You have the unfortunate duty of telling a woman that her husband was killed in a hunting accident. Obviously, the man possessed firearms. What does the law say must happen to the firearm the man was carrying, and any other firearms he owned, upon his death?
The phrase, “by operation of law”, means the automatic transfer of legal possession from the deceased to the executor of his estate, as a part of the estate, at the moment of death.
This will help you to understand what you should and should not do:
Firearms Act section [FA s.] 112(1) says, “.. every person.. who…possesses [any unrestricted firearm] without being the holder of a registration certificate [covering it is guilty of an offence]…”
But — FA s. 112(2) says, “(2) Subsection (1) does not apply to…(b) a person who comes into possession of a firearm by operation of law…” (as an executor does).
CC S. 91(1) says, “…every person…who possesses [any] firearm [is guilty of an offence] unless the person is the holder of (a) a licence [covering it]…and (b) a registration certificate [covering it]…”
And CC S. 91 (2) says, “…every person…who possesses a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition [is guilty of an offence] unless the person is the holder of a licence [covering it]…”
But — CC s.91 (4)(b) says, “Subsections (1) and (2) do not apply to (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law…”
CC s. 92(1), 92(2), and 92(4)(b) say much the same thing, and cover the situation where the accused does know the law, while CC s. 91 covers situations where the accused may not know what the law requires.The law set forth in C-68 is crystal clear.
Any firearm, prohibited weapon, restricted weapon, prohibited device, or prohibited ammunition that passes into the hands of an executor is legal, and possession by that executor is legal — for a “reasonable period”. All firearms and any of the other items listed held by the deceased — legally or illegally — become [if necessary, and temporarily] legal as they pass into the hands of the executor at the moment of death. The executor has broad exemptions granted to him by the law in order to let him settle the estate in an orderly manner, and with a minimum of firearms control system problems.
Law enforcement officers should, therefore, be very cautious about seizing firearms (and other listed items) that are involved in an inheritance process. There can be claims for damage due to poor handling or poor storage, as well as complaints of illegal seizure.The exemptions granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are very broad. Even an obviously illegal, unregistered full automatic submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited handgun temporarily becomes perfectly legal, temporarily. That happens when the death of its possessor passes it, automatically, into the possession of the executor of the estate — who needsno licence or registration certificate to be in possession of it.
If the deceased dies in possession of a “prohibited firearm” described in FA s. 12(6), that firearmcan be passed on to the heir if the conditions set out in FA s. 12(7) are met.
If the deceased died in possession of a “prohibited firearm” that no one but a museum can have, the executor may legally transport it without an Authorization To Transport (ATT) — say, to a gunsmith for deactivation. (The executor must stay with it while it is deactivated, so that it is never illegallypossessed by the gunsmith.) Once deactivated, it is still an asset of the estate, but it is no longer a firearm under the CC s. 2 definition of “firearm”.
The statement that an executor does not need an ATT requires explanation, as Parliament set up that exemption in two different ways, both having the same purpose:
CC s. 93 criminalizes only “the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition” — if that person has the item at a forbidden location. An executor is not “the holder of an authorization or a licence under which the person may possess” the item. He or she is merely the agent for the real possessor — the estate. He or she has temporary possession only under the exemption granted to executors, so this section does not apply to an executor and cannot be used to charge an executor.
CC s. 94(4) provides an exemption to a CC s. 94(1) charge against an executor who is actually transporting such an item, and for anyone else who is in a motor vehicle with such an executor. Thatconfirms that it was Parliament’s intent to exempt an executor from ATT considerations, as well as licence and registration certificate considerations.
However, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations apparently do apply to an executor, and must be obeyed by an executor.
If you have questions on this, or any other issue regarding firearms, the National Firearms Association would be pleased to answer them for you.
Please call us at (780)439-1394