NRCAN, Handloading & Explosives Act

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.

Sean Penney
Vice-President, Communications


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.

(Underlining added)

In order make any sense of this, we must look at what “gunpowder” and “small arms propellant” mean in law.

“Gunpowder”

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
The term “dwelling house” is not found in the Explosives Regulations except in terms of the definitions of “detached store” and “separate store or warehouse” as “detached from any dwelling house” (ss. 134 and 127 respectively, discussed below). The distinction made in the Regulations is in terms of use: i.e., between “explosives kept for private use, and not for sale, in any place other than a licensed magazine or licensed factory” (Part XII, s. 133), which would included explosives kept for private use in a dwelling house; and explosives which are kept for the purpose of sale (Part X). Inquiries involving storage for the purpose of sale will need to examine Part X more closely.
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)
“Detached Store”
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.
(Underlining added)
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.
“Suitable Receptacle”
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

(Underlining added)
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.
(Underlining added)

(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.
(Underlining added)

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
(Underlining added)

Reloading

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;
(Underlining added)

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.

Summary
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.
In addition,

  • 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.

For Lawyers

For Lawyers

Firearms control law is complex, and the results of cases are often surprising. There are 137 pages of dense and complex law in the Firearms Act and the firearms sections of the Criminal Code. There were 142 pages of dense and complex Regulations in a book published by the government in 1998.

Following the making of the Regulations of 1998, more Regulations have been made and brought into force every year. Over 30 Orders in Council have made it impossible to keep track of what the Regulations say, and which ones were in force on any particular day.

The various sections of the Firearms Act and the Criminal Code interact in ways that are not at all obvious. Then they interact with the Regulations in even more complex
ways.

It is not reasonably possible to publish anything in this area for the general guidance of lawyers or persons accused of violating a section of the Firearms Act or Criminal Code. It is not possible to publish anything for the general guidance of lawyers and persons accused of violating a Regulation.

The complex interactions, and the shifts caused by apparently minor details in a particular case, make it very necessary for the lawyer and/or the accused to deal directly with the National Firearms Association Legal office.

In the majority of cases brought to the attention of the National Firearms Association Legal office, we have been able to assist. That assistance often results in the dropping of the charge before trial. It also often results in the accused being found innocent of the offence, although the Crown prosecutor thought that his case was an iron-clad certain winner.

Lawyers have to learn vast amounts of law. The National Firearms Association is a narrow specialist in ONE area of the law — firearms law. An average lawyer has to spend long hours researching a firearms case, but if that same lawyer calls National Firearms Association, he will find that the research has already been done for him. It will probably pop out of his fax machine within minutes.

National Firearms Association Legal Department has long experience with firearms cases. It has supplied expert witnesses and briefings for one murder trial and one attempted murder trial, as well as innumerable firearms control law cases. The National Firearms Association has a very good track record; if the accused has not done something that is completely unjustifiable, The National Firearms Association offers a good chance to have him walk out of court as an innocent person.

If you have a case involving firearms, it is well worth your while to phone (780)439-1394 between 8 and 11 AM, Mountain time, on a weekday.

If you are interested in promoting your practice in the Canadian Firearms Journal, you can join Canada’s National Firearms Association as a Business Member, for $60 annually. Click the Become a Member Link on this page.

Constitutional Defenses

NFA Briefing Document 15 Version 8

In 1985, the Supreme Court of Canada considered the B.C. Motor Vehicle Reference case(Reference Re Section 94(2) of the Motor vehicle Act (1985) 2 SCR 486). It found that the law created an absolute liability offence, and that imprisonment was a possible penalty. The court ruled that such a combination is unconstitutional (a violation of s. 7 of the Charter), and required every other court that encounters such a defect in a law should strike that law down.

CC s. 91 is such a law, and every court is supposed to strike it down if the government tries to use it. CC ss. 92, 93, 94, 95, and 97 also exhibit this defect in some circumstances.

If the reader is dealing with a CC s. 92, 93, 94, 95, or 97 or FA s. 112 case, each argument below should be tested by substituting the charge identification for CC s. 91. In many of the cases, the argument will still apply.

In 1988, the Supreme Court of Canada considered the Morgentaler et al v. The Queen and the Attorney General of Canada case ([1988] 1 SCR 30). It found that the government had provided a specifically-tailored defence to that particular [criminal] charge in the law. The Court also found that the defence was illusory, or so difficult to obtain as to be practically illusory. The Court ruled that when a court is asked to consider a case that exhibits that defect in the law, it must strike the defective law down.

CC s. 91 exhibits that defect, as do CC ss. 92, 93, 94, 95, and 97 in some circumstances.

In 1991, the Supreme Court of Canada considered the Wholesale Travel case ([1991] 3 SCR 154) to settle the validity of strict liability offences. In the case of a ‘regulatory offence’ or a ‘public welfare offence’, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care, and the burden of proving reasonable care (to the civil standard) may be cast on the defendant. In the case of ‘true crimes’, however, fundamental justice requires that mens rea be an element of the offence, and the burden of proving mens rea (to the criminal standard) would have to would have to be on the Crown [emphasis added].

CC s. 91 is a law that does not deal with a regulatory offence. It deals with a ‘true crime,’ and therefore the government must prove mens rea. CC s. 91 is designed and written to permit the conviction and imprisonment of an accused without the Crown having to prove mens rea, and such a law must therefore be struck down by any court that is asked to consider it.

A licence is defined in law as a document used in regulatory law to give permission for a person to engage in regulated activities that would otherwise be unlawful.

A licence apparently cannot be used in criminal law to give permission for a person to engage in criminal activity, because the government has no known power to licence individuals to commit crimes. In the light of the Morgentaler decision, the Supreme Court of Canada apparently does condone the issuance of a document that is “a specifically-tailored defence to a particular [criminal] charge” – but is not a licence to commit that crime.

If the government can licence an individual to commit the crime of possessing a firearm, there is no apparent reason why it cannot licence another individual to commit the crimes of rape, robbery and murder.

DETAILED GENERAL ARGUMENTS
Many charges made under Criminal Code firearms control provisions are vulnerable to a challenge under s. 7 of the Canadian Charter of Rights and Freedoms.

FUNDAMENTAL JUSTICE CONSIDERATIONS
As Hogg says in his Constitutional Law of Canada, the dividing lines between “strict liability” offences, “absolute liability” offences and “true crime” offences (“offences of mens rea”) are ill-defined and shaky. He says, in his 44.11, that an absolute liability offence consists “simply of doing the prohibited act. There is no requirement of fault, either mens rea or negligence. The defendant could be convicted even if he or she had no intention of breaking the law and also exercised reasonable care to avoid doing so.”

He also defines a strict liability offence, which “again consists simply of doing the prohibited act; however, it is a defence if the defendant proves to the civil standard of the balance of possibilities that he or she exercised reasonable care to avoid committing the offence.” There is, however, a fault requirement of demonstrable negligence, and only an accused who did not exercise reasonable care is liable.

In the R. v. Wholesale Travel case ([1991] 3 SCR 154), the Supreme Court of Canada said that the offence was not a “true crime,” but was merely a “regulatory offence” or “public welfare offence.” (It would appear that Canada’s Parliament is precluded by the Constitution from enacting regulatory law in the firearm area, and that all firearms control laws enacted by Bill C-68, as amended, are criminal law.) The SCC ruled, in that case, that a regulatory offence did not imply moral blameworthiness, and attracted less social stigma. That is apparently a key point in analyzing federal firearms control laws. The Court treated it as obvious that the offence of misleading advertising fell into the “regulatory” category, despite the fact that it carried a maximum penalty of five years’ imprisonment–quite a stretch for doing something that did not imply moral blameworthiness and “attracted little social stigma”!

The Supreme Court of Canada apparently likes to consider radical constitutional results as being able to be based on findings of stigma levels, although there is apparently never any evidence on that point. Is the stigma attaching to a particular offence unknown and perhaps unknowable? Hogg apparently thought so, because it would depend upon such a host of circumstances related to both the offence and the offender, and would vary according to the eye of the beholder. The concept is apparently too uncertain to warrant constitutional consequence of any kind. Perhaps it would be preferable to use the presence of the penalty of imprisonment as the dividing line between those offences that require mens rea and those that require only negligence.

Hogg also said, in 44.11, that the Competition Act contained a “reverse onus” clause. That clause required the defendant to prove, on the balance of probabilities, that he had exercised reasonable care to avoid making false or misleading claims. The effect of the Sault Ste. Marie decision ([1978] 2 SCR 1299, 1325-36) was that a regulatory offence was to be regarded as one of strict liability. Two characteristics of strict liability were (1) that there was a defence of reasonable care, and (2) that the burden of proving reasonable care rested on the defendant. That would be true even if the Act had been silent as to the defence and the burden of proof. Therefore, in order to uphold the offence in Wholesale Travel (or any other strict liability offence involving imprisonment), the Court also had to decide whether the reverse onus was defeated by the Charter of Rights, not by s. 7 but by s. 11(d). S. 11(d) is the presumption of innocence clause. The Court, by a five to four majority, upheld the reverse onus–but in a case that was identified as involving only regulatory law.

Hogg apparently considered that the effect of the Wholesale Travel case was to settle the validity of strict liability R. v. Martin ([1992] 1 SCR 838) and R. v. Ellis-Don ([1992] 1 SCR 840). He considered that for a “regulatory offence” or “public welfare offence,” including those that carry the penalty of imprisonment, fundamental justice did not require that mens rea be an element of the offence. Fundamental justice would be satisfied if a defence of reasonable care could succeed, and the burden of proving reasonable care (to the civil standard) could be cast on the defendant.

In the case of “true crimes,” however, Hogg considered that fundamental justice required mens rea be an element of the offence, with the burden of proving mens rea (to the criminal standard) on the Crown. The distinction between “true crimes” and “regulatory offences” (“public welfare offences”) seems to depend on vague notions of moral blameworthiness and social stigma, not upon objective considerations. The seventy of the penalty seems to be irrelevant, in the opinion of the Court. The offence in the Wholesale Travel case carried a penalty of up to five years’ imprisonment; but it was still classified as a regulatory offence.

Hogg wrote that the effect of the B.C. Motor Vehicle Reference ([1985] 2 SCR 486) was to outlaw absolute liability for all offences carrying the penalty of imprisonment. Fundamental justice required that the offence include an element of fault, either mens rea (if the offence is a true crime) or negligence (if the offence is a “regulatory offence”). In his opinion, it is the absence of an element of fault that causes absolute liability to violate s.7, and s.7 has no application to an offence where penalty is a fine, even a very large fine, because “liberty” is not affected.
Now, let us analyze Hogg’s views in the light of the distinctions made between an “absolute liability” offence, a “strict liability” offence, and a “true crime” or “mens rea” offence.

Hogg says, “The Supreme Court of Canada in Wholesale Travel was unanimous in its view that the offence of false or misleading advertising in the Competition Act was not a ‘true crime,’ but was merely a ‘regulatory offence’ or ‘public welfare offence’.” Cory J. explained that the characteristic of a “true crime” was that “inherently wrongful conduct” was punished.

“Inherently wrongful conduct” is the commission of a malum in se–an act that is evil–an act, that under almost any circumstances would be morally blameworthy. In contrast, regulatory law is designed to regulate the ways in which people behave, and a regulatory offence is the commission of a malum prohibitum. In that case, the offence would not be an offence if some bit of regulatory law did not prohibit it; it would be normal behavior.

A regulatory offence was designed to establish standards of conduct for activity that could be harmful to others; it did not imply moral blameworthiness; and it attracted less social stigma [emphasis added]. Therefore, the Court reasoned, it was not a constitutional objection to the offence that it was premised on negligence rather than mens rea.”

Does violating a particular CC or FA firearms section constitute a “true crime,” or is it merely a “regulatory offence” that attracts “less social stigma”? Or is it possibly a prohibited “absolute liability” offence with the possibility of imprisonment that requires consideration of section 7 of the Canadian Charter of Rights and Freedoms?

  1. Each firearms offence is embedded in the Criminal Code, which deals with criminal prosecutions for true crimes, not with regulatory offences.
  2. Regulatory offences do not saddle the ‘criminal’ with a criminal record.
  3. A person convicted of any sort of firearms offence is almost certainly going to have a prohibition order imposed upon him or her, forbidding him or her to possess firearms and other items. That is a severe social stigma, as it brands the person as a danger to society, unworthy of trust, and likely to use firearms for violence if granted access to them.
  4. A person convicted of violating such a provision gets a criminal record for committing a firearms offence, which affects his life and livelihood from that day forward, and is a severe social stigma.
  5. A person with a criminal record is at a severe disadvantage when applying for a position, and that criminal record is a severe social stigma that may prevent him or her from being seriously considered for the position.
  6. A person with a criminal record for violating a firearms control provision cannot be bonded, and that is a severe social stigma that often limits the person’s attempts to earn a livelihood.
  7. A person with a criminal record–particularly one for having committed a ‘firearms offence’ –will usually be denied entry into any nation outside Canada because of that record, and that is another severe social stigma.

Clearly, a violation of a CC or FA firearms control provision is quite unlike the Wholesale Travel case. Instead of a violation of a regulatory Act, the offence is a violation of the Criminal Code. There was no possibility that Wholesale Travel or any individual employed by Wholesale Travel would be saddled with a criminal record, or be saddled with a prohibition order, two severe social stigmas that are automatically applied to a violator of, for example, CC s. 91(1).

Hogg goes on to say, “The effect of the Wholesale Travel case is to settle the validity of strict liability [99]. In the case of a ‘regulatory offence‘ or a ‘public welfare offence‘, including those that carry the penalty of imprisonment, fundamental justice does not require that mens rea be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable care, and the burden of proving reasonable care (to the civil standard) may be cast on the defendant. In the case of ‘true crimes‘, however, fundamental justice requires that mens rea be an element of the offence, and the burden of proving mens rea (to the criminal standard) would have to would have to be on the Crown[emphasis added].”

