NFA SEARCH & SEIZURE

NFA SEARCH & SEIZURE

INVESTIGATIVE TECHNIQUES OF POLICE OFFICERS

The police use their powers in the Criminal Code, and the common law to detain, search and seize firearms on persons, in residences, vehicles, buildings, storage facilities. The standard of proof most often is one of reasonable and probable grounds. However, there are some warrant provisions that only require a reasonable suspicion only to execute certain type of investigative warrants. The police also utilize informants and undercover agents to develop a prosecution for firearms offences. The police also use tracking devices in vehicles, dial number recorders, production orders, conduct covert surveillance and wiretap.

A firearms investigation may develop from a routine Fish & Wildlife motor vehicle stop to a comprehensive undercover operation involving surveillance and even wiretaps.

THE BALANCE OF PROOF IN SEARCH CASES INVOLVING FIREARMS

Investigations involving firearms the law of search and seizure involving firearms follows the provisions of the common law, the Criminal Code and the Charter of Rights and Freedoms in the same way as other criminal or narcotics investigations. There are, however, some exceptions.

First, a search authorized by a judicial official who authorizes a warrant to search (also known as a search warrant) is deemed to be valid and lawful. To challenge the validity of a lawful search, the onus of proof is upon the Applicant or accused person to satisfy the Court that the warrant to search ought not to have been granted. The court reviewing the issuance of a warrant is not to simply substitute its opinion with the issuing judicial official but must determine and find that the warrant ought not to be granted in the first instance. This is an onus that is not easily displaced. If the warrant is found to have been unlawful, the Court must then determine whether the evidence is admissible pursuant to s.24(2) of the Charter.

Most warrants authorized in the Criminal Code requires that the police have reasonable and probable grounds to believe that an offence has been committed. However, there are investigative warrants that may not involve the search of a residence that have a lower standard of proof.

Typically, most firearms cases involve the search or a residence, storage facility, or motor vehicle. The search of a residence will most often involve the issuance of a search warrant. If there are emergency or exigent circumstances, the police may conduct a warrantless search pursuant to s. 117.02 of the Criminal Code.

Most firearms search cases involving the search of motor vehicles starts with an investigative detention (“reasonable suspicion”) which may lead to grounds to search a vehicle. Most motor vehicle searches are warrantless. In a warrantless search, the Crown has the onus to satisfy the Courts that the police had reasonable and probable grounds to lawfully conduct the search. The onus then is with the Crown to prove the lawfulness of the search.

Section 8 of Canadian Charter of Rights and Freedoms reads as follows:

Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure.

In Hunter v. Southam, 1984 CarswellAlta 121, the Supreme Court of Canada confirmed that s.8 of the Charter protects the privacy interests of citizens from unlawful searches absent reasonable and probable grounds:

19 I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present case this means, as Prowse J.A. pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures, s. 8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of “reasonable” search and seizure, on these governments. This leads, in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on its “reasonable” or “unreasonable” impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.

A judicial officer is required to review the grounds to justify the warrant before it will be authorized:

32 The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.

The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence.
This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure.

43 Anglo-Canadian legal and political traditions point to a higher standard. The common law required evidence on oath which gave “strong reason to believe” that stolen goods were concealed in the place to be searched before a warrant would issue. Section 443 of the Criminal Code authorizes a warrant only where there has been information upon oath that there is “reasonable ground to believe” that there is evidence of an offence in the place to be searched. The American Bill of Rights provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation…” The phrasing is slightly different but the standard in each of these formulations is identical. The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshhold for subordinating the expectation of privacy to the needs of law enforcement. Where the state’s interest
is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one.

Therefore, a judicial officer must be satisfied that the information presented constitutes reasonable and probable grounds to believe that an offence has been committed and there is evidence at the target location that forms the basis of the grounds to search.

MOTOR VEHICLES AND FIREARMS

REASONABLE SUSPICION

In R. v. Mann, 2004 SCC 52, the Supreme Court recognized that, although there is no general power of detention for investigative purposes, police officers are entitled to detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a crime and that the detention is reasonably necessary on an objective view of the circumstances. The Court said that in such instance the police are entitled to conduct a pat-down search of the individual detained, but only to ensure their safety and the safety of others. However, the Court stressed that the investigative detention and protective search power had to be distinguished from an arrest and the incidental power to search on arrest. The police had no authority to go beyond a search for weapons that might be used by the individual detained.

However, an investigative detention may lead to an officer forming reasonable and probable grounds to search. This is very common in motor vehicle stops. An officer forms grounds to detain a person and a vehicle, continues with an investigation, which could lead to the officer forming reasonable and probable grounds to search.

Every motor vehicle search case relies upon its own facts. The Courts apply established case law to determine whether a citizen has been subject to an unlawful search and seizure.

For example, in R. v. Grant and Campbell, 2015 ONSC 1646, The Court held that the detention and search in relation to firearms was lawful the application to exclude the evidence was dismissed:

[1] The two accused, Javantai Grant and Raevon Campbell, are charged with a host of offences flowing from their alleged unlawful possession of two loaded handguns in the early morning hours of July 30, 2013. They contend that the roadside police search of Mr. Campbell’s motor vehicle, in which they both were travelling, and during which the two prohibited firearms were discovered, was in violation of their right to be secure against unreasonable search and seizure, guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms. They seek the exclusion of this evidence under s. 24(2) of the Charter. The Crown argues that the firearms were lawfully seized by the police during the reasonable police search of the vehicle which was incident to the arrest of the accused. The Crown contends that, in any event, the firearms are admissible under s. 24(2) of the Charter.

[2] At the conclusion of the hearing of this pre-trial motion, I advised the parties of my ruling, that the evidence of the police discovery of the firearms in the motor vehicle was admissible. My conclusion, more particularly, is that: (1) the pat-down searches of the accused and the motor vehicle search which revealed the firearms were reasonable warrantless searches conducted incident to the lawful arrest of the accused in accordance with s. 8 of the Charter; (2) the delay in advising the accused of the reasons for their arrest, and the informational component of their rights to counsel was in violation of ss. 10(a) and 10(b) of the Charter; and (3) the evidence as to the police finding of the two firearms in the motor vehicle was admissible pursuant to s. 24(2) of the Charter.

In R. v. Thompson, 2013 ONSC 1527, The Ontario Superior Court of Justice ruled that an individual who was the target of a police detention and search as a result of a gun tip was subject to an unlawful detention and his right to be secure against unreasonable search and seizure was violated. The Court excluded the evidence of the firearms seized in the motor vehicle. This case provides an extensive review on the law of detention and search and seizure.

There was a “gun-call” to the police by a tipster:

Adrian Thompson has a prior criminal record including for firearms-related offences. He admits that he is not inexperienced with the criminal justice system. On September 10, 2011, Adrian Thompson and his young daughter went shopping for furniture. The accused’s vehicle was parked at the Brick, a retail store in Brampton.
Concealed in Mr. Thompson’s vehicle was a loaded handgun, marihuana, and cocaine.The Peel Regional Police Service (PRPS) Communications Centre, on receipt of a tip, dispatched officers to the Brick parking lot where there was an encounter with the accused leading to his detention and a warrantless search of his vehicle.

The Court held that the police unlawfully detained and searched the accused:

121 Once Sergeant Ceballo effected detention of the accused at the location of the rear of the Mazda, he was legally obliged to inform him as to the reason for his detention.

122 Only one suspect was targeted for detention. This was not a case of the police requiring a short time to sort out from among multiple persons who should be detained. Nor was the presence of Thompson’s upset child a reason to dispense with compliance with the detainee’s constitutional rights. While I accept that Mr. Thompson’s daughter was upset, the testimony of the police witnesses consciously or unconsciously, in my view, retrospectively enhanced the significance of this feature of the case in an effort to minimize their own lack of obedience to Charter obligations.

123 Further, the pat-down search of Mr. Thompson established that he was not armed. He was placed, with his child, some distance away from the location of the open driver’s door of the Mazda. Two armed police officers had control of the scene. Within a couple of minutes, two more police officers were on scene.

124 On the totality of the evidence, I am satisfied that Sergeant Ceballo had, from the outset, every intention of searching the Mazda for the presence of a firearm. As will be discussed in further depth below, unimpeded by any concern for lawful authority to search Thompson’s vehicle, he intended to work backward from the results of his search of the vehicle. If a firearm was not located, then “no harm, no foul, go on your way”. If a firearm was seized, then the sergeant would get to the detainee’s constitutional rights. This, of course, highlights the very real concern of what actually goes on in the low visibility theatre of investigative detentions.

125 Adrian Thompson had a constitutional right to be informed immediately on detention of the reason for the state’s interference with his liberty. Leaving apart his own unique history as a black citizen in Peel Region, Mr. Thompson was entitled, as a detainee in the public location in which he found himself detained, to learn, in a timely way, the jeopardy in which he had been placed. Then, and only then, could he make a fully informed decision respecting speaking to the police. Indeed, he had a right not to surrender to unlawful detention — an assessment which could only be made in the context of knowing the asserted reason of the police for his detention.

167 The Crown failed to overcome the presumption of unconstitutionality associated with a warrantless search and seizure.

168 It is common ground, and as reviewed in paras. 112-115 above, the reasonable suspicion to investigatively detain Mr. Thompson, such as it was, did not found authority on Sergeant Ceballo’s part to search the detainee’s vehicle without a warrant. Quite correctly, Crown counsel agrees with this conclusion given the state of the evidence at trial. Despite the limited information at the sergeant’s disposal from what he heard of the gun-call dispatch, at one point in his testimony he told the court that that information justified a gun-point take-down of the black male about to enter the Mazda, even though Ceballo was unaware of his identity, to be followed by a warrantless search of the vehicle.

169 The sergeant did not maintain that he searched the Mazda out of concern for police and public safety. Accordingly, while, given the state of the evidence and the Crown’s concession that the officer did not undertake a Plummer search, it is unnecessary to adjudicate the issue, I am satisfied that, in any event, grounds and circumstances did not exist justifying such a search.

WILDLIFE ACT

Provincial Wildlife acts often allow fish and wildlife officers to inspect firearms and ammunition ensure hunters comply with hunting and Criminal Code regulations. For example, the Alberta Wildlife Act reads as follows:

Inspection of weapons, ammunition and projectiles
70(1) If a weapon, ammunition or projectile or any part of it
(a) is in or on a vehicle, aircraft or boat or is being transported on an animal or by a person who is on foot, and
(b) is in plain view of a wildlife officer or wildlife guardian,
the officer or guardian may require the person who is or who appears to be in possession of that weapon or other thing to produce it for the purpose of inspection to determine whether it is there in circumstances constituting a danger to public safety or whether or not it is possessed in accordance with this Act.
(2) When an officer or guardian requires a person to produce anything for inspection under subsection (1), that person shall forthwith produce it to the officer or guardian.
RSA 2000 cW 10 s70;2002 c30 s33
Search, etc., without warrant
71(1) If distance, urgency, the imminent danger of the loss, removal, destruction or disappearance of evidence or other relevant factors do not reasonably permit the obtaining of a warrant, a wildlife officer or wildlife guardian may, without obtaining a warrant,
(a) enter into and search any premises or a place, vehicle, aircraft, boat or a building, tent or other structure,
(a.1) search any land lawfully entered on under section 66, or
(b) search any container, including a pack, or any pack animal,
if the officer or guardian believes on reasonable and probable grounds that there is in or on it any evidence of an offence against this Act.
(1.1) A wildlife officer or wildlife guardian who has reasonable and probable grounds to believe that the lawful exercise of any powers or the lawful performance of any duties or functions referred to in section 66(1) necessitates the examination or inspection of anything or any location referred to in subsection (1)(a), (a.1) or (b) or of any subject animal or other property may, without a warrant, perform that examination or inspection, as the case may be.
(2) The officer or guardian shall not enter into or search the living quarters of a private dwelling under this section unless the officer or guardian is in immediate pursuit of a person who the officer or guardian has reasonable and probable grounds to believe has committed an offence against this Act.
(3) The power to conduct a search, examination or inspection under this section must
(a) be exercised at a reasonable hour having regard to the circumstances underlying the reasonably perceived need for the search, examination or inspection, and
(b) be exercised in accordance with the prescribed restrictions.

