The R. v. Iniguez decision interests me for a whole host of reasons, not the least of which are the ramifications it could mean for 200,000+ licensed firearm owners whose guns our government wants to confiscate and destroy.
I’ll get to that shortly. First, let’s dive into the more fascinating aspects of this decision.
Note: If you haven’t done so already, I encourage you to read this commentary first: “Warrantless Search Sets Illegal Sub-Machine Gun Owner Free“. It sets the stage for much of what is discussed below.
“I do not believe his evidence”
Justice Heather McArthur wrote, “I do not believe his evidence.” Her comment referred to the defendant’s version of events after the two police officers returned after they drove his drunk girlfriend to a friend’s house.
It’s at this point the stories of the police and Mr. Iniguez diverge wildly.
Mr. Iniguez testified the police barged in, held a loaded pistol to his head and demanded to know where the gun was. Given the first interaction between Constable Caunter, Constable Rogers and Mr. Iniguez, it’s difficult to find his statement credible.
During the initial interaction Mr. Iniguez was calm, polite and respectful when he spoke with them. Neither constable knew him and there was no history between them beyond dealing with his girlfriend earlier that night.
Neither the police dispatcher nor the two constables thought Rachel Howard’s story was credible. In fact, all three believed she was lying because she was drunk and angry. They thought she was trying to get back at Mr. Iniguez.
Both constables were at the end of the last of seven night shifts in a row. They were tired, and understandably so. Both men were also suffering from decision fatigue that’s inevitable in those circumstances.
- They didn’t believe Ms. Howard.
- They were tired and wanted to go home to sleep.
- They didn’t expect to find anything in Mr. Iniguez’s home.
But decision fatigue and their desire to go home both contributed to approaching this “gun call” so casually, even though Rachel Howard said the magic word “gun”.
I was impressed that both officers took the time to consult with detectives to determine the correct course of action.
What surprised me was, even after this consultation and its resulting decision, neither of them thought about taking a copy of the Toronto Police Service’s Consent to Search form with them.
They were at the police station. The consent form was readily available, yet it never crossed their minds.
Mr. Iniguez lawyer, Roots Gadhia, said, “A man’s home is his castle,” in reference to Sir William Pitt’s famous quote.
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!”
The Illegal Search
With no grounds for a search warrant and no exigent circumstances, the only way Constable Caunter and Constable Rogers could search Mr. Iniguez’s home is if he consented.
Justice McArthur made the distinction that simple consent was not enough – informed consent was required. They failed to provide the required information to Mr. Iniguez.
“As a result, they took a shortcut with Mr. Iniguez’s constitutional rights as a matter of convenience. But for the fact that the officers found evidence, the violation of Mr. Iniguez’s Charter rights would have gone unidentified and unredressed. In my view, the long-term interests of the administration of justice would be significantly undermined if the evidence was admitted.”
The Constables’ Lax Attitude Toward Our Charter Rights
The lax attitude of police towards our Charter-protected rights is always disturbing. It’s also an unavoidable by-product of police subculture and, in this case, decision fatigue caused by a week of night-shifts and their inevitable lack of sleep.
I say unavoidable because the Charter of Rights and Freedoms, in the minds of some police officers, is an impediment to them doing their job. If they didn’t have to worry about those pesky civil rights, they could actually put criminals behind bars, where the belong.
From my reading of the court ruling, I also don’t see this attitude was a huge issue in this case because both officers took the time to get proper advice from detectives.
This led to the correct decision. They needed to search Mr. Iniguez’s home. The lack of a credible complaint or exigent circumstances meant they could not get a search warrant.
The only path forward was to ask Mr. Iniguez for permission to search his home.
Why Did Elvis Iniguez Call The Police?
Officer Caunter testified one of the reasons he didn’t believe Rachel Howard was because Mr. Iniguez called 911. Why would he do that if he had an illegal gun in his house?
It didn’t make sense to Officer Caunter then and it doesn’t make sense to me now.
One possibility is both constables were telling the truth when they testified Elvis Iniguez said he possessed the gun, magazines and the lone 9mm cartridge “for about 10 years.”
Where Did The Gun Come From?
We will never know for certain.
I cannot locate “Elvis Iniguez” in Toronto, or anywhere else in Canada, for that matter. He has no Facebook or Twitter account, and a Google search comes up empty except for reports of his arrest.
What I glean from reading the court decision is this.
Elvis Iniguez said he worked as a youth and child worker. He has no criminal record, nor was he “known to police” – code for a known criminal and/or gang member.
The sub-machine gun wasn’t important to him. That much appears evident by the way he stored it – stuffed in a black bag on the top shelf in a closet. It gun wasn’t trigger-locked or stored in a “secure locking container” – the legal definition of safe storage.
The seven magazines were left in an open gym bag beside the bed for anyone to see.
By the evidence provided in the court transcript, there is no reason to believe Elvis Iniguez considered the gun, the magazines and the single round of 9 mm ammunition as anything more than junk lying around the house.