With all due respect to Mr. Hogg, it is far from clear that, ” The effect of the Wholesale Travel case is to settle the validity of strict liability.” Certainly, it can settle the standard by which a “strict liability” offence should be judged (negligence versus mens rea), but it is far from settling which particular offences are strict liability offences, and which are true crime/mens rea offences.

Is a CC or FA firearms control offence, then, a criminal offence or a regulatory offence? At first glance, it would appear that an argument could be made that it is a regulatory offence. However, as Hogg says, ” A regulatory offence, on the other hand, was designed to establish standards of conduct for activity that could be harmful to others; it did not imply moral blameworthiness; and it attracted less social stigma [emphasis added].”

It is clear that conviction for a violation of a CC or FA firearms control provision does inflict a severe social stigma. Because the offence is laid out in the Criminal Code, conviction therefore will inflict a criminal record for a firearms crime on the accused (whether or not a punishment of imprisonment is imposed, as it may be).

That criminal record will dog the convicted individual far into the future, probably making it impossible for him to earn a livelihood in any position that requires him to be bonded, or to leave Canada on business. It can also prevent him from even visiting any other country for any purpose whatever, another severe social stigma. It will also be a severe “social stigma” disadvantage every time he applies for a position or runs for office.

Additionally, the Crown usually adds an application for a prohibition order to each and every firearms-related charge–no matter how petty or insignificant, and no matter whether or not the charge has anything to do with violence.

The social stigma of such a prohibition is severe. It declares to the world that the individual subjected to it is seen as a menace to society who must be kept away from weapons. That is a severe social stigma, appropriate to a person convicted of a ‘true crime.’ It is the sort of long-term social stigma that one would not expect to see imposed as a result of conviction for a mere regulatory offence. One does not prohibit a driver to possess an automobile because he was found guilty of speeding, for example.

If the court convicts an accused of a CC or FA firearms control offence, every firearm possessed by the accused that has been “seized and detained” is automatically forfeit to the Crown, whether it was involved in the offence or not [CC s. 491(1)(b)]. The court has no jurisdiction to alter that, regardless of the particular circumstances of the case.

That is an extra penalty, which also declares to the world that the individual subjected to it is seen as a menace to society who must be kept away from weapons. That imposes a social stigma that might be appropriate to a person convicted of a ‘true crime’–but is not a social stigma that one would be imposed as a result of conviction for a mere regulatory offence. A person found guilty of speeding does not have his automobile confiscated, for example.

It is the habit of the police to seize all firearms (and often, all related materials) of the accused at the beginning of an incident. CC s. 491(1)(b), therefore, usually results in the all of those goods being forfeited to the Crown. That is often unjustifiable, but it is forced by the letter of the law.

CC s. 491(1)(b), by taking discretion away from the court, tends to bring the law into disrepute every time some minor error of paperwork results in the loss and destruction of an expensive and important firearms collection or a life-long hunter’s battery of firearms.

That sort of forfeiture to the Crown is a social stigma that separates the accused from others. Others are allowed to own such property, but the accused has all of his firearms-related property confiscated by the state–which apparently regards him or her as a menace to society.

Conviction of a CC or FA firearms control offence imposes a criminal record on the accused, which will almost certainly bar him from earning a livelihood in any endeavor requiring that he be bonded. He is branded as a dishonest felon who cannot be trusted. He is, from that day forward, assumed to be a dishonest person who cannot be trusted with money or property.
That same criminal record for a CC or FA firearms offence can and probably will bar him from entering other countries, and restrict his life and livelihoods to things he can do without leaving Canada. The criminal record will brand him as a person who is such a menace to society that no other country is likely to admit him within its borders, if it is aware of his criminal record, and that is a severe social stigma.

Had Parliament intended CC and FA firearms control offences to be a regulatory offences, it would have allowed the provinces to put them into regulatory law, rather itself putting them into criminal law. The offences are all, therefore, criminal offences.

Even if Parliament had placed them in the Firearms Act, the social stigma is identical. A criminal record and, almost always, a prohibition order–the stigmas are the same. That is because the Firearms Act is criminal law, not regulatory law. Parliament has no authority to enact regulatory law regarding firearms, so it was forced to use its criminal law powers.

Considering all of those factors, it seems clear that CC or FA firearms control offences are not, and cannot possibly be considered to be, “regulatory offences.” They are severe criminal offences, carrying penalties of years in prison and imposing severe social stigmas–and that is exactly what Parliament intended them to be.

Therefore, each CC or FA firearms control offence is a criminal offence, treated by the justice system as a “true crime,” and proof of mens rea is required. It is not a “strict liability regulatory offence.”
Hogg says, “The effect of the B.C. Motor Vehicle Reference is to outlaw absolute liability for those offences that carry the penalty of imprisonment. Fundamental justice requires that the offence include an element of fault, either mens rea (if the offence is a true crime) or negligence (if the offence is a ‘regulatory offence’). It is the absence of any element of fault that causes absolute liability to violate s.7 [of the Charter]. Of course, s.7 has no application to an offence that carries only the penalty of a fine, even a very large fine, because in that case ‘liberty’ is not affected. Therefore, so long as no sentence of imprisonment is provided for, it is still possible for the Parliament or Legislatures to create offences of absolute liability.”

CC or FA firearms control offences have, in most cases, precisely the potential that the Supreme Court of Canada found offensive in the B.C. Motor Vehicle Reference. In that case, Reference Re Section 94(2) of the Motor vehicle Act (1985) 2 SCR 486, the Court ruled:

“A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice, and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Canadian Charter of Rights and Freedoms [emphasis added].” (492)

Before preparing a defence against a charge made under a CC or FA firearms control provision, it is necessary to determine:

  1. Is the offence an “absolute liability” offence that has “the potential to convict [and imprison] a person who has not really done anything wrong”? The exact wording of the provision should determine that.
  2. Is the offence a “strict liability” offence that offers a defence of due diligence and does not impose a severe social stigma on the accused if he is convicted? If there is no hint that a defence of due diligence is relevant, it may well be an “absolute liability” offence with the potential of taking away the liberty of the accused, and that would be unconstitutional.
  3. Is the offence one that does impose a severe social stigma on the accused, if convicted? If it is, Parliament obviously intended it to be seen as a “true crime” offence–and that means that the Crown must prove mens rea, and the facts–beyond a reasonable doubt.
  4. Does the offence require that the Crown prove mens rea? Or mere negligence?

It is quite important to decide what type of offence the offence is–absolute liability, strict liability, regulatory offence or true crime–before beginning preparation of the defence.

It is also necessary to realize that the judge may not agree with the defence lawyer’s estimate of which categories the offence falls into, and therefore fallback positions should be prepared in case of adverse decisions by the judge. Fortunately, several are available.

Has a particular CC or FA firearms control offence “the potential to convict [and imprison] a person who has not really done anything wrong”?
Let us consider an example.

Has CC s. 91(1) “the potential to convict [and imprison] a person who has not really done anything wrong”?

It apparently does. Many, many firearms control cases have to be dealt with by accused people who cannot afford a lawyer. When they read CC s. 91(1), it contains no indication whatever as to whether the accused should consider it to be a normal criminal offence, requiring the Crown to prove mens rea, or a “regulatory offence” where a defence of due diligence might save the accused from conviction. There is no indication in the section, anywhere, that a defence of due diligence may be relevant in any way.

Hogg says, of the Wholesale Travel case, that “The Act made clear that there was no requirement of mens rea: the only defence was one of reasonable care, and the burden of proving reasonable care rested with the accused.”

That is certainly not the case with CC s. 91. It contains no indication whatever that Parliament had any such intent. It lists defences [in s. 91(4) and (5)], but due diligence is not among them.
CC s. 91(1) is, in wording and appearance, an absolute liability offence–and that perception is augmented by the fact that it is prosecuted with a reverse onus requirement set by CC s. 117.11:

  • 117.11 Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.

It should be carefully noted that CC s. 117.11 does not apply the reverse onus to CC s. 92 (or 94, 95, or 97), possession knowing that the person is not the holder of a licence or registration certificate under which he may possess it.

Where CC s. 117.11 does not impose a reverse onus, the onus is on the Crown to prove, beyond a reasonable doubt, that the accused is not the holder of the licencing document. Given the poor quality of the records created by and held in the files and computers of firearms control officials, that can be very difficult–especially because it requires proving a negative.
For example, a simple misspelling of a name can make computer search of valid licences result in the information that the accused has no licence, although he in fact is the holder of a licence, but with his name misspelled as “MacDonald” when it is actually “MacDoneld.”

The licence held by an accused is a simple piece of paper, vulnerable to all the dangers that result in the loss or destruction of pieces of paper. Loss of such a piece of paper does not mean that the accused is no longer the holder of a licence–it may merely mean that the paper was inadvertently put through the cycles of a washing machine in the pocket of her shirt. The possibility of such accidents makes reverse onus unreasonable.

It is therefore quite important to force the Crown to prove, beyond a reasonable doubt, that the accused was not the holder of a licencing document, where that document is a “specifically tailored defence to a particular charge.” That is related to the Therapeutic Abortion Certificate that featured in the Morgentaler case [Morgentaler et. Al. V. the Queen and the Attorney General of Canada (1988) 1 SCR 30].

The very similar FA s. 112(1) criminal charge is subject to FA s. 112(4):

  • 112 (4) Where, in any proceedings for an offence under this section, any question arises as to whether a person is the holder of a registration certificate, the onus is on the defendant to prove that the person is the holder of the registration certificate.

The reverse onus imposed by CC s. 117.11 or FA s. 112(4) increases the potential of CC s. 91(1) or FA s. 112 “to convict [and imprison] a person who has not really done anything wrong.”
It would appear that the reverse onus is, therefore, an improper and possibly unconstitutional device, apparently designed to void the accused’s right to stay out of the witness box, to make convictions easier for the Crown, and to ease the workload of the Crown. CC s. 117.11 and FA s. 112(4) therefore tend to bring the law into disrepute, as do CC s. 91(1) and (2), and FA s. 112(1).

The Crown has spent hundreds of millions of dollars in public funds to create and administer the authorization, licence, registration certificate, and other licencing document systems. The Crown has enormous resources, voluminous files, and extensive records (in computers and in files), administered by large numbers of Crown employees paid from the public purse.
The reverse onus, therefore, tends to bring the law into disrepute because those records exist.

The records are public property, and public employees have exclusive access to them–but the law does not require the Crown to make any effort whatever to find the records that may prove the innocence of the accused. Such records may very well actually be in the Crown’s huge and very expensive system–but the entire burden of proof that they exist is put upon the accused, who has no access to that data base.

Additionally, the data base itself is riddled with errors, omissions and duplications. Searching it is difficult, and often the document sought is actually in there–but cannot be found by the searcher. In a spectacular demonstration of that, two documents were entered as “evidence” in the trial of Douglas Anderson, in 1988. One stated:

  • I have made a careful examination and search of such records and have been unable to find any record of a valid registration certificate having been issued for a CHINESE MACHINE GUN, Calibre 9mm, Serial Number 001120.

The second document was a photocopy of a registration certificate, with this information added:

  • CERTIFIED TO BE A TRUE COPY OF THE ORIGINAL TO WHICH IT PURPORTS TO BE A TRUE COPY OF

The firearm is described, on the registration certificate, as:

  • Make: CHINESE (“Chinese” is the nationality of a people, not a maker of firearms.)
  • Model: M3A1 (It was actually a Model 36, which is a Chinese copy of a US M3A1.)
  • Type: HG (“HG” means handgun; it should have been “SM” for submachine gun.)
  • Calibre: .45 (It was .45 calibre; the “9mm” in the other paper was a Crown error.)
  • Serial number: 001120 (That was the correct Serial number, as on the other paper.)

Both documents refer to the same firearm. Both were created specifically for use in court. Both were signed by Ronald Knowles, then head of the Firearms Registration Administration Section of the RCMP. Both were signed on the same day.

Given the subtlety and complexity of the legal arguments surrounding “strict liability”, “absolute liability”, “true crimes”, “mens rea” and “regulatory offences”–issues that often confuse lawyers–a person without counsel is very likely to be unable to either understand or deal with the legal puzzles involved. Indeed, even lawyers and judges have been known to misunderstand the effects of law affected by those terms, and to make mistakes about which of those ill-defined areas of law is being dealt with in a particular case.
The likelihood that the accused will plead guilty when he is not guilty is very high. That fact alone strongly increases the obvious potential in s. 91(1) to imprison a person who has not really done anything wrong. That, in turn, tends to bring the law into disrepute.

The fact that there is no indication whatever in CC s. 91 that a defence of due diligence would be relevant is evidence that Parliament did not consider a defence of due diligence to be relevant when a person is charged with violating s. 91(1). Parliament thereby demonstrated that it considered violation of s. 91(1) to be a ‘true crime,” in the form of a criminal offence.
Is it possible for a person to violate s. 91(1) “without doing anything wrong”? It certainly is.

