Robichaud's Criminal Lawyers: (416) 999-8389|info@robichaudlaw.ca

Guns and Ammo: Legally Storing, Moving, and Showing Them Off

The laws surrounding firearms in Canada are not only complex but they also involve a variety of federal laws and provincial regulations. For this reason, this article does not address the regulations of provinces beyond Ontario, hunting laws, transfer & lending of firearms, licensing, prohibited ammunition, or possession offences. Similarly, it does not address replica, prohibited, or antique firearms.

It especially doesn’t address the miscellaneous prohibited weapons under Part 3 of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted (the “Regulations Prescribing Certain Firearms”) to the Criminal Code (the “Code”) such as morning stars, steel cobras, or knife-combs – but that list of obscure banned weaponry is admittedly intriguing to read.

As restricted and non-restricted firearms comprise the vast majority of firearm storage, transportation, and display crimes, they are the sole focus in the article.

careless storage firearm ontario law fine jail

Restricted vs Non-Restricted

Restricted and Non-Restricted firearms are defined in s. 84(1) of the Code.

restricted firearm means:

(a) a handgun that is not a prohibited firearm,

(b) a firearm that

(i) is not a prohibited firearm,

(ii) has a barrel less than 470 mm in length, and

(iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,

(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or

(d) a firearm of any other kind that is prescribed to be a restricted firearm;”

And similarly –

“non-restricted firearm means

(a) a firearm that is neither a prohibited firearm nor a restricted firearm, or

(b) a firearm that is prescribed to be a non-restricted firearm;”

Through a little deduction, it becomes apparent that handguns cannot be non-restricted but a long gun can be prescribed to be restricted. There are prescriptions made in Part 2 and 2.1 of the the Regulations Prescribing Certain Firearms which prescribe some long guns as restricted. Examples include some models of SAN Swiss Arms and a variety of Ceská Zbrojovka (CZ) rifles. These may, however, become part of the prohibited class depending on the result of Bill C-71. Similarly, a few other long guns, of the same make, but different models, are prescribed as non-restricted under the same Regulation.

Within the legislation, prohibited firearms are often subject to more stringent regulations, along with restricted firearms.

Storage of Firearms

Storage, Display, and Transportation of both Restricted and Non-Restricted Firearms, are all addressed in the aptly named Regulation to the Firearms Act, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations (the “SDT Regs”).

It also defines what a “secure locking device” means (as seen below in ss. 6(b)(i) and 5(1)(b)(iii)) in s. 1 as a device:

(a) that can only be opened or released by the use of an electronic, magnetic or mechanical key or by setting the device in accordance with an alphabetical or numerical combination; and

(b) that, when applied to a firearm, prevents the firearm from being discharged.

This is typically equivocated with a trigger lock – but based on the qualifications above, it is possible that a poorly crafted trigger lock could potentially not meet both criteria and an alternative device could meet both.

Restricted Firearms

Section 6 of the SDT Regs outlines that an individual may store a restricted firearm only if:

(a) it is unloaded;

(b) it is

(i) rendered inoperable by means of a secure locking device and stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or

(ii) stored in a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in

(i) a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into, or

(ii) a vault, safe or room that has been specifically constructed or modified for the secure storage of restricted firearms and that is kept securely locked.

It is very important to note the conjunctions throughout the legislation as they are both important and plentiful.

Non-Restricted Firearms

Section 5(1) of the SDT Regs outlines that an individual may store a non-restricted firearm only if:

(a) it is unloaded;

(b) it is;

(i) rendered inoperable by means of a secure locking device,

(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or

(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.

Transportation of Firearms

Restricted Firearms

Section 11 of the SDT Regs outlines that an individual may transport a restricted firearm only if:

(a) it is unloaded;

(b) it is rendered inoperable by means of a secure locking device;

(c) it is in a locked container that is made of an opaque material and is of such strength, construction and nature that it cannot readily be broken open or into or accidentally opened during transportation; and

(d) if it is in a container described in paragraph (c) that is in an unattended vehicle,

(i) when the vehicle is equipped with a trunk or similar compartment that can be securely locked, the container is in that trunk or compartment and the trunk or compartment is securely locked, and

(ii) when the vehicle is not equipped with a trunk or similar compartment that can be securely locked, the vehicle, or the part of the vehicle that contains the container, is securely locked and the container is not visible from outside the vehicle.

Unlike non-restricted firearms, the Firearms Act adds more levels of complexity to the above outlined SDT Regs.