It is clear from the legislation that firearms owners have a reduced expectation of privacy when they possess firearms and ammunition in a public place or on Crown land.

CONCLUSION

Ultimately, a police officer must have reasonable and probable grounds to lawfully search a motor vehicle without a warrant. A police officer may also seize a vehicle, then apply for a search warrant. The office may conduct a search after the warrant has been granted.

WARRANTLESS SEARCH PURSUANT TO S. 117.02 OF THE CRIMINAL CODE

Section 117.02 of the Criminal Code reads as follows:
Search and seizure without warrant where offence committed
• 117.02 (1) Where a peace officer believes on reasonable grounds
o (a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or
o (b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,
and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.
• Disposition of seized things
(2) Any thing seized pursuant to subsection (1) shall be dealt with in accordance with sections 490 and 491.
Seizure on failure to produce authorization
• 117.03 (1) Despite section 117.02, a peace officer who finds
o (a) a person in possession of a prohibited firearm, a restricted firearm or a non-restricted firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it, or
o (b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,
may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.
• Return of seized thing on production of authorization
(2) If a person from whom any thing is seized under subsection (1) claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,
o (a) a licence under which the person is lawfully entitled to possess it, and
o (b) in the case of a prohibited firearm or a restricted firearm, an authorization and registration certificate for it,
the thing shall without delay be returned to that person.
• Forfeiture of seized thing
(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as and when provided by subsection (2), a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.
Application for warrant to search and seize
• 117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
• Search and seizure without warrant
(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

This provision does not require reasonable grounds to make an arrest but merely requires a reasonable belief that an offence has been committed and that the evidence is likely to be found in the search:

R. v. T.A.V., 2001 ABCA 316 (CanLII)
R. v. Narayan 2007 BCCA 429
R. v. Cocks 2014 BCSC 60

Section 117.02(1)(b) also authorizes a peace officer, who has reasonable grounds to believe that a firearm offence is being committed or has been committed and evidence is likely to be found on a person or in a place other than a dwelling house, to search and seize it without warrant. However, the conditions for obtaining the warrant must exist and because of exigent circumstances it would not be practicable to obtain the warrant.

Therefore, if a peace officer has reasonable and probable grounds to believe that an offence has been committed but is unable to apply for a warrant to search because of emergency or exigent circumstances exist, they may conduct a warrantless search pursuant to s. 117.02 of the Criminal Code.

CONSENT TO SEARCH

A homeowner or the operator of a motor vehicle may be asked by a police officer if they consent to the search of their premises or motor vehicle. A police officer may not have reasonable and probable grounds to conduct a search but it the officer obtains the valid consent of the person subject to the search, it may then be lawfully.

A police officer will often have a form ready to be signed that allows a police officer to search with the consent of the party. Again, you should not consent to this search without speaking to legal counsel.

Therefore, the advice of the NFA is to not consent to a search of your premises or motor vehicle. If the police are going to conduct a search, you should not consent.

In R. v. Wills 1992 CarswellOnt 77 (Ont. CA), the Ontario Court of Appeal outlined a very specific set of guidelines in determining whether the consent to search is valid:

“69 In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise be an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that:
(i) there was a consent, express or implied;
(ii) the giver of the consent had the authority to give the consent in question;
(iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
(iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
(vi) the giver of the consent was aware of the potential consequences of giving the consent.
70 The awareness of the consequences requirement needs further elaboration. In Smith, supra, at pp. 726-728 [S.C.R.], pp. 322-323 [C.C.C.], pp. 136-137 [C.R.], McLachlin J. considered the meaning of the awareness of the consequences requirement in the context of an alleged waiver of an accused’s s. 10(b) rights. She held that the phrase required that the accused have a general understanding of the jeopardy in which he found himself, and an appreciation of the consequence of deciding for or against exercising his s. 10(b) rights.
71 A similar approach should be applied where s. 8 rights are at stake. The person asked for his or her consent must appreciate in a general way what his or her position is vis-a-vis the ongoing police investigation. Is that person an accused, a suspect, or a target of the investigation, or is he or she regarded merely as an “innocent bystander” whose help is requested by the police? If the person whose consent is requested is an accused, suspect or target, does that person understand in a general way the nature of the charge or potential charge which he or she may face?”

WHAT TO DO IF THE POLICE SEARCH YOUR RESIDENCE OR VEHICLE FOR FIREARMS

• If the police advise that there are going to conduct a search, advise them that you are not consenting to a search;
• If the police ask you to consent to a search of your person, vehicle or residence, or ask you to sign a consent to search, do not consent;
• Do not assist in the search or provide information to the police;
• If the police detain you, indicate that you wish to exercise your right to counsel;
• Do not make any statements whatsoever. You can simply identify yourself & provide identification. Do not explain circumstances or provide any information;
• The police or peace officers (eg. Wildlife Officers) may indicate they are conducting an inspection or search. Do not interfere with the investigation. If you do, you could be charged with obstruction of justice;
• If a police officer has determined that they have grounds to conduct a search, do not argue or discuss the circumstances or provide explanations. Do not interfere with the search.
• After the incident, make detailed notes of the events. Try to put names of the officers to their comments;
• Remember that peace officers may conduct a warrantless search of a premises, residence or vehicle in exigent circumstance pursuant to s.117.02 of the Criminal Code. It is important to exercise your right to silence, recall & record the details of the incident as soon as you can.

Norinco Type 97 & Reclassification Of Firearms Act

Briefing Paper On Reclassification of Firearms and Related Issues Prepared for The Government of Canada
by Canada’s National Firearms Association

The full paper may be downloaded by clicking here.

Executive Summary

The recent notices sent to owners of registered Norinco Type 97 rifles and High Standard Model 10B Police Shotguns, ordering them to surrender their firearm(s) and registration certificates violate assurances from former Justice Minister Stockwell Day that the Conservative Government would not prohibit any more types of firearms.  The recent decision by the RCMP to arbitrarily prohibit these firearms threatens to seriously erode confidence in the Conservative government, especially since there is no evidence that any of these firearms have been involved in a crime. Heretofore, the Conservatives have been considered to be friendly to firearms owners.  This action suggests that the RCMP considers that registering any firearm, regardless of classification allows later confiscation of firearms. If the RCMP has made a mistake and wishes to correct the matter, then it needs to admit and correct the error to prevent further financial loss by the importers and owners of these firearms, and further to compensate these people for their losses.  If the RCMP is deliberately attempting to circumvent the parliamentary process, including OIC, then the police appear to be flouting the government’s wishes and should be told they are doing so by the government. If the RCMP is acting in accordance with the wishes of the government then Canadians deserve to know that to be the case.  Thus the government needs to decide which circumstance it is, and then make its priorities clear.  The re-classification of these firearms is taking place in the context of several rounds of legislation which have been harmful to responsible firearms owners without any clear general benefit to society.

A. What is Re-classification and why is it a concern?

Re-classification occurs when a firearm’s legal status is changed, normally to put additional limits on its ownership and use and very rarely to remove limits and prohibition on a particular firearm.  There are four basic firearms statuses, which may involve additional statutory divisions.[1]

  1. Non-firearm.  This category includes working flintlock rifles, muskets, shotguns, and miniature cannon as well as antique firearms manufactured prior to 1898 for which ammunition is not commonly available. No license is required for ownership, nor for the purchase of powder to shoot muzzle-loading or in-line black powder firearms.
  2. Non-restricted firearm.This category includes most commonly available rifles and shotguns, as well as percussion muzzle-loading rifles, muskets, and shotguns.  Typical modern actions for these firearms may include bolt, lever, hinge or break action, pump, or semi-automatic.
  3. Restricted firearm.This category includes handguns which are not otherwise prohibited due to barrel length or calibre.  It also includes some rifles or shotguns which have been included in this category by legislation or order in council.  Restricted firearms may only be taken to shooting clubs, carried for protection, or otherwise transported by virtue of federally issued permits called Authorization to Transport (ATT), or Authorization to Carry (ATC).
  4. Prohibited firearm.The prohibited class includes a wide range of firearms prescribed by order in council to be prohibited.  Some firearms have been prohibited and required to be surrendered and others prohibited with grandfathering which allows current owners to keep them.  Grandfathered firearms have included full and converted automatic firearms; some firearms with military history or appearance, regardless of calibre or action type (even some bolt action rifles are listed); some firearms of large calibre, short-barrelled handguns, and handguns of either .25 or .32 calibre.  The handgun categories include approximately half of the revolvers and pistols owned in Canada.  There are specific provisions listed in section 12 of the firearms act that limit the circumstances of who may possess specific classes of prohibited firearms.  Only prohibited handguns may be taken to the range, whereas formerly all firearms could be taken to shooting clubs for demonstration and practice.  In recent years increased restrictions have meant that most of these firearms are not able to be used legally at the range and must stay at home locked up.

In effect, the prohibited class takes away the ability of the owner to use the firearm, sell it, or otherwise legally transfer their property to anyone but someone in that class, which is a decreasing number of people.  No new people are entitled to join the prohibited class except for those under Firearms Act section 12(7) which applies only to the next-of-kin of persons who owned one or more handguns manufactured prior to 1946. Transfer and ownership of some classes, such as section 12(6) handguns has proven problematic, and many owners have had these firearm confiscated due to legislative loopholes or improper paperwork. The obvious intent of the prohibited category is to eliminate lawful ownership of these firearms.

When the government changes the classification of a firearm from a less-regulated status to a more regulated status, it causes difficulties for the owner.  First, the value of the firearm decreases as it cannot be sold to anyone but those in the grandfathering category or a museum.  Second, their ability to enjoy their property is severely curtailed as the firearm may no longer be taken to the range to be fired, used for hunting, self-defence, or other perfectly lawful, fair and reasonable purposes, depending on whether it is a handgun or some other type. Third, it causes concern with the firearm owner that their other firearms may be subject to similar increased controls and thus such action builds resentment both for the law generally and for the political party in power which took such action.

B. Why converting firearms to full automatic is a misleading test to prohibit a firearm.

Often police or other groups who favour increased controls upon firearms will argue that a factor to consider is whether or not a particular firearm is “easily converted” to “full-auto,” a capability which means that cartridges or shot shells may be fired continuously with a constant pressure of the trigger.  This is a misleading test for at least three reasons.  First, almost all firearms capable of holding more than one round of ammunition could be converted to this status by someone with adequate training, knowledge and tools, or simply an inventive mind. Examples of this fact include the Lee Enfield bolt action rifles converted to fully automatic in late World War I (Howell Automatic Rifle), and those made in World War II to address a shortage of Bren guns (Charlton Automatic Rifle).[2] Another well-known example is John Moses Browning’s afternoon conversion of an 1873 lever action rifle into full auto; in addition Remington Arms converted a model 1100 shotgun to full automatic.[3] If “easily converted to full auto” is somehow a significant test, then an argument could be made that most firearms in Canada are in that circumstance – does the government really want to ban firearms because of what they could be?  Second, if a full-auto capability is a legal concern, then the status of a firearm as it is should be the issue, not what it may be if tampered with.  The act of tampering should thus be the issue, not the potential for tampering. In comparison, one does not receive a speeding ticket for owning a vehicle capable of exceeding the speed limit, but merely for operating that vehicle in excess of posted speeds – an activity which is statistically far more dangerous than any activity involving firearms.  Third, using fully automatic firearms correctly and accurately requires training and practice.  It is a skill not likely to be indulged in by criminal elements which may choose to use firearms of whatever type for acts of violence.  Notwithstanding these points, there is no evidence that widespread conversion of firearms to full-automatic is a problem in Canada.

C. How are the Type 97 and High Standard Model 10B Police Shotguns Affected?

The concern about classification of these firearms is directly related to the resulting change in status as discussed above.  These are registered firearms whose transfer was approved by RCMP/Firearms Center to licensed individuals. Type 97A Carbines were approved for import into Canada by Lever Arms and assigned a Firearms Registration Table (FRT) number by RCMP/Firearms Center.  The first shipment was classified as “restricted” due to barrel length. Examples were transferred to restricted firearms license holders.  A second shipment of non- restricted examples (18 1/2″ Bbl) was arranged and RCMP/Firearms Center issued a FRT number for those firearms.

