Wednesday, April 7, 2010
Recently bureaucrats within the Department of Natural Resources restarted a consultation process aimed at making substantive changes to the current Explosives Act. The Act is extremely important to members of the recreational firearms community as it determines the quantity and manner in which reloading components and propellants can be legally stored.
National Firearms Association attempted to reach consensus with key stakeholders within the recreational firearms community on an acceptable compromise position. However, this attempt failed when it became apparent that any compromise would entail sacrificing the rights of certain groups of shooters.
No matter that these groups were a minority within our firearms community; National Firearms Association is unwilling to accept such "sacrifices." The changes proposed would have had a severe negative impact on high-volume reloaders and competitive shooters, multi-calibre reloaders, black powder muzzleloader shooters, historical re-enactors, rural reloaders and apartment dwellers.
NFA is a NATIONAL organization and we aim to represent and protect the interests of ALL responsible firearms owners and shooters from coast to coast. Regional or limited interests are not a factor in our decision-making process and we will not attempt to appease anti-firearm elements with NRCAN bureaucracy, nor accept a poor deal now for fear that once the Liberals regain power sometime in the future we will be forced to accept an even worse deal later. We don't deal in hypotheticals.
National Firearms Association is a forward thinking strategic lobby organization and we know we will never win by giving into fear or trying to appease our enemies within the current gun control movement. While certainly imperfect, the current status quo,in terms of the Explosives Act, is preferable to willingly sacrificing additional rights without an overriding reason to do so.
We communicated this position to former Minister of Natural Resources Lisa Riatt and she agreed. As NFA pointed out, there was no overweening justification to conduct an overhaul of the Act at this juncture and the minister consequently ordered her department to halt further consultations and stop planned changes as there was no reason to proceed.
During the consultation process there were a number of disagreements that occurred over interpretations of the existing Act. To better help our members understand our position; NFA Legal Affairs Chair, Sheldon Clare and Attorney Derek Birch prepared the following brief for your consideration.
How much gunpowder can I store in my home?
A Guide to the Regulations
By Derek A. Birch, Barrister & Solicitor, Vancouver BC
and Sheldon D. Clare, BC Branch President and Legal Affairs Committee Chair, Canada's National Firearms Association
Reloading and hand loading cartridges is a popular activity among Canadian firearms owners. As ammunition prices continue to climb reloading is sure to increase in popularity and, for those who are already reloading, they will in many cases reload more. More reloading means more people storing reloading components - including gunpowder - in their homes. Firearms owners want to know: how much gun powder can be stored in a dwelling house?
The legal regime surrounding this question is complex. You practically need to consult a constitutional lawyer just to get a complete answer. Canada's National Firearms Association has done just that, and the opinion obtained is as follows: An individual can store up to 75 kg. of powder (which includes both "black powder" and "smokeless powder") in a dwelling house, provided that it is stored in compliance with Part XII of the Explosives Regulations . If the powder is stored in a "detached store," then all 75 kg. may be stored together. If it is stored in a "suitable receptacle", then each "suitable receptacle" must hold not more than 10 kg., but the allowable aggregate remains 75kg.
When dealing with questions about ammunition, the starting point should be The Explosives Act, R.S.C., c. E-17 . But when one looks at the Act, they realize very quickly that it only sets out the broad strokes of the legal regime regarding explosives in Canada: definitions; the power to make regulations; prohibited activities; licences and permits; inspectors and chemists; inquiries and accidents; offences, punishment and procedure. All issues relating specifically to gunpowder, smokeless powder, black powder, small arms propellant and similar substances used in small arms ammunition is located in the Explosives Regulations.
The Explosives Regulations
Part XIII, section 143, of the Explosives Regulations, C.R.C., c. 599, states:
143. A person may have up to 75 kilograms of gunpowder and small arms propellant in his possession if they are stored in accordance with Part XII.
In order make any sense of this, we must look at what "gunpowder" and "small arms propellant" mean in law.
