91原创

A 91原创 RCMP officer violated a suspect鈥檚 constitutional rights when he found and seized illegal firearms after being called to a domestic dispute last year.

Lawyers for Frank Richard Kelly Hogan argued successfully in a Charter of Rights hearing earlier this spring that the officer should have obtained a search warrant before checking inside a cabinet where he found a loaded semi-automatic rifle, a pistol, ammo, and gun parts.

Hogan was facing charges of assault, assault causing bodily harm, sexual assault, uttering a threat, and a number of gun-related charges.

Justice W. Paul Riley heard the Charter application this spring, but the decision was only recently released.

Two officers, Constables Bell and Wilson, were dispatched to a home in rural South Brookswood just after 2 a.m. on Jan. 31, 2022.

A woman had called 9-1-1 on a cell phone belonging to Hogan, and the officers believed it was a possible case of domestic violence. Wilson also learned that Hogan was banned from possessing firearms, because of previous crimes.

Wilson testified in the Charter hearing that the property was run down. Hogan came out of the house as the officers approached, and Bell stayed outside talking to him while Wilson went inside to find the woman who had called 9-1-1.

He found a woman who was upset and crying on a couch. She alleged that Hogan had threatened to cave her skull in and throw a drill at her.

As they talked, Wilson noticed a round of live ammo on the cluttered coffee table. The woman, whose name is protected by a publication ban, also said that Hogan had guns in the home.

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Wilson asked where, and she pointed to a nearby cabinet. Wilson opened it and found a heavy bag that contained a loaded SKS semi-automatic rifle.

The two officers then arrested Hogan for uttering threats and for breaching his firearms ban. Bell took Hogan to the RCMP detachment, while Wilson went back into the house and, with more information from the woman, found a loaded pistol, handgun parts, a magazine for a semi-automatic handgun, and ammo in another drawer of the cabinet.

The question in the Charter hearing was whether or not there was an immediate necessity to seize the guns, or if the officers should have waited, and gotten a search warrant.

Riley noted that where there is an imminent threat to police, or to members of the public, officers can seize weapons or search for firearms they believe to be present.

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The judge said that given past rulings, 鈥渢his case is close to the line.鈥�

But taking into account the fact that their suspect was outside, not near the weapons, Riley ruled that there was not a reasonable necessity for a warrantless search of the cabinet.

Therefore, he ruled the police violated Hogan鈥檚 rights against unreasonable search and seizure.

Hogan鈥檚 lawyer attempted to make the case that the arrest itself was a further Charter violation, but Riley shot that argument down.

鈥淔irst, even without the discovery of the firearms, Const. Wilson had both subjective and objectively reasonable grounds to arrest Mr. Hogan for breach of firearms prohibition,鈥� Riley ruled, based on the live round sitting in plain view on the coffee table, and the victim鈥檚 statement that there were guns in the home. 鈥淪econd, the reality is that Const. Wilson directed Mr. Hogan鈥檚 arrest on two separate offences, one being uttering a threat, and the other being breach of a firearms prohibition.鈥�

Even if there were no reason to arrest him for a firearms offense, there were 鈥渁mple objective grounds鈥� for the arrest based on the alleged threats.

In the end, Hogan was not convicted of the gun charges.

After the spring hearing, Hogan pleaded guilty on July 4 to two of the charges he was facing 鈥� assault and assault causing bodily harm.

He was sentenced to one day in prison, plus three years of probation, and a further firearms prohibition.

Hogan鈥檚 previous criminal record includes convictions on charges of assault with a weapon, uttering threats to cause death or bodily harm in 2018, and of theft under $5,000 in 2017, and of theft over $5,000 in 2001, among other charges.