A subsequent shipment for Lever Arms of Vancouver, and another importer, was seized by CBSA who asked RCMP to inspect it.  Examples were removed from the shipment and sent to RCMP firearms forensics for testing. RCMP claims that they were able to modify the Type 97A Carbines to fire full auto. The FRT was amended shortly after this showing all Type 97A variants as “prohibited”.  The RCMP now asserts that the Type 97A firearms are “easy to convert to full auto”. RCMP has refused to demonstrate how, and access to information requests have been censored to remove the methods used. RCMP has informed Lever Arms that if a firearms “expert” is provided by the company, RCMP will instruct that person on how this conversion was achieved, but he will not be allowed to share that information with Lever Arms.

RCMP/CFC have advised licensed owners of registered Type 97A carbines that their registrations will be revoked, and that they should either surrender their property to police or transfer them back to Lever Arms/Vancouver and ask for compensation from the store owner.  Canada’s National Firearms Association is advising owners of Type 97A carbines to start reference hearings in their provincial courts to have a judge to rule on the legality of the RCMP/CFC demand.

This is a private property issue, not only for those licensed individuals who hold registrations for these firearms, but also for the importers who had shipments approved and cleared for importation into Canada, and then had those shipments arbitrarily seized for political reasons. The potential financial loss incurred by both individuals and businesses cannot go unchallenged. The Type 97A debacle proves that licensing and registration equal confiscation.  Each individual “restricted” Type 97 Carbine retailed for $1400.00 Canadian. Each of the seized shipments is worth in excess of a couple hundred thousand dollars.  The businesses involved and firearms owners affected are looking to the Conservative government for redress of this significant grievance.

The High Standard Model 10B Police shotgun has been around for over thirty years and the reasons for its re-classification while just as obscure are no less significant.  In keeping with the publication of firearms prohibited by order in council, with its images taken from a contemporary Guns and Ammo Firearms Annual from the 1990s, the reason for choosing these firearms for prohibition status is unclear.  The main consideration is that the RCMP does not appear to have followed the rules:  there has been neither Order-in Council nor parliamentary vote on prohibiting these firearms.

Re-classification of these firearms is a grievance which has implications far beyond the small numbers of people directly affected, as many others in the firearms community see the re-classification of these firearms by the bureaucracy as something that could easily affect any firearm or firearm owner. It is another addition to the many problems with the Firearms Act.

D. Why Re-classification is a Problem for the Conservative Government

The Canadian firearms owning public would like to count the Conservative Party as a political ally in supporting property rights and the ability to enjoy their firearms in a fair, equitable, and reasonable fashion in accordance with the principles of natural justice. Successive Conservative and Liberal governments have enacted legislation such as the Mulroney-Campbell Bill C-17 and the Chretien-Rock Bill C-68.  These bills have brought much distress to firearm owners by removing the ability of citizens to use their property in a safe and responsible manner.  In many cases firearms were confiscated from people, not due to any offence, but merely because the government changed its mind that a particular firearm was no longer deemed suitable for ownership by Canadians.  There is no evidence that these firearms are any more or less likely to be used by criminals than any other type of firearm.[4]Canada’s NFA is concerned that the RCMP and the CFOs are exceeding the boundaries of administrative control, by arbitrarily expanding the scope of their powers.  Re-classification is an extension of other administrative abuse that concern responsible firearms owners.  Some problems that stand as examples of the growth of the problem include:

  1. Ownership and possession of standard capacity ammunition magazines holding in excess of five cartridges for semi-automatic centre-fire long arms or ten cartridges for semi-automatic pistols has become an offence equivalent to owning an unregistered machine gun.
  1. Persons owning prohibited long arms of whatever status are unable to enjoy them in practice or competition at the range with the removal of the Special Authority to Possess (SATP) license.
  1. Some government officials argue that, in order to honour international agreements, that all imported firearms require additional and technically difficult markings.Some even want these markings on firearms already in this country.  Carrying out these tasks would create an expensive and unnecessary logistical burden for firearms businesses and individual owners.
  1. Chief Firearms Officers are arbitrarily requiring potential restricted firearms purchasers have both a restricted firearms license for purchase of the registered restricted firearm, and a valid long term authorization on file with that CFO before the restricted transfer will be approved. In addition, a valid gun club membership must be provided before the ATT will be processed. This is disturbing in that the CFOs appear to be arbitrarily inventing additional policy. These additional requirements are not specified in law and merely complicate the bureaucratic process involved in responsible firearms ownership. Not only does this burden law abiding Canadian citizens, but it arbitrarily increases the costs to taxpayers, for no obvious benefit to public safety.Neither a membership nor an ATT are required in the Firearms Act for purchase of restricted firearms; the only legal requirement is a restricted Possession and Acquisition Licence (PAL).
  1. Firearms owners have reported that CFOs are demanding that expiring restricted PAL license holders also apply for the long term ATT, or else CFO will refuse to renew the firearms license and will confiscate the owners’ firearms. A long term ATT is not required either for ownership or possession of a restricted firearm in the Firearms Act.The law requires only the restricted firearms license and a valid registration for the firearm.
  1. Canadian Firearms Center is currently refusing to re-register short barrelled and .25/32 cal 12(6) handguns that have been re-barrelled and re-calibered to fit the restricted category. Owners of prohibited handguns, understandably, would prefer that their guns were “restricted” so that they could be more widely transferred and used. For example, a .32 calibre handgun with a 4″ barrel can be re-barrelled with a 4 1/4″ barrel in .380 calibre, taking it from prohibited to restricted.   It appears that the bureaucracy of the RCMP and the Canadian Firearms Centre want these guns locked into the prohibited category so that they can be more easily targeted and confiscated.

These are a few of the firearms issue problems that are occurring on the watch of the Conservative government, matters which we believe may be dealt with without a parliamentary vote.  The Minister need only give instructions.

The present conservative minority government may be better than the previous Liberal government, but it has so far done little in terms of supporting firearm owners.  It has demonstrated a reluctance to make things worse rather than to right previous wrongs.  The bill C-301 by MP Garry Breitkreuz would have begun to fix some of the problems; however, this bill was withdrawn and MP Candice Hoeppner’s private member’s bill C-391 to simply end the registration of non-restricted firearms has been the replacement.  It must be emphasized that ending registration of non-restricted firearms does not resolve the litany of problems with the firearms act that have been identified in this short paper.

The Conservative Party should be a natural fit for most responsible firearms owning Canadians.  Issues of smaller government, fewer taxes, enforcement of law rather than increasing laws, enhanced freedom and individual responsibility tend to resonate well with the firearm owning demographic which tends to have higher than average incomes, high levels of education, a strong sense of patriotism, and strong respect for law and order.[5] Despite the efforts of firearms organizations to encourage their members to vote for Conservative Party candidates, we have received many complaints from members that the minority government has not been effective in supporting firearms owners. The Re-classification issue is clearly one in which this government has the power to either support firearms owners, or to support a regime of additional control.  The NFA has been proud to support the Conservative Party in the past because of our shared commitment to smaller government, lower taxes, enforcement of existing laws, enhanced freedom and individual responsibility. We see this current situation a natural opportunity for the Minister to act in a manner consistent with this tradition. We are confident that the Minister will rescind the arbitrary actions of the RCMP.

 


 

Canada’s National Firearms Association.

Contact Us

Address:            P.O. Box 52183, Edmonton, Alberta T6G 2T5

Telephone:            780-439-1394 Fax:            780-439-4091

Information: You may direct membership inquiries to Contact Us and use Contact Us for legal issues.

 


 

[1] See the Criminal Code of Canada, Firearms Act, Sections 12 (1) – 12(8) inclusive.

[2] See Ian D. Skennerton, The British Service Lee, (London: Arms and Armour Press, 1982).

[3] The Remington model 1100 shotgun was converted to the full-auto Model 7188 for the US Department of Defense by Remington.  See Thomas F. Swearengen, The World’s Fighting Shotguns, (Alexandria, VA: TBN Enterprises, 1978), 329- 336.  John M. Browning’s first fully automatic design was a Winchester model 1873 lever action that used muzzle gases to cock the action by installing a flapper on the muzzle and running a wire from that flapper to the lever.

[4] The Calico Carbine and the Franchi SPAS shotgun are examples of firearms confiscated from owners.

[5] See Philip C. Stenning and Sharon Moyer, Firearms Ownership and Use in Canada; A Report of Survey Findings, 1976, (Toronto: Centre of Criminology, University of Toronto Press, 1981).  As well, see the extensive work of Gary Mauser on these issues with several of his papers provided at Gary Mauser.

NFA Privacy Policy

Introduction
Canada’s National Firearms Association (the Association) is committed to protecting the privacy of members whose personal information is held by the Association through responsible information management practices.  Any personal information provided to Canada’s National Firearms Association is collected, used and disclosed in accordance with the Federal Personal Information Protection and Electronic Documents Act (PIPEDA) and the Freedom of Information and Protection of Privacy Act (BC Personal Information and Privacy Act -PIPA).

Definitions
Personal Information-means information about an identifiable individual. Examples include name, home address and phone number, social insurance number, financial and medical information.
Privacy Officer-means the individual designated responsibility for ensuring that the Association complies with this policy and PIPA.

1. Accountability
Canada’s National Firearms Association will appoint a Privacy Officer annually to oversee the security of personal information.  The name and contact information for the Privacy Officer will be published in the Association magazine and on our website.  The Privacy Officer will be responsible for ensuring that the Association is in compliance with the PIPEDA.  The Privacy Officer will ensure that any personal information transferred to a third party (such as mailing lists for processing of newsletters, etc.) is properly protected.

2. Purpose for Collecting Information
Canada’s National Firearms Association collects personal information in order to properly serve its individual and club members.  Information collected includes:

a) Name
b) Address
c) Telephone and Fax number(s)
d) Electronic mail address(es)
e) Availability for volunteering for Association activities
f) Correspondence with the Association, including statements, court decisions and related documents
g) Interests regarding firearm activities and supporting documents

Use of Personal Information
The information collected is used to fulfill our obligations to you as set out in Canada’s National Firearms Association constitution and by-laws, to provide specific services as required. Our uses of your personal information include:

  • Collecting and maintaining a list of members;
  • Identifying and contacting members both by our office and also by local and regional representatives;
  • Assigning a membership number;
  • Providing mail-outs, the Canadian Firearms Journal and other information to members;
  • Processing club membership dues, donations and insurance;
  • Conducting research and fundraising;
  • Organizing gun shows, shooting matches, competitions, rendezvous’ and other Association related events

3.  Obtaining Consent
From time to time Canada’s National Firearms Association may collect additional information in order to fulfill our obligations to you or to provide specific services. This information will only be collected as required and with your express consent.   When this occurs you will be fully informed of the reasons for collection of that information and how the information will be used.  Should you wish to withdraw your consent for the Association to collect personal information, you should be aware that it may affect our ability to provide you with membership services.

4.  Limiting Collection
When you join Canada’s National Firearms Association, you provide the Association with basic personal information.  The Association will only collect information as needed to fulfill its responsibilities to you as a member. Canada’s National Firearms Association assures you that your information will only be used for the purposes stated.

5.  Limiting Use, Disclosure and Retention
The Association will only keep your information as long as it is necessary to fulfill the purposes for which it was collected.  Personal information used to make decisions about an individual will be kept for at least one year so as to provide the individual with reasonable access to it.  Personal information will be destroyed as soon it is no longer needed.

6.  Being Accurate
Canada’s National Firearms Association is committed to ensuring the accuracy of all personal information collected, stored and shared in the course of its activities.

7.  Using Appropriate Safeguards
Protection of Personal and Private Information
Canada’s National Firearms Association is committed to protecting your personal information from unauthorized use or disclosure. Our commitment means that:

  • We will use your personal information only for the purposes we have identified;
  • We will not disclose your personal information without your permission unless required by law, in which case we will provide you with notification of the disclosure within 90 days of the disclosure;
  • We do not sell, rent or trade our mailing list. Personal information is only disclosed to third parties (such as name and address information to our mailing agency for magazine distribution) who have signed an agreement binding them to the Association’s privacy policies.
  • We will employ appropriate security measures to ensure only authorized individuals have access to your personal information.  Security measures will include “need to know access”, locking filing cabinets, and technical protection such as electronic passwords, firewalls and encryption as appropriate;
  • We will keep your personal information only as long as required;
  • When your personal information is no longer required we will destroy it in a confidential, secure method.