Part I, section 6 of the Explosives Regulations divides explosives into seven classes. Class 1 is "gunpowder". Class 1, Section 8, defines the "gunpowder" class as: "the explosive ordinarily called gunpowder", but also "preparations formed by the mechanical mixture of a nitrate with any form of carbon or with any carbonaceous substance not possessed of explosive properties".
Canadian gun owners are not chemists. They are used to thinking in terms of different varieties of "smokeless powder" and "black powder". Black powder is generally considered to be a "low explosive", whereas smokeless powder is not an explosive at all. It is a "deflagrant", which means that it burns rapidly. It is important for Canadian gun owners to realize that, despite this common understanding, in Canadian law both "smokeless powder" and "black powder" fall within the definition of "explosive".
The terms "black powder" and "smokeless powder" do not appear in the Explosives Regulations except in the table at Part XIV, section 148, where - in addressing what explosives may be imported to Canada without an explosives importation permit - it states "gunpowder (black powder) in canisters of 500 g or less and smokeless powder in canisters of 4000 g or less". So, while there is some recognition in the Regulations of a distinction between the two, primarily the distinction is absent. This suggests that all "gunpowder", whether "black powder" or "smokeless powder", for legal purposes falls within the meaning of "gunpowder" - a Class 1 explosive - in s. 8 of the Explosives Regulations.
"Small arms propellant"
The term "small arms propellant" is not defined in the Explosives Regulations, however, Part V, section 38, defines "propellant" as:
"propellant" means any authorized explosive of Class 3 adapted and intended exclusively for use as a propelling charge in ordnance or small arms; (propulseur)
Class 3 is set out in Part I, section 10, of the Explosives Regulations as the "Nitro-Compound Class". While this inquiry is primarily concerned with the storage of black powder and smokeless powder (Class 1), to the extent that firearms owners in Canada use propellants other than black powder and smokeless powder - such as cordite (a Class 3 explosive) which was historically used in ammunition for small arms and may still be encountered in military surplus ammunition - reference should be made to Class 3.
For the purposes of storage of explosives, which is discussed below, Class 1 and Class 3 are treated the same (see, for example, sections 140 and 141).
Storage in a dwelling house
Part XII, deals with the "amount of authorized explosive that may be kept for use and not for sale in places other than licensed factories and licences magazines and registered premises and the manner in which it shall be handled and stored''
133. Subject to this Part, explosives kept for private use, and not for sale, in any place other than a licensed magazine or licensed factory shall be kept in a detached store or a suitable receptacle as defined in this Part and the quantity of explosives so kept shall not exceed the maximum quantities prescribed by this Part.
(Underlining and emphasis added)
The terms "detached store" is defined in Part XII, section 134:
134. In this Part, "detached store" means
(a) a building well and substantially constructed of brick, stone, concrete, or other fire-resistant substance or of wood covered or treated with fire-resistant material, and
(b) a bin well and substantially constructed of wood covered or treated with fire-resistant material,
which building, or bin is
(c) detached from any dwelling house and situated at a safe distance from any highway, street, public thoroughfare, or public place;
(d) made and closed so as to prevent unauthorized persons having access thereto, and to secure it from danger from without; and
(e) exclusively used for the keeping of explosives.
Further provisions for the keeping of a detached store are set out in section 135, including construction, ventilation, cleaning, exclusion from water, inflammable substances, sources of ignition, tools and labelling.
The term "suitable receptacle" is defined in Part XII, section 136:
136. In this Part, "suitable receptacle" means a substantial box or substantial container,
(a) that may be placed inside a building that is not itself adapted for the keeping of explosives;
(b) the location of which is not changed from that prescribed by an inspector or under provincial or municipal law;
(c) that is kept away from goods of an inflammable nature; and
(d) that is of easy access for removal in case of fire.
Further provisions for the keeping of a "suitable receptacle" are set out in section 137, including that it shall have a closely fitting lid secured by a lock, etc.