Section 19(1) of the Firearms Act advises that a licenced individual may be authorized to transport a restricted firearm “between two or more specified places for any good and sufficient reason”. This use of “may be authorized” refers to an Authority to Transport colloquially known as an “ATT”. This is essentially a permission slip from the RCMP to bring your restricted firearm to a variety of places for “good and sufficient reasons”.

The section continues to give examples such as shooting ranges, safety courses, gun shows, repairs etc.

Non-Restricted Firearms

Section 10(1) of the SDT Regs outlines that an individual may transport a non-restricted firearm only if:

(a) Except in the case of a muzzle-loading firearm that is being transported between hunting sites, it is unloaded; and

(b) in the case of a muzzle-loading firearm that is being transported between hunting sites, its firing cap or flint is removed.

Section 10(2) of the SDT Regs continues to add that – subject to subsection (3), an individual may transport a non-restricted firearm in an unattended vehicle only if:

(a) when the vehicle is equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is in that trunk or compartment and the trunk or compartment is securely locked; and

(b) when the vehicle is not equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is not visible from outside the vehicle and the vehicle, or the part that contains the non-restricted firearm, is securely locked.

As there is no corresponding section under the Firearms Act for non-restricted firearms, it is clear that there is a demonstrably clear pattern within the legislation that allows for a laxer framework when dealing with non-restricted firearms.

Display of Firearms

Restricted Firearms – In A Dwelling House

Section 9(1) of the SDT Regs outlines that an individual may display a restricted firearm in a dwelling-house only if:

(a) it is unloaded,

(b) it is rendered inoperable by means of a secure locking device,

(c) it is in securely attached to a non-portable structure in such a manner that it cannot readily be removed, and

(d) it is not displayed with and is not readily accessible to ammunition that can be discharged from it.

Restricted Firearms – Not in a Dwelling House

Section 9(2) of the SDT Regs outlines that an individual may display a restricted firearm anywhere else except in a dwelling-house only if:

(a) it is unloaded;

(b) it is rendered inoperable by means of a secure locking device;

(c) it is securely attached to a structure on which it is displayed by a chain, metal cable or similar device in such a manner that the restricted firearm cannot readily be removed;

(d) it is not displayed with and is not readily accessible to ammunition that can be discharged from it, unless the ammunition is displayed in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.

It is important to note that there is an exception to 9(2)(c) (above). It does not apply if the firearm is detached from the structure so that the firearm may be handled by a person under the direct and immediate supervision of the individual displaying it.

Non-Restricted Firearms – In or Out of a Dwelling House

Section 8 of the SDT Regs outlines that an individual may display a non-restricted firearm only if:

(a) it is unloaded;

(b) it is rendered inoperable by means of a secure locking device or is in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and

(c) it is not displayed with and is not readily accessible to ammunition that can be discharged from it.

Similar to the storage and transportation regulations, there is a continuation of the laxer theme when addressing non-restricted firearms.

Ammunition

Unlike restricted and non-restricted firearms, the legislation surrounding ammunition is unfortunately both vague and unclear.

First, ammunition is defined in s. 84 of the Code as – “a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell.”

Second, there is no section in the SDT Regs that addresses ammunition explicitly – rather it is passively mentioned in ss. 5(1)(c) and 6(c). Both of these mention that ammunition cannot be readily accessible to ammunition, unless the ammunition is “stored together with or separately from the firearm” in a proper receptacle as outlined in these sections.

Based on a reading of this, one would believe that as long as the ammunition or the firearm are not simultaneously “readily accessible” (assuming it’s not stored with the firearm which is ironically inherently readily accessible) then there is no further guidance on how it should be stored.

If the ammunition is downstairs and the guns are upstairs is that enough to avoid ready accessibility? What if the guns are in a shed and the ammo is in a bowl in the living room as a centerpiece? For a topic with such intricate and complicated legislation, it is odd that the second component that makes the firearm operational is under legislated. Potentially it is a “cash cow” or a deliberate trap for otherwise diligent gun owners to be fined and lead to an ancillary order to confiscate their firearms.

The Firearms Act, does address ammunition briefly in s. 108, but this is solely directed at businesses rather than individuals.

There some minimal guidance from the Code in s. 86(1) but that is addressed in the following part of this article (below).

The Criminal Offences: ss. 86(1) and (2)

With all the above four pieces of legislation working on both federal and provincial levels, it would logically follow that the relevant charges under the Criminal Code would be exhaustive and clear cut. Right?

Wrong. Instead the Code puts all the storage, transportation, and display, offences for all firearms, restricted weapons, prohibited weapons, (see: Yaqua Blowgun) and ammunition into one of an offence in s. 86(1) and another more minor offence in s. 86(2).