8. Being Open
Canada’s National Firearms Association will provide you with information about our personal information policy upon request.  The name and contact information of the National Privacy Officer will be published in the Association magazine.

9.  Giving Individuals Access
Your Rights:

As prescribed by the Federal Personal Information Protection and Electronic Documents Act (PIPEDA) and the BC Personal Information and Privacy Act (PIPA), you have certain rights of access and correction in regard to your personal information.
Requests for access to your personal information, or corrections and any complaints, concerns, or questions must be made in writing, including proof of identity, and directed to:
Privacy Officer (privacy@nfa.ca)
Canada’s National Firearms Association

Search Warrants. The Police are at your door, what do YOU do?

The National Firearms Association has just released an updated version of A Primer on Search Warrants.

A PDF version of this text in a trifold pamphlet format, suitable for commercial printing may be downloaded by clicking here

A PDF version of this text, reformatted to fit on regular NFA letterhead, suitable for single sided printing may be downloaded by clicking here



This “Primer” will give you the basics.  PRINT it, discuss it with your family, and post it inside a cupboard or some place your family knows about.
  Add your own important phone numbers.

Only by knowing and understanding the law can you protect your rights.

 

Frequently asked questions about search warrants

 

1.  Can the police just kick down my door to get in to my house?

The general rule is that police are required to announce their presence, announce that they have a search warrant and request permission to enter. If permission is denied then they are entitled to use reasonable force to conduct the search. If you are not at home at the time of the search, the police are entitled to use reasonable force to enter your residence and conduct the search. The police may dispense with the proper announcement when executing a search warrant of a home where the circumstances of the case show a real threat of violent behaviour to the police or to third parties (R. v. Genest, [1989] 1 S.C.R. 59).

2. Do the police have to show you the search warrant?

The police have to tell you that they have a search warrant and are at your house to conduct a search. However, they only have to show you the actual warrant if you ask to see it. You should ask to see the search warrant.

3. When the police give you the warrant that you have asked to look at, what things should you be looking for?

You should carefully review the warrant to determine:

(a) the premises covered;
(b) the date and time which the warrant permits the police to be present on your property to conduct a search;
(c) the specific documents or objects that are being searched for;
(d) the alleged offence(s) to which the items to be searched for relate.

If the deadline for the police to enter your property in the search warrant has expired then you can legally refuse the police entry onto your property.

Search warrants generally cannot be carried out at night unless a judge concludes that there are reasonable grounds for the search warrant to be carried out at night (s. 488 of the Criminal Code).

Do not agree to let the police expand their search beyond the specific documents or objects that are listed in the search warrant, or the premises which are specified in the warrant.

4. Can the police search people who are in the house at the time a search warrant is executed?

A search warrant does not give the police the authority to search a person who is in the residence at the time the warrant is executed. There are only three circumstances in which the police can search someone while conducting a search warrant.

Firstly, the police can search you if they arrest you. Once you are under arrest, the police can search you for any object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused (Cloutier v. Langlois (1990), 53 C.C.C. (3d) 257 (S.C.C.).

Secondly, the police can search you if they have reasonable grounds to believe that you are in possession of evidence related to the warrant (R. v. Le, 2001 BCCA 658).

Thirdly, the police can search you for officer safety when such a search is reasonably necessary  (R. v. MacIsaac, [2001] O.J. No. 2966 (Sup. Ct.)) 2.15 Mb.  The police search for officer safety can be a pat down or frisk search to check you for weapons.  This means that the police cannot empty out your personal belongs from your pockets or bag.  They can merely take the necessary steps to identify and confiscate any weapons that you may have on you.

5. If the police arrest you, what rights do you have?

The police have to tell you immediately that you are under arrest and why.  They have to immediately inform you of your right to call a lawyer.  The police have to promptly let you call a lawyer once they have you under arrest and have the situation under control (R. v. Strachan, [1988] 2 S.C.R. 980).  This means that the police are entitled to establish control of the premises and all the people in the premise before they provide any arrested person with their right to contact counsel.  You have the right to make the call on your house or cell phone.

The only information that you have to provide the police is the information that is listed on your driver’s license:  your name, date of birth and address.  It is a criminal offence to provide the police with incorrect identification information.

Do not answer any other questions that the police may have for you. Prisons are full of people who are there because they answered the police’s questions. Exercise your right to silence.

6.  If the police do not arrest you, what are your rights?

Generally, police officers have no special authority over persons found in premises being searched pursuant to a search warrant. You should be allowed to leave the property being searched (Hutchison and Morton, Search and Seizure Law in Canada (1991) at pp. 17-9.) 236.93 Kb The only exception to this rule is that occupants may be restrained so far as is necessary to accomplish the search contemplated by the search warrant.

Section 8 of the Canadian Charter of Rights and Freedoms provides that ‘[e]veryone has the right to be secure against unreasonable search or seizure” which has been interpreted to mean that any police search must be carried out in a reasonable manner. The police do not have a free hand to do whatever they want while searching a residence.

You should ask the police whether you can leave. If they refuse to let you leave then you should ask whether you are under arrest. If you are not under arrest, then ask why you cannot leave the residence. This will be good evidence for later challenging the reasonableness of the police search.

Despite the above, the reality is that frequently the police handcuff everyone in the residence while they conduct the search, or require them to stay in a room that is not being searched and does not interfere with the search. If this happens, you are detained and you have a right to counsel and you should request it. Make a note if the police refuse this request. Also make a note if the police deny you your basic dignity, such as access to the bathroom or food and water or cause unreasonable damage to your property. A court may later find that such police actions made the search unreasonable and the evidence obtained from the warrant might be excluded.

7. What if the police threaten to trash your place if you do not cooperate?

The police cannot make such a threat but they often do.  Any police search has to be conducted reasonably in order to be constitutional.  As you have the right to silence, you are under no obligation to tell the police where the items that they are searching for are located.  Such an admission from you will be used against you at a later date.  The police are allowed to move furniture, tip out the contents of drawers, etcetera while conducting a search.  They do not have to replace everything before they leave.

8. What other steps should you take?

If you have a video camera, cell phone camera or camera, take pictures and video of the police during the search.

Even if you are not arrested or detained you should call a lawyer to get legal advice. You have a right to confidential conversations with a lawyer, so make the call from a place where the police cannot hear you talking.

After the search is completed, you should take photographs of any damage done to your property by the police officers during the search. You should also write down your detailed recollections of the search (what the police said to you, what they did, and what happened to you).

You can also go to the Clerk of the Provincial Court and get a copy of the Warrant, the sworn Information used to obtain the warrant and the Return, showing what was seized.

9. Are you entitled to use force if the police are acting illegally?

The short answer to this is yes, but only reasonable force.  However, you should not do this because you will probably be beaten up or worse and you can be confident that the police version of what happened will be dramatically different from yours and they will charge you for assaulting a police officer and obstruction of justice.

So, do not attempt to stop the police if you think that they are going too far.  Rather, take good notes and document their actions and make an appointment to see a lawyer.

 

 

Dealing with the Firearms Control Bureaucracy

If you have ever needed to make contact with a firearms control bureaucrat, you have probably found it quite difficult. Here are the addresses and phone numbers that you need. Keep them for future reference! If you have not needed them yet, you probably will before too long…

 

Tip 1: Never make whatever the problem is your problem. Make it their problem… “Dear Sir, I applied to register my six firearms in December, 2002. You are required, by law, to send me either a registration certificate for each firearm or a refusal to register one or more of those firearms. You have done neither, and that is a violation of Criminal Code section 126. If found guilty of that offence, you can be imprisoned for up to two years, so please send me either the registration certificates you owe me or refusals to register. Be advised that if you send me notices of refusal, I intend to take this matter before a provincial court judge as I am allowed to do by Firearms Ac sections 69, 72, 74 and 75.”

Tip 2: Letters to firearms control bureaucrats are more effective if this is added to the letter:

Cc: Stockwell Day, Minister of Public Safety
Stephen Harper, Prime Minister
Robert Nicholson, Minister of Justice
Garry Breitkreuz, M. P.
National Firearms Association
Bureaucrats do not like having bosses and gadflies looking over their shoulder while they work on their own screwups.

Canadian Firearms Centre
PO Box CP 9815
OTTAWA ON
K1G 6P9
Tel: (800) 731-4000
Fax:(613) 941-1661
Email: canadian.firearms@justice.gc.ca and CFC-CAFC@CFC-CFAC.gc.ca
Website: http://www.cfc-cafc.gc.ca

Mr. Ken McCarthy, Registrar
Licencing and Registration
248 Wellington St
OTTAWA ON, K1A OH8
Central Processing Site
Box 1200
MIRAMICHI ON
E1N 5Z3

 

List of Provincial Chief Firearms Officers

Chief Firearms Officer – Alberta
10909 Jasper Avenue, Suite 720
Edmonton, Alberta
T5J 3L9
Tel: (780) 495-7799

Chief Firearms Officer – British Columbia
Security Programs Division
P.O. Box 9217, Station Provincial Government
Victoria, British Columbia
V8W 9J1

Chief Firearms Officer – Manitoba
1680 Ellice Avenue
Winnipeg, Manitoba
R3H 0Z2
Tel: (204) 984-0715

Chief Firearms Officer – New Brunswick
Ministry of the Solicitor General
P.O. Box 6000
Fredericton, New Brunswick
E3B 5H1
Tel: (506) 457-7387

Chief Firearms Officer – Newfoundland and Labrador
Department of Justice Canada
120 Tobray Road, suite E100, Prince Charles Bldg.
St. John’s, Newfoundland and Labrador
A1A 2G8
Tel: (709) 772-2876

Chief Firearms Officer – Northwest Territories
P.O. Box 1859
Yellowknife, Northwest Territories
X1A 2P4
Tel: (867) 920-8395

Chief Firearms Officer – Nova Scotia
P.O. Box 7
Halifax, Nova Scotia
B3J 2L6
Tel: (902) 424-6689

Chief Firearms Officer – Nunavut
10909 Jasper Avenue, Suite 720
Edmonton, Alberta
T5J 3L9
Tel: (780) 495-7789

Chief Firearms Officer – Ontario
Min. of Solicitor General & Correctional Services
777 Memorial Avenue
Orillia, Ontario
L3V 7V3
Tel: (705) 329-5522

Chief Firearms Officer – Prince Edward Island
Dept. of Community Services & Attorney General
P.O. Box 2000
Charlottetown, Prince Edward Island
C1A 7N8
Tel: (902) 368-5536
Fax:(902) 368-5198
Email: ewgoodwin@gov.pe.ca

Chief Firearms Officer – Quebec
Sûreté du Québec
Direction des permis
1681, rue Pathenais
Montréal, Quebec
H2K 4S8
Tel: (514) 598-4584

Chief Firearms Officer – Saskatchewan
1405 Albert Street
Regina, Saskatchewan
S4R 2R8
Tel: (306) 780-5912

BC/Yukon Chief Firearms Office
118, 5477 152nd Street
Surrey, B.C.
V3S 5A6
1-800-731-4000
Ext: 9530

Canadian Firearms Centre
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Tel: (800) 731-4000
Fax:(613) 941-1661
Email: canadian.firearms@justice.gc.ca

Protecting Human Life From Criminal Violence

NFA Briefing Document 9, Version 5

Parliament established an administrative structure and a set of administrative procedures enacted to control and deal with the problems that arise from the use of force to protect human life from criminal violence.  People–including police officers–are often confused by the scattering of the various relevant provisions. They exist, but they are not placed together in the Criminal Code.

It is necessary to examine certain sections of the Criminal Code to determine when a person may legally use force–including firearms–to protect human life from criminal violence.  The relevant provisions are:
Criminal Code section [CC s.] 494 (emphasis added), which says, in part:

494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

494. (2) Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or a person in lawful possession of property may arrest without warrant a person whom he finds committing a[ny] criminal offence on or in relation to that property.

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

Those are the ways in which any individual is authorized to arrest another individual.  If one is faced with a situation where one may have to use force in order to protect human life from criminal violence, it is very important to try and prevent violence before using it.  One can do that by attempting to arrest the person, if a crime is being committed.

Assault is defined [CC s. 265 (emphasis added)] as:

265. (1)  A person commits an “assault” when

(a) without the consent of another person, he applies force intentionallyto that other person, directly or indirectly;

(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

[Notice that; he commits an assault if he only threatens to apply force to another person.]

