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.


Back