

Posted by: Don Mackenzie on October 6 2006 1:34 PM

reasonableman, I will not call you Anti police, most of your points are well written, and thought out. Most of the police officers I have met in my Life, 95% are excellent officers, 4% are OK, 1% are complete fools, Why they the 1% are not kicked out I will never figure out. But after meeting the 1% you sure do have a Bad taste in your mouth, as the other 99% of RCMP Officers must have also.