The gun collectors

The gun collectors
For the past nine years, Toronto criminal defence lawyer Edward Sapiano has been actively seeking out and retrieving illegal arms and encouraging others to do the same. As the founder of an organization called Piece Options, Sapiano and a group of fellow lawyers retrieve illegal guns from their clients and turn them over to the police. The idea of helping remove weapons from the streets came to Sapiano in 2003. He wondered at the time if there were other lawyers crazy enough to join him, and if so, could they collect and possess illegal firearms without getting arrested? The answers to these questions were yes and he sure hoped so.

Surrounded by violence ever since he started working on murder trials as an articling student in the early ’90s, Sapiano says he was fed up with gun violence. “Most lawyers enjoy doing one or two murder trials but they do better economically elsewhere. I, on the other hand, do a lot of murders. They are physically draining. My trials are typically about a month long and most involve guns. I really dislike them. Nothing could be more natural than for me to think of some mechanism to get them off the street. It’s consistent with my philosophy on life: to take action.”

Deciding to take action is one thing but sorting out the legalities of a lawyer agreeing to collect and turn over illegal weapons is another. Sapiano spent much of the first year researching the law, especially the case law that would support his theory of “non-criminal possession.” He called his lawyer friends and asked them a lot of questions while at the same time contacting the authorities who he was certain would be interested in his proposed service. “I communicated with the chief of police’s office and the attorney general’s office and put them in touch with each other,” says 50-year-old Sapiano. “They reacted very well. I was told to sit tight and ‘we’ll get back to you.’ I waited, and eventually, it became apparent that no one was going to get back to me.”

Sapiano wanted the police on his side for several reasons, but mostly, he didn’t want himself or anyone else to get arrested for possessing an illegal firearm. He was, however, growing tired of waiting for their approval. In the meantime, gunfire was killing more people on the streets. In November 2004, 11-year-old Tamara Carter was killed by a stray bullet on a Toronto bus, which spurred Sapiano back into action. “When that shooting happened, I got a little angry. I believed that something could be done to help and that I was essentially being told, by way of silence, not to do anything. I realized that this is politics and I’m not a political animal.” Piece Options was then founded.

How it works

Piece Options offers the public an ongoing, free amnesty program similar to the once-per-decade amnesties held by various police departments. The difference, says Sapiano, is that his service doesn’t close and it is completely anonymous. A member of the public who has an illegal weapon can contact Piece Options if they are interested in surrendering the gun anonymously (it can also be the person’s lawyer who calls Piece Options). A lawyer involved with Piece Options then processes the gun owner as a client, thereby establishing solicitor-client privilege. A time and place is set for the client to surrender his or her gun and a second time and place is arranged for the Piece Options’ lawyers to surrender the gun to the police. Two Piece Options lawyers head out to wherever the gun is located (usually the home of whoever has the weapon), the gun is carefully retrieved, and the lawyers head straight to the police to hand it over.

“Everyone who I told about the idea loved it,” says Sapiano. “The lawyers I spoke to were people who I knew. I called upon them for different roles. Not all of them would join me on a gun run. For example, I asked Melvyn Green for his opinion on the case law and if he would lend his name to that opinion by associating with us. I considered his opinion as a sober second thought.”

Now a judge of the Ontario Court, Green admits he wasn’t totally convinced lawyers going into the streets to collect illegal arms was either smart or legal. “I was skeptical, at minimum, about Edward’s plan,” says Green, “but he explained it to me very carefully. He sent over drafts and reinforced it with a legal analysis that, in the end, persuaded me that it was defensible, or at least arguable. I thought it was inspired.”

Inspired, maybe, but also really out there. “It did seem like a fairly crazy idea at the time but I knew he was acting out of a place of social responsibility and real concern,” says Green. “There was a plague of gun-related deaths and injuries in Toronto — not, regrettably, so different from today — and Edward was moved to do something proactive rather than just lament the situation.”

Then-lawyer Green’s support, among others, was important to Sapiano. He felt Piece Options had to involve a group of lawyers, not just one man, in order to give the concept more legitimacy and credibility. “Our protocol is well thought out,” says Sapiano. “There is nothing accidental. We retrieve the gun with two lawyers. We have trigger locks. We check the gun. We make sure it is safe. We take possession and we immediately go to the police officer at [Toronto’s] Integrated Gun and Gang Task Force. We get a receipt for the gun and a letter is sent to the client.”

The first time Sapiano collected a gun, he wasn’t certain what would happen. Neither was his criminal lawyer colleague Jennifer Penman, of Toronto’s Derstine Penman, who accompanied him on that first pickup. Sapiano was glad to have Penman on board, not only because she was a respected partner in a firm but because she was a new mother. He thought the police would be less likely to arrest a woman and the mother of a two-month-old than they would a solo male lawyer. “We didn’t get arrested so maybe he was right,” says Penman. “At the time we had very little support for what we were doing, so if the optics of my situation [as a new mother] would make a positive difference then I was prepared to go for it. I hoped that the public would have been appalled to think that I could spend time in jail for doing my part in getting guns off the streets.” Says Sapiano: “The Rosa Parks case was staged. It was not accidental. If you are testing the law on something, and you have an opportunity to fashion the facts in a way that is favourable, you do so.”

As it turned out, no one was arrested that first time or any of the 40-plus times Piece Options has returned weapons and ammunition to the police. Sapiano is confident the law supports the group’s activities. “We have case law dating back to 1948,” says Sapiano, “and these cases are about protecting the lawyer. As soon as lawyers take possession of contraband, they have knowledge and control. They know it’s illegal and they are in control of it and that is criminal possession in normal circumstances. But this case law is a little known body of law that creates what we argue is non-criminal possession. So even though all the elements of criminal possession are present, if your state of mind is solely to promptly deliver the contraband to the authorities, then you are not in criminal possession. It’s also an odd body of law because it defies all the other laws. The underlying notion is the same as someone walking through a park and seeing a gun on the ground. He picks it up so a child won’t get injured. I consider this  Good Samaritan law.”