    1. A person may not notice that his licence is about to lapse, or may not notice that his registration certificate is about to lapse [see FA s. 127(2)(b)]. If either of those two documents lapses, the person may fall into violation of CC s. 91(1) or FA s. 112(1) without any act on his part. Mere inattention, without an act, should not be sufficient justification for imprisoning the accused–so CC s. 91(1) or FA s. 112(1) clearly “has thepotential to convict [and imprison] a person who has not really done anything wrong [emphasis added].”
    2. A Chief Firearms Officer is authorized to revoke any licence “for any good and sufficient reason” [FA s. 70(1)], and the Registrar may revoke a registration certificate “for any good and sufficient reason” [FA s. 71(1)(a)]. Either of them may revoke a licencing document without any valid evidence of wrongdoing by the holder of the document. If either of those two documents is revoked, and the required notification to the person miscarries, the person may fall into violation of CC s. 91(1) or FA s. 112 without any act on his part, and without any wrongdoing on his part. Revocation without proof of notification should not be sufficient justification for imprisoning the accused–so CC s. 91(1) or FA s. 112(1) clearly “has the potential to convict [and imprison] a person who has not really done anything wrong [emphasis added].”
    3. Where a licencing document is revoked under FA s. 70 or 71, s. 72(1) requires notification to be sent to the holder–but it is not unknown for such a notification to miscarry. It is also not unknown for the notification to arrive when an accused who is a military person was out of the country on duty for an extended period, or an accused who works in wilderness areas was away on an extended stay in the wilderness, or an accused who was taking a vacation or away on business was simply not at home. It is, therefore, quite possible that a person who is in possession of a firearm, and who has, to the best of his own knowledge, both a licence and a registration certificate covering that firearm, may fall into violation of s. 91(1) as a result of revocation of his licence and/or registration certificate–without his knowledge. Again, CC s. 91(1) or FA s. 112(1) clearly “has the potential to convict [and imprison] a person who has not really done anything wrong [emphasis added].”
  1. Similarly, prohibition orders against an individual may be issued by a provincial court judge who is proceeding ex parte [FA s. 75(4)]. It is quite possible that a person who has, to the best of his own knowledge, both a licence and a registration certificate covering his firearm may fall into violation of CC s. 91(1) or FA s. 112(1) as a result of issuance of such a prohibition order. Where such an order results in revocation of his licence and/or registration certificate [CC s. 116], that can quite possibly occur without his knowledge. Again, s. 91(1) clearly “has the potential to convict [and imprison] a person who has not really done anything wrong [emphasis added].”
  • 116. Every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by a prohibition order and issued to a person against whom the prohibition order is made is, on the commencement of the prohibition order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

Clearly, CC s. 91(1) or FA s. 112(1) is, in fact and in effect, “a law that has the potential to convict [and imprison] a person who has not really done anything wrong.”
CC s. 91(1) or FA s. 112, therefore, “offends the principles of fundamental justice, and…such a law… violates a person’s right to liberty under s. 7 of the Canadian Charter of Rights and Freedoms.”

As support for that position, it is noteworthy that CC s. 92(1) is virtually identical in wording to s. 91(1). CC s. 92(1) exists, and it specifies another offence, in the form, “possesses a firearm…knowing that [he] is not the holder of (a) a licence…and (b) a registration certificate…[emphasis added]”
The reverse onus imposed by CC s. 117.11 does not apply to CC s. 92, 94, 95, or 97 offences.

Because s. 92(1) is specifically written to cover the situation where the accused knows that he or she is not the holder of the required licencing document, it follows that s. 91(1) and FA s. 112 are specifically designed to convict an accused who does not know that he does not have the required licensing document. The presence of CC s. 92(1) in the law, therefore, powerfully increases the potential for CC s. 91(1) or FA s. 112(1) to imprison an accused who has not really done anything wrong–by demonstrating Parliament’s intent that a person who lacks mens rea should be convicted.

If CC s. 91(1) or FA s. 112(1) is found to be an illegal provision, and a violation of section 7 of the Canadian Charter of Rights and Freedoms, then CC s. 92(1) is a law that does not suffer from exactly the same defects. It will continue to be there, and continue to allow all prosecutions that are currently made under CC s. 91(1) or FA s. 112(1) to be made under CC s. 92(1).
A similar analysis of CC s. 92(1), however, may find that it, too, is unconstitutional.

CC s. 91(1) criminalizes possession of a firearm “unless the person is the holder of a licence.”

CC s. 92(1) criminalizes possession of a firearm by a person “knowing that the person is not the holder of a licence.”

CC s. 91(1) and 92(1) are both vulnerable to an attack based on price. It may be that a poor person cannot afford to pay the fee for a licence or a registration certificate, and therefore is criminalized by his or her poverty. If the only way a poor person can afford to buy a licence and a registration certificate is to sell his or her firearm to raise the necessary funds, is that reasonable?

The Supreme Court decided, in 1988, that offering, in the law, a defence document that is impossible to get is illegal.
The court ruled, in Morgentaler et al v. The Queen and the Attorney General of Canada (1988) 1 SCR 30:

  • “Even if the purpose of legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may produce unconstitutional effects and the legislation should then be struck down (emphasis added).” (62)
  • “One of the basic tenets of our system of criminal justice is that when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to obtain as to be practically illusory. The criminal law is a very special form of governmental regulation, for it seeks to express our society’s collective disapprobation of certain acts and omissions. When a defence is provided, especially a specifically-tailored defence to a particular [criminal] charge, it is because the legislator has determined that the disapprobation of society is not warranted when the conditions of the defence are met (emphasis added).” (70)
  • “A further flaw with the administrative system established in [the Criminal Code] is the failure to provide an adequate standard for therapeutic abortion committees which must determine when [a document covering] a therapeutic abortion [i.e., a TAC] should, as a matter of law, be granted (emphasis added).” (68)

The precedent set by that case raises its head when a person is charged with possession of a firearm without a licence and/or without a registration certificate. The court ruled that ” when Parliament creates a defence to a criminal charge, the defence should not be illusory of so difficult to obtain as to be practically illusory.”

If the person is charged with possession of a sawed-off shotgun without a licence and/or registration certificate, it must be noted that no licence or registration certificate covering such a firearm can be issued to any person other than a business with certain peculiar characteristics. For an individual, then, such a licence and/or registration certificate is most definitely “illusory, or so difficult to obtain as to be practically illusory.”

If that defence created by Parliament is “illusory or so difficult to obtain as to be practically illusory,” then the law says that the person can be sent to prison by that law even if the defence offered is “illusory of so difficult to obtain as to be practically illusory.”

Once again, therefore, it appears that CC s. 91(1) has the potential to send a person to prison when the person has done nothing wrong. He or she is unable to avail himself or herself of the defence (the licence and/or the registration certificate created by Parliament and offered by the law as “a specifically-tailored defence to [this particular] criminal charge”) because the offered defence is “illusory, or so difficult to obtain as to be practically illusory.”

That defence has the potential to work for many charges under both CC s. 91 and s. 92.

CC s. 91(1) criminalizes possession of a firearm or other things “unless the person is the holder of a licence” (and a registration certificate, where applicable).

CC s. 92 criminalizes possession of a firearm or other things “knowing that the person is not the holder of a licence” (and a registration certificate, where applicable).

Licences covering firearms come in several types. The licences available as a result of FA ss. 12(2), (3), (4), (5), (6) and (7) are set so as to be unavailable to most individuals. The law does not indicate that the defences offered in FA s. 112(1), CC ss. 91(1), 91(2), 92(1), and 92(2) are not available to the majority of individuals and corporate persons; the defences, by implication of the wording of FA s. 112 and CC ss. 91 and 92, seem to be available to anyone who is charged.

CC s. 92(1) criminalizes possession of a firearm by a person “knowing that the person is not the holder of a licence.”

Therefore, the CC s. 91(1) offence may be committed when the person does not know that he or she is not “the holder of a licence.”

Under CC s. 117.04(2), for example, a peace officer (including “the reeve of a village” [CC s. 2 “peace officer” (a)]), may seize firearms without warrant.

If, for any reason, the “peace officer…is unable at the time of seizure to seize an authorization or a licence,” then “every authorization, licence and registration certificate held by the person is, as at the time of the seizure, revoked [CC s. 117.04(4)].”

It is therefore perfectly possible that a person’s licence and/or registration certificate can be revokedwithout his or her knowledge in those circumstances. He or she may be in illegal possession of a firearm with no knowledge that the licence in his or her wallet, and/or the registration certificate that he or she holds, has been revoked.

There are other provisions in firearms control law that also may cause a licence or registration certificate to be revoked in a way that leave the holder of that licence or registration certificate unaware of the revocation, and in possession of a firearm without a licence and/or certificate.

The registration certificate for a converted automatic [FA s. 12(3)] is “automatically revoked” if there is any “change of any alteration in the prohibited firearm that was described in the application for the registration certificate [FA s. 71(2)]. That charge can be triggered by the breaking of a defective weld, which was unknown to anyone. It might only be discovered much later, and it could give rise to a CC s. 91(1) charge.

In those circumstances, it is easy to see that any CC s. 91(1) or (2) or FA s. 112(1) charge is vulnerable to a constitutional (Charter) challenge.

A court may very well look favorably on such a challenge, because it leaves CC s. 92(1) and (2) (which are nearly identical) intact and ready for use.

CC s. 92(1) and (2) are much more difficult charges to prove, because the Crown must prove that the person is in the situation “knowingly.” The Crown must prove mens rea.
Importantly, the Crown does not have the advantage of the reverse onus provision in CC s. 117.11 for a CC s. 92, 94, 95, or 97 case.

Additionally, CC ss. 91(1) and 92(1) are both vulnerable to an attack based on price. It may be that a poor person cannot afford to pay the fee for a licence or a registration certificate, and therefore is criminalized by his or her poverty. If the only way a person can afford to buy a licence and a registration certificate is to sell his or her firearm to raise the necessary funds, is that reasonable?

A further problem arises when a licence or registration certificate expires. If the expiry passes unnoticed by the holder, then the person falls into violation of CC s. 91(1) or (2), but lacks mens rea. There was no intent to commit the crime. There was no actus reus, merely an oversight or lapse of attention to a detail that arises very seldom, and without warning.

Is it possible that a law can send a person to prison when there is no mens rea and no actus reus, merely because of an oversight?

Finally, there is the question of division of powers between the federal government and the provincial legislatures.

Frequently, an argument is made that conviction for a firearms control offence, under either the Criminal Code or the Firearms Act, does not require proof of mens rea because the offence is one against regulatory law. The Constitution divides the powers of government between the federal government and the provincial legislatures.

The federal government was, when the Constitution was adopted, given the authority to enact regulatory laws governing things (like aeroplanes) that did not exist in 1867. The authority to enact regulatory law regarding things that already existed in 1867 was assigned to the provincial legislatures.

Both the Firearms Act and Part II (the firearms sections) of the Criminal Code were enacted by Parliament under the authority given by the Constitution to Parliament to enact criminal law, and not under its very limited power to enact regulatory law.

Therefore an argument advanced by the Crown that any part of either the Firearms Act or Part III of the Criminal Code is, in any way, regulatory law, may render the section for which that argument is raised ultra vires (enacted in a way beyond the legal authority) of Parliament. Parliament has no authority to enact regulatory law regarding firearms, because firearms were available (unlike aeroplanes) in 1867. It can only enact criminal law in this area.

Supreme Court Of Canada On Firearms Act

Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31
The National Firearms Association, as a part of CORFOS was an intervener in this case.

Storage And Other CC S. 86(2) Cases

NFA BRIEFING DOCUMENT 2 VERSION 4

In what follows, “CC s.” means “Criminal Code section”;
“FA s.” means “Firearms Act section”;
“FAR p.” means “Firearms Act Regulations March 1998 page”; and
“CGII/132/20 p.” means “Canada Gazette Part II Vol 132 No 20 page”

A very high percentage of charges against firearms owners are “storage” charges; therefore, we will continue (see LawClass 1) with “storage” law.

Orders in Council (OICs) have the same effect as laws. They are “enabled” by legislation — that is, Parliament writes into the law power for the Governor in Council the power to make “regulations” with force of law.

OICs do not come into force until they have been published in Canada Gazette Part II. New legislation changes and regulations appear in Canada Gazette Part I before they come into force.

Never trust any government publication to tell you what is in a law or a regulation. Go directly to the law or regulation and read the original text.

It has been our experience that government “interpretations” that try to tell you about the laws and regulations “in simple language” are often dead wrong in what they have to say.

At this point, take a break and read the following items:

CC s. 86(2)1

FAR p. 85 to 96 inclusive2 (bearing in mind the fact that some Regulations have been altered by later OICs)

CGII/132/203,4 p. 2734 sections 2 and 3. (These sections were extended in time to 31 Dec 00 by OIC)

CGII/133/255,6 p. 2615 sections 1 (which alters the older section 1) and section 2 (which alters the older section 3). Note particularly the wording, “cannot be found guilty of an offence under Part III of the Criminal Code [the firearms sections of the CC] by reason only of being in possession…” (Note also that the amnesties have been extended repeatedly, and may still be in force as you read this.)

In this chapter, we will deal with CC s. 86(2) only.

CC s. 86(2) says a “person [individual or corporate body] commits an offence” when that person “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.”

Let’s break that down, step by step.

Note well that “person” means either an individual or a corporation.

A business is usually a corporation. A club or association is also a corporation.

CC s. 86(2) can be used to prosecute either form of “person.”

CC s. 86(2) says a “person [individual or corporate body] commits an offence” when that person “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.”

Do you notice something about that wording? That is not one offence. It is many regulations X 6 actions X 2 things, or many different offences. Each possible charge must contain 1 of many regulations, one of 6 actions, and one of 2 things to describe the specific offence that is alleged to have been committed.

Each regulation is separated from all the other actions by specifying “a” regulation. Each action is separated from all the other actions by “or.” One thing is separated from another by “or.”

Therefore, each charge must consist of one regulation, one action, and one thing.

It is not possible to plan the defence until the defender know which of the many possible Regulations the accused is accused of violating, and in what way he is suspected of violating it. Did he transport a restricted weapon in a way forbidden by regulation X? Did he display a firearm in a way forbidden by regulation Y? Exactly what did he do, and how did it violate a Regulation?

The accused has a right of disclosure. That means that the Crown must supply, on request by the defence, all information it has about the case to the defence, including this detail of precisely what the charge is.

Crown Prosecutors frequently foul up when required to specify which of the many possible charges the accused is actually accused of committing. They also try to “fuzz up” the charge by wording it as something like, “did store a firearm unsafely” — which is a charge not known to law. The Crown should never be permitted to begin a case in court with a charge that is imprecise, or is not known to law. Such an error by the Crown should be attacked in court, not questioned beforehand. It is unwise to give the Crown an opportunity to correct his error before it is in front of a judge.

