Offences Relating to Unauthorized Possession of Firearms
December 31, 2002 Notice
The information contained in this bulletin is considered accurate the date of publication. The information has not been updated to reflect any changes to the Firearms Act and related regulations. |
FOR DISTRIBUTION TO ALL PROSECUTORS DEALING WITH PART III OF THE CRIMINAL
CODE AND/OR THE FIREARMS ACT
Special Bulletin for Prosecutors No. 32
Snapshot
- As of January 1, 2003, all firearms must be registered or in the process
of being registered.
- A grace period applies to individuals who applied to register, or who
submitted written notice of their intention to register, by December 31,
2002, and there is an amnesty for certain prohibited handguns.
- Offences relating to licensing and registration fall within the category
of "unauthorized possession".
- There are no new Criminal Code offences on registration coming into
effect on January 1, 2003.
- There is a summary conviction "first-time, one-time" only
unlawful possession offence in the Firearms Act available to peace
officers.
- The information in this bulletin is also being sent to police, public
agents, and justices of the peace on the Canada Firearms Centre mailing
list.
The Law
Under the Firearms Act, every person who owns or possesses firearms
must be the holder of a licence and registration certificates for the firearms
in their possession.
People had until January 1, 2001 to obtain a licence to possess or possess
and acquire firearms. Licences will indicate their expiry date, as well as the
classes of firearms (non-restricted, restricted, prohibited) that the person can
possess or acquire. A licence is a pre-requisite to registration.
By January 1, 2003, individuals must have applied to register all of the
non-restricted firearms they possess, and to re-register all of the restricted
and prohibited firearms they possess (previously issued green cards expire
December 31, 2002). In the alternative, individuals must have submitted a
written notice of their intention to register their firearms by December 31,
2002, and subsequently apply to register their firearms by June 30, 2003.
Additional information on registration and the grace period can be found in
Special Bulletins for Prosecutors Nos. 29 and 31. A registration certificate
will be issued for each firearm. If a person borrows a firearm, they must also
borrow the registration certificate for the firearm.
If a person cannot show proof of licensing and registration, they may be in
unauthorized possession of firearms.
Peace officers always have discretion on whether or not to lay charges in
specific circumstances. However, if a peace officer feels that it is
appropriate to charge someone, there are several offences relating to
unauthorized possession.
Grace Period and Amnesty
Please note that a grace period exists for individuals who applied to
register or re-register by December 31, 2002, or who submitted written notice of
their intention to register their firearms, but who have not yet received their
registration certificates. This six-month grace period ensures that these
individuals are protected. There is also an amnesty relating to certain
prohibited handguns and consignment firearms. For more information on the grace
period and amnesty, please see Special Bulletins for Prosecutors Nos. 29 and 31.
Unauthorized Possession under Section 112 of the Firearms Act
There is a summary conviction, non Criminal Code, offence available to
peace officers for first time offenders. This offence is at section 112 of the Firearms
Act. It applies to non-restricted firearms only. It is available to a person
only once. The elements of the offence include the possession of a
non-restricted firearm without having a registration certificate for the
firearm. The person in possession of the firearm must be a holder of a valid
licence.
Unauthorized Possession Offences under the Criminal Code
The offences relating to unauthorized possession in Part III of the Criminal
Code are intended for cases in which:
- A person does not have a valid firearms licence and is in possession of
firearms of any class;
- A person does have a licence and has restricted or prohibited firearms for
which they do not have a registration certificate;
- A person does have a licence, has non-restricted firearms for which they
do not have a registration certificate, and has already been convicted under
section 112 of the Firearms Act; or
- A person does have a licence, has non-restricted firearms for which they
do not have a registration certificate, and the circumstances are such that
using the summary conviction offence under s. 112 F.A. is not
sufficient in light of all of the circumstances.
The following sections of the Criminal Code relate to unauthorized
possession of firearms:
- Section 91 - unauthorized possession;
- Section 92 - unauthorized possession, knowingly;
- Section 93 - possession at an unauthorized place;
- Section 94 - unauthorized possession in a motor vehicle;
- Section 95 - possession of a restricted or prohibited firearm with
ammunition; and
- Section 96 - possession of a firearm obtained by crime.
Exceptions to the Offences of Unauthorized Possession of Firearms
The Firearms Act and the Criminal Code create a number of
exceptions to particular offences. These exceptions have the effect of exempting
an individual from prosecution or conviction for an activity that would
otherwise constitute an offence. These exceptions apply not to categories of
individuals, but rather to specific individuals in specific circumstances.
Direct and Immediate Supervision (ss. 91(4)(a), 92(4)(a), and 95(3) C.C.,
s. 112(2)(a) F.A.)
A person may be in authorized possession of a firearm if they are under the
direct and immediate supervision of another person who is legally entitled to
possess the firearm (the legal possessor must be licensed and the firearm
registered), even if the first person is unlicensed. However, the person under
supervision must be using the firearm in a manner in which the legal possessor
is allowed to use the item.
The words "direct and immediate supervision" mean that the person
supervising must focus their attention on the other person, and be in a position
to ensure against any potential accidents or misuse of the item for the duration
of the supervision period. Any lapse in such supervision may mean that the
exception does not apply and render the unauthorized person liable to
prosecution.
Sustenance Hunting (ss. 91(5), 92(5), and 94(5) C.C., s.
112(2)(c) F.A.)
This exception recognizes the need for sustenance hunters who require
non-restricted firearms to hunt or trap in order to sustain themselves or their
families. For this exception to apply, four conditions must be satisfied:
- The particular firearm possessed cannot be a restricted or prohibited
firearm - the exception is only available for non-restricted firearms;
- The firearm must be borrowed;
- The individual must hold a licence which allows possession of such a
firearm; and
- The individual must possess the firearm for the sole purpose of hunting or
trapping to sustain themselves or their family.
The non-restricted firearm must still be registered. The exception is from
the need to produce the registration certificate for the firearm.
By Operation of Law (ss. 91(4)(b), 92(4)(b), 94(4), and 96(3) C.C.,
s. 112(2)(b) F.A.)
A person who comes into possession of an item "by operation of law"
comes into possession of the item involuntarily, through no act of their own.
Executors of an estate, for instance, take possession of a person's property
automatically upon the death of the individual. A person who finds a firearm
also has come into possession of the item through no act of their own.
The person who comes into possession of a firearm by operation of law must,
within a reasonable period of time after coming into possession of the firearm,
either dispose of it or obtain the appropriate documentation to possess it
legally.
|