Sapiano’s argument may hold weight but that doesn’t mean the authorities fully support the program. “The frustration for the police is that if they find out that a surrendered gun had been used in a crime, the protocol of Piece Options precludes any investigation of its source through the lawyer involved in returning the weapon,” says Green. “It does not, of course, foreclose other means of investigation. And, in the end, the balance of social good likely favours the removal of the weapon from the risk of further harm.” Adds Sapiano: “We have received wonderful assistance from Guns and Gangs but sometimes some of the officers can be less understanding, less diplomatic.” In other words, his group of well-intended criminal defence lawyers are stepping on police toes.

Why guns are surrendered

Sapiano says the people contacting his organization are not thugs or members of street gangs. Most of his gun-surrendering clients are older — mid-40s and up. Some of them have had their guns for so long, regulations governing their ownership have changed, turning legal gun ownership into illegal ownership. Others have had the guns in their family and they don’t know how to get rid of them. “There is certainly a point in people’s lives when they grow out of their guns and they don’t know how to dispose of them,” says Green. “Edward’s program affords them a legal mechanism to do so, as it does for persons who want to rid their home of unwanted firearms. If, for example, a mother discovers that her son has a gun under his bed, right or wrong, the last thing she wants to do is get her son into trouble. But she does want to get the gun out of the house. What can she do? Call the police? She knows the risk is that her son would go down if she does that. The program provides a neutral, removed, criminal culpability-free mechanism of returning the gun to the police without incriminating her son or herself. There’s real utility in this option.”

If the people surrendering their weapons to Piece Options are not criminals, is the program of any real value? Sapiano is very clear on this point: “My understanding is that 70 per cent of guns used in crimes come across the border and 30 per cent come from lawful Canadian gun owners. It is the 30 per cent that I believe should not be there. The weapons turned into Piece Options represent the 30 per cent. They shouldn’t exist because we can do something about it. So maybe the middle-aged owners are not the problem, but their property is attracting criminals.”

Sapiano has absolute disdain for pistols. “The right to have a gun for the purpose of target shooting cannot supersede the death of children and people. Pistols should be entirely banned in Canada. I would go so far as to prohibit the manufacture of pistols in Canada and there are a number of them. We produce many thousands and we sell them around the world. Their production is a dirty hand issue.”

Ironically, Sapiano owns a property that has a shooting range on it. He has friends who like to hunt and he himself likes to skeet shoot. He defends the contradiction this way: “I see a necessary and viable distinction between pistols and long guns. I want to focus on pistols because they are the ones that do the most damage. Long guns are not the problem in urban centres, where I live. I am here, dealing with a problem that is in my life every day.”

As for why there is so much gun violence on the streets of Toronto and elsewhere, Sapiano does not believe in the widely held theory that poverty leads to crime. “I hear a lot about [how disenfranchised] our youth are but I don’t accept it. I have seen poverty. I know it is a significant influence but I don’t think it is the cause of gun play. We’ve had poverty for a long time. There are plenty of people living in sheds in Jamaica who are poor but are not robbing their neighbours.”

Sapiano also doesn’t believe the media plays a role in the increased violence, even though there are very few American blockbuster movies or scripted television shows that do not feature guns. In fact, it would be hard to name more than a handful. “There is just as much violence on Japanese TV without the violence on their streets,” says Sapiano. “I believe we have failed to educate our youth about the idiocy of guns. There is a cultural promotion of weapons here. Go on YouTube and type in ‘gangster.’ They’re on there thinking they’re stars, glorifying guns, cash, shooting, and killing.”

Piece Options has collected and returned more than 40 firearms and thousands of rounds of ammunition but Sapiano believes that number would be 10 times higher if the various levels of government would invest in an extensive media campaign denouncing gun culture in a similar fashion to campaigns against drunk driving or smoking. “Every aspect of our society has spent lots of money selling its message. Where is the ‘policing’ message? I would initiate an education campaign targeting not only the younger male but also the females who facilitate the problem. We need a shame campaign.”

He believes the attitude of the public has to change. He recounts this story about one of his current murder cases: “I am currently working on a case where a gun was stolen from a lawful gun owner and 20 days later it was used to kill a girl in her 20s. The lawful gun owner was on the stand and he was concerned about his gun being used in the murder. I asked him: ‘Why does that concern you?’ He said because he’d have to live with that fact for the rest of his life. I then asked him if he was going to live with it for the rest of his life by buying another gun? And the answer was yes. That’s exactly what he did, even though his house had been broken into, his gun stolen, and a young girl was murdered because of it.”

Simon Lord of Lord Russell Barristers Chambers in Calgary understands Sapiano’s frustration and believes the Piece Options program would work equally well in his city. “I’ve been a criminal lawyer all my working life. I have reason to hate guns. I’ve seen the damage they do far too many times. The less of them that are out there, in my view, the better, especially the illegal ones. I wouldn’t hesitate to enter into a solicitor-client relationship without payment of a fee if the purpose of that relationship was for me to immediately and lawfully dispose of an illegal firearm.”

Green would love to see Piece Options expanded across Canada. “In an ideal world, and assuming the protocol survived a legal test, not only would I like to see it expanded, I’d like to see the police lend their encouragement so that those who surrender guns through this mechanism can be assured that they will not be placing themselves in jeopardy.” Sapiano would also like to see his fellow lawyers adopt Piece Options coast to coast. As he says, “The beauty of our program is that it’s not magic. People can do it.”

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