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

265. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

266. Every one who commits an assault is guilty of

(a) an indictable offence…

Therefore, as soon as the thought comes, “My God!  I am, or someone under my protection is being, assaulted!” one should always shout, “You are under arrest!”

Shouting that out transforms the situation.  It is no longer one of self-protection (which is allowed by the Criminal Code, but only by way of the weak protections offered to the victim by CC s. 27, 34 and 35).  Shouting “You are under arrest!” transforms the situation into one in which the arresting person is protected by the stronger protections of CC s. 25. Unless the criminal then submits peacefully to arrest, the criminal will probably be guilty of resisting arrest, violating CC s. 270(1)(b) (emphasis added):

270. (1) Every one commits an offence who…

(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person

What protections apply to a person who is arresting someone under CC s. 494?

CC s. 25 (emphasis added) says, in part:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person…is, if he acts on reasonable grounds, justified  indoing what he is required to do and in using as much force as is necessary for that purpose

25. (3) …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 and probable grounds that it is necessary for the purpose of protecting himself or any one under his protection from death or grievous bodily harm.

Study that sequence carefully.  CC s. 494 authorizes one to arrest anyone found committing an indictable offence, anywhere, or any criminal offence on, or in relation to, one’s property. It also provides the same protections to the arresting individual that it provides to a police officer.

CC s. 265 defines “assault”–the most likely reason for making an arrest–broadly, and brings a criminal guilty of assault (by the actual or threatened use of force) into the CC s. 494(1)(a) “indictable offence” zone, allowing arrest wherever the offence is taking place.

Where one is trying to arrest someone for a property offence (attempted theft, vandalism, etc.), CC s. 270(1)(b) upgrades that offence into the CC s. 494(1) “indictable offence” zone if the criminal resists arrest by threatening or using force against the arresting person.

Then CC s. 25(1) justifies one who does, or tries to, make an arrest through or partly through the lawful real or threatened use of force.  It authorizes the use of force in “doing what he is required to do (arresting the criminal) and in using as much force as is necessary for that purpose (arresting the criminal).”  Therefore, CC s.25 apparently authorizes the use of whatever force is necessary to complete the arrest.

Then CC s. 25(3) says one cannot use force of a kind likely to cause death or grievous bodily harm unless­ it is necessary to protect either one’s self or a person under one’s protection from “death or grievous bodily harm.”  One cannot shoot someone who is stealing hubcaps, but one can arrest him.  If he resists arrest violently enough to cause reasonable fear of death or grievous bodily harm, the use of deadly force may be justified.

Those protections apply to a person who is trying to make an arrest.  The provisions that protect one who is simply acting in self-defence are weaker:

CC s. 27 (emphasis added) says, in part:

27. (1) Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and seriousinjury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

CC s. 34 (emphasis added) says, in part:

34. (1)  Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to defend himself.

34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

From the above, it seems that Parliament intended to recognize the right to the use of force to protect human life from criminal violence in cases where the assistance of a peace officer was not immediately available to the victim. Parliament also intended to provide protection for those attempting to arrest wrongdoers.

The use of a firearm or other weapon by the victim or protector to protect human life from criminal violence is not excluded by the relevant legislation.

The protections granted by CC s. 27 and 34 are weaker than the protections granted by CC s. 25, and it is much more difficult to prove that they are applicable to the event.  Situations in which self-protection becomes necessary are often messy and confused.

A police officer carries a loaded firearm for the primary purpose of protecting human life from criminal violence–his own, or lives of those under his protection.  An officer is not authorized to use that firearm to protect property, or to threaten an individual who is no threat to the officer or anyone else, or to shoot a criminal who is fleeing the scene of a crime.  He may not use it unless he is acting to protect human life from criminal violence.

By the very nature of police work, there is a small possibility that the police officer will, some day, need that loaded firearm for that purpose.  It is the act of a reasonable person for him to carry that loaded firearm into all situations where he may need it.

It is often the fact that the police officer has the power to arrest a criminal that prompts the criminal to resist arrest with deadly force.  That can easily escalate a property crime into the realm of a deadly force confrontation and trigger the police officer’s right to use his firearm for “protection of human life from criminal violence.”

Where an individual is faced with a situation where he may be forced to protect human life from criminal violence, he is abruptly in the same situation that a police officer is in during his activities.  For example, a farmer may investigate an unknown vehicle in his pasture.  Such a situation may be an attempt to steal cattle or horses, and may bring into play the farmer’s CC s. 494(2) power to arrest a criminal who is stealing property.

It is the act of a reasonable person for the police officer to have a loaded firearm with him when he may require it to protect human life from criminal violence.  Similarly, it is the act of a reasonable person who is investigating possibly criminal activity to take with him a loaded firearm if he is competent to handle and/or use it safely in such circumstances. He should know how to handle and use the firearm safely, and know the relevant laws.

The escalation from simple theft to resisting arrest by criminal assault, with or without a weapon, is a distinct possibility, and a reasonable man would prepare to deal with that.  He may reasonably do that before he is even certain that a crime is in progress, or that arrest is an avenue open to him in dealing with the situation.

However, any person dealing with such a situation should be aware of CC s. 87.1(1) (emphasis added):

87.1  (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded [emphasis added].

The penalty is up to five years in prison.  Therefore, one should never point a firearm at another unless it is clearly necessary, and the only allowable purpose is to protect human life from criminal violence in a situation where there is a real threat of death or grievous bodily harm.  If only a property offence is involved, that is insufficient; the individual must be in a state of reasonable fear of death or serious bodily injury.

In the material above, a farmer is used as the illustration in the situation because rural crime is usually committed at a long distance from possible peace officer assistance.  If the crime in progress is taking place in an urban setting, the above rules are correct–but the likelihood of the person who is protecting human life from criminal violence being arrested and charged are considerably higher.

CAUTION:

In any situation where an individual who is not a peace officer acts to arrest a criminal, or acts to protect human life from criminal violence, it is probable that charges will be laid against that individual.  Many police officers do not like a “civilian” doing work that “belongs” to a police officer, and many Crown prosecutors believe that such behavior should be discouraged.

Therefore, charges are often laid against those who are innocent of all wrongdoing.  The cost of defending the accused is very high, and often, such cases are lost in the courts.

Protection of human life from criminal violence and arresting the criminal should therefore be used only if the need is great and the circumstances are clear.

If an individual believes that it may someday be necessary to exercise those protected powers, he or she should adopt this concept now, not when the need arises:

At the moment that I realize that I am going to have to protect human life from criminal violence, I will shout, “You are under arrest!” before I do anything else.

If that is strongly built into one’s brain, it is the realization that will trigger the shout.

It is far, far better to be in court dealing with an attempted arrest than it is to be in court dealing with a fight that you claim was self-defence.  Self-defence is just too hard to prove, and the Criminal Code provisions about it are too weak.

CAUTION
:

If the person submits to arrest, and the arresting person takes custody of him, the arresting person should immediately:

(a)   
tell the arrested person who the arresting person is; for example, “I am the owner of this store/property/thing,”

(b)   
tell the arrested person again that he is under arrest, tell the arrested person exactly why he is under arrest and what law he has broken, (assault, theft, vandalism, et cetera; Criminal Code section number not required), and

(c)    
tell the arrested person that you are now going to deliver him to a police officer, so his Charter rights can be dealt with by the police.

If you do not do those things, you have not done anything wrong. A recent Court of Appeal decision ruled that a private citizen does not have to do those things when arresting someone, but a police officer does.

Document Refusal and Revocation

NFA BRIEFING DOCUMENT 16, VERSION 4 

It is possible that, some day, you will be refused a licence or authorization to transport by the Chief Firearms Officer or one of his staff.  It is possible that you may be refused a registration certificate, authorization to export or authorization to import by the Registrar or one of his staff.

It is also possible that the licence or authorization to transport that you already have will be revoked by the Chief Firearms Officer or one of his staff, or that your registration certificate, authorization to export or authorization to import will be revoked by the Registrar or one of his staff.

It is possible that you may be subjected to a court process in which the Crown prosecutor is trying to persuade the judge to issue a court order revoking your licence and registration certificates.  If this is the type of case you are fighting, ignore references to a “reference hearing” in this paper.  However, the arguments are valid for that type of case also.

Refusal to issue or revocation of any or all of the following licencing documents — a licence, authorization to transport, registration certificate, authorization to export, authorization to import, or approval of a shooting club or shooting range — may be referred to a provincial court judge.  That is the equivalent of appealing the decision of the person who refused or revoked the licencing document.

The grounds for refusing to issue or revoking a licencing document are:

It is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition [FA s. 5(1)].

The legitimate reasons for coming to that conclusion include conviction or discharge under CC s. 736, within the previous five years, of any offence:

1.  in the commission of which violence against another person was used, threatened or attempted [FA s. 5(2)(a)(i)];

2.  under the Firearms Act or Part III of the Criminal Code (“Firearms and Other Offensive Weapons”) [FA s. 5(2)(a)(ii)];

3.  an offence under CC s. 264 (criminal harassment) [FA s. 5(2)(a)(iii); or

4.  any drug offence that includes “trafficking” as part of the charge, but not a drug offence that is merely one of “possession”; that is, “possession for the purpose of trafficking” is a reason to refuse or revoke, but simple “possession” is not.

Refusal or revocation can also be based on treatment for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise, as in inpatient or as an outpatient, if and only if the treatment was for a condition that “was associated with violence, or threatened or attempted violence” on the part of the holder or applicant against any other person [FA s. 5(2(b)].

Refusal or revocation can also be based on “a history of behaviour that includes violence or threatened or attempted violence” on the part of the holder or applicant against any person [FA s. 5(2)(c)].

There is an exception to those rules, covering refusal only; they may be ignored by any person with the power to refuse, and by a provincial court judge, when the holder or applicant is over eighteenand does not reside in Canada and is applying for a sixty-day temporary licence to possess a non-restricted firearm in Canada [FA s. 5(3)].

The responsible person who refuses or revokes must do it in writing [FA s. 72(1)].  A voice on the telephone cannot do either of those things, so any firearms control bureaucrat who tries to do that should be told that he is exceeding his authority under FA s. 72, and that you will wait for his refusal or revocation to be delivered to you in writing, as the law requires.

Once you get your letter, you can “refer” the matter to a provincial court judge [FA s. 74(1)].

In the envelope that you get, the responsible person must tell you the reason why he is doing it, and send you a copy of FA s. 74 to 81, which is the appeal procedure [FA s. 72(2)].  He does not have to send you a copy of FA s. 72, and that is a pity.  FA s. 72 is very important, as you will see from the subsections of it cited above and below.  It forms a vital part of this process.

The responsible person must also specify a reasonable period of time during which you “may deliver to a peace officer (oddly enough, that term includes the reeve of your village) or  firearms officer or a chief firearms officer or otherwise lawfully dispose of any firearm, prohibited weapon, restricted weapon, prohibited device, or prohibited ammunition” that you have in your possession at the time of the refusal or revocation [FA s. 72(4) and (5)].

The responsible person will usually give you 30 days to do that, and, during that period, CC s. 91 and 92 (possession without a licence or without a registration certificate),  and CC s. 94 (being in a motor vehicle in which you know that there is a firearm, prohibited weapon, restricted weapon, prohibited device other than a replica firearm, or any prohibited ammunition where no one in the vehicle has the necessary licence and registration certificate to possess the item or items legally) and FA s. 112 (possession of a firearm without a licence or without a registration certificate) do not apply to you.

If you refer the matter to a provincial court judge within the 30-day time limit [FA s. 74(2)] after getting your letter, the whole process goes on “hold.”  The 30-day time period (or whatever period was specified) for “lawfully disposing of” your items stops being in force.  Your exemption to charges under CC s. 91, 92 and/or 112 automatically extends.

Once the matter has been referred to a judge, the period resets to zero and does not begin again “until the reference is finally disposed of” [FA s. 72(4)].  That means that everything is on hold for the period taken by the reference to the provincial court judge, the delay before the hearing, and the appeal to a Superior Court [FA s. 78], perhaps all the way to the Supreme Court of Canada.   The time involved in that “hold” can be very long.

It is very important to understand the effects that FA s. 72 will have on your case, so you should draw your lawyer’s attention to them.  Do not assume that your lawyer will find them, because most lawyers go immediately to the appeal procedure itself [FA s. 74 to 81], and concentrate all of their efforts in those narrow limits.  The limits and conditions set by s. 72 are often missed.

