INHERITANCE AND TODAY'S LAWS
by David A. Tomlinson, National President
You have the unfortunate duty of telling a woman that her husband was killed in a hunting accident. Obviously, the man possessed firearms. What does the law say must happen to the firearm the man was carrying, and any other firearms he owned, upon his death?
The phrase, "by operation of law", means the
automatic transfer of legal possession from the deceased to the
executor of his estate, as a part of the estate, at the moment of death.
This will help you to understand what you should and should not do:
Firearms Act section [FA s.] 112(1) says, ".. every person.. who...possesses [any unrestricted firearm] without being the holder of a registration certificate [covering it is guilty of an offence]..."
But -- FA s. 112(2) says, "(2) Subsection (1)
does not apply to...(b) a person who comes into possession of a firearm
by operation of law..." (as an executor does).
CC S. 91(1) says, "...every person...who possesses [any] firearm [is guilty of an offence] unless the person is the holder of (a) a licence [covering it]...and (b) a registration certificate [covering it]..."
And CC S. 91 (2) says, "...every person...who possesses a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition [is guilty of an offence] unless the person is the holder of a licence [covering it]..."
But -- CC s.91 (4)(b) says, "Subsections (1) and (2)
do not apply to (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition
by operation of law..."
CC s. 92(1), 92(2), and 92(4)(b) say much the same thing, and cover the situation where the accused does know the law, while CC s. 91 covers situations where the accused may not know what the law requires.The law set forth in C-68 is crystal clear.
Any firearm, prohibited weapon, restricted weapon, prohibited device, or prohibited ammunition that passes into the hands of an executor is legal, and possession by that executor is legal -- for a "reasonable period".
All firearms and any of the other items listed held by the deceased -- legally or illegally -- become [if necessary, and temporarily] legal as they pass into the hands of the executor at the moment of death. The executor has broad exemptions granted to him by the law in order to let him settle the estate in an orderly manner, and with a minimum of firearms control system problems.
Law enforcement officers should, therefore, be very cautious about seizing firearms (and other listed items) that are involved in an inheritance process. There can be claims for damage due to poor handling or poor storage, as well as complaints of illegal seizure.The exemptions granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are very broad. Even an obviously illegal, unregistered full automatic submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited handgun temporarily becomes perfectly legal, temporarily. That happens when the death of its possessor passes it, automatically, into the possession of the executor of the estate -- who needs
no licence
or registration certificate to be in possession of it.
If the deceased dies in possession of a "prohibited firearm" described in FA s. 12(6), that firearm
can be passed on to the heir
if the conditions set out in FA s. 12(7) are met.
If the deceased died in possession of a "prohibited firearm" that no one but a museum can have, the executor may legally transport it
without an Authorization To Transport (ATT) -- say, to a gunsmith for deactivation. (The executor must stay with it while it is deactivated, so that it is never illegally
possessed by the
gunsmith.) Once deactivated, it is still an asset of the estate, but it is no longer a firearm under the CC s. 2 definition of "firearm".
The statement that an executor does not need an ATT requires explanation, as Parliament set up that exemption in two different ways, both having the same purpose:
CC s. 93 criminalizes
only "the
holder of an
authorization or a
licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition" -- if that person has the item at a forbidden location. An executor is
not "the holder of an authorization or a licence under which the person may possess" the item. He or she is merely the agent for the real possessor -- the estate. He or she has temporary possession
only under the exemption granted to executors, so this section
does not apply to an executor and
cannot be used to charge an executor.
CC s. 94(4) provides an exemption to a CC s. 94(1) charge against an executor who is actually transporting such an item, and for anyone else who is in a motor vehicle with such an executor. That
confirms that it was Parliament's intent to exempt an executor from ATT considerations, as well as licence and registration certificate considerations.
However, the
Storage, Display, Transportation and Handling of Firearms by Individuals Regulations apparently
do apply to an executor, and must be obeyed by an executor.
If you have questions on this, or any other issue regarding firearms, the National Firearms Association would be pleased to answer them for you.
Please call us at (780)439-1394
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Antique Firearms
by David A. Tomlinson, National President
Criminal Code section (CC s.) 84(3) says, in part:
ØFor the purposes of (CC) sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms:
Ø(a) any antique firearm...
