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.