have the unfortunate duty of telling a woman that her husband was
killed in a hunting accident. Obviously, the man possessed firearms.
What does the law say must happen to the firearm the man was carrying,
and any other firearms he owned, upon his death?
Wednesday, September 27, 2006
The phrase, "by operation of law", means the automatic
transfer of legal possession from the deceased to the executor
of his estate, as a part of the estate, at the moment of death.
This will help you to understand what you should and should not do:
Act section [FA s.] 112(1) says, ".. every person.. who...possesses
[any unrestricted firearm] without being the holder of a registration
certificate [covering it is guilty of an offence]..."
But -- FA s. 112(2) says, "(2) Subsection (1) does not apply
to...(b) a person who comes into possession of a firearm by operation of law
..." (as an executor does).
S. 91(1) says, "...every person...who possesses [any] firearm [is
guilty of an offence] unless the person is the holder of (a) a licence
[covering it]...and (b) a registration certificate [covering it]..."
CC S. 91 (2) says, "...every person...who possesses a prohibited
weapon, a restricted weapon, a prohibited device, or any prohibited
ammunition [is guilty of an offence] unless the person is the holder of
a licence [covering it]..."
But -- CC s.91 (4)(b) says, "Subsections (1) and (2) do not apply
to (b) a person who comes into possession of a firearm, a prohibited
weapon, a restricted weapon, a prohibited device or any prohibited
ammunition by operation of law
s. 92(1), 92(2), and 92(4)(b) say much the same thing, and cover the
situation where the accused does know the law, while CC s. 91 covers
situations where the accused may not know what the law requires.The law
set forth in C-68 is crystal clear.
firearm, prohibited weapon, restricted weapon, prohibited device, or
prohibited ammunition that passes into the hands of an executor is
legal, and possession by that executor is legal -- for a "reasonable
firearms and any of the other items listed held by
the deceased -- legally or illegally -- become [if necessary, and
temporarily] legal as they pass into the hands of the executor at the
moment of death. The executor has broad exemptions granted to him by
the law in order to let him settle the estate in an orderly manner, and
with a minimum of firearms control system problems.
enforcement officers should, therefore, be very cautious about seizing
firearms (and other listed items) that are involved in an inheritance
process. There can be claims for damage due to poor handling or poor
storage, as well as complaints of illegal seizure.The exemptions
granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are very
broad. Even an obviously illegal, unregistered full automatic
submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited
handgun temporarily becomes perfectly legal, temporarily. That happens
when the death of its possessor passes it, automatically, into the
possession of the executor of the estate -- who needs no
registration certificate to be in possession of it.
If the deceased dies in possession of a "prohibited firearm" described in FA s. 12(6), that firearm can
be passed on to the heir if
the conditions set out in FA s. 12(7) are met.
the deceased died in possession of a "prohibited firearm" that no one
but a museum can have, the executor may legally transport it without
an Authorization To Transport (ATT) -- say, to a gunsmith for
deactivation. (The executor must stay with it while it is deactivated,
so that it is never illegally possessed
by the gunsmith
Once deactivated, it is still an asset of the estate, but it is no
longer a firearm under the CC s. 2 definition of "firearm".
statement that an executor does not need an ATT requires explanation,
as Parliament set up that exemption in two different ways, both having
the same purpose:
CC s. 93 criminalizes only
of an authorization
or a licence
under which the person may possess a firearm, a prohibited weapon, a
restricted weapon, a prohibited device or prohibited ammunition" -- if
that person has the item at a forbidden location. An executor is not
"the holder of an authorization or a licence under which the person may
possess" the item. He or she is merely the agent for the real possessor
-- the estate. He or she has temporary possession only under the exemption granted to executors
, so this section does not apply to an executor
and cannot be used to charge an executor
s. 94(4) provides an exemption to a CC s. 94(1) charge against an
executor who is actually transporting such an item, and for anyone else
who is in a motor vehicle with such an executor. That confirms
that it was Parliament's intent to exempt an executor from ATT
considerations, as well as licence and registration certificate
However, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations
apply to an executor, and must be obeyed by an executor.
you have questions on this, or any other issue regarding firearms, the
National Firearms Association would be pleased to answer them for you.
Please call us at (780)439-1394