Therefore, no POL, or PAL licence, ATT, ATC, registration certificate, transfer procedure, or documentation is required for any transfer, transportation, or possession of any "antique firearm". Also, as CC s. 84(3) says, nothing in the Firearms Act applies to any "antique firearm".
That also applies to an "antique firearm" that is also a "prohibited firearm" or a "restricted firearm". Yes, that odd pairing can and does happen!
CC s. 84(1) "restricted firearm" says, in part:
Ø84. (1)... "restricted firearm" means (a) a handgun that is not a prohibited firearm...
Therefore, any handgun that is an "antique firearm" is also a "restricted firearm" unless it is both an "antique firearm" and a "prohibited firearm".
CC s. 84(1) "prohibited firearm" says, in part:
Ø84. (1) "prohibited firearm" means (a) a handgun that
Ø (i) has a barrel equal to or less than 105mm [4.14"] in length, or
Ø (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge...
Therefore, any handgun that is an "antique firearm" is also a "prohibited firearm" if it has a barrel less than 105mm/4.14" long, regardless of whether it is a muzzle-loading handgun or a cartridge-firing handgun, and regardless of calibre.
Also, any handgun that is an "antique firearm" is also a "prohibited firearm" if it is "designed or adapted" to use "a 25 or 32 calibre cartridge".
So which firearm is an "antique firearm" today?
Ø84. (1) "antique firearm" means:
Ø (a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or
Ø (b) any firearm that is prescribed to be an antique firearm.
So far, any matchlock, wheel-lock, flintlock or cap-and-ball firearm made before 1898, including a handgun, is an "antique firearm" under CC s. 84(1)(a). But what about CC s. 84(1)(b)? Are there any "prescribed" antique firearms?
Yes, there are. They are listed in Regulations Prescribing Antique Firearms, SOR 98-464, 16 Sep 98, proclaimed in the Canada Gazette Part II, Vol 132 No 20, dated 30 Sep 98, at page 2725, which defines them, in part, as:
Ø1. A reproduction of a flintlock, wheel-lock, or matchlock firearm, other than a handgun, manufactured after 1897.
Note: Post-1897 cap-and-ball long arms, and handguns of any kind, are not "antique firearms" under this paragraph.
Ø2. A rifle manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, Long, or Long Rifle.
Note: This puts a repeating rim-fire rifle that is not .22 calibre, like the lever-action .44 rimfire Henry or Swiss Vetterli in .41 Swiss rim-fire, into the "antique firearm" class.
Ø3. A rifle manufactured before 1898 that is capable of discharging centre-fire cartridges, whether with a smooth or rifled bore, having a bore diameter of 8.3 mm [.327"] or greater measured from land to land in the case of a rifled bore, with the exception of a repeating firearm fed by any type of cartridge magazine.
Note: This includes only single-shot large-bore rifles and unrifled "rifles". (It is probable that this odd wording is intended to include items like smoothbore versions of the Trapdoor Springfield in 45-70 or 50-70. With this wording, the dividing line between a "rifle" and a "shotgun" is so blurred that judges will be required to draw the final line -- with a Supreme Court of Canada decision being needed for finality.
Ø4. A shotgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, Long or Long Rifle.
Note: This defines an old 9 mm rim-fire shotgun as an "antique firearm". That seems likely to cause dating problems, as few of the many 9mm rim-fire shotguns in Canada can be accurately dated.
Ø5. A shotgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than 10, 12, 16, 20, 28, or 410 gauge cartridges.
Note: This is fairly useless, except to exempt guns for a few advanced collectors. It may be helpful for a collector who owns several 8 gauge shotguns, but there are severe problems in dating old shotguns.
Ø6. A handgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, Long or Long Rifle.
Note: This defines every .30, .32, .38, and .41 calibre rim-fire derringer and revolver as an "antique firearm".
Ø7. A handgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than a handgun designed or adapted to discharge 32 Short Colt, 32 Long Colt, 32 Smith and Wesson, 32 Smith and Wesson Long, 32-20 Winchester, 38 Smith and Wesson, 38 Short Colt, 38 Long Colt, 38-40 Winchester, 44-40 Winchester, or 45 Colt cartridges.