Quantity that can be stored for private use
Section 140 deals with the amounts that can be stored in various forms. Explosives must be kept in either a detached store or a suitable receptacle:
140. (1) Subject to subsection (3) , the quantity of authorized explosives that may be kept in a detached store, whether or not the explosives are kept in a suitable receptacle, shall not
(a) in the case of explosives of Classes 1, 2, 3 and 4, exceed 75 kg in the aggregate; and
(2) Subject to subsection (3), the quantity of authorized explosives that may be kept in a suitable receptacle shall not
(a) in the case of explosives of Classes 1, 2, 3 and 4, exceed 10 kg in the aggregate, of which not more than 5 kg shall be blasting cartridges; and them; and
The obvious difference here being:
Detached store = 75 kg aggregate (whether or not the explosives are kept in separate suitable receptacles inside the detached store)
Suitable receptacle = 10 kg aggregate
These sections, however, must be read together with Part XIII, section 143, mentioned at the beginning of our discussion:
143. A person may have up to 75 kilograms of gunpowder and small arms propellant in his possession if they are stored in accordance with Part XII.
Part XII of the Explosives Regulations clearly contemplates the situation where one person has multiple stores or receptacles:
141. When two or more explosives are kept on the same premises they shall each be kept in separate stores or receptacles, so separated from one another as to effectually prevent fire or explosion in one explosive from communicating with the other, except that
(a) the various explosives of Class 1 (gunpowder), Class 2 (nitrate mixture), Class 3 (nitro-compound), Class 4 (chlorate-mixture), safety fuse belonging to Division 1 of Class 6 (ammunition), and such of the various explosives of Division 2 of Class 6 (ammunition) as do not contain any exposed iron or steel, may be kept in the same store or receptacle with each other without any intervening partition or space;
Section 141 sets out a requirement to keep certain different kinds of explosives in different stores or receptacles. Section 140(1) contemplates multiple "suitable receptacles" inside a "detached store". The quantity of explosives that may be kept in any one "suitable receptacle" - whether those "suitable receptacles" are located in a "detached store" or in any other location is 10 kg. If the explosives are of different types, as set out in s. 141, the requirements of that section must also be followed.
Conclusions regarding "gunpowder" and "small arms propellant"
The answer to the inquiry then is that a person may have up to 75 kilograms of gunpowder and small arms propellant in his possession - as set out in s. 143. These must be stored in accordance with Part XII. If the person stores gunpowder and small arms propellant by means of a "detached store", they may have one or more stores, but each store may not exceed 75 kg., nor may the aggregate exceed 75 kg. If the person chooses to store gunpowder and small arms propellant by means of a "suitable receptacle"', they may have one or more receptacles, but each receptacle may not exceed 10kg., and the aggregate may not exceed 75 kg.
Ammunition and "safety cartridges"
As the interest of the NFA and its membership in the amount of powder that can be stored in a dwelling house is clearly related to the issue of private citizens hand loading and reloading ammunition for small arms in their own homes for their own use, the issues of ammunition, "safety cartridges", and reloading - as those terms appear in the Explosives Regulations - must also be considered in this opinion.
"Class 6 - Ammunition Class" is set out in Part I, section 13, of the Explosives Regulations:
13. (1) "Ammunition" means an explosive of any class when enclosed in a case or contrivance or otherwise adapted or prepared so as to form a cartridge or charge for small arms, cannon, any other weapon, or for blasting, or so as to form any safety or other fuse for blasting or shells, or so as to form any tube for firing explosives, or so as to form a percussion cap, detonator, shell, torpedo, war rocket or other contrivance other than a firework.
(6) Division 1 comprises the following:
(a) safety cartridges;
The explosives contained in Class 6, other than "safety cartridges", include things like safety fuses, percussion caps and other explosives which are not relevant to this inquiry.
