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Police hands tied on rifle, lawyer says

Jun 07 2012

The fact that suspected Burnaby killer Angus David Mitchell didn't have a criminal record or significant history of violence likely gave Victoria police little grounds to keep his firearm after it was seized in February, says a Victoria defence lawyer.

While police don't need criminal charges to seize a registered firearm, lawyer Paul Pearson said police are given broad discretion and can keep a firearm if there is evidence the person is a risk to themselves or others.

"Generally, they are very conservative about this stuff," Pearson said. "The grounds have to be there, there has to be a foundation for [keeping the weapon]."

Victoria police apprehended Mitchell, 26, under the Mental Health Act at his Rockland home Feb. 8, a day after he walked into a Saanich medical clinic with a rifle in a case. Victoria police seized the rifle but gave it back a few weeks later after Mitchell applied to have it returned.

Vancouver police have confirmed that the high-powered Mossberg rifle was the same one used to shoot and kill two people in a Burnaby sushi restaurant on May 27. Mitchell is also suspected of shooting and injuring his former landlord in Burnaby on May 29, the day before he was killed in a shootout with Maple Ridge RCMP.

Mitchell did not have a criminal record and had obtained the gun legally.

He was also a licensed security guard and would have gone through an extensive criminal records check.

Mitchell was arrested by Vancouver police for breach of the peace over a dispute with a roommate in September 2011, but no charges were laid.

According to the RCMP's National Weapons Enforcement Team, a weapon can be seized under the Mental Health Act and "information received from the physician or hospital will assist police in deciding the next steps to take, including dealing with seized firearms."

Under the Criminal Code, police who seize a rifle can make an application for a prohibition order, which would lead to a firearms hearing where a judge would decide if an individual is fit to have their firearm returned.

Pearson said it was likely Victoria police didn't make an application for a firearms prohibition because they didn't have enough evidence to support it.

"I'm sure the police look back and are shocked that this has been the result but my experience is they are really careful with this stuff and err on the side of holding onto firearms," Pearson said. "If they had any substantial concerns, they would have kept the firearm."

Pearson said he has had clients facing criminal charges who have had firearms seized even if they weren't used in the offence, such as a domestic dispute where there are firearms in the home. The person likely won't get their weapon back until the charges are resolved, and even if charges are dropped, police can make a case to keep the weapon.

But there are no set policies under the Mental Health Act that say someone who is mentally ill cannot have a firearm, Pearson said.


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