CC S. 95 – Possession Of Prohibited Or Restricted Firearm With Ammunition
NFA BRIEFING DOCUMENT 20 VERSION 1
Criminal Code section (CC s.) 95 says:
95 (1) Subject to subsection (3) [does not apply to a legal situation where the person is using the firearm under the direct supervision of another person who is lawfully entitled to do the same thing with the same firearm] and section 98 [obsolete section], every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition, unless the person is the holder of
(a) an authorization or licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.
This section is much misunderstood, and frequently charges are laid, using it, improperly.
At first glance, it appears that the person with the firearm requires some sort of special licence “under which the person may possess the firearm in that place,” loaded or with readily accessible ammunition. Careful re-reading, however, proves that impression to be false. There is no such licence, and the law does not require any special licence. It requires a regular POL or PAL. Both of those licences authorize the holder to possess firearms of the classes listed on the back of the POL or PAL, and the licence does not specify any particular location. It is not limited to any particular location.
The situation is confused by the fact that newer registration certificates do not state the location where the firearm is supposed to be kept.
FA s. 17 says:
17. Subject to sections 18 (authorizations to transport prohibited firearms) to 20 (19: authorizations to transport restricted firearms; 20: authorizations to carry prohibited or restricted firearms), a prohibited firearm or a restricted firearm the holder[emphasis added] of the registration certificate for which is an individual may be possessed only [emphasis added] at the dwelling-house of the individual, as indicated on the registration certificate (Note: this information is no longer shown on the registration certificate), or at a place authorized by a chief firearms officer.
FA s. 33 authorizes the lending of any firearm as long as its registration certificate is also loaned to any properly-licenced borrower. CC s. 84(4)(b)(ii) then makes the borrower the legal “holder” of that registration certificate, and FA s. 17 authorizes the firearm to be kept in the dwelling-house of the borrower.
Frequently, such a loan generates no paperwork and no notification of the firearms control bureaucracy that the lending has taken place. The law does not require any form of notification, although circumstances may require someone to get an authorization to transport as part of the lending process. Frequently, no such requirement arises.
A newer registration certificate also does not state the name of the holder of the registration certificate. This combines with the borrowing/lending describe above to trigger FA s. 59:
59. An individual who holds an authorization to carry or authorization to transport need not be the person (individual or corporation) to whom the registration certificate for the particular prohibited firearm or restricted firearm was issued.
To sum up: Joe and John each have a licence that authorizes them to possess and acquire prohibited handguns [FA 12(6) licences]. Each has an authorization to transport (ATT) that allows him to transport any handgun for which he is the holder of a registration certificate to and from shooting ranges, valid for 1 to 3 years.
John lends Joe a prohibited handgun, while both are at the shooting range. Joe thus becomes the “holder” of the registration certificate, and the wording of his ATT authorizes him to move it from the range to his dwelling-house. No notification to or application to the firearms control bureaucracy is required for this transaction.
If Joe is caught with the firearm, loaded, in his dwelling-house, he is not guilty of a CC s. 95 crime. He is the holder of the registration certificate for John’s firearm, and has a valid licence.
“Dwelling-house” is defined in CC s. 2 as:
2… “dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary [emphasis added] residence, and includes
(a) a building within the curtilage (an area of land attached to a house, and forming one enclosure with it) of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence, and that is being used as such a residence.
Note that under CC s. 2, a garage that is attached to the house is classed as a “dwelling-house” but one that has no connection to the house is not. That makes no sense.
Not that an individual who goes travelling with a recreational vehicle that is mobile (pulled like a trailer or self-propelled like a Winnebago) is travelling in his or her “dwelling-house” if he or she is living temporarily in that vehicle.
Note that a person may have a permanent “dwelling-house” as well as a temporary “dwelling-house” of this mobile type.
It appears that the individual who is travelling, then, has a choice of which “dwelling-house” he or she will keep firearms in, the mobile home or the stationary home. That is because the meaning of the clause, “as indicated on the registration certificate,” from FA s. 17, is ambiguous. It may have meant that the firearm could be stored at the address or location specified on the old green paper registration certificates. It may have meant that they could only be stored at “the dwelling-house of the individual, as indicated on the registration certificate.”
Where the law is ambiguous, a court must accept the interpretation most favorable to the accused. Therefore, a person charged with an offence as the result of the finding of a prohibited or restricted firearm, registered to that individual, in a trailer or self-propelled mobile “dwelling-house” will probably have to be found innocent if charged under CC s. 95. It is by no means clear that there is any prohibition against possessing such a firearm in a mobile “dwelling-house.”
Therefore, if Joe sleeps in his trailer, or in his store, that location is legally his “dwelling-house.”
The holder of a registration certificate for a prohibited firearm or a restricted firearm may apparently move the firearm from his residence into his camper for the purpose of transporting it to a shooting range. If Joe then resides in the camper while on holiday, he is apparently required or allowed (which is unclear) to keep his prohibited or restricted firearm in the camper for the duration of the holiday CC s. 2 “dwelling-house” (b).
While this part of the law is rather murky, the combination of the sections listed above has the effect of authorizing Joe to take John’s prohibited handgun with him – without an ATT, so long as he does not take it out of the camper – when he goes on holiday in his camper.
Similarly, when a store owner who is experiencing sequential burglaries decides to sleep in his store for a period of time, that makes the store his temporary “dwelling-house.” He is authorized by FA s. 17 to keep prohibited and/or restricted firearm(s) in the temporary “dwelling house.”
In such a case, the holder of the registration certificate for the prohibited or restricted firearm should get a one-shot ATT to authorize the transportation of the prohibited firearm(s) and/or restricted firearm(s) from his permanent dwelling-house to his temporary dwelling house. That is not necessary if the temporary dwelling-house is mobile and capable of being used to transport the firearms to and from a shooting range, and the holder has an ATT authorizing such moves.
Turning back to CC s. 95, the above observations apparently stretch the meaning of “an authorization or licence under which the person may possess the firearm in that place” quite considerably. A defence lawyer who is dealing with a CC s. 95(1) charge should be aware of these possibilities.
CC s. 91 and 92 criminalize an individual for possessing a firearm without “a licence under which the person may possess it.” Possession of a licence, then, authorizes possession of the firearm — anywhere.
Similarly, the registration certificate has no location attached to it. While Firearms Act section 17 says that an individual is only allowed to possess a prohibited or restricted firearm in his or her dwelling-house, “as indicated on the registration certificate, or at a place authorized by a chief firearms officer.” There is no indication on the current version of the registration certificate as to the location of the “dwelling-house” where the firearm is supposed to be kept.
It should be noted that the arguments in Grounding Seminar 15 and Grounding Seminars 1 and 2 may very well apply in a case of this nature. For example, it is apparently not possible to store a firearm in a vehicle, as the firearm is under the “transportation” Regulations, not the “storage” Regulations. If the vehicle is not moving, and no one is there, then it falls under the “transportation” regulation dealing with transportation “in an unattended vehicle,” and not under any “storage” Regulation.
Because the “storage” Regulations and the “transportation” Regulations are different, they cannot both apply to a given situation. It has to be one or the other, and there is no Regulation that gives any indication of any different interpretation of the two sets of Regulations, or any indication that a firearm in a vehicle can ever stop being transported.
This area of law is very complex, and very poorly written. Crown prosecutors who think they understand it often lay charges that cannot and do not stand up in court.