Odds are he took it from someone to “get it off the street” and out of the hands of some juvenile delinquent he wanted to keep out of jail. Once he took possession of the illegal gun he didn’t know how to get rid of it without it falling back into the hands of someone undesirable.
Lessons for Canada’s Licensed Firearm Owners
As we head into mass gun confiscations promised by the current Liberal government, there are two key takeaways for Canada’s licensed firearm owners in the Iniguez decision.
You have the right to remain silent. Use it.
It’s easy to say Elvis Iniguez should’ve shut his mouth and asked for a lawyer.
He didn’t. Why not?
Probably for the same reason none of us are prone to shut up and ask for a lawyer.
He never thought the two constables at his front door were there to investigate him. That was his first mistake, albeit one I can understand.
It was early in the morning. He’d fought with his drunk girlfriend most of the night. When police finally removed her, he went to bed. At best, he’s probably been sleeping for less than an hour before police woke him up to search his home.
It’s easy to see why he wasn’t quick to understand the new dynamic he faced. Who among us, after less than an hour of sleep, would?
Takeaway #1: If police show up at your door and you don’t know who they are investigating, they are investigating you. Invoke your Charter right to remain silent and request an attorney.
There’s an old poker axiom that applies here.
If you look around the poker table and you can’t figure out who the patsy is, you’re the patsy.
No search warrant, no entry.
As Justice McArthur explained, the constables failed to inform Elvis Iniguez he could refuse the search. They failed to inform him of his right to counsel. Then they breached his Charter rights by searching his home.
The constables’ intent is irrelevant. It doesn’t matter they were at the end of a long series of shifts and just wanted to go home to bed. It doesn’t matter they didn’t think they would find anything.
When police want to search your home without a warrant, they must first inform you of your rights. If they fail to do so, you cannot give “informed consent” and any subsequent search is likely unconstitutional.
Section 8 of the Charter of Rights and Freedoms guarantees your right to be free from unreasonable search and seizure.
Section 10(b) of the Rights and Freedoms guarantees your right to retain and instruct counsel without delay, as well as the right to be informed of that right.
Takeaway #2: If police show up at your door and request to search your home, politely decline. The only reason to search your home is to gather evidence for the Crown prosecutor to use against you in court.
What do you think?
I would love to hear your thoughts in the comments section below.
Really enjoyed the article and your take on the events. And your newsletter.
Keep up stoking the fires of liberty among Canadians.
Thank you, Howard!
Interesting. One note, I would never expect the police to inform me of my rights. Not accurately at least. They might say something like, you can refuse to let us in but that may be held against you later.
The relationship between the public and the police is extremely lob sided. People don’t know their rights and are reluctant to disagree with the police. They feel vulnerable and helpless when an armed, uniformed person knocks on their door.
From personal experience I can say that officers don’t really listen to the public, they consider themselves very much superior and act like it.
I’m hard-pressed to disagree with you, Dirk, despite this and other legal decisions making it clear to police they must. It’s why I write about these issues… to hopefully educate Canadians about our rights and how to protect them.
Rights are like muscles. If we don’t use them, they atrophy and die. We cannot allow that to happen.
Thanks, Christopher. Great article, and excellent advice it appears we are all going to need to know.
I am reposting to you my own concerns that I have expressed to articles posted int the national post. It very much concerns me that Canadians are on a course of loosing their freedoms of choice! The grammar – spelling may not be perfect but you get the idea.
I read your December 20th article on the latest round of policy attacks on legitimate firearm owners in this country. Our current political masters are without doubt bent on a road to eliminate firearms of all types from the Canadian civilian population. The Liberal’s once again but now in junction with the BQ and the NDP are following the mistaken ideologies of the past. Nazi German comes to mind as an extreme example of their flawed ideology but there are many others less pronounced movements being played out in more recent times under common wealth democracies. Jamaica, Britain and New Zealand had embraced similar doctrine under the desguise of assuring public safety with statically disastrous repercussions.
The more recent technique has been simple and is akin to the slow boil of a live frog in those science experiments in which the frog does nothing until it’s too late. The secret behind the policy of gun control has been to be patient and appear to offer a solution to the worst of human social nature. Again, a process that will slowly chip away at legitimate ownership of firearms not because firearms are inherently a problem but because of ignorance of the facts and the existing laws surrounding gun ownership.
Often the media is complicit in the emotional drama of the stories of gun violence not just in this country but from around the world with a suggestive tone that it has been the reality of most Canadians. These stories serve to inflame the tragedies of human existence! These stories of fear and destruction skew the perception of blame as if eliminating firearm ownership will end violence in our society. Our history before firearms tell us lethal violence in all its manifestations has always been there. Science tells us to focus on more of the root causes so as to minimize violence [E.g. mental health including addictions, purposeful employment opportunities, early educational interventions and so on] and even then human complexities will prevail!
