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Proposed ‘red flag’ gun law in Canada could lead to ‘swatting,’ criminal lawyers say

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Criminal lawyers are warning that a proposed “red flag” law from the Liberals could be taken advantage of by bad actors and lead to “swatting,” where law enforcement is called on an individual for illegitimate reasons.

The red flag law proposed would allow any citizen to flag to a court another individual with guns that they suspect is a danger to others or themselves, potentially resulting in their firearms being taken away. The current law only allows police to make this case to a court.

The citizen’s case before a judge would be “ex parte” under the new law, which means that it wouldn’t involve the other party or make them aware of the flagging.

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A judge could then decide to issue a warrant to search and seize to police, which would give them the grounds to knock down doors to find the alleged weapons.

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Criminal lawyer Solomon Friedman told Global News that excluding police in the flagging could easily be abused by some, as there would be no investigation to see if the claims are true but would be under the discretion of the judge. Since the party accused would not be included in the proceedings, there would be no opportunity for them to defend themselves.

The legislation would also protect the identity of the accuser, which Friedman says protects them behind a “shield of anonymity.”

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Friedman said those who would likely use the new rules would be those whose claims were refuted by police after an investigation.

“It’s an absolute anomaly in our criminal law, to essentially give that power [to flag] to a private person without police oversight,” he said. “It’s a solution in search of a problem.”
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The Liberals have justified the red flag law by saying it would address situations “where an individual poses a risk to themselves, their family or to public safety, including perpetrators of intimate partner and gender-based violence, people at risk of suicide, and radicalized individuals.”

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“It would support vulnerable and marginalized groups including women, Indigenous people and other racialized communities and people with mental health issues, to ensure that the ‘red flag’ law is accessible to all, particularly those who may need it the most,” according to Public Safety Canada.

The Justice Department did not respond to Global News about the concerns over the law before publication.

Friedman, though, said police have historically been very good at investigating firearms allegations, so there isn’t a lot of evidence that supports changing the law.

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He says the public safety issues from the new provision would be “very real.”

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Criminal lawyer Ian Runkle agrees with Friedman that the law could be taken advantage of by bad actors.

For an immediate search and seizure, Runkle said the accused, “may face a tactical team coming to your door, kicking down your door and entering with guns drawn, which is an extremely dangerous circumstance.”

He said the red flags could become like “swatting,”  in which an individual claims there is an emergency that calls for a tactical police response in order to target another individual. Swatting resulted in a massive police response called to Burnaby, B.C., in October 2021. Experts warn it is a concerning trend.

Runkle said deaths could result from the new red flag legislation.

“In a way it is shocking,” he said.

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