Now, let’s take a look at FA s. 74 to 81.

FA s. 74(1)(c) expands this “refer” procedure to include a shooting club or shooting range, allowing such a corporation to refer a refusal to issue or a revocation of the approval of a shooting club or shooting range by a Provincial Minister or one of his staff to a provincial court judge in accordance with this procedure [FA s. 74 to 81].

In FA s. 74(1)(b)(i) and (ii) deal with a chief firearms officer who revokes a licence because “a firearm possessed by an individual…is not being used for (i) the purpose for which he acquired the firearm, or (ii) in the case of a firearm possessed by the individual on [01 Dec 1998], the purpose specified by the individual in the licence application.”

That is a very curious provision.  The defective computer programs used by the Registrar and the Chief Firearms Officers do not allow firearms to be registered for two or more uses, so the applicant is blocked from making an accurate application.  He may be trying to apply for registration of a firearm for the purposes of collection and target shooting, but he cannot — because the defective program will not accept two uses, so the clerk entering the data usually chooses one at random.

Additionally, the “use” entry is on the registration application, not the licence application — but FA s. 74(1)(b) is talking about revocation of a licence by a Chief Firearms Officer, not revocation of aregistration certificate by the Registrar.  It is very badly written law.

You must refer the matter to a provincial court judge “within thirty days after receiving [the written] notice” [FA s. 74(2)].

On receiving your  reference, “the provincial court judge shall fix a date for the hearing and direct that” all interested parties (you, the Chief Firearms Officer, Registrar and/or Provincial Minister) be notified [FA s. 75(1)].

At the hearing itself, “the provincial court judge shall hear all relevant evidence presented by, or on behalf of, the chief firearms officer, Registrar, or provincial minister and the applicant or holder” [FA s. 75(2)].

Under the old law, there was no requirement for the judge to hear “all relevant evidence.”  As a result, such cases were seen as a form of judicial review, and not as a hearing de novo.  Often, the judge would decide the case on the basis of, “What did the person who refused or revoked know, and was his decision reasonable based on what he knew?”   There was often no opportunity for the “applicant or holder” to enter new evidence.

Under the current law, the requirement that “the provincial court judge shall hear all relevant evidence presented by, or on behalf of, the chief firearms officer, Registrar, or provincial minister and the applicant or holder” indicates that the new law is setting up a hearing de novo, in which the judge must listen to any evidence that the “applicant or holder” wishes to enter.

Given that new evidence, it is apparent that the judge is not limited to hearing only the evidence that the person who refused or revoked had at the time he refused or revoked.  He is positively required to hear and take into account new evidence that the person who refused or revoked did not have.

Under those circumstances, the judge, as a result of the presence of such evidence as a necessary part of the hearing, apparently cannot be limited to deciding whether or not the person who refused or revoked was justified on the basis of the evidence that he had available at the moment he refused or revoked.  That evidence is only part of the evidence presented at the hearing.

The judge is therefore apparently perfectly free to make his own decision, based on the totality of the evidence and the balance of probabilities.  He may order the person who refused to issue to issue the refused document, or tell the person who revoked that the revoked document is no longer revoked, but has come back into force.

It is apparently a court procedure that is equivalent to a hearing de novo, and not one that is equivalent to a judicial review.

The burden of proof that the act of refusing or revoking “was not justified” is on the “applicant or holder,” not the Crown [FA s. 75(3)].   Therefore, the requirement to allow the entry of new evidence by the “applicant or holder” is perfectly reasonable and in the interest of fairness.

Because this is a hearing and not a criminal case, the standard of proof is “the balance of probabilities” and not “proof beyond a reasonable doubt”.

Because this is a hearing and not a criminal case, the standard of evidence is relaxed.  Hearsay evidence can be entered and considered, but hearsay carries a lower degree of force than first-hand evidence, and that is a matter that should be mentioned when it is offered in court.

If the “applicant or holder” does not show up on the day of the hearing, the judge may hear and decide the case anyway [FA s. 75(4)].

The provincial court judge may, by a court Order, (a) confirm the decision to refuse or revoke, (b) direct that the document applied for be issued, or (c) cancel the revocation or decision made by the person who revoked or refused a licensing document [FA s. 76].

Because the language of FA s. 76 is a little nebulous, in cases where a licencing document has been refused the applicant or holder should always ask the judge to issue a court Order that positively orders the person who refused to issue the licencing document to issue one.

Similarly, in a case where a licencing document has been revoked and the judge has cancelled the revocation, the applicant or holder should always ask the judge to issue a court Order that positively orders the person who revoked the licencing document to return the again-valid licencing document to the holder.

If no such court Order is made, it is not unknown for the person who refused to continue to refuse to issue, or to refuse to return the again-valid licencing document.  This is an important point in this type of case, and should not be missed.

If the referral to the provincial court judge produces a result that offends the applicant or holder, he may appeal the decision to a superior court, up to and including the Supreme Court of Canada [FA s. 77(1)].

If the referral to the provincial court judge produces a result that offends the chief firearms officer, Registrar or provincial minister, the Attorney General of Canada may appeal the decision to a superior court, up to and including the Supreme Court of Canada [FA s. 77(2)(a)].

If the referral to the provincial court judge produces any other type of result that offends, the Attorney General of the province may appeal the decision to a superior court, up to and including the Supreme Court of Canada [FA s. 77(2)(b)].

An appeal upwards into a superior court must be made within 30 days of the lower court’s Order being made [FA s. 78(1)].

The superior court may, at any time, extend that period of 30 days [FA s. 78(2)].

A notice of appeal must set out the grounds for the appeal and possibly further material required by the superior court [FA s. 78(3)].

The notice of appeal must be served on all the interested parties within 14 days of the filing of that notice with the court [FA s. 78(4)].

The superior court may make the same kinds of court Order that the provincial court judge may make [FA s. 79(1)].

An appeal to the court of appeal against the decision of the superior court can only be made on a point of law alone [FA s. 80].

Having said all that, there are other ways to lose or be refused one of those licencing documents.  We will now look at some of those.

Under FA s. 70, “a chief firearms officer who issues a licence, authorization to carry or authorization to transport may revoke it for any good and sufficient reason.”  That is unacceptably broad, as you will see in LawClass 9, “Licences.”

The same flaw is present in FA s. 71, which authorizes the Registrar “to revoke a registration certificate for any good and sufficient reason.”  The flaws are dealt with more fully in LawClass 9, but the main fault is that vague language of that type can easily result in a revocation because the holder of the licencing document is black, female, and/or Jewish.

In another area, CC s. 515 requires a justice in any case where “an accused is charged with (a) an offence in which violence against a person was used, threatened or attempted, or (b) an offence under [CC s.] 264 (criminal harassment), (c) an offence [of trafficking in drugs or possession for the purpose of trafficking], or (d) an offence that involves, or the subject matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition, or an explosive substance” to add to his order for the release of the accused a condition prohibiting the accused from possessing any and all of those things “until the accused is dealt with according to law unless the justice considers that such a condition is not required… [CC s. 515(4.1)].”

Where the justice does make such an order, he must specify “the manner and method by which (a)  the things [see list] shall be surrendered, disposed of, detained, stored or dealt with; and (b) the authorizations, licences and registration certificates held by the person shall be surrendered [CC s 515(4.11)].”

Where a justice decides not to add the “condition prohibiting the accused form possessing” any and all of those things, he “shall include in the record a statement of the reasons for not adding the condition” [CC s. 515(4.12)].

The “condition,” if added, may have an additional effect.  Another section says: “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” [CC s. 116].

It is unclear whether the “condition” is a “prohibition order,” but it probably is not — under the statutory rule that “the specific overrides the general.”  The wording of CC s. 515 is clear and complete, and therefore is apparently a different case to that described in CC s. 116.

There is apparently no possibility of making a reference to a provincial court judge in regard to a prohibition of this type, apparently because the prohibition is imposed by a provincial court judge.  It is possible that one might appeal to a superior court judge, but FA s. 77 does not provide a clear route for that.  It refers only to a decision made under FA s. 76(a).

An argument can be made that the “condition” imposed by the use of CC 515(4.1) is arbitrary, routine, and imposed without due consideration of the particular facts in the case, and therefore an appeal route is necessary to prevent the statute from being voided for overbreadth.

The Law and the Orders in Council

NFA BRIEFING DOCUMENT 17 VERSION 1

Firearms control law consists of three parts — the Firearms Act, the Criminal Code sections that affect firearms, and the Orders in Council that affect firearms.

Regarding both the Firearms Act and the Criminal Code, the solution to your need to “know the law” is simple.  Go to the law and read it.  You can be foxed by the Criminal Code, though; it has Part III, “Firearms And Other Offensive Weapons,” as sections 84 to 117.15 inclusive — but there are many other sections that are important if you want to understand firearms law.  For example, the definition of “firearm” is in section 2, far away from Part III.

The worst area is the Regulations, prescriptions and definitions that lurk in Orders in Council.  Most people don’t even know what an Order in Council is, let alone how to find out what’s in it. An Order in Council is a document having force of law that is issued by the Governor in Council.

It is just like any other law in its effects.  A violation can send you to prison for years.

An Order in Council cannot legally be “made” unless the legislation itself specifically authorizes the Governor in Council to make Orders in Council in that area of law.  The government sometimes violates that principle, and a bad Order in Council can be struck down by the courts.

Orders in Council regarding firearms are “made” under the authority of Firearms Act section [FA s.] 117(a) to (w) inclusive, or under Criminal Code section [CC s.] 117.14 or 117.15.

However, the worst problem with Orders in Council is that judges, Crown prosecutors and defence lawyers often do not know that they exist.  In a fairly recent case, an accused was supposed to have violated the law regarding storage in accordance with the Regulations (which are made by Order in Council), CC s. 86(2).

After a long and complex trial, which turned on the meaning of the word “with” in the Regulation — Was the firearm stored “with” ammunition or not? — the accused was found to be innocent.

The trial took place in 2000, and the offence took place in 1999.  The Order in Council Regulation that was being argued was replaced, on 01 Dec 1998, by a different Order in Council Regulation.  The Crown and defence lawyers never noticed that they were arguing about the language of a Regulation that was no longer in force.  The language of the new Regulation differed from the language of the obsolete Regulation, so the entire case was nonsense.  It was Regina V. Rusk, Saskatchewan Provincial Court, SJ No. 518, Information No. 24043555, and the 21-paragraph decision was issued on 02 Aug 2000.

That is not unusual.  Police, Crown prosecutors, judges and defence lawyers have no good way to keep track of the stream of Orders in Council coming from Ottawa.

The NFA thinks that you need this reference list, accurate for the period from 01 Dec 1998 to 31 Mar 2002.   The first “s.” number is the section in the initial Order in Council, and the rest are the sections in the replacement OICs that changed the older rule.


Interpretation Example:

Public Agents Firearms Regulations — SOR/98-203
Modifications: s. 2, SOR/98-468, s. 2
s. 8, SOR/99-109, s. 2; SOR/2001-9, s. 1

The original OIC, SOR/98-203, established these regulations in 1998.
Then section 2 of SOR/98-203 was changed, in 1998, by SOR/98-468’s section 2.
Then section 8 of SOR/98-203 was changed, in 1999, by SOR/99-109’s section 2; then the SOR/99-109’s section 2 version was changed again, in 2001, by SOR/2001-9’s section 1.