"Safety cartridges" is the term used in the Regulations which describes essentially all modern ammunition for small arms. The term is defined in s. 2 of the Regulations:
"safety cartridge" means a cartridge for any shotgun, gun, rifle, pistol, revolver and industrial gun the case of which can be extracted after firing and that is so closed as to prevent any explosion in one cartridge being communicated to another cartridge but does not include tracer, incendiary, high explosive or other similar military type cartridges; (cartouche de sûreté);
Storage of ammunition
Part XI of the Explosives Regulations deals with "Storage and Handling of Ammunition and Fireworks". Section 125 sets out the amount of "explosives contained in ammunition" that can be stored, which is 225 kg, whether it is stored in a "separate store or warehouse" or in a "container":
125. (1) Subject to subsection (2), the quantity of explosives of Division 2 of Class 7 (manufactured fireworks) and of Division 1 of Class 6 (ammunition) that a person may have in his possession if kept in any store or warehouse shall not exceed,
(a) in a separate store or warehouse,
(i) 125 kilograms gross weight of Subdivisions 2 and 5 of Division 2 of Class 7,
(ii) 1 000 kilograms gross weight of Subdivisions 1, 3 and 4 of Division 2 of Class 7, or
(iii) 225 kilograms of explosives contained in ammunition of Division 1 of Class 6; or
(b) in a container
(i) 25 kilograms gross weight of Subdivisions 2 and 5 of Division 2 of Class 7,
(ii) 100 kilograms gross weight of Subdivisions 1, 3 and 4 of Division 2 of Class 7, or
(iii) 225 kilograms of explosives contained in ammunition of Division 1 of Class 6.
(Underlining and emphasis added)
"Separate store or warehouse" is defined at s. 127 as:
127. In this Part, "separate store or warehouse" means a store or warehouse that is
(a) detached from any dwelling house and situated at a safe distance from any highway, street, public thoroughfare or public place;
(b) made and closed so as to prevent unauthorized persons having access thereto, and to secure it from danger from without;
(c) exclusively used for the keeping of manufactured fireworks and ammunition belonging to Division 1 of Class 6; and
(d) well and substantially constructed of suitable material.
Section 128 sets out further provisions which must be observed in regard to a separate store.
"Container" is defined at s. 129 as:
129. In this Part, "container" means a box or other suitable receptacle
(a) that may be placed inside a building that is not itself adapted for the keeping of explosives; and
(b) that is kept in a part of the premises away from goods of an inflammable nature.
Section 130 sets out further provisions which must be observed in regard to a container.
Section 131 contains the additional relevant provision:
131. Subject to any provincial law or regulation or any municipal by-law, a person may, if he takes reasonable precautions against accidents, keep in his possession on his premises, for private use and not for sale,
(b) such quantity of safety cartridges as he may reasonably require for a rifle, revolver or shotgun that he may lawfully possess and use; and
The issue of reloading safety cartridges is specifically addressed at s. 35 of Part IV of the Explosives Regulations (Manufacture of Explosives), where it states:
35. Any person may, in respect of safety cartridges, load at a place other than a licensed factory if
(a) the loaded safety cartridges are not for sale or for any commercial, industrial or business use;
(b) the explosive used to load the cartridges is kept or stored in accordance with the provisions of Part XIII;
(c) not more than two kilograms of explosives, other than safety cartridges, are kept in the place;
Conclusions regarding ammunition and "safety cartridges"
What effect then, if any, do the provisions regarding "ammunition" have on the conclusions reached above regarding the amount of "gunpowder" and "small arms propellant" that may be stored in a dwelling house? The answer must be that the law treats these classes of explosives separately and the allowable aggregate totals for each (Class 1 and 3, on the one hand, vs. Class 6 on the other) are separate. The one confusion is s. 35 and "the place" where explosives are loaded into safety cartridges.