Having the charge nailed down by a disclosure document before it gets in front of the judge is also quite valuable. It positively prevents the Crown from changing the charge in mid-trial when he sees that the original specific charge is not going to work. If he tries to do it, the defence can point out that the Crown gave false information about the nature of the case to the defence in disclosure — or is the Crown mistaken now? It can get quite nasty, with the judge often turning on the Crown because the Crown has demonstrated incompetence. Judges do not like Crowns who waste the court’s time.

Regardless of what the charge is, if it is under CC s. 86(2), then only Regulations are relevant to the charge. A person can do something “respecting the storage, handling, transportation, shipping, display, advertising, and mail-order sales of firearms and restricted weapons” in a way that does not violate a Regulation — but does qualify as “in a careless manner” or “without reasonable precautions for the safety of other persons” under CC s. 86(1)1 — but that is not allowable evidence of violating 86(2).

If a Crown, while prosecuting for an offence under CC s. 86(2), tries to drag in a violation of CC s. 86(1), the defence should immediately object that the evidence is not relevant to the charge as laid. “Your honor, if my learned friend wants to talk about CC s. 86(1) matters, he should have laid a charge under CC s. 86(1), not CC s. 86(2). CC s. 86(1) matters are irrelevant in this case.”

Once the specific charge has been nailed down, it is possible to look for viable defences. Let us look at the commonest form of charge:

The accused is charged with storing a firearm in a way that contravened a regulation.

The Crown must prove, beyond a reasonable doubt, that the accused is guilty as charged.

The Crown must prove three things beyond a reasonable doubt: that the firearm was a “firearm” as defined in CC s. 27; that the firearm was stored; and that the firearm was stored in a way that “contravenes a regulation.”

The Crown must also prove that the violation is not covered by the exemption granted by regulation 2(3) of the “Storage, Display, Transportation and Handling of Firearms by Individuals Regulations [FAR p. 87]2.” Regulation 2(3) says:

2. (3)Sections 5 to 14 do not apply to firearms when they are used or handled by individuals in the course of any of the following activities when they are lawful:

(a) hunting and target shooting;

(b) participating in a course in the safe handling and use of firearms;

(c) controlling predators or other animals; and

(d) participating in parades, pageants or historical re-enactments.

Note that regulation 2(3) is not an exclusive list of reasons why a firearm is not in storage. It is merely a list of specific actions that invalidate sections 5 to 14 inclusive. Other actions, such as taking a firearm out of storage to clean it, have similar effects – but eliminate any possibility of laying any sort of a “storage” charge.

The Crown must prove that the firearm is a “firearm” within the meaning of the definition of that term in CC s. 27. The Crown is often not prepared for that demand to be made, and has no expert witness available, and no affidavit from an expert witness.

The Crown must also prove that the firearm was stored. That is not as easy as it looks, and the NFA has several relevant decision transcripts that deal with this point.

A person can store a firearm in a way that does not “contravene a regulation.” He can then take the firearm out of storage to clean it, admire it, use it, or show it to a friend. If the authorities discover the firearm at a moment in time when it has been taken out of storage, no “storage” law applies to it, because it is not in storage.

The NFA supplied that winning argument to the defence lawyer in the R v. Bowskill8 case, 28 Sep 94, Ontario Court (Provincial Division) Central East Region, available from the NFA. Bowskill, a small-town druggist, had a loaded shotgun in the back room for personal protection. Charged with both CC s. 86(2) and 86(3) [now 86(1), careless storage, and 86(2), storage that contravenes a regulation], his lawyer pointed out that the shotgun was not in “storage.” It was in use, for personal protection against armed robbers wanting to steal drugs and/or money.

The judge agreed with the defence argument, and found Bowskill innocent.

A key point in that defence is that if the accused is present when the firearm is discovered, it is difficult to prove that the firearm was “in storage” — because the accused may just have taken it out of storage for some particular purpose. If he was not present, then it is harder to argue that the firearm was “in use” at that moment in time. However, see regulation 5(2) and (3) below.

It can be quite difficult to prove that the firearm was “stored” at the moment it was discovered. The Crown cannot force the accused to take the witness stand. If the accused chooses to take the witness stand, he must answer all questions — Canadians have no “5th amendment” right to refuse to answer a question that might incriminate them. A Canadian accused can only choose to stay out of the witness box — or take his chances in it.

If the accused stays out of the witness box, the Crown cannot ask him if the firearm was “stored” where it was found. The Crown must prove that the firearm was “in storage” through other evidence — wife’s testimony, statement made to the police by the accused, etc.

Notice in what has just been said above that the accused can blow his own case just by talking to the police. If, at the time of discovery or later, he says that the firearm was always left in the place where the police found it, then it can be proved (by a police witness) that the firearm was ‘stored’ in that way. The fact that the accused was at home becomes unimportant.

If the firearm was unloaded, and the firearm was not locked away or fitted with a trigger lock or disassembled, it may still be stored in accordance with Regulation 5(2) or (3), below, of the “Storage…by an Individual” regulations, and that is evidence that the storage was not “in violation of a regulation.”

5. (2) Paragraph 1(b) [firearm rendered inoperable or locked away] 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 (not necessarily the province where the possible offence took place?), regulations made under such Acts, and municipal bylaws.

If the firearm was stored in accordance with that regulation, that is evidence that Regulation 5(1)(b) does not apply to the accused’s situation.

Note the word “stores” in Regulation 5(2). It implies that the firearm may be stored in that way, whether the person responsible for it is present or not. The word “temporarily” has a variety of meanings. Black’s Law Dictionary defines it thus:

Temporarily: Lasting for a time only, existing or continuing for a limited time, not of long duration, not permanent…

The Oxford Concise Dictionary defies it as “lasting only for a limited period,” again without any attempt to set limits on that period.

Since the word “temporarily” is indefinite as to the length of time that fits within the word “temporarily,” by the rule of statutory interpretation that says the statute must be interpreted in the way most favorable to the accused, storage in accordance with Regulation 5(2) — of almost any duration — may be taken as “temporarily.”

Similarly, Regulation 5(3) may apply:

5. (3) Paragraphs 1(b) and (c) [not readily accessible to ammunition] 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.

In using 5(2) and (3) as defence arguments, it should be noted that where the law can be taken as meaning two or more different things, it must, by a rule of statutory interpretation, be taken as meaning whatever is most favorable to the accused.

The meaning of the phrase “not readily accessible to ammunition” in 5(1)(c) [also required under 5(2)] is uncertain. It is best to lock up ammunition to avoid having to fight a court case. Black’s Law Dictionary, however, defines “ready” as “Fitted, arranged, or placed for immediate use; causing no delay for lack of being prepared or furnished.”

The Oxford Concise Dictionary defines “ready” as, “easily available or obtained; within reach.”

That brings us to a rule for the accused: SHUT UP!

More people are convicted because of what they say to the police than for any other reason. Anyone who tries to talk himself out of trouble will, almost always, talk himself into deeper trouble. An officer will often offer to make this problem “go away, if you can just explain what was going on here.” What the officer is doing is gathering evidence. If the accused gives him what he needs for conviction, the accused will be convicted.

Our legal system gives the accused person the right to silence. It is a precious gift that can save him from conviction. If he ignores that right, and talks his head off, he will almost certainly be convicted.

Proving that the firearm is a “firearm” as defined in CC s. 2 is not particularly difficult, but the Crown is required to do it.

Proving that it was stored in a way that “contravenes a regulation” can be rather difficult.

The Crown must prove that the accused acted in a way that “contravenes a regulation.”

The defence may be able to prove that, while the “storage” apparently contravenes one regulation, it is allowed by another or is the subject of an exception to the rule allowed by yet another regulation.

A recent case (R v. Lamontagne, [1993] N.J. No. 165, Newfoundland Provincial Court, District of Wabush, LeBlanc Prov C. J., judgement filed June 30, 1993, available from the NFA) dealt with another aspect: mens rea. Lamontagne’s husband went to the US to work, leaving his firearms improperly stored in Lamontagne’s house. They were found and she was charged. The judge ruled that she had no intention of being in possession of the firearms, so she lacked mens rea (guilty mind, or intent to commit the offence) and was therefore innocent of wrongdoing.

It is interesting to examine the question of whether or not a regulation applies. For example, the Crown often charges that “storage” in a motor vehicle or boat “contravenes a [storage] regulation.” It apparently does not.

There are two major sets of regulations that apply to an individual in these cases — the “storage” regulations, Regulations 5 to 8 on FAR p. 88-90, and the “transportation” regulations, 10 to 14, on FAR p. 92-95.

They are different.

Therefore, they cannot both apply at the same time.

Regulations 10(2), 11(d), 12(e), and 14(2) all speak of “transportation” in “an unattended vehicle.”

Obviously, that terminology means that a firearm in a vehicle does not come under the “storage” regulations simply because the vehicle is not moving and is “unattended.” It still comes under the “transportation” regulations — no matter how long it has been sitting there.

There is no point in time set in the law when that situation shifts from “transportation” to “storage.” Therefore, at any time, the accused could well be convinced that he is in perfect compliance with the “transportation” regulations, and that that is all that is required of him. He then lacks mens rea, the “guilty mind.”

Therefore, when the Crown charges that “storage” in a vehicle contravenes one of the “storage” regulations, the Crown has laid the wrong charge. The accused has not committed that offence. He is innocent of that charge.

There might be a feeling that a firearm “in an unattended vehicle” becomes a “stored” firearm at some point in time. That can be fought by pointing out that the accused reasonably concluded that the Regulations did authorize him to do what he did, and can be read in that way by a reasonable person. Therefore, under the rule of statutory interpretation that the statute must always be read in the way most favorable to the accused, the accused is innocent.

As well, the accused — by thinking that he is in perfect compliance with one Regulation — is innocent of violating another, by virtue of his lack of mens rea.

This area is too complex to try and explain every possible situation. Use the examples given above as principles to sort out the particular problems of the particular accused in the particular situation.

THE PLEA-BARGAINING TRAP

This is an actual case recently dealt with by the NFA (name has been changed):

Joe was charged with illegal storage of his firearms. The Crown offered a plea bargain: if Joe pleads guilty, his firearms will be returned to him. In turn, he will be granted an absolute discharge, so he will not have a criminal record. That was attractive, but Joe called the NFA first. Here is what we told him:

  1. The judge cannot return your firearms if you plead guilty. Criminal Code section 4919 says that where “it has been determined by a court that…(b) a person has committed an offence that involves…a firearm, a crossbow [or] ammunition…and any such thing has been seized and detained…the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs [emphasis added].
  2. Firearms Act section 510 says, “In determining whether a person is eligible to hold a licence…the [authority shall have regard to whether the person, within the previous five years, (a) has been convicted or discharged…of… (ii) an offence under [the Firearms Act] or Part III [the firearms sections] of the Criminal Code [emphasis added].

Therefore, this offered plea bargain is not real. A Crown may think he can do it, but CC s. 491 prevents the judge from ordering the return of the firearms. He will lose them. A person who pleads guilty also becomes ineligible for a licence. His licence will be revoked by the firearms control bureaucrats. They care nothing about what a Crown wanted to do. He will not be eligible to hold a licence again until 5 long years have gone by, and may have to fight a court battle to get one even then.

Storage And Other CC S. 86(1) Cases

NFA BRIEFING DOCUMENT 1  VERSION 4

In what follows, “CC s.” means “Criminal Code section”;
“FA s.” means “Firearms Act section”;
“FAR p.” means “Firearms Act Regulations March 1998 page”; and
“CGII/132/20 p.” means “Canada Gazette Part II Vol 132 No 20 page”

A very high percentage of charges against firearms owners are “storage” charges; therefore, we will begin with “storage” law.

Orders in Council (OICs) have the same effect as laws.  They are “enabled” by legislation — that is, Parliament writes into the law power for the Governor in Council the power to make “regulations” with force of law.

OICs do not come into force until they have been published in Canada Gazette Part II.  New legislation changes and regulations appear in Canada Gazette Part I before they come into force.

Never trust any government publication to tell you what is in a law or a regulation.  Go directly to the law or regulation and read the original text.

It has been our experience that government “interpretations” that try to tell you about the laws and regulations “in simple language” are often dead wrong in what they have to say.

At this point, take a break and read the following items:

CC s. 86(1)1 and 86(2)2

FAR p. 85 to 96 inclusive3

CGII/132/20 p. 2734 sections 2 and 3.4,5 
(These sections were extended in time to 31 Dec 00 by CGII/133/25 p. 2615 sections 1 (which alters the older section 1) and section 2 (which alters the older section 3).6 ,7

Today, we will deal with CC s. 86(1) only.

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device, or any ammunition in a careless manner orwithout reasonable precautions for the safety of other persons.”

Let’s break that down, step by step.

Note well that “person” means either an individual or a corporation.

A business is usually a corporation.  A club or association is also a corporation.

CC s. 86(1) and (2) can be used to prosecute either form of “person.”

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “without lawful excuse…”

The term “without lawful excuse” is quite useful.  There is, in law, a principle known as “the doctrine of necessity.”  If you see smoke pouring out of a house, for example, it is quite legal for you to break and enter for the purpose of saving life — although the law says that breaking and entering is a crime.  You are innocent of that crime because the “doctrine of necessity” overrides the law.

The doctrine of necessity is often usable in “storage” cases, and even oftener on “handling” or “use” cases, in a wide variety of ways depending on the particular circumstances.

CC s. 86(1) says a “person [individual or corporate body] commits an offence” when that person “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 acareless manner or without reasonable precautions for the safety of other persons.”

Do you notice something about that wording?  That is not one offence. It is 6 X 6 X 2 offences, or 72different offences.  Each of the possible charges must contain one of 6 actions, one of 6 things, and one of two ways in which the offence was committed.

Each action is separated from all the other actions by the word “or.”  Each thing is separated from all the other things by the word “or.”  Each way is separated from all the other ways by the word “or.”

Therefore, each charge must consist of one action, one thing, and one way.

It is not possible to plan the defence until the defender know which of the 72 possible offences the accused is accused of. Did he transport a restricted weapon in a careless manner?  Did he use someammunition without reasonable precautions for the safety of other persons?  Exactly what did he do?