Further to s. 86(3), both of the offences below are hybrid and thus the Crown has the power to elect either by summary or indictment.

Section 86(1)

Section s. 86(1) reads:

 “86 (1) Every person commits an offence who, WITHOUT LAWFUL EXCUSE, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

Let’s unpack that step by step.

Every person commits an offence who, without lawful excuse does any of the following 5 things:

(a) uses,

(b) carries,

(c) handles,

(d) ships,

(e) transports, or

(f) stores

To any of the following 6 things:

I. firearm,

II. a prohibited weapon,

III. a restricted weapon,

IV. a prohibited device,

V. any ammunition, or

VI. prohibited ammunition

In a:

1. careless manner or

2. without reasonable precautions for the safety of other persons.

That covers everything, right? So through simple math there’s 76 (6 * 6 * 2) different combinations and thus 76 separate and distinct offences that one could stumble upon here.

It is of interest that the mens rea here, according to the Supreme Court of Canada in R. v. Carlos (adopting the dissent in the appellate decision) is a “marked departure from the standard of care of a reasonably prudent person in the circumstances”. This is relatively high and is not a mere negligence standard.

This begs that question of how a “lawful excuse” (as mentioned earlier on in the section) could coexist with a “marked departure from the standard of care of a reasonably prudent person in the circumstances”. Unfortunately, the only insight into this dilemma I could find is R. v. Collins, [1999] O.J. No. 2437 where Whalen J. held the following at paragraphs 22 to 24 of the judgement:

22 When one thinks about it, there is no lawful excuse for acting with “reckless disregard for the lives or safety of other persons.” An individual who acts with such reckless disregard cannot, by necessary implication, have a lawful excuse for so doing. While our law permits the use of violent force in some circumstances, that use of force must be calculated to be only so much as is necessary to justify the permitted purpose and it must avoid death if reasonably possible in the circumstances. In other words, it requires care and calculation and does not permit recklessness or wanton disregard.

23 On the other hand, where the standard involves carelessness and absence of precautions for the safety of others, there may be situations where conduct that would otherwise be sanctioned may be legally justified, for example, where police may have to use their guns to defend themselves or the community against violent individuals, (although it would not appear they can be reckless in that legal pursuit).

24 I am therefore satisfied that the words “without lawful excuse” in s. 86(2) are not an added essential ingredient, but rather a narrowing or limiting feature that furthers the characterization of the offence as a lesser and included one to the fuller offence of criminal negligence causing death.

This is a Superior Court Ontario judgement, not an Appellate Court and it does involve a case where  s. 86(1) was a lesser and included one to the fuller offence of criminal negligence causing death. However, it does illuminate a strange oxymoron within the section. Furthermore, I was unable to find a definition of “lawful excuse” in the context of this section specifically.

This only adds to the greyness and proves the point of how careful one has to be when interacting with firearms to avoid a charge under s. 86(1).

Section 86(2) – Strict Liability

Section 86(2) reads:

86(2) Every person commits an offence who 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.”

Unlike s. 86(1), s. 86(2) is much simpler and essentially gives the Firearms Act, and it’s regulations teeth. Since the Firearms Act and the SDT Regs don’t specify penalties for their breaches, they’re all rerouted to this section.

Again, unlike s. 86(1) and the above discussion, s. 86(2) is a strict liability offence. In an offence of this type, the Crown must prove non-compliance with the regulations beyond a reasonable doubt. The defendant may avoid liability by raising a reasonable doubt through a defence of due diligence. It is a lower bar for the Crown to prove.

Conclusion

This article is not meant to be an exhaustive legal guide to gun charges in Canada, but rather a glimpse into the complex and labyrinthine nature of the legislation relating to the storage, transportation, and display, of ammunition and non-restricted or restricted firearms in Ontario as well as a couple rudimentary cases.

The odds of success with any responding to any of these charges are much higher with the insight and guidance of experienced counsel. Maybe you found your grandfather’s old pistol in a trunk and want to legally dispose of it.  What if you went hunting with some friends and left a box of shells laying out at the cottage. If the Crown is seeking jail time, you need your weapons for your employment, hunting, or home security, or you just want to make sure that your current set-up is legally compliant – then it is strongly suggested that you retain competent legal counsel.

The lawyers in our firm offer experienced legal representation for serious gun law offences like Careless Use of a Firearm, Contravention of Storage Regulations, or even Assault With a Weapon.  You can reach us 24 hours a day by calling (416) 999-9389 or complete a consultation form here.

By |2018-06-26T14:58:44+00:00June 26th, 2018|

Want to add you voice to the discussion?