Note: This includes any pre-1898 Colt Single Action or Double Action revolver in .41 calibre, plus any Smith and Wesson or other revolver in any .44 calibre other than .44-40 Winchester. If a Colt revolver, manufactured in 1882 in .44-40 calibre, is not an "antique firearm" because .44-40 is on that list. If the barrel and cylinder are removed and disposed of, it becomes an "antique firearm, because it is not designed or adapted to discharge" any cartridge on that list. If it is then re-barreled and re-cylindered to fire .44 Special cartridges, it is still an "antique firearm" because .44 Special is not on the cartridge list.
Note: The term "manufactured before 1898" is vague. For example, the Remington .41 rim-fire double-barreled derringer was manufactured continuously from 1866 to 1935. The actual date of manufacture of a particular specimen cannot be determined, because no list of the serial numbers used in any particular year is available.
The key to the confusion at this point is that the CC s. 84(1) definition uses the words, "any firearm manufactured before 1898". That wording is ambiguous, and has been, historically, interpreted in two different ways by CFR/FRAS.
The question is whether Parliament intended that a firearm should qualify as an "antique firearm" on the basis of the actual age of that particular firearm, or on the basis of the antiquated design of the firearm.
It seems very probable that Parliament intended that the designation "antique firearm" should apply to an antiquated design rather than to the age of the particular firearm. While the age of a particular firearm may be important to an antiquarian or a collector of historic relics, the firearms control legislation is concerned with public safety, not academic matters like absolute age. A firearm manufactured at 11:59 PM on 31 Dec 1897 and another manufactured at 00:01 AM on 01 Jan 1898 are identical in the danger that they pose to public safety. It therefore seems very unlikely that Parliament intended to sharply distinguish the way in which the firearms control system would treat two such identical firearms on the basis of age.
In some cases, a recognized authority states that all of the particular handguns actually assembled and in the warehouse ready to be shipped by a manufacturer before 1898 bore serial numbers below, say, "123456". In such a case, CFR/FRAS often treats all handguns with serial numbers below that serial number as "antique firearms". CFR/FRAS then treats firearms with serial numbers above that serial number as "restricted firearms" or "prohibited firearms" that are not "antique firearms".
In simple language, when the CFR/FRAS personnel have that type of serial number information, the above pattern of behavior is frequently -- but not always -- the pattern of behavior adopted by CFR/FRAS officials.
In cases where the manufacturer no longer exists, or the manufacturer's lists of serial numbers used before and after the year 1898 have been destroyed or are no longer available for any reason, the behavior of CFR/FRAS officials has been different. In such a case, the fact that the firearm began being manufactured before 1898 has frequently been considered as adequate evidence that every handgun of that pattern is an "antique firearm," not subject to registration requirements.
In sum, the CFR/FRAS officials have sometimes treated handguns as if the legislation's words, "any firearm manufactured before 1898" means "any firearm of a design manufactured before 1898" and sometimes as if they means "any particular firearm that was itself manufactured before 1898".
It is not possible that both interpretations are correct. One is correct, and one is incorrect. It is either the age of the design, or the age of the particular firearm.
Parliament's intent may have been communicated by its choice of the word "manufactured" and by its rejection of the use of the words "assembled and ready to be shipped". Understanding Parliament's intent requires understanding of other definitions pertinent to the situation.
Parliament's intent is further clarified by the choice of wording in FA s. 12(7), another provision that deals with firearms by date of manufacture.
Ø12. (7) A particular individual is eligible to hold a licence authorizing the particular individual to possess a particular handgun...that was manufactured before 1946...
That wording clarifies the intent, showing that it is the particular firearm that must have been manufactured before midnight of 31 Dec 45. A particular firearm of a design manufactured before 31 Dec 45 -- but which itself was manufactured in 1946 or later -- would not be included.
Obviously, if Parliament had intended its provision "manufactured before 1898" to apply to the manufacture of each particular firearm, it could have used the same language. It did not.
What is striking about this situation is that FA s. 12(7) and 84(1) "antique firearm" were written as parts of the same Bill for enactment by Parliament. Therefore, the difference in wording is apparently significant, and should be taken into consideration when deciding Parliament's intent