Those protesting against firearm ownership in free society will always protest against [there] ownership but I wonder where will [they] be when the law shifts against [them]…
With Respect,
Thanks Kevin. In the context of the Canadian debate over firearms, the approach is to treat guns as a disease. The longstanding mindset, and one embraced by Minister Bill Blair, is that guns cause crime. If the gun is removed, crime will no longer happen because “the source” is removed from society. If this disease model is correct, prisons would be the safest and politest places on the planet. They are not, for the same reason confiscating my guns and yours will never stop gang violence in Toronto – evil lives in the heart of human beings, not in pieces of metal.
Not one legitimate gun owner on the planet wants to see another kid bleeding out on an Emergency Room operating table.
Until we deal effectively with what causes people to go down these terrible roads of violence we will never stop the violence. The challenge before me and others in our community is how to present this in a way “the other side” can hear it, understand it, and join us in eradicating it.
So far, we are unsuccessful in this.
Very cool! I see this court decision as a major win for democratic rights. The fact that the judge declared the evidence inadmissible despite the fact that the evidence was an unregistered prohibited weapon gives me some measure of faith in the judicial system again. In context of an anti gun government, this case sets a huge precedent.
I think there is a further thing to take away from the Iniguez case; many people and perhaps most people do not know the law or at least its fine details. As an active shooter and perhaps collector (accumulator ? ) it is not uncommon for me to meet people who are breaking the law through ignorance of it. That is further compounded by the police interpreting the written law without challenge by the government. As an example of police interpretation / policy , the law currently defines an antique handgun under cc 84 1(b) and SOR 98 – 464. Summed up if a handgun was made before 1898 and is not one of 7 or 8 named calibers / cartridges, it is an antique. Quite a few pre 1898 handguns have been rebarreled and / or rechambered from non antique to antique status under that provision. More recently the RCMP have decided that if a handgun was not originally chambered for an antique cartridge, it retains its restricted or prohibited status even if rechambered to conform to the antique definition. To quote what I was told by the firearms registry staff “you cannot make a antique from a 150 year old prohib (section 12(6) handgun). Another example from my experience; a german luger is defined as prohibited by its barrel length. The registered frame or receiver is the “handle” or the metal components that the upper slide mounts on. The luger frame or receiver legally is a “frame only” but under RCMP policy is prohibited in the absence of the barrel and slide because it once was prohibited by the barrel. If the gun is rebarreled with a longer barrel, it becomes restricted and if you remove the barrel, it becomes prohibited again
finally I don’t know if a person can be found guilty of contravening a policy but obeying the written law
The RCMP is now in the business of making law under the guise of “interpreting regulation” to mean what they want it to mean. The case you describe is just one of many, unfortunately, Doug.
The only way we will know the answer to your last question is through the expensive and punitive process of a trial. Whether you (or any of us) are guilty of contravening the RCMP’s interpretation of a regulation yet obeying the law, as written, is if we are arrested, charged and stand before a judge. This is not the ideal situation at all, and especially not for the poor soul put through the legal system’s meat grinder.
Hi, Christopher.
I just wonder why this man didn’t say where he got the gun. If he is a newish immigrant, maybe having a weapon and ammo around is kinda normal for him. I lived in a few countries where most head of the household had a handgun stashed somewhere..like with the video collection.
Our laws seem so murky, I dunno if I still have any rights. The Liberal govt keeps changing laws & then each province has its own laws. Then the cost of defending yourself is prohibitive.
The idea that you must have separate safes to lock up your guns and another for ammo is insane. Tell an intruder to please wait til you get you gun & ammo out or to call the cops? Law-abiding, sensible gun owners are already treated like criminals and monitored 24/7.
We are not free. If you escape the radar like I did living overseas for 22 years, the govt agents are onto you when you return to live here. Another story, for another time.
I hope Lytton is still safe and sane.
Jettie
re: source of the gun. It’s possible he did tell police, but if he did it never made it into the court transcript. There is very little information available on this case, and since I couldn’t locate a man by his name anywhere in Canada, we will probably never know. My thoughts on the source are just that – my own [probably incorrect] assumptions. :)
re: loss of rights. Canada is now well down the road of stripping us of our rights. It’s only the occasional judge like Justice Heather McArthur, who keep us from reaching the end of that terrible road.
That’s exactly it! Just wondering if there are any repercussions for that judge coming.
That’s exactly it! Just wondering if there are any repercussions for that judge coming.
OK so basically, this is a divorce rape version “light”. There’s noticeable shift from not guilty until proven towards “guilty by default”. In the US courts already turned a blind eye on evidence gained illegally. It’s only a matter of time when this creeps into Canada.
Read “Rise of the Warrior Cop: The Militarization of America’s Police Forces” by Radley Balko.
To find out how to protect yourself from the real criminals also read “Stack the Legal Odds in Your Favor: Understand America’s Corrupt Judicial System—Protect Yourself Now and Boost Chances of Winning Cases Later” by Tom Scott.
Those officials are elected to represent our interests but we always end up serving them. The conclusion is that in thousands of years not much has changed being primal as before.
Balko’s work should be required reading for every person who wishes to hold public office. I’ve been a fan of his work for years. I’m not familiar with Tom Scott, though. Will look up the book you reference.