You have come home from a long day of hunting. You didn't see so much as a chattering squirrel all day. You are wet and weary.
Friday, February 25, 2005
The only thing you really want is a hot shower, a hot meal and bed.
Sounds familiar? To many of us no matter how much we enjoy our firearms heritage, there are days when the elements and fatigue can seem like they took their toll on us.
As a firearms owner however, we also have greater responsibilities.
Before we can relax after a long day, like that, we have to make sure that our firearms are safely put back into storage.
The legal of storage of firearms is an issue that is confusing to many firearms owners. It is equally confusing to police officers, conservation officers and even to judges in a court of law.
There are three common areas where a firearms charge can be laid. A firearm owner could be charged with a “firearm being used” offence, or a firearm “being transported” offence, or a firearm “being stored” offence.
Careless storage of a firearm is the most frequently laid charge. It is also one of the most confusing sections of the law.
Often the police lay this charge as a “catch all” charge when charging a person who, the officer thinks, has “done something wrong”.
When you read a news story, it frequently says the firearm owner has been charged with "unsafe storage" of a firearm. That is an error. There is no such charge in the Criminal Code.
Here are the relevant sections of the Criminal Code 86 (1) and 86 (2). They cover the two possible charges of illegal things that can be done:
Ø 86. (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.
Note that that is not ONE charge -- it is 72 charges (6 X 6 X 2), because a proper charge must take one item from each of the 3 lists in that subsection.
Ø 86. (2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
Note that such a charge must specify WHICH regulation in WHICH set of regulations.
Ø (3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment
(i) in the case of a first offence, for a term not exceeding two years, and
(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Over the past four years, the National Firearms Association has spoken to many firearm owners who have been charged with illegal storage of a firearm in their hunting camp, in their vehicle or at home.
Problems come from the confusion between what is actually storage, what is actually use of a firearm, what is actually transport and finally, and what is display of a firearm.
The Regulations on storage, display and transportation display differ — depending on what type of firearm it is, non-restricted, restricted, or prohibited.
They also differ depending on whether the firearm is in the possession of an individual, or of a business.
Regulations define how firearms may be stored, transported or displayed for each class of firearm. The actual Regulations will be what a judge in a court will look at.
First, lets look at the storage of a non-restricted firearm, taken from the March 1998 Regulations:
[Storage of Non-Restricted Firearms] 5. (1) An individual may store a non-restricted firearm only if
(a) it is unloaded;
(b) it is
(i) rendered inoperable by means of a secure locking device,
(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or
(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and
(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.
(2) Paragraph (1)(b) does not apply to any individual who stores a non-restricted firearm temporarily if the individual reasonably requires it for the control of predators or other animals in a place where it may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts, and municipal by-laws.
(3) Paragraph (1)(b) and (c) do not apply to an individual who stores a non-restricted firearm in a location that is in a remote wilderness area that is not subject to any visible or otherwise reasonably ascertainable use incompatible with hunting.
There are certain areas here that are readily understandable.
The firearm must be stored unloaded. That is pretty straightforward, and it is the same for all classes of firearms, in the possession of anyone.
The firearm must be either trigger locked, or have the bolt removed, or must be stored in a secure locked container, receptacle or room.
We receive many calls on this. Some people think a locked closet is considered secure, as described in section 5(1)(b)(iii) above.
However, if the locked closet can be easily opened by removing the pins from the hinges, then the closet may not meet the standard of being a “room that is kept securely locked and that is constructed so that it cannot readily be broken open or into.”
Opening the door, and drilling a blind hole through the stationary part of the hinge and part way into the pin, in the area of the hinge that will be covered by the other half of the hinge when the door is shut, can easily fix that problem. If one then hammers a pin into that blind hole, the pins cannot be removed, and the new locking pin itself cannot even be seen when the door is shut.
A sheet metal gun safe, or other locked metal container fits the description of "safe" in Black's Law Dictionary. So does the thick-walled fireproof box with a combination dial that most people think of when they think of a “safe.”
Each is a "metal container for the preservation of valuables."
There are no actual definitions in the regulations as to exactly what is considered a secure locked room, receptacle or container (any place with an unbarred window is NOT). In the case of a person charged with illegal storage, it will be a police officer who will first decide whether your storage facility is legal or not.
It will then be up to you and your lawyer (with National Firearms Association assistance) to “prove” to a Judge, or to persuade the Crown prosecutor, that your storage was correct under the law. Persuading the Crown saves the cost of a trial.
If you have a rifle, and you remove the bolt from the rifle, then, according to the regulations, that rifle can be stored anywhere. There is no mention in the regulations as to how far away from the firearm that bolt must be. The Regulations do not require that the bolt of a non-restricted firearm has to be stored with any special precautions.
A restricted handgun can be stored, trigger-locked and unloaded, in a locked container that “cannot readily be broken open or into” or in the usual secure vault, safe or room “that is kept securely locked and that is constructed so that it cannot readily be broken open or into.
The storage regulations for prohibited firearms that are automatic, and that have bolts or bolt carriers, specify that the bolt or bolt carrier must be stored in a separate room in a securely locked container.
The regulations say that a firearm must be stored so that it is “not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.”
Again, there is no definition in the regulations to tell the reader what “not readily accessible” means.
Is it in a separate room, or is it in the box the ammunition came in sitting beside the firearm? This is an area of the Regulations that will have to be decided by a Judge one day.
Now, comes in an area which many people find very confusing, the difference between storage and use.
Situation: You are at home, and you have your Remington 700 bolt-action rife sitting on your gun bench. You are cleaning it. The doorbell rings and you leave the firearm sitting on your bench and leave the room to answer the door.
At the door is a police officer.
If he were to enter your home, and see your Remington 700 rifle sitting on the bench, would you be subject to any charges?
Answer: Today, as long as you had a valid firearm license, either an FAC or a POL or PAL, and a registration certificate for the firearm, there would be no charges that he could lay which would hold up in court, because the firearm is not IN STORAGE, so no storage law applies to it.
In some cases like this, the firearm owner has been charged with illegal storage of a firearm, in spite of the fact that the firearm is not in storage, and has been removed from storage.
Use can be cleaning your firearm, showing it to someone, or simply admiring it. You could be sitting in your living room reading a book dealing with your firearm, with the firearm sitting on the table for reference. That would be a firearm in use.
In today’s world, between the government and the media, firearms have gained a certain notoriety. Often a law enforcement officer will think that he should automatically lay a charge, just because he sees a firearm. He is often wrong.
When a charge is laid improperly, the National Firearms Association can usually brief the owner or, preferably, his lawyer on the legal technicalities involved in that particular case. Once those legal technicalities are pointed out to the Crown prosecutor, such charges are usually dropped before trial.