The accused has a right of disclosure.  That means that the Crown must supply, on request by the defence, all information it has about the case to the defence, including this detail of precisely what the charge is.

Crown Prosecutors frequently foul up when required to specify which of the 72 possible charges the accused is actually accused of violating.  Even if the Crown gets it right, requiring him to specify the offence before trial is very limiting for him during the trial.

Crowns often try to “fuzz up” the charge by wording it as something like: “did store a firearm unsafely” — which is a charge not known to law.  The Crown should never be permitted to begin the case in court with a charge that is imprecise, or is not known to law.  Such an error by the Crown should be attacked in court, not  questioned beforehand.  It is unwise to give the Crown an opportunity to correct his error before it is in front of a judge.

Having the charge nailed down by a disclosure document before it gets in front of the judge is also quite valuable.  It positively prevents the Crown from changing the charge in mid-trial when he sees that the original specific charge is not going to work.  If he tries to do it, the defence can point out that the Crown gave false information about the nature of the case to the defence in disclosure — or is the Crown mistaken now?  It can get quite nasty, with the judge often turning on the Crown because the Crown has demonstrated incompetence.  Judges do not like Crowns who waste the court’s time.

Regardless of what the charge is, if it is under CC s. 86(1), then Regulations are not relevant to prosecution of the charge.  A person can use, carry, handle, ship, transport, or store a firearm (or one of those other things) in a way that violates a Regulation but does not qualify as “in a careless manner” or “without reasonable precautions for the safety of other persons.”

If a Crown, while prosecuting for an offence under CC s. 86(1), tries to drag in a Regulation, the defence should immediately object that the regulation is not relevant to the charge as laid.  “Your honor, if my learned friend wants to talk about the Regulations, he should have laid a charge under CC s. 86(2), not CC s. 86(1).  The Regulations are irrelevant in this case.”

Note that the reverse is not true.  The fact that the accused stored firearms in exact accordance with a regulation can be used as evidence that the “storage” or “use” was not “careless.”

Once the specific charge has been nailed down, it is possible to look for viable defences.  Let us look at the commonest form:

The accused is charged with storing a firearm in a careless manner.

The Crown must prove, beyond a reasonable doubt, that the accused is guilty as charged.

The Crown must prove, beyond a reasonable doubt, that the firearm was a “firearm” as defined in CC s. 28 ; that the firearm was stored; and that the firearm was stored “in a careless manner.”

The Crown must first prove that the firearm is a “firearm” as defined by CC s. 2.  That requires at least an affidavit from an expert witness, or, better, the expert witness himself.

The Crown must then prove that the firearm was stored.  That is not as easy as it looks, and the NFA has several relevant decision transcripts that deal with this point.

A person can store a firearm in a way that is not “careless.”  He can then take the firearm out of storage to clean it, admire it, use it, or show it to a friend.  If the authorities discover the firearm at a moment in time when it has been taken out of storage, no “storage” law applies to it, because it is not in storage.

The NFA supplied that winning argument to the defence lawyer in the R v. Bowskill case9 , 28 Sep 94, Ontario Court (Provincial Division) Central East Region, available from the NFA.  Bowskill, a small-town druggist, had a loaded shotgun in the back room for personal protection.  Charged with both CC s. 86(2) and 86(3) [now 86(1), careless storage, and 86(2) storage in violation of a regulation], his lawyer pointed out that the shotgun was not in “storage.”  It was in use, for personal protection against armed robbers wanting to steal drugs.

The judge agreed with the defence argument, and found Bowskill innocent.

It is interesting that a charge under CC s. 86(1) may block a simultaneous charge under CC s. 86(2), because they are two charges based on the same set of facts.  An attempt should be made to persuade the Crown to choose one or the other if the Crown lays both charges.

A key point in that defence is that if the accused is present when the firearm is discovered, it is difficult to prove that the firearm was “in storage.”  The accused may have taken it out of storage for some particular purpose moments before.  If he was not present, then it is harder to argue that the firearm was “in use” at that moment in time.  However, see Regulation 5(2)3 and 5(3) below.

It can be quite difficult to prove that the firearm was “stored” at the moment it was discovered.  The Crown cannot force the accused to take the witness stand.  If the accused chooses to take the witness stand, he must answer all questions — Canadians have no “5th amendment” right to refuse to answer a question that might incriminate them.  A Canadian accused can only choose to stay out of the witness box — or take his chances in it.

If the accused stays out of the witness box, the Crown cannot ask him if the firearm was “stored” where it was found.  The Crown must prove that the firearm was “in storage” through other evidence — wife’s testimony, statement made to the police by the accused, etc.

Notice in what has just been said above that the accused can blow his own case just by talking to the police.  If, at the time of discovery or later, he says that the firearm was always left in the place where the police found it, then it can be proved (by a police witness) that the firearm was “stored” in that way.  The fact that the accused was at home becomes unimportant.

If the firearm was unloaded, and the firearm was not locked away or fitted with a trigger lock or disassembled, it may still be stored in accordance with Regulation 5(2), below, of the “Storage…by an Individual” regulations, and that is evidence that the storage was not “careless.”

5. (2) Paragraph 1(b) [firearm rendered inoperable or locked away] 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 bylaws.

If the firearm(s) in question were stored in accordance with that regulation, that is evidence that the storage was not “careless.”

Note the word “stores” in Regulation 5(2).  It implies that the firearm may be stored in that way, whether the person responsible for it is present or not.  The word “temporarily” has a variety of meanings.  Black’s Law Dictionary defines it thus:

Temporarily:  Lasting for a time only, existing or continuing for a limited time, not of longduration, not permanent…

The Oxford Concise Dictionary defines it as “lasting only for a limited period,” again without any attempt to set limits on that period.

Since the word “temporarily” is indefinite as to the length of time that fits within the word “temporarily,” by the rule of statutory interpretation that says the statute must be interpreted in the way most favorable to the accused, storage in accordance with Regulation 5(2) — of almost any duration — may be taken as “temporarily.”

Similarly, regulation 5(3) may apply

5. (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 of otherwise reasonably ascertainable use incompatible with hunting [emphasis added].

In using 5(2) and (3) as defence arguments, it should be noted that where the law can be taken as meaning two or more different things, it must, by a rule of statutory interpretation, be taken as meaning whatever is most favorable to the accused.

That brings us to a rule: SHUT UP!

More people are convicted because of what they say to the police than for any other reason.  Anyone who tries to talk himself out of trouble will, almost always, talk himself into deeper trouble.  An officer will often offer to make this problem “go away, if you can just explain what was going on here.”  What the officer is doing is gathering evidence.  If the accused gives him what he needs for conviction, the accused will be convicted.

Our legal system gives the accused person the right to silence.  It is a precious gift that can save him from conviction.  If he ignores that right, and talks his head off, he will almost certainly be convicted.

Proving that a firearm was stored “in a careless manner” can be rather difficult.

The Crown must prove that the accused acted without thinking about the problem of storage.  If, for example, the accused did consider the matter, and then came to a reasoned and careful decision (which might have been wrong-headed or the result of crass stupidity), that devotion of consideration to the matter may well have taken the “storage” out of the area of “careless.”

The Crown cannot rely on the ideas of someone else.  If the accused thought his storage method was safe, after considering the problem, then the accused lacks ‘mens rea’ (the guilty mind).  In one case, (R v. Duska, available from the NFA), the accused did not intend to be “careless.”  He considered the problem.  He came to a reasoned conclusion.  He acted on his reasoned conclusion — and that does not fit the word “careless” in the statute, so he was found innocent.  He may have acted “without reasonable precautions for the safety of other persons,” but the Crown had alreadyspecified that the accused was charged with “storing a firearm ­in a careless manner.”  So that specific charge backfired on the Crown.

A recent case (R v. Montagne, available from the NFA) dealt with another aspect of mens rea.  Lamontagne’s husband went to the US to work, leaving his firearms improperly stored in Lamontagne’s house.  They were found and she was charged.  The judge ruled that she had no intention of being in possession of the firearms, so she lacked mens rea and was therefore innocent of wrongdoing.

The single most important case in this area is R v. Finlay, a Supreme Court of Canada case10(available from the NFA).  It uses the “reasonable man” test to see if the action was in violation of the statute, and spells out the rules that prevent putting the accused on the witness stand against his will.

R. v. Finlay, Court of Appeal (1991), 64 CCC(3d) 557:  “[T]he express language of the predecessor section made it clear that the fault or culpability rested on a higher standard than mere negligence (p 561).”SCC: “In Gosset, I found that the proper interpretation of the fault element under s. 86(2) [now 86(1)] is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person.  If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow (p 15).”SCC:  “There is, however, no ‘reverse onus’ on an accused to establish on the basis of probabilities that he or she exercised due diligence in order to negate a finding of fault under 86(2) [now 86(1)].”

There are two major sets of regulations that apply to an individual in these cases — the “storage” regulations, Regulations 5 to 8 on FAR p. 88-90, and the “transportation” regulations, 10 to 14, on FAR p. 92-95.

They are different.

Therefore, they cannot both apply at the same time.

Regulations 10(2), 11(d), 12(e), and 14(2) all speak of “transportation” in “an unattended vehicle.”

Obviously, that terminology means that a firearm in a vehicle does not come under the “storage” regulations simply because the vehicle is not moving and is “unattended.”  It still comes under the “transportation” regulations — no matter how long it has been sitting there.

There is no point in time set in the law when that situation shifts from “transportation” to “storage.”  Therefore, at any time, the accused could well be convinced that he is in perfect compliance with the “transportation” regulations, and that that is all that is required of him.  He then lacks mens rea, the “guilty mind.”

Therefore, when the Crown charges that “storage” in a vehicle contravenes one of the “storage” regulations, the Crown has laid the wrong charge.  The accused has not committed that offence.  He is innocent of that charge.

There might be a feeling that a firearm “in an unattended vehicle” becomes a “stored” firearm at some point in time.   That can be fought by pointing out that the accused reasonably concluded that the Regulations did authorize him to do what he did, and can be read in that way by a reasonable person.  Therefore, under the rule of statutory interpretation that the statute must always be read in the way most favorable to the accused, the accused is innocent.

As well, the accused — by thinking that he is in perfect compliance with one Regulation — is innocent of violating another, by virtue of his lack of mens rea.

This area is too complex to try and explain every possible situation.  Use the examples given above as principles to sort out the particular problems of the particular accused in the particular situation.

THE PLEA-BARGAINING TRAP

This is an actual case recently dealt with by the NFA (name has been changed):

Joe was charged with illegal storage of his firearms.  The Crown offered a plea bargain: if Joe pleads guilty, his firearms will be returned to him.  In turn, he will be granted an absolute discharge, so he will not have a criminal record.  That was attractive, but Joe called the NFA first.  Here is what we told him:

  1. The judge cannot return your firearms if you plead guilty.  Criminal Code section 491 says that where “it has been determined by a court that…(b) a person has committed an offence that involves…a firearm, a crossbow [or] ammunition…and any such thing has been seized and detained…the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs [emphasis added].
  2. Firearms Act section 5 says, “In determining whether a person is eligible to hold a licence…the [authority shall have regard to whether the person, within the previous five years, (a) has been convicted or discharged…of… (ii) an offence under [the Firearms Act] or Part III [the firearms sections] of the Criminal Code [emphasis added].11

Therefore, this offered plea bargain is not real.   A Crown may think he can do it, but CC s. 49112prevents the judge from ordering the return of the firearms.  He will lose them.  A person who pleads guilty also becomes ineligible for a licence.  His licence will be revoked by the firearms control bureaucrats.  They care nothing about what a Crown wanted to do.  He will not be eligible to hold a licence again until 5 long years have gone by, and may have to fight a court battle to get one even then.

The following information is courtesy of Calvin Martin, Q. C. 13
Firearms – Careless Use – Careless Storage.
What is careless use or storage?

1.. Section 86(2) The Criminal Code.
1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..
2.. When assessing carelessness, or negligence, the element of foreseeability and the duty one owes to others must be taken into account.
1… Regina v Derkosh, 254.
3.. Court did not disagree with trial judge on this but did disagree with trial judge’s view that the carelessness must be something more than ordinary negligence.  Regina v Derkosh, 254.  This set the standard until 1993 and R. v Gosset & R. v Creighton & R. v Finlay.
1… R. v Bludau.
4.. There must be a marked departure from the standard of care of a reasonably prudent person in the circumstances to constitute careless use or careless storage of a firearm.
1… Regina v Finlay
2… Regina v Creighton
3… Regina v Gosset

5.. Are you satisfied beyond a reasonable doubt that there was a danger to anybody in the way he stored this ammunition or this gun?6.. And even if you are satisfied beyond a reasonable doubt that  there was such a danger are you satisfied beyond a reasonable doubt that a failure to anticipate that danger was a marked departure from what a reasonably prudent person would have anticipated.7.. And even if you are satisfied beyond a reasonable doubt that there was a danger are you satisfied beyond a reasonable doubt that the way in which he stored the gun(s) was a marked departure from what a reasonably prudent person would have done.

8.. If a reasonable doubt existed either that the conduct in question did not constitute a marked departure from that standard of care or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.  There is no onus on the accused to establish on the balance of probabilities that he exercised due diligence in order to negate a finding of fault under s. 86(2).

1… R. v Finley
9.. All cases prior to R. v Gosset & R. v Creighton in 1993 had a much lesser requirement for the standard of care and must be read in the light of those cases.10.. The possibility that a firearm might be stolen does not amount to careless storage.

      1… First, if no evidence is lead about the probability of break ins.

2… Second, if no evidence is led about what a burglar would do with the firearm that would constitute a danger.

