Canadian Lawyer

"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." — JUSTICe meLVYn Green as a client, thereby establishing solicitorclient 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," 36 M ay 2013 www.CANADIAN 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 learn more about the Piece options program at www.pieceoptions.com. L a w ye r m a g . c o m 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

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