Regulations made under the authority of Firearms Act sections (a) to (w) inclusive:

Aboriginal Peoples Adaptations Regulations — SOR/98-205
Modifications: s. 21, SOR/98-471, s. 15

Export/Import of Firearms by Businesses Regulations — SOR/98-214
Modifications: s. 12, SOR98/469, s. 1; SOR/99-110, s. 1; SOR2001-11, s. 1

Authorization to Carry Restricted Firearms Regulations — SOR/98-207
Modifications: s. 10, SOR/98-471, s. 17

Authorizations to Transport Restricted/Prohibited Firearms — SOR/98-206
Modifications: s. 7, SOR/98-471, s. 15

Conditions of Transferring Firearms and Other Weapons — SOR/98-202
Modifications: s. 14, SOR/98-471, s. 4

Firearms Fees Regulations — SOR/98-204
Modifications: s. 5, SOR/98-471 s. 6
s. 5.1, SOR 2000-224, s. 1; SOR/2000-385, s. 1
s. 10, SOR98-471, s. 7
s. 15.1, added, SOR/2000-224, s. 2; SOR/2001-12, s. 1; SOR/2001-232, s. 1
s. 15.2, added, SOR/2001-336, s. 1
s. 21, SOR/98-471, s. 8
s. 21.1, added, SOR/2000-224, s. 3; repealed, SOR/2000-259, s. 1
s. 22, SOR/98-471, s. 9
Sch 1, SOR/98-471, s. 10 and 11
Sch 2, SOR/98-471, s. 12
Sch 3, SOR/98-471, s. 13 and 14

Firearms Licences Regulations — SOR/98-199
Modifications: s. 1.1, added, SOR/2000-225, s. 1
s. 3, SOR/2000-225, s. 2
s. 8, SOR/2000-225, s. 3
s. 11, SOR/2000-225, s. 4
s. 27, SOR/98-471, s. 1

Firearms Records Regulations — SOR/98-213
Modifications: s. 8, SOR/98-471, s. 22

Firearms Registration Certificates Regulations — SOR/98-201
Modifications: s. 12, SOR/98-471, s. 3

Gun Shows Regulations — SOR/98-211
Modifications: s. 15, SOR/98-470, s. 1; SOR/99-111, s. 1; SOR/99-453, s. 1

Import/Export of Firearms by Individuals Regulations — SOR/98-215
Modifications: s. 15, SOR/2001-10, s. 1

Non-Prohibited Ammunition Transfer Regulations — SOR/98-200
Modifications: s. 2, SOR/98-471, s. 2

Public Agents Firearms Regulations — SOR/98-203
Modifications: s. 2, SOR/98-468, s. 2
s. 8, SOR/99-109, s. 2; SOR/2001-9, s. 1
s. 9, SOR/99-109, s. 2; SOR/2001-9, s. 2
s. 10, SOR/99-109, s. 2; SOR/2001-9, s. 3
s. 18, SOR/98-468, s. 1; SOR/98-471, s. 5; SOR/99-109, s. 1; SOR/2001-9, s. 4

Shooting Clubs and Ranges Regulations — SOR/98-212
Modifications: s. 17, SOR/98-471, s. 21

Special Authority to Possess Regulations — SOR/98-208
Modifications: s. 16, SOR/98-471, s. 18

Storage/Display/Transport by Business — SOR/98-210
Modifications: s. 17, SOR/98-471, s. 20

Storage/Display/Transport by Individuals — SOR/98-209
Modifications: s. 18, SOR/98-471, s. 19

 

OICs made under the authority of Criminal Code section 117.14:

Amnesty for restricted and prohibited firearms — SOR/98-467
Modifications: s. 2, SOR/98-472, s. 6; SOR/99-452, s. 1; SOR/2001-13, s. 1; SOR/2001-233,
s. 1
s. 3, SOR/98-472, s. 7; SOR/99-452, s. 2; SOR/2001-13, s. 2; SOR/2001-233, s. 1
s. 4, SOR/98-472, s. 8; SOR/99-452, s. 2; SOR/2001-13, s. 2; SOR/2001-233, s. 1
s. 5, SOR/98-472, s. 9; SOR/99-452, s. 2; SOR/2001-13, s. 2; SOR/2001-233, s. 1
s. 6, SOR/98-472, s. 10; SOR/99-452, s. 2; SOR/2001-13, s. 2; SOR/2001-233, s. 1
s. 7, SOR/98-472, s. 11; SOR/99-229, s. 1; SOR/99-452, s. 2; SOR/2001-13, s. 2; SOR/2001-233, s.1
s.8.1, added,  SOR/2001-13, s. 2
s.9, SOR/98-472, s. 13

OICs made under the authority of the Criminal Code section 117.15

Antique firearms prescriptions:  SOR/98-472, s. 3

Certain firearms and other weapons, components and parts of weapons, accessories, cartridge magazines, ammunition and projectiles prescriptions:  SOR98-462
Modifications: s. 7, SOR/98-472, s. 1

Exclusions from certain definitions of the Criminal Code (International Sporting Competition handguns): SOR/98-465
Modifications: s. 3, SOR/98-472, s. 4
schedule, SOR/2000-130, s. 1

Public Officers prescriptions — SOR/98-466
Modifications: s. 2, SOR/98-472, s. 5

 

To be able to obey the law, you need a copy of each of these 43 Orders in Council (Ask your MP for them, and for every OIC issued under FA s. 117, CC s. 117.14 or CC s. 117.15after 31 Dec 1998, as this list is only correct to that date):

SOR/98-199, -200, -201, -202, -203, -204, -205, -206, -207, -208, -209, -210, -211, -212, -213, -214, -215, -462, -465, -466, -467, -468, -469, -470, -471 and -472.

SOR/99-109, -110, -111, 229 and 452.

SOR2000-224, -225, -259 and -385.

SOR/2001-9, -10, -11, -12, -13, -232, -233 and -386.

Classes of Firearms

NFA BRIEFING DOCUMENT 19 VERSION 3

Criminal Code section 2 says:

2.  “firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barreled weapon and anything that can be adapted for use as a firearm.

That definition conflicts with the definitions of the various classes and subclasses of firearms found in CC s. 84(1) and Firearms Act section 12.

That conflict is not glaringly obvious, so let us examine the ramifications of those sections.

1.       CC s. 2 says that a whole gun is a “firearm.”

2.       CC s. 2 also says that the “frame or receiver” of that firearm is a “firearm.”

3.       CC s. 2 also says that “anything that can be adapted for use as a firearm” is a firearm.

Therefore, disassembling a whole gun into all possible separate pieces results in a collection of uncontrolled spare parts, plus the “frame or receiver” – which is still a “firearm.”

In the manufacturing process, a “firearm” is created at the moment that a “frame or receiver” is created — even if it is incomplete.  An incomplete “frame or receiver” is something that “can be adapted for use as a firearm” because it can be adapted, and, as so adapted, becomes a “frame or receiver,” and a “frame or receiver” is a “firearm.”

Having said that, note that any moderate-sized piece of steel or plastic can also “be adapted for use as a firearm,” and therefore is a “firearm” by this definition.  That is, of course, absurd — but the government deals with the problem by ignoring it.

Obviously, then, the “frame or receiver” is the “firearm,” to which a number of uncontrolled spare parts may or may not be attached.

If  “firearms” are to be sorted into classes, it would seen reasonable that a firearm should be classified on the basis of the characteristics of the “frame or receiver.”

That is not the case.  Firearms are sorted into classes primarily by determining which uncontrolled spare parts are attached to the “frame or receiver” at the moment.

This has a reverse effect.  While a “frame or receiver” is definitely a “firearm,” it is usually impossible to determine which class of “firearm” it belongs in unless there is a particular “defining” uncontrolled spare part present, or the firearm is classified as a result of being named in an Order in Council.

If a firearm is named in an Order in Council and specified to be a “restricted firearm” or a “prohibited firearm,” the definition of that firearm always includes the words “or a variant or modified version of it.”  Unfortunately, it is often not possible to say whether a particular firearm is a “variant or modified version of” another firearm.  The results of considering this problem are confused and confusing.

The various Orders in Council often include lists of firearms considered to be “a variant or modified version of” the named firearm.  Examination of those lists indicates that the person who wrote the lists considered a firearm to be “a variant or modified version of” the named firearm if:

(a)     the listed firearm is similar in appearance to the named firearm, but has an entirely different mechanism, uses different cartridges, and is made in a different factory in a different country;

(b)     the listed firearm is similar in mechanism, but not appearance, to the named firearm, uses different cartridges, and is made in a different factory in a different country;

(c)     an unlisted firearm has a degree of similarity to the named firearm that is equal to or stronger than the degree of similarity shown by listed firearms in (a) and (b) above.

There are other confusing situations.  For example, a handgun is either a “restricted firearm” or a “prohibited firearm.”  It is “prohibited”  if the barrel is “equal to or less than 105 mm (4.14″) in length” [CC s. 84(1) “prohibited firearm” (a)].  If the firearm has no barrel, it is impossible to determine whether or not it is a “prohibited firearm” by this method of classification.  One cannot measure a non-existent barrel’s length.

Similarly, a handgun is either a “restricted firearm” or a “prohibited firearm.”  It is “prohibited” if the calibre is .25 or .32, but calibre is determined by examination of the barrel of a semi-automatic handgun, or the barrel and the cylinder of a revolver.  If a semi-automatic handgun has no barrel, or a revolver has no barrel and no cylinder, it is impossible to determine whether  it is a “restricted firearm” or a “prohibited firearm” by this method of classification.

Therefore, removing the barrel from a “prohibited firearm” semi-automatic handgun or removing the barrel and cylinder from a “prohibited firearm” revolver will change the classification of the firearm.  The “firearm” will be automatically re-classified as a “restricted firearm” under the CC s. 84(1) “restricted firearm” (a) definition.

If one substitutes, say, a .380 barrel, 112 mm long, from a Browning M1922 handgun for a .32 barrel, 98 mm long, on a Browning Model 1910 handgun, that firearm ceases to be “prohibited firearm” and becomes a “restricted firearm,” until the barrel is changed again.  Changing barrels takes less than a minute, and requires very limited skills that can be easily learned by anyone.

It should be noted that if any barrel that is less than 105 mm/4.14″ in length is permanently removed from a handgun, that barrel becomes a “prohibited device.”  Any person in possession of such a “prohibited device” without being “the holder of a licence under which the person may possess it” apparently violates CC s. 91(2) or 92(2).  If the barrel is .25 or .32 calibre, and is longer than 105mm/4.14″, however, that barrel is not a “prohibited device,” and may be possessed by anyone.

However, the Morgentaler case, in the late 1980s, apparently provides a defence to a charge of possession of a “prohibited firearm” without a licence covering that class of firearm, or without a registration certificate for that particular firearm.  CC s. 91(2) and 92(2) both offer “a specifically-tailored defence to a particular charge” – the holding of a licence and a registration certificate.  The Morgentaler case found that where “a specifically-tailored defence to a particular charge” was offered in the law, it had to be available.  It could not be “illusory, or so difficult to obtain as to be practically illusory” – or the court handling the case was required to strike the law down.

A licence for an individual to possess a “prohibited device” is not available.

Similarly, “a specifically-tailored defence to a particular charge” is offered in CC s. 91(1) and 92(1), which forbid anyone to possess a “firearm” unless he is “the holder of a licence under which the person may possess it, and (b) a registration certificate for the firearm.”

A “firearm” which has been “adapted from a rifle or shotgun whether by sawing, cutting or any other adaptation” so that it is “(a) less than 660 mm in length, or is 660 mm or greater in length and has a barrel less than 457 mm in length,” is defined by CC s. 84(1) “prohibited firearm” (b) to be a “prohibited firearm.”

Like the “prohibited device” mentioned above, “a specifically-tailored defence to a particular charge” is offered in CC s. 91(1) and 92(1), but the licence and registration certificate offered are “illusory or so difficult to obtain as to be practically illusory.”  The government does not offer the needed documents, and refuses to issue to anyone who applies for one.

Similarly, “a specifically-tailored defence to a particular charge” is offered in CC s. 91(1) and 92(1), which forbid anyone to possess a “firearm” unless he is “the holder of a licence under which the person may possess it, and (b) a registration certificate for the firearm.”

In the case of a “firearm” which is “an automatic firearm” or an automatic firearm “that has been altered to discharge only one projectile with one pressure of the trigger,” that firearm is defined by CC s. 84(1) “prohibited firearm” (b).  Like the “prohibited firearm” mentioned above, “a specifically-tailored defence to a particular charge” is offered in CC s. 91(1) and 92(1).

However, the licence and registration certificate offered are only available to a person who holds “grandfathered” status as defined by FA s. 12(1), (2), (3), (4) or (5).  If the person does not have that status, then the offered defence is  “illusory or so difficult to obtain as to be practically illusory” because that individual cannot get such a licence — although the law offers it.

A “restricted firearm” is defined as “(a) a handgun that is not a prohibited firearm.”  To possess one legally, CC s. 91(1) and 92(1) say that the possessor must be “the holder of (a) a licence under which the person may possess it, and (b) a registration certificate for the firearm.”