3… See R. v Baldwin, 22, 23, 24, 25

11.. Storing a loaded firearm is not necessarily careless storage.
1… R. v Chekov.
2… R. v Bludau.
12.. Careless where the prosecution can establish lack of a conscious effort, or desire, to exercise due care.
1… R. v Derkosh
13.. Failure to exercise due care where the manner of . . . has the appearance of irresponsibility, or has been thoughtlessly . . . or projects an attitude on the part of an accused of simply not caring.
1… R. v Derkosh
14.. Not careless where you put firearms out of sight so as not to be readily accessible and you train your children as to the hazards of firearms and ammunition just because some of your children deliberately seek out and use powder from some of your ammunition.
1… R. v Derkosh
15.. If you shoot close to someone although intending only to scare him, that is a careless use.
1… R. v Zimmer
16.. If your shooting scares people but you are not shooting in their direction and exposing them to harm, you are not using a firearm carelessly.
1… R. v Ross
17.. If you carry a shotgun down a deserted city street wrapped in a raincoat with the action closed, the safety on, no shell in the chamber but with shells in the magazine, that is not dangerous to the safety of other people.
1… R. v Pooke
18.. If you are drunk and discharge a firearm in an uncontrolled manner in a city or built-up area, that is dangerous to other people.
1… R. v McNeill

19.. Not always careless to discharge a firearm straight up into the air.

1… R. v Dale King

20.. Target practice within 100 feet of another person not found to be careless.

1… R. v Atkinson

21.. Where a man waited for burglars, asked them to freeze and fired 2 shots at a car, aiming at the radiator and fender to demobilize the vehicle it was held not to be careless.

1… R. v Thurlow

22.. Where burglars ran out of the accused’s pharmacy, jumped into their van, and the accused advanced to within 15 to 20 feet of the right rear wheel of the van and fired 2 shots at the right rear tire to stop the burglars the accused was not guilty of careless use.

1… R. v Bowskill

23.. Where a Saskatchewan farmer shot at the vehicle of 4 thieves who had just stolen gasoline from his farm and his shots were carefully aimed and designed to stop the thieves’ vehicle a jury acquitted him of charges of assault with a weapon and carrying a weapon for a purpose dangerous to the public peace.

1… R. v. Croal

24.. Where you shoot a rifle in the direction of people stealing your fish with the shots landing a few feet from the boat occupied by the thieves you are using a firearm carelessly.

1… R. v Budgell

25.. Storage in a manner contrary to regulation is not an included offence in a charge of careless storage.

1… R. v Chekov

26.. Not careless where the guns were secured by trigger locks.

1… Regina v Candelaria p4.
27.. Guns without trigger locks stored in a self made plywood closet under steps in the furnace room.  Padlock and & pins.  Key in the hall but not identified as the key to the padlock.  Police did not find the closet until the accused showed them.  No children.  No evidence of any break and entries or robberies.  No evidence that a burglar would have any greater success locating the weapons than did the police.  Not careless.
1… Regina v Candelaria pp 3,4,5,6.

Ammunition.

1.. Ammunition is not inherently dangerous in itself.2.. It would be very hard to envisage careless storage of ammunition except in relation to careless storage of firearms so that firearms would be available to the person who acquired the ammunition in circumstances where that person could be expected to use the ammunition in the firearms in a dangerous way.3.. Ammunition does not have to be in a locked container when it is in a locked vehicle.

1… Regina v Morton.  3.2… Regina v Nardi.  6.

4.. A danger to someone who may get into the car is too remote.  It would require entry into the car, finding the ammunition, and having a firearm (cm of that caliber).

1… Regina v Morton.  4.2… Regina v Nardi.  6.

5.. No evidence that ammunition without a firearm is of any danger.

1… Regina v Morton.  4.2… Regina v Nardi.  6.

6.. You cannot add hypothetical to hypothetical to prove the case.

1… Regina v Morton.  4.

7.. You would need evidence that the person who got the ammunition had a firearm of that calibre.

1… Regina v Morton.  5.

8.. Even in a high crime area, would the person who broke into the car have a firearm of that particular caliber.

1… Regina v Morton.  4.

9.. Not careless where the ammunition related to guns that were not carelessly stored.

1… Regina v Candelaria.  7.

10.. Not careless where the ammunition not in the same room as the guns.

1… Regina v Candelaria.  7.

11.. Sloppy storage or casual storage or loose ammunition or ammunition in the open and readily accessible does not amount to careless storage where there was no ready access to guns of that calibre.

1… Regina v Candelaria.  6,7,8.

12.. Canadian Firearms Centre Bulletin #12.

1… Store ammunition separately from your firearm.2… You do not have to lock up your ammunition but make sure it cannot be easily obtained to load the firearm.3… You can store ammunition with any firearm if you store the firearms in a securely locked container that cannot easily be broken into.

4… You can store ammunition with any firearm if you store the firearm in a vault, safe or room built or adapted for the secure storage of restricted or prohibited firearms.

5…  Calvin Martin:  be careful with this, see the regulations about the above mentioned room.  You may not be able to store ammunition in that room without storing it in a locked box.

Material time.

1.. The only time that is material is that date and that time.

1… R. v Harris.  4.

2.. Without actual proof you cannot infer what the actual conditions of storage were previous to that date and time.

1… R. v Harris.  4.

5. Firearm not in storage.

1.. Crown must prove beyond a reasonable doubt that firearm stored.

1… R. v Bludau

2.. The plain meaning of the word store is to put away or set aside for future use.

1… R. v Bludau.

3.. Store must mean more than merely setting something aside temporarily.

1… R. v Bludau.

4.. If you are in the room with them or in the house with them you are not storing them.

1… R. v Stubbs. 6.
2… R. v Harris. 7.

5.. A loaded shotgun kept behind the dispensary in a pharmacy for self defence was not being stored.

1… R. v Bowskill.

Lawful Excuse

1.. Section 86(2) The Criminal Code.

1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..

2.. Self defence or the defence of others.

1… R. v Thomas2… Regina v Taylor

3.. Storing a loaded firearm is not storing without lawful excuse if there is no authority raised to support the proposition that it is unlawful to have a loaded firearm in a residence.

1… R. Bludau.

4.. Enforcement of the law.

1… Section 25 Criminal Code.2… 25(1)  Every one who is required or authorized by law to do anything in the administration or enforcement of the law as a private person, as a peace officer or public officer in aid of a peace officer or public officer, or by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose,3… 25(3)  Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or any one under his protection from death or grievous bodily harm.

5.. Citizen arrest.

1… Section 494 Criminal Code.2… 494.(1)  Any one may arrest without warrant a person whom he finds committing an indictable offence;  or a person who, on reasonable grounds, he believes has committed a criminal offence, and is escaping from and freshly pursued by persons who have lawful authority to arrest that person.3… 494(2)  Any one who is the owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

4… 494(3)  Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

5… Breaking and Entering – Section 348 Criminal Code.

6… 348. (1)  Every one who breaks and enters a place with intent to commit an indictable offence therein, breaks and enters a place and commits an indictable offence therein, or breaks out of a place after committing an indictable offence therein, or entering the place with intent to commit an indictable offence therein, guilty of an indictable offence . . . ..

7… 348. (2)  For the purposes of proceedings under this section, evidence that an accused broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein;  or broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after committing an indictable offence therein, or entering with intent to commit an indictable offence therein.

6.. Defence of dwelling or real property.

1… Section 41 Criminal Code.2… Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.3… 41(1)  Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

4… 41(2)  A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

7.. Use of force to prevent the commission of an offence.

1… S 27 Criminal Code.2… Every one is justified in using as much force as is reasonably necessary3… to prevent the commission of an offence for which, if it were committed, the person who committed it might be arrested without warrant, and that would be likely to cause immediate and serious injury to the person or property of anyone;  or to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Authorities

1.. Section 86(2) The Criminal Code.

1… 86(2)  Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons . . . ..

2.. Regina v Harris.  Reasons.  Judge Inrig.  1/18/00.

1… The owner of the weapons and ammunition was present on the premises at the time of the investigation.  P4.2… The only time that is material is that date and that time.  Logic would produce a supposition or an assumption but we do not convict on suppositions or assumptions.  There must be concrete evidence of the condition of the guns and ammunition at other times, and that evidence is not present.  P4.3… An owner may do as he wishes with his property so long as he is present.  P7.

4… The important factor is that he be present when his collection is not secured.  P7.

5… The owner has lawful excuse to have his firearms and ammunition as it was found because he was present on that occasion.  P7.

6… The investigators should have waited until the accused had left the premises if they wanted evidence of the manner he stored his firearms and ammunition when he was not present.  P7.

3.. Regina v Morton.  Reasons.  Judge Knazan.  1/23/98.

1… Ammunition does not have to be in a locked container when it is in a locked vehicle.  P3.2… A danger to someone who may get into the car is too remote.  It would require entry into the car, finding the ammunition, and having a firearm (cm of that calibre).  P4.

3… No evidence that ammunition without a firearm is of any danger.  P4.4… You cannot add hypothetical to hypothetical to prove the case.  P4.5… You would need evidence that the person who got the ammunition had a firearm of that calibre.  P5.

6… Even in a high crime area, would the person who broke into the car have a firearm of that particular calibre.  P4.

4.. Regina v Nardi.  1/10/00.  Justice L. Feldman.

1… Ammunition in van.  At least one box on the floor in plain view through the driver’s window.2… There is no regulation prohibiting the carrying of ammunition in a vehicle where no firearm is present.  P7.3… My colleague Knazan J., in R. v. Mortin, unreported January 23, 1998, O.C.J., a case involving police discovery  of ammunition in two glove compartments in a motor vehicle found ammunition not to be inherently dangerous, in itself.  He concluded that any danger to someone who might enter the car to be too remote;  it would require the person, upon entry, both finding the ammunition and being in possession of, or having acces to a firearm of that caliber.  P6.

4… The charge was dismissed.  P6.

5.. Regina v Candelaria.  Reasons.  Judge Lane.  6/9/98.

1… Issues.
 

1…. Careless storage firearms.2…. Careless storage ammunition.3…. Charter argument – Morgentaler.

2… Careless Storage Firearms.

1…. Some rifles and handguns secured with trigger locks.  Could not be fired without removing the lock from the weapon with a hacksaw or some other kind of apparatus.  Not careless.   P4.2…. Other weapons did not have trigger locks.  Stored in a self made plywood closet.  Under steps in the furnace room in the basement.  Plywood doors locked with a padlock.  4” stainless steel pins.  Key kept in front hall.  Key not labelled or identified in any way.  Police entered on a gun call and were searching in the basement for weapons.  Did not find or notice the closet until shown to them by the accused.  PP 4,5.3…. Weapons not accessible to someone who did not know the house.  P5.

4…. No children ever in basement unsupervised.  No evidence of break and entries or robberies.  No evidence that a robber would have greater success than the tactical squad sent by the police.  P5.

5…. His storage facilities, although not up to ideal standards, nor perhaps even to the standards required by the regulations, in my view are quite distinguishable from the facts in R. v Blanchard.  P5.

6…. Applying the tests set out in R. v Finlay, I find that a reasonable doubt does exist that the conduct of the accused amounted to a marked departure from the standard of care of a reasonable person in the circumstances.  I have a doubt that reasonable precautions were not taken to discharge the duty of care in the circumstances.  Acquittal.

3… Careless Storage – Ammunition.

1…. The regulations indicate that if ammunition is in a room without firearms then there are no storage regulations that apply.  They do not have to be locked.  P6.2…. The regulations are silent as to how ammunition is to be stored if it is in a separate room.  P6.3…. Crown’s perspective.  Sloppy storage.  Live ammunition in the open and easily accessible.  Loose ammunition on the workbench.  P7.

4…. Not clear that the loose ammunition was linked to the guns that were seized.  P7.

5…. Some ammunition related to guns clearly secured by trigger locks.  P7.

6…. Other ammunition related to guns that were in the locked closet even though they did not have trigger locks.  P7.  Not satisfied that ammunition was linked to weapons in the same room.  P7.

7…. Note:

1….. None of the firearms were stored carelessly, some in trigger locks and others in the locked closet.2….. Ammunition stored casually but that is not contrary to the law.  PP 7,8.

6.. Regina v Derkosh (1979) 52 C.C.C. (2d) 252

1… Alberta Court of Appeal.2… When assessing carelessness, or negligence, the element of foreseeability and the duty one owes to others must be taken into account.  254.3… Court did not disagree with trial judge on this but did disagree with trial judge’s view that the carelessness must be something more than ordinary negligence.  254.

4… But now see (16) & (17) S.C.C.

5… It is axiomatic that in construing a stature all common words are to be given their plain and ordinary meaning as commonly understood.  Accordingly, the word “careless” ought to be construed with the bounds of tha general rule.  254.

6… A duty is imposed on the possessor of firearms and ammunition, to ensure he is not careless in the manner in which he causes them to be stored, having regard to all of the circumstances.  In positive words, there is a duty to take due care because these are potentially dangerous articles and a measure of safety is necessary.  254.

7… Where the manner of storing has the appearance of irresponsibility, or has been thoughtlessly selected, or projects an attitude on the part of an accused of simply not caring, then the failure to exercise due care can be said to have been established.  255.

8… Careless where the prosecution can establish lack of a conscious effort, or desire, to exercise due care.  255.

9… Failure to exercise due care where the manner of . . . has the appearance of irresponsibility, or has been thoughtlessly . . . or projects an attitude on the part of an accused of simply not caring.  255.

10… Custodial son and visiting son decided to make a home made rocket.  They used gunpowder from 10 to 15 shotgun shells which they removed from a linen closet.

11… In my view, the evidence in this case not only falls short of supporting the allegation of “careless manner” but, if anything, established that due care was indeed exercised by the respondent in an active way.  255.

12… Firearms in Kelley’s room had been rendered inoperative.

13… The other firearms had been stored away out of sight so as not to be readily accessible and attractive to the curious and the uninformed.

14… Each child through training was aware of the hazards attached to the handling of firearms and ammunition.

15… The unfortunate mishap was not caused by any careless conduct of the respondent but was induced by the deliberate act of his sons in seeking out and removing ammunition from its place of storage.

7.. R. v Gosset 20 W.C.B. (2d) 445, 1993 3 S.C.R. 76

1… The case involved manslaughter and 1 of the essential ingredients was the degree of carelessness under s. 86(2).2… See reference in Regina v Creighton.3… The applicable legal principles were set out in the judgment in Regina v Creighton.