Section 143 deals only with "gunpowder" and "small arms propellant" and the 75 kg limit is only with regard to these two types of explosives (Class 1 and Class 3). If gunpowder or small arms propellant are made into ammunition - then they become a different class of explosive (Class 6) and the storage of these explosives is then governed by Part XI (Storage of Ammunition and Fireworks) rather than Part XII (amount of explosives that may be kept for private use).
Note the interpretation issue that, while Part I, section 13, defines "ammunition" as an explosive in and of itself, Part XI sets the limit of 225 kg for "explosives contained in ammunition". (Underlining added). This suggests that up to 225kg of explosives (presumably Class 1 and/or Class 3) can be made into "safety cartridges" - and the results of that process can then be stored by a person who kept them in a "separate store or warehouse" or a "container" on the same premises where 75 kg of Class 1 or Class 3 explosives are also kept (in accordance with part XII).
Additionally, while Part XI sets a firm limit for the amount of "explosives contained in ammunition" that may be kept, section 131 muddies the waters by indicating that a person may keep in his possession on his premises "such quantity of safety cartridges as he may reasonably require...", which, on the face of it, undermines the limits set out in Part XI - potentially increasing the amount of ammunition that one may keep from 225 kg of "explosives contained in ammunition" to whatever the person may reasonably require.
Section 35 adds the further complication that, in respect of a place (other than a licenced factory) where the loading of safety cartridges takes place, a person must not have more than 2 kg of explosives, other than safety cartridges.
This 2 kg limit, when read in isolation, is in conflict with the overall scheme of the statute. The Explosives Regulations clearly allow private citizens to possess up to 75 kg of "gun powder" (including "smokeless powder", a Class 1 explosive) in a dwelling house, provided it is not for sale and provided it is stored in accordance with the Regulations (Part XII). That is set out in Part XIII, s. 143 - our starting point in this whole analysis. The only reason any private citizen would have this quantity, or any quantity, of smokeless powder not contained in safety cartridges - would be for the purpose of loading safety cartridges.
The well known "modern principle" of statutory interpretation, as formulated by Elmer Driedger in the 2nd edition of his book Construction of Statutes and adopted by the Supreme Court of Canada in countless decisions, states that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. The interpretation of s. 35 (the reloading section) clearly must be done in the context of Regulations as a whole, and the parts of it which form the "co-text", or parts necessary to interpret that section (specifically, Part XIII - Possession of Explosives; and Part XII - Storage of explosives not for sale). Note also that s. 35(b) makes specific reference to Part XIII (which includes s. 143 - the 75 kg limit on "gunpowder and small arms propellant").
The inevitable, and only, conclusion is that 2 kg limit set out in s. 35(c) is only applicable to the immediate area where loading takes places, when loading is actually taking place, and does not invalidate the entire scheme for possession and storage set out in Parts XII and XIII.
In summary then, any person who is hand loading or reloading ammunition - not for sale - in a dwelling house, may have:
- Up to 75 kg of black powder, smokeless powder, or other small arms propellant;
- These explosives must be stored in accordance with Part XII of the Regulations;
- If in a detached store, the entire 75 kg may be stored together;
o The person may have one or more stores, but the aggregate total cannot exceed 75 kg.
- If in a "suitable receptacle", the amount may not exceed 10 kg;
o The person may have one or more receptacles, and these receptacles may themselves be stored in a detached store or elsewhere, but each receptacle may not exceed 10 kg, and the aggregate may not exceed 75 kg.
- The person may store a further 225 kg of explosives (Class 1 and Class 3 propellants) "contained in ammunition", provided that this ammunition is stored in accordance with Part XI (i.e., in a "separate store or warehouse" or in a "container");
- The potential to store a greater amount of ammunition exists if: (1) it is in the form of "safety cartridges" only, and (2) the person is able to establish why they reasonably require it for a rifle, revolver or shotgun.
- In the immediate area where reloading takes place, when loading is actually taking place, not more than 2 kg of explosives (of any class, including Class 1 and Class 3, but excepting the "safety cartridges" part of Class 6), may be kept in that place.