FIREARMS FACTS - UPDATE

POSSESSION OF A FIREARM WHEN THE LICENCED GUN OWNER ISN’T HOME?

In response to a request by MP Garry Breitkreuz, the

Parliamentary Research Branch of the Library of Parliament provided the following background information dated 

September 25, 2003

It is important to note that this general background information is provided to assist you with your work as a Member of Parliament and is not advice offered to any individual directly or indirectly.  Since this letter does not constitute legal advice, any person concerned about their legal rights in relation to firearms should seek the counsel from a practising lawyer who will be able to set out the person’s rights and obligations.

The main concern raised was whether or not a person requires a firearms licence when another person, a licensed individual, leaves firearms in a home when they are away for a certain period of time.  Some seem to believe that the person who remains in the house automatically comes into possession of the firearms when the other leaves home.  The law on possession is not that clear.  In fact, section 4(3) of the Criminal Code defines possession as follows: (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one or two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.  Under this definition, a person is in possession of an item in the following circumstances: if they have personal possession of the item; if they are in constructive possession of the item; or, if they are in joint possession of the item.  This definition indicates that a person may remain in possession of an item even if it is in the possession or custody of another person or even if it is at a place not occupied by the person.

The Supreme Court of Canada has found that with respect to personal possession, the physical possession of the item must co-exist with knowledge of what the item is and some measure of control (Beaver v. The Queen (1957) 118 C.C.C. 129).  The key question with respect to firearms being left in a home would be the question of control over them.

The safe storage requirements as set out in the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, require, at a minimum, that firearms be stored with a secure locking device.  Additional requirements are set out with respect to restricted and prohibited firearms – stored in a container, receptacle or room that is securely locked.  If a person does not have access to the firearms and is not in a position to “control” these items, it is unlikely that this person would be found to be in possession of the firearms.  This would appear more to be a case of constructive possession, where the person leaving the firearms behind is found to be in possession of an item by knowingly leaving it in the custody of someone else or has it in a place for the use or benefit of himself or another person.

Whether or not a person is in possession of an item wholly depends on the facts of the situation.  The more the person has control and access to the item (for example, if the person is given the key to the locking device), the more likely the person would be found to be in possession of the item.  To avoid any potential problems, the licensed individual should ensure that not person, other than other licensed individuals, have access to the firearms in question.  This would avoid any inference of possession by other unlicensed parties.  In cases where a person has access and control of firearms, they should obtain the required firearms documentation.

NOTE:  Underlining added for emphasis of the main points.