4… It was open to the jury here to find that the conduct of the accused constituted a marked departure from the standard of care of a reasonable prudent person in the circumstances.

5… The determination of what constitutes “in a careless manner” or “without reasonable precautions for the safety of other persons”, within the meaning of s. 86(2) was to be assessed on an objective standard.

6… What must be proven in that regard was conduct that constituted a marked departure from standard of care of a reasonable prudent person in the circumstances.

7… A personal factor relevant to defining the standard of care was the accused’s membership in a group characterized by training or specially superior knowledge, indicating that a higher standard of care than that which would be expected of the untrained or non-specialist reasonable person was appropriate.

8… If the jury should find the accused’s use of the firearm here met the threshold of a marked departure from the standard of care of a reasonable prudent police officer in the circumstances … then the accused must be convicted.

8.. Regina v Finlay 83 C.C.C. (3d) 513, 1993 3 S.C.R. 103

1… The proper interpretation of the fault element under s. 86(2) is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person.  If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.  17.

9.. Regina v Creighton 83 C.C.C. 346 (S.C.C.), 1993 3 S.C.R. 3

1… Accused injected cocaine into the arm of the consenting victim.  Charged and convicted of manslaughter.2… The prosecution must demonstrate a marked departure from the standard of a reasonable person;  rather it is the determination of what is reasonable that the skill and expertise of the accused may be considered.  361.3… Reference to R. v Gosset.

4… The reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of his or her membership in a group with special experience or knowledge related to the conduct giving rise to the offence.  For example in Gosset the accused police officer’s experience and training in the handling of firearms is relevant to the standard of care under s. 86(2) of the Criminal Code concerning the careless use of firearms.  360.

5… Objective mens rea, on the other hand, is not concerned with what the accused intended or knew.  Rather, the mental fault lies in failure to direct the mind to a risk  which the reasonable person would have appreciated.  Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceedeed reasonably.  382.

6… Moreover, the constitutionality of crimes of negligence is also subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment.  382.

7… To put it in the terms used in Hundal:  The negligence must constitute a “marked departure” from the standard of the reasonable person.  The law does not lightly brand a person as a criminal.  For this reason, I am in agreement with the Chief Justice in R. v Finlay, that the word “careless” in an underlying firearms offence must be read as requiring a marked departure from the contitution norm.  383.

10.. R. v Bludau [1994] O.J. No. 2537, 25 W.C.B. (2d) 330

1… Police seized loaded shotgun from kitchen.2… Accused had loaded it to use against animals he found rummaging in his garbage.3… Not stored.

4… Crown had to prove beyond a reasonable doubt that the accused had stored the firearm.

5… Plain meaning of the word “store” was to put away or set aside for future use.

6… ”store” must mean something more than merely setting aside something temporarily.

7… Not careless.

8… A finding that the accused had stored a firearm carelessly required that the accused’s conduct constitute a marked departure from the standard of care of a reasonably prudent person in the circumstances.

9… On any objective test the risk of harm must be foreseeable.

10… The risk of any harm materializing here was minimal.

11… Temporary keeping of a loaded shotgun in the kitchen.  Risk of harm was minimal.  Acquitted of careless storage.  See R. Baldwin, 21.

11.. R. v Baldwin, January 30, 1996 Judge J.M. Bordeleau

1… There must be a marked departure from the standard of care of a reasonabley prudent person in the circumstances.  4, 12.2… In all the situations where convictions have arisen the Crown has been able to introduce evidence of a present risk of harm, rather than a potential risk for harm.  5.3… The remoteness of Mr. Baldwin’s actions from any real or actual risks of harm to anyone leaves me more than having a reasonable doubt.  5.

12.. R. v Bowskill, September 28, 1994.

1… On the charge of careless use of a firearms:2… Burglars jumped into their van after running out of accused’s pharmacy.3… He advanced to within 15 to 20 feet of the right rear wheel and by thumb cocking for each shot, fired 2 shots at the right rear tire.  The burglars drove away but eventually had to abandon the van and were apprehended.

4… He was familiar with firearms and knew the capabilities of both the revolver and himself.

5… All police officers called said they could have hit the tire in those circumstances.

6… The prosecution must prove beyond a reasonable doubt that the conduct of the accused constituted a marked departure from the standard of care expected of a reasonably prudent person in the circumstances.  4.

1…. R. v Finley.2…. R. v Gosset.3…. R. v Creighton.

7… From the evidence before me, the possibility of any person being killed or injured by Mr. Bowskill’s actions were so remote as to be virtually non-existent.  6.8… On the charge of storage not in accordance with the regulations, the accused had a loaded shotgun behind his dispensary.  8.9… Was the shotgun stored?

10… He had the gun for his protection and to defend himself as a result of what he had done to the burglars.  8.

11… He said he was not storing it.

12… Websters:  “To leave or deposit in a store, warehouse or other place for keeping, preservation or disposal, something that is stored or kept for future use.”

13… Random House:  “To supply or stock with something as for future use.  To deposit in a storehouse, warehouse or other place for keeping.”

14… Butterworths:  “These are common English words with no very precise or exact signification.  They have a somewhat kindred meaning and cover very much the same ground and seem to import a notion of warehousing , depositing for safe custody or keeping.”

15… All denote a notion of future use in warehousing as opposed to immediate or present use.  9.

16… Any ambiguity found in the Act or Regulations must be interpreted in favour of the accused.  9.

17… Bowskill told the court why the shotgun was there and that he did not store the gun at the pharmacy and I have no reason to disbelieve him.  A fair reading of the dictionary meaning of the work ‘store’ used in this context would lead any reasonably prudent person the same conclusion and the charge will be dismissed.  9.

13.. R. v Stubbs, April 12, 1995, Newmarket.  Oral.  Judge T. O’Hara.

1… Accused in his house.2… Found 17 firearms in his room in a locked glass case.  Separate rifle lying on the floor in an unlocked case with no trigger lock.  The gun on the floor was purchased that morning.3… The room was locked.

4… If he is there it is not stored.  4.

5… In my view if you are in the room with them or in the house with them you are not storing them.  6.

14.. Regina v Sokolowski.  Oral Reasons Watt J.  2/7/94.

1… reasonable prudent police officer in the circumstances.  37.2… Provincial legislation, as well current teaching about gunpoint arrests, are not determinative of the issue of liability.  They are, however, factors to consider in determining whether the accused’s conduct fell below the standard which the law requires.  37.3… Comment.  This point deals with the police officer and the particular training, skills and knowledge which the police officer should have.  In other words this applies only to a reasonable prudent police officer in the circumstances.

4… Comment.  It is clear that this officer was careless.  He should not have been tussling around with the person while he held a loaded revolver in his hand with his finger on the trigger.

15.. R. v Chekov, (1994) 26 W.C.B. (2d), 84 (Ont. Ct. Gen. Div.)

1… 86(3) is not an included offence in 86(2).2… Thomson OCJGD.3… Summary conviction appeal.

4… Charge of storing a handgun carelessly.

5… Locked gun cabinet in the house.  Could not open it at the scene.  Took it to the station.  Accused came to the station and opened it with a key.  Loaded handgun inside.

6… Trial judge found that firearm not stored in a careless manner contrary to 86(2).  Because it was in a locked steel cabinet.  Appeal judge agrees.  No one had easy access to it.  p. 14, 15.

7… ”Further, it does not follow that storing a handgun in a loaded condition is, of itself, capable of being interpreted as storing it in a ‘careless manner’ absent some additional information regarding carelessness.  For instance, if the door were unlocked; or the keys were hanging next to the cabinet; or there was a note in the kitchen or recreation room for all to see indicating that the key for the lock was in the kitchen drawer.  Any of these scenarios would surely indicate carelessness in the extreme.

8… The offence in section 86(2) requires proof of conduct showing a marked departure from the standard of care of a reasonable prudent person in the circumstances.  Locking a gun cabinet in order to establish a high degree of difficulty in obtaining entry or to maintain safety, does not depart in a marked way from the standard of a reasonably prudent person in the circumstances.”  p 15.

9… ”Is section 86(3) an included offence?  In my view it is not.  R. v. Morrison (1991) 66 C.C.C. (3d) 257 (B.C.C.A.) indicated that subsection 2 was not an included offence within section 86 (1).  In other words careless handling is not the charge where one points a firearm at another person.

10… In this case, section 86(3) makes the storing of a loaded firearm an offence even if the gun is virtually impossible to access in a gun cabinet.  A conviction under this subsection does not mean an offence is made out under section 86(2).

11… Therefore, I do not conclude that section 86(3) is an included offence within section 86(2).”

12… Storing a loaded firearm, no matter how secure the case, was not an offence with the wording of s. 86(2), absent some additional information regarding carelessness – The offence in s. 86(2) required proof of conduct showing a marked departure from the standard of care of a reasonable purdent person in the circumstances.

13… Locking a gun cabinet in order to establish a high degree of difficulty in obtaining entry did not depart in a marked way from the standard of a reasonably prudent person.

14… Comment.  The regulations cannot be the standard or a minimum standard for careless storage.  A finding that a regulation has been breached does not mean that there is careless storage.

16.. Regina v Pooke (1976) 6 W.W.R. 57

1… Charge of carrying a firearm in a manner dangerous to the safety of other persons.  s. 86(b).2… Accused had wrapped an unloaded shotgun in a raincoat and was carrying it to the police station in the morning on a virtually deserted city street.3… There were shells in the magazine but no shell in the chamber.

4… In my opinion the word “manner” is used in s. 86 in its ordinary meaning given in the Shorter Oxford Dictionary as:  “The way in which something is done or takes place;  mode of action or procedure”.  60.

5… The danger contemplated by s. 86(b) is, moreover, a present danger which is more than a mere potential for harm.  60.

6… In this case there was no possibility of accidental discharge;  deliberate action would be required.  61.

7… In my opinion there was no evidence from which it could be found that the shotgun was being carried in a manner dangerous to the safety of others.  61.

17.. Regina v Wasylyshyn 10 W.C.B. 343

1… Careless storage.2… Child care worker.  Disturbed children on a canoe trip.  Rifles used on trip.  Disturbed boy shot another with a rifle following an argument.3… Required some form of inadvertence either as actual intent or through advertent recklessness.  It could not be said that a reasonable person in the circumstances would have adverted to the risks existing in the circumstances.  The boys were familiar with bush life and the necessity for protection in the wild required the presence of the loaded guns.  The accused was involved in training the children in responsibility, which training required trust and some risk by the accused.  It could not therefore be said that the accused had been careless.

18.. R. v Lowe, 21 C.C.C. (2d) 193

1… Charge of dangerous driving.2… Such fault may be found in the departure from the standard of care that a prudent driver would have exercised having regard to all the circumstances.  198.

19.. R. v Thomas, [1973] 1 W.W.R. 530

1… Charge of having in possession without lawful excuse, a firearm in a manner dangerous to the safety of other persons.  Section 86(b).2… In my view, the possession of a firearm in a dangerous manner in the context of Code s. 86(b) involves, on the part of the accused, as an essential ingredient of the offence, in the words of Cartwright C.J.C., “something more than mere inadvertence or mere thoughtlessness or mere negligence or mere error of judgment”, that is, “knowledge or wilful disregard of the probable consequences or a deliberate failure to take reasonable precautions”.  538.3… The accused created a situation of peril.  540.

4… He did not have the defence of self defence or defence of others and therefore acted without lawful excuse.  541.

20.. R. v Roberge, (1981) 64 C.C.C. (2d) 78

1… Charge of using a firearm in a careless manner.2… There was negligence on the part of the respondent in using his firearm and in light of the circumstances no lawful excuse was established.  86.

21.. R. v Wright, (1984) W.W.R. 92

22.. R. v Ross, July 9, 1979

1… Careless use of a rifle.2… Firing into the air with a rifle.3… Whether the manner of use, that is firing the rifle into the air, enhanced the inherently dangerous characteristice of the firearm in so far as others in the area are concerned.

4… I do not find that there was any more than the merest potential for harm.

5… Under the particular circumstances of this case I am not satisfied beyond a reasonable doubt, that the accused used the Winchester rifle in a careless manner as section 84(2) should be contemplated.

23.. Regina v Cannon (1977) 37 C.C.C. (2d) 325

1… Previous section 86(b).2… Every one who, without lawful excuse,3… uses, carries or possesses any firearm or ammunition in a manner that is dangerous to the safety of other persons,

4… Officer taking an intoxicated man away.  Man reached for a shotgun.  Officer took it away from him before it was pointed at him.  It was not loaded and man did not have any shells with him.

5… Man did not have possession of the shotgun in a manner dangerous to others.  327.

6… The danger to the safety of others from the use or possession of firearms which the section seeks to prevent is the danger represented by the nature or characteristics of fire-arms which make them inherently dangerous instruments.  The paragraph to prevent such danger proscribes their misuse and requires proper care to be taken with respect to their use and possession.  327, 328.

7… To illustrate:  using an unloaded gun as a club might endanger the safety of persons within reach of the club, but the danger from that use would not be the danger which the paragraph seeks to prevent, even though such use of the fire-arm might attract liability for assault, unless justified.  328.

8… It is also possible to imagine circumstances in which the misuse of an unloaded firearm, not known to be unloaded, might foreseeably create a panic or reaction endangering the safety of others.  328.

9… In the circumstances, the subjective alarm which the respondent’s actions created in the officer did not supply the necessary ingredient of the charge that the possession of the gun endangered the safety of Constable Phillips.  328.

24.. Regina v McNeill (1977) 5 W.W.R. 757

1… Charge under 86(b).2… Accused intoxicated.  Took his rifle to parking lot beside his hotel.  Placed butt on ground and intentionally fired one shot into the air.3… Onus on the crown to prove a present or actual danger to other persons.  760.

