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.