Storage And Other CC S. 86(2) Cases

NFA BRIEFING DOCUMENT 2 VERSION 4

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

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

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

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

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

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

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

CC s. 86(2)1

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

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

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

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

CC s. 86(2) says a “person [individual or corporate body] commits an offence” when that person “contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising, and mail-order sales of firearms and restricted weapons.”

Let’s break that down, step by step.

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

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

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

CC s. 86(2) says a “person [individual or corporate body] commits an offence” when that person “contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising, and mail-order sales of firearms and restricted weapons.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) hunting and target shooting;

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

(c) controlling predators or other animals; and

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

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

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

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

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

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

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

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

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

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

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

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

5. (2) Paragraph 1(b) [firearm rendered inoperable or locked away] does not apply to any individual who stores a non-restricted firearm temporarily if the individual reasonably requires it for the control of predators or other animals in a place where it may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province (not necessarily the province where the possible offence took place?), regulations made under such Acts, and municipal bylaws.

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

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

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

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

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

Similarly, Regulation 5(3) may apply:

5. (3) Paragraphs 1(b) and (c) [not readily accessible to ammunition] do not apply to an individual who stores a non-restricted firearm in a location that is in a remote wilderness area that is not subject to any visible or otherwise reasonably ascertainable use incompatible with hunting.

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

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

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

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

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

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

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

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

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

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

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

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

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

They are different.

Therefore, they cannot both apply at the same time.

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

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

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

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

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

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

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

THE PLEA-BARGAINING TRAP

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

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

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

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


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