4… The danger that arises from a discharge of a firearm is only limited by the trajectory of a bullet and in fact it is reasonably foreseeable that a bullet discharged from a firearm at one end of a city or built-up area could strike someone on the other side of the same city or built-up area.  Similarly, when a firearm is pointed at the ground a bullet is capable of ricocheting and travelling a considerable distance.  761.

5… I am consequently of the opinion that any firearm discharged in an uncontrolled fashion in a built-up area constitutes an actual or present danger to any of the persons living in that built-up area.

6… The operative word in “manner” and where a firearm is fired in an uncontrolled manner in a built-up area and where it is reasonable foreseeable that the bullet could strike other persons within that built-up area, in my view the case has been made out that there is a present or actual danger to those other persons.  761.

25.. Regina v Zimmer (1981), 60 C.C.C. (2d) 90

1… Use a firearm in a careless manner.2… Shot round near Stanchfield which hit the trees above his head.3… Zimmer intended to scare Stanchfield.

4… Held that this was careless use even though there was no intent to do more than scare.

5… Careless means to do something without care.

26.. R. v. Allan [1972] 3 W.W.R. 79, 6 C.C.C. (2d) 143 (B.C.)

1… The omission of the words “without lawful excuse” rendered the conviction null.

27.. Regina v Taylor (1970), 73 W.W.R. 636 (Y.T.)

1… Accused acquitted because he acted in self defence, not acting without lawful excuse.2… Section 86(b) The Criminal Code.3… Every one who, without lawful excuse,

4… uses carries or possesses any firearm or ammunition in a manner that is dangerous to the safety of other persons,

28.. Regina v Dale King 13 W.C.B. 250

29.. R. v Payne 22 W.C.B (2d) 350

1… Accused had fired a high powered rifle into the air when celebrating a local marriage.  Towards the open sea at a high angle.  No reasonable prudent person would use a firearm in such a manner as some thought must be given to the inherent danges for aircraft, persons and property outside of the view of the firearm user.

30.. Regina v Atkinson 14 W.C.B. 239

31.. R. v Hummel 1 Y.R. 67

32.. R. v Thurlow (1989), 9 L.W. 916-016

1… Accused saw 2 men break into a hotel.  He loaded his rifle and called to them to “freeze.”  They started to drive away.  He fired 2 shots at the car aiming at the radiator and fender to demobilize the vehicle.  He hit the radiator and alternator.  Car stalled and police arrested the men.2… Charged with careless.3… Not guilty.

4… No evidence that the bullets could have hit the 2 men.

5… He had a reasonable excuse to load the rifle since the 2 men were in the process of breaking and entering with intent to commit an indictable offence.

33.. Regina v Budgell 17 W.C.B. 72

1… Fisherman who had suffered thefts of fish.  Saw people stealing the fish.  Fired shots in their direction with shots landing a few feet from the boat occupied by the thieves.  Found to be careless use.

34.. R. v Rutkowski (1990) 112 A.R. 183

1… Avid gun collector.  Knowledgeable about guns.2… 36 weapons and 4700 rounds of live ammunition in his bedroom.3… Most weapons in a gun rack in a metal cabinet.  No lock.

4… Handguns unsecured on top shelf of cabinet.

5… Shotgun under bed.

6… Suitcase of loose ammunition.

7… All weapons clean and well maintained.

8… The cases concern themselves with loaded weapons or at least inferentially in situations where the firearm and ammunition is in close proximity.  193.

9… The cases concern themselves with the presence of children.  193.

10… The degree of carelessness necessary is not simply carelessness in the civil sense but rather carelessnes of sufficient gravity to lift it into that of the Criminal Code.

1…. R. v  McKay.

11… Firearms not loaded.

12… No evidence that children were ever in the home.

13… The only other people in the house were his father and mother and both of them were knowledgeable about firearms.

14… Cannot find that the circumstances would or might easily be expected to result in some danger to others by means of the inherently dangerous characteristics of firearms or ammunition.  193.

35.. R. v Grimard.

1… A firearms collector who stored his firearms and ammunition casually in his bedroom.  Acquitted of careless storage.  See R. v Baldwin, 18.

36.. R. v Pawlivsky D.C. Cr. Ap. No. 57

1… Loaded pellet pistol in car.  Visible.  Window partly open.  Car door could be opened.  Careless.2… There is a duty upon every possessor of a firearm to guard against the possibility of it being used, deliberately or accidentally, in a manner which would, except in lawful circustances, endanger the lives or safety of other persons.

37.. R. v Stephen Andrew Faasse [1981] B.C.D. Crim. Conv. 6167-01

38.. R. v Warren Kirchhofer [1981] B.C.D. Crim. Conv. 6167-01

1… Storage not careless since there would have needed to be a whole series of deliberate acts somewhat of a criminal nature before the firearms could inflict any harm.2… R. v Baldwin, 193… The fact that the firearm might be stolen was not relevant.

4… R. v Baldwin, 22

39.. R. v Pamela Jean Picco 13 W.C.B. 16 13:0028

1… Stored a loaded rifle on which the safety catch had not been engaged under a chesterfield in a private apartment did constitute the storage of that firearm without reasonable precautions for the safety of others.

40.. R. v Robert George Cousins 5 W.C.B. 508

1… Here, storing a loaded shotgun in full view in a room to which people are invited from time to time shows a lack of conscious effort or desire to exercise due care and falls within the prohibition in s. 84 of the Criminal Code.

41.. R. v Kenneth William McKibbon

1… Unloaded rifle and shotgun leaning against the wall in the bedroom.  Ammunition and charged magazines in a drawer.  Court found no evidence that children would have access to the bedroom of that objectively, anything in particular would have created a risk to human life or safety in these circumstances.

2… R. v Baldwin3… The regulations cannot be regarded as proscribing standard of care which would need to be taken in order not to be in violation of 86(2).4… R. v Baldwin, 23

5… R. v Steven P. Holborn

6… Accused left a number of firearms unattended in one area of the house and unlocked while he had lunch and worked on other firearms elsewhere on the premises.  Did not have to be kept under lock and key in those circumstances.

7… R. v Baldwin, 20

42.. R. v McKay (1981) 61 C.C.C. (2d) 321, 326

1… The law takes no cognizance of carelessness in the abstract.  It concerns itself with carelessness only  where there is a duty to take care and where failure in that duty has caused damage.  In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence.  325, 326.2… Was there any evidence before the learned acting Provincial Court Judge amounting to more than mere inadvertence or mere thoughtlessness or mere negligence or mere error of judgment?  326.3… No evidence of when it was discharged.

4… No evidence of who the family members were who were in the house to the knowledge of the accused.  326.

5… No evidence to show that the accused before he loaded the rifle know that there was anyone else in the house.  326.

6… No evidence about the rifle, safety catch, hair trigger etc.  326.

7… The learned acting Provincial Court Judge appears, in my respectful view to have improperly imported the civil doctrine of res ipsa Loquitur – the thing speaks for itself – into this criminal proceeding.  326.

8… A higher degree of carelessness required than in instances of civil negligence.

9… R. v Baldwin, 21

43.. R. v McKibbon [1994] B.C.J. No. 2240

44.. R. v Morrison, (1991), 66 C.C C. (3d), 257 (B.C.C.A.)

1… Charge of pointing a firearm dismissed.  No mens rea.2… Crown argued that a charge of careless under 86(2) was in included offence to a charge of pointing under 86(1).3… I cannot agree that by pointing a firearm a person must necessarily use or handle that firearm in a careless manner.  260.

4… A conviction under 86(3) does not mean an offence is made out under 86(2).  See R. v Baldwin, 24.

45.. R. v Wright, (1984) W.W.R. 92

46.. R. c Horvat [1995] A.Q. no 7 November 25, 1994

1… Accused had been broken into and robbed 3 days earlier.2… He saw the man again and fired his shotgun up in the air to scare the thief.3… Chief Justice Lamer was of the view that the proper test for negligent conduct nder s 86(2) is whether that conduct constitutes a marked departure from the standard of care of a reasonably prudent person.

1…. R. V Finlay.

4… Did the appellant’s conduct constitute a marked departure from the norm so as to render him criminally responsible for his conduct?

5… Fired 1 shot straight up.

6… An intruder is bound to cause some fear of harm.

7… No danger that he hit anyone above him.

8… Pellets must come down but the risk of harm to anyone from the fall-out of these pellets was quite remote compared to the risk of another break-in to appellant, his family and his property.

9… In the circumstances of this case, where there was an immediate threat of a break-in to appellant’s residence, the limited and careful use that was made of the shotgun did not, in my view, contravene s 86(2).

47.. R. v Baxter, February 8, 1985, Judge D. McWilliam

1… Charge of careless storage of 1 .45 calibre handgun.2… Found under the mattress of the accused’s bed.  Magazine in the gun and 7 cartridges in the magazine.  Could not see the gun without lifting the magazine.  4.3… Family quite familiar with guns.  6.

4… Weapon under mattress in a home where the persons were very safety conscious.  It was not in plain view, inviting anyone to move or play with it so as to come in harms way.  Most guns are probably stored in a closet.  Here the accused kept it under his mattess.  It is equally or better hidden under the mattress.  7.

5… In my view, this is not such storage which might reasonably be expected to result in some danger to others by reason of the inherently dangerous characteristics of firearms and ammunition.  8.

6… Baxter acquitted.  8.

48.. Regina v Halliday.

1… This is an analysis based on the reported decision and the factums filed in the Court of Appeal.2… There, both ammunition and firearms were in a steel locker in the basement.  There was a credibility issue over whether the accused had left the firearms side of the locker locked. It was clear that the ammunition storage side of the locker was not locked.  It was also clear that the key for the locker was kept on a nail in one of the storage beams so that the children could not reach it.  Since the court had decided that the trial judge erred in how he rejected the credibility of the accused it is likely that they made their determination on the basis that the firearms side of the locker was locked.3… The trial judge had decided that even if the firearms side of the locker was locked, it was careless storage.

4… In those circumstances the court decided that expert evidence was required to determine whether the storage was careless.  The court decided that the police officer was not a properly qualified expert.

5… Comment.  Officer had just said such storage was careless without saying why.

49.. Regina v Blanchard 103 C.C.C. (3d) 360

1… Hotel parking lot.  Unlocked truck.  Window open.  .303 rifle leaning against front seat.  In a cloth cover.  Loaded .303 magazine on the floor.2… Comment.  Enough right there to apply the reasonable person test.  Do not need any help with that standard just as cases in the past had not needed any help.3… Comment.  Chekov in Ontario OCGD which rejects the regulations in a careless charge.

4… ”Objective liability offences do not require contemplated consequences.  This remark, however, suggests that one can appreciate the nature of the applicable standard of care by assessing the scope of potential consequences.  That appears to be what is meant by the ‘risk of harm to which their conduct gives rise’.  With respect to the storage of firearms, the legislative target of s. 86(2) is to limit the risks which might arise from guns coming into the hands of the inexperienced, irresponsible, undisciplined, or criminal.”

5… ”can a standard be applied when no evidence has been adduced by the Crown as to the appropriate standard?”

6… Highway Traffic Act rules.

7… ”While a breach of those rules cannnot by itself give rise to criminal responsibility, it is my view that they provide the standard from which a marked departure can be measured.”

8… Comment.  See Chekov where the regulation standard breached.  Loaded gun in a cabinet.  Not careless.

9… Comment.  Breaches of HTA sections do not necessarily have anything to do with dangerous driving.  Probably only as they relate to what other drivers reasonably expect of you.

10… ”I conclude that the federal firearm storage regulations are relevant in determining the appropriate standard for those who are transporting or storing guns to the same degree that the rules of the road would be relevant in determining the basic standard of conduct for drivers.  Accordingly, in the circumstances of this case the court can commence the analysis of the accused’s conduct even without any evidence establishing the appropriate standard.”

11… Comment.  The regulations the judge dealt with were not even storage regulations.  They were transport regulations.

12… Comment.  To the same degree in the regulations..  There are many regulations which have nothing to do with the safety of anybody.

13… Comment.  And they are not included offences.

14… Comment.  Trial judge erred in his analysis of the ammunition part of the transport part of the regulations.  There are no ammunition rules in the transport part of the regulations except that the firearm cannot be loaded.

15… Held that there was a departure from the standard of conduct of a reasonably prudent gun-user.  373.

16… Comment.  In the circumstances he could have done this without resorting to looking at the regulations.  Courts before and after this decision have not had any difficulty applying the test to the facts without referring to the regulations.  Just as in negligence standards of care.  The concept of the reasonable person has been with us for a long time in law.

17… Marked Departure?  374.

18… Gross departure.  Markedly below the aceptable standard of care.  Must manifest a significant deviation from that norm of conduct expected in the circumstances.  Cannot be a marginal default or simply substandard behaviour.  Sufficiently distinct from mere civil negligence to warrant the imposition of a criminal sanction.

19… Lamer in Gosset.  The sufficiency of the departure was determined by examining the conduct and the risk of harm generated by it.  Did the conduct create a significant risk that the contemplated consequences or dangers might occur.

20… Comment.  This is the real test as the leading cases say.  No problem with analysing the standard in those leading cases without resort to regulations.

21… ”Given the extent of the risk that the firearm might fall into irresponsible, inexperienced, undisciplined or criminal hands in these circumstances, I have no doubt that it constituted a marked departure.”

50.. R. v. Morrison 66 C.C.C. (3d) 257, BCCA.

1… Charged with pointing a firearm at another person.  Convicted.2… In a summary conviction appeal decided that the accused did not have the mens rea to be guilty of pointing but substituted a conviction for careless use under 86(2).3… Question is whether pointing a firearm at another person without lawful justification will, in all cases, necessarily involve its careless handling or use.  p9.

4… Pointing will constitute an offence even where the firearm is unloaded.

5… ”I am satisfied that an accused might successfully argue that he cannot be convicted of an offence under s. 86(2) for pointing an unloaded firearm at a person in circumstances where no one else is present and both parties know the gun to be unloaded.  In that situation the Crown could not, in my  view, establish beyond a reasonable doubt that the handling was careless…”  pp 12, 13.