A “restricted firearm” is defined as “(b) a firearm that (i) is not a prohibited firearm, (ii) has a barrel less than 470 mm (18.5″) in length, and (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner.”  To possess one legally, CC s. 91(1) and 92(1) say that the possessor must be “the holder of (a) a licence under which the person may possess it, and (b) a registration certificate for the firearm.”  To possess one legally, CC s. 91(1) and 92(1) say that the possessor must be “the holder of (a) a licence under which the person may possess it, and (b) a registration certificate for the firearm.”

A “restricted firearm” is defined as “(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm (26″) by folding, telescoping or otherwise.”  To possess one legally, CC s. 91(1) and 92(1) say that the possessor must be “the holder of (a) a licence under which the person may possess it, and (b) a registration certificate for the firearm.”

Both “restricted firearm” and “prohibited firearm” are extended by paragraph (d) of their definition sets.  Paragraph (d) adds any firearm “prescribed (by Order in Council)” to the class.

The “prescribing” feature of the classification system adds confusion.  The “frame or receiver” of a military-style rifle, for example, may have been part of an automatic firearm, part of a semi-automatic firearm, part of a manually-operated firearm, all of those, or none of those (never assembled into a complete gun) at various times since its creation.

The fact that a firearm was in a particular class before it was disassembled does not mean it is still in that class, nor does it mean that it will necessarily return to its former class when re-assembled.  For example, any semi-automatic firearm or full automatic can be reassembled as a manually-operated firearm quite easily.

When attempting to discover the class of a particular “firearm,” then, it is necessary to determine whether or not it is a “restricted firearm” or a “prohibited firearm,” by name, as prescribed in an Order in Council.  Such a prescription overrides the definitions in the law itself.  If it is not listed in any OIC, then it is necessary to compare it to the various definitions in CC s. 84(1) “restricted firearm” and “prohibited firearm.”

In some cases, it will be found that a good case can be made for a single firearm to be in several classes at the same time.  The law provides no hierarchy, a term meaning that the firearm should be considered to be in this class rather than that class by some sort of priority in the list of possibilities.  There is no priority position.  Therefore, the actual class can only be determined by a judge sitting in a court of criminal law.  He can then be overruled by a higher court.  Certainty is impossible until the Supreme Court of Canada rules in a particular case.

A “firearm” is what it is, not what it might be in other circumstances when fitted with other parts that did not form part of the firearm as found.  That principle is often overlooked by police officers, Crown prosecutors, and defence lawyers.

For example, police officers often seize partial firearms or entire firearms and then add or substitute parts in an attempt to alter the entire or partial firearm into a functioning full automatic firearm.  That is apparently illegal, because it is a criminal offence to alter a firearm so that it is capable of firing full automatic [CC s. 102].

The exemption granted by CC s. 117.08 says that an “individual” is not guilty of violating CC s. 102 if he “does so on behalf of, and under the authority of, a police force…”  However, it is questionable whether “on behalf of, and under the authority of” extends beyond work done for the police force itself.  Stretching this provision to grant an exemption for the alteration of evidence in a criminal case by a police officer or a police armourer is, at best, questionable.

Such behavior is, apparently, fabricating evidence with intent to mislead the court, an indictable offence carrying a penalty of up to 14 years imprisonment [CC s. 137].  The physical alteration of evidence is usually done to “prove” that it can be done – but it is also done to imply that the accused intended to do it, and there is usually no proof of that.  If there is no evidence that the accused intended to alter the partial firearm, altering it appears to be an attempt to mislead the court by ascribing actions that the accused might have attempted as if he intended to do them.

The attempt to cover such behavior by granting an extremely broad exemption to prosecution for police officers and employees regarding CC s. 102 by way of CC s. 117.08 is apparently bad law, or, alternatively, the exemption granted is not as broad as it seems to be at first glance.

In the R. v. Hasselwander case, the Supreme Court of Canada dealt with a firearm (an Uzi submachine gun) that was not capable of firing full automatic.  The SCC ruled that the Uzi was actually capable of firing full automatic if it could be made to fire full automatic “in a relatively short period of time and with relative ease.”  Therefore, at the time the case was heard, the firearm was actually a “prohibited weapon” although, as a semi-automatic firearm, it should have been classed as a “restricted firearm.”

Shortly after that, in the R. v. Rogan case, police seized the “frame or receiver” of a Sten Mark V submachine gun from a collector.  They assembled it into a complete and working submachine gun, using parts from guns in police collections.  The judge in that case ruled that the police actions exceeded what an average person could have done, both by using parts not available to an average person, and by having a degree of expertise not available to an average person.  He ruled that by the “average person” rule of statutory interpretation, the accused was not guilty.

Obviously, there is a great deal of confusion in this area.  The law is not at all clear.

If a law is ambiguous, and can be read in two different ways, then it is a rule of statutory interpretation that the court must read it in the way most favorable to the accused.

CC S. 95 – Possession Of Prohibited Or Restricted Firearm With Ammunition

NFA BRIEFING DOCUMENT 20 VERSION 1

Criminal Code section (CC s.) 95 says:

95 (1)  Subject to subsection (3) [does not apply to a legal situation where the person is using the firearm under the direct supervision of another person who is lawfully entitled to do the same thing with the same firearm] and section 98 [obsolete section], every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm  together with readily accessible ammunition, unless the person is the holder of

(a) an authorization or licence under which the person may possess the firearm in that place; and

(b) the registration certificate for the firearm.

This section is much misunderstood, and frequently charges are laid, using it, improperly.

At first glance, it appears that the person with the firearm requires some sort of special licence “under which the person may possess the firearm in that place,” loaded or with readily accessible ammunition. Careful re-reading, however, proves that impression to be false.  There is no such licence, and the law does not require any special licence.  It requires a regular POL or PAL.  Both of those licences authorize the holder to possess firearms of the classes listed on the back of the POL or PAL, and the licence does not specify any particular location.  It is not limited to any particular location.

The situation is confused by the fact that newer registration certificates do not state the location where the firearm is supposed to be kept.

FA s. 17 says:

17.  Subject to sections 18 (authorizations to transport prohibited firearms) to 20 (19: authorizations to transport restricted firearms; 20: authorizations to carry prohibited or restricted firearms), a prohibited firearm or a restricted firearm the holder[emphasis added] of the registration certificate for which is an individual may be possessed only [emphasis added] at the dwelling-house of the individual, as indicated on the registration certificate (Note: this information is no longer shown on the registration certificate), or at a place authorized by a chief firearms officer.

FA s. 33 authorizes the lending of any firearm as long as its registration certificate is also loaned to any properly-licenced borrower.  CC s. 84(4)(b)(ii) then makes the borrower the legal “holder” of that registration certificate, and FA s. 17 authorizes the firearm to be kept in the dwelling-house of the borrower.

Frequently, such a loan generates no paperwork and no notification of the firearms control bureaucracy that the lending has taken place.  The law does not require any form of notification, although circumstances may require someone to get an authorization to transport as part of the lending process.  Frequently, no such requirement arises.

A newer registration certificate also does not state the name of the holder of the registration certificate.  This combines with the borrowing/lending describe above to trigger FA s. 59:

59.  An individual who holds an authorization to carry or authorization to transport need not be the person (individual or corporation) to whom the registration certificate for the particular prohibited firearm or restricted firearm was issued.

To sum up: Joe and John each have a licence that authorizes them to possess and acquire prohibited handguns [FA 12(6) licences].  Each has an authorization to transport (ATT) that allows him to transport any handgun for which he is the holder of a registration certificate to and from shooting ranges, valid for 1 to 3 years.

John lends Joe a prohibited handgun, while both are at the shooting range.  Joe thus becomes the “holder” of the registration certificate, and the wording of his ATT authorizes him to move it from the range to his dwelling-house.  No notification to or application to the firearms control bureaucracy is required for this transaction.

If Joe is caught with the firearm, loaded, in his dwelling-house, he is not guilty of a CC s. 95 crime.  He is the holder of the registration certificate for John’s firearm, and has a valid licence.

“Dwelling-house” is defined in CC s. 2 as:

2…  “dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary [emphasis added] residence, and includes

(a) a building within the curtilage (an area of land attached to a house, and forming one enclosure with it) of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence, and that is being used as such a residence.

Note that under CC s. 2, a garage that is attached to the house is classed as a “dwelling-house” but one that has no connection to the house is not.  That makes no sense.

Not that an individual who goes travelling with a recreational vehicle that is mobile (pulled like a trailer or self-propelled like a Winnebago) is travelling in his or her “dwelling-house” if he or she is living temporarily in that vehicle.

Note that a person may have a permanent “dwelling-house” as well as a temporary “dwelling-house” of this mobile type.

It appears that the individual who is travelling, then, has a choice of which “dwelling-house” he or she will keep firearms in, the mobile home or the stationary home.  That is because the meaning of the clause, “as indicated on the registration certificate,” from FA s. 17, is ambiguous.  It may have meant that the firearm could be stored at the address or location specified on the old green paper registration certificates.  It may have meant that they could only be stored at “the dwelling-house of the individual, as indicated on the registration certificate.”

Where the law is ambiguous, a court must accept the interpretation most favorable to the accused.  Therefore, a person charged with an offence as the result of the finding of a prohibited or restricted firearm, registered to that individual, in a trailer or self-propelled mobile “dwelling-house” will probably have to be found innocent if charged under CC s. 95.  It is by no means clear that there is any prohibition against possessing such a firearm in a mobile “dwelling-house.”

Therefore, if Joe sleeps in his trailer, or in his store, that location is legally his “dwelling-house.”

The holder of a registration certificate for a prohibited firearm or a restricted firearm may apparently move the firearm from his residence into his camper for the purpose of transporting it to a shooting range.  If Joe then resides in the camper while on holiday, he is apparently required or allowed (which is unclear) to keep his prohibited or restricted firearm in the camper for the duration of the holiday CC s. 2 “dwelling-house” (b).

While this part of the law is rather murky, the combination of the sections listed above has the effect of authorizing Joe to take John’s prohibited handgun with him – without an ATT, so long as he does not take it out of the camper – when he goes on holiday in his camper.

Similarly, when a store owner who is experiencing sequential burglaries decides to sleep in his store for a period of time, that makes the store his temporary “dwelling-house.”  He is authorized by FA s. 17 to keep prohibited and/or restricted firearm(s) in the temporary “dwelling house.”

In such a case, the holder of the registration certificate for the prohibited or restricted firearm should get a one-shot ATT to authorize the transportation of the prohibited firearm(s) and/or restricted firearm(s) from his permanent dwelling-house to his temporary dwelling house.  That is not necessary if the temporary dwelling-house is mobile and capable of being used to transport the firearms to and from a shooting range, and the holder has an ATT authorizing such moves.

Turning back to CC s. 95, the above observations apparently stretch the meaning of “an authorization or licence under which the person may possess the firearm in that place” quite considerably.  A defence lawyer who is dealing with a CC s. 95(1) charge should be aware of these possibilities.

CC s. 91 and 92 criminalize an individual for possessing a firearm without “a licence under which the person may possess it.”  Possession of a licence, then, authorizes possession of the firearm — anywhere.

Similarly, the registration certificate has no location attached to it. While Firearms Act section 17 says that an individual is only allowed to possess a prohibited or restricted firearm in his or her dwelling-house, “as indicated on the registration certificate, or at a place authorized by a chief firearms officer.”  There is no indication on the current version of the registration certificate as to the location of the “dwelling-house” where the firearm is supposed to be kept.

It should be noted that the arguments in Grounding Seminar 15 and Grounding Seminars 1 and 2 may very well apply in a case of this nature.   For example, it is apparently not possible to store a firearm in a vehicle, as the firearm is under the “transportation” Regulations, not the “storage” Regulations.  If the vehicle is not moving, and no one is there, then it falls under the “transportation” regulation dealing with transportation “in an unattended vehicle,” and not under any “storage” Regulation.

Because the “storage” Regulations and the “transportation” Regulations are different, they cannot both apply to a given situation.  It has to be one or the other, and there is no Regulation that gives any indication of any different interpretation of the two sets of Regulations, or any indication that a firearm in a vehicle can ever stop being transported.

This area of law is very complex, and very poorly written.  Crown prosecutors who think they understand it often lay charges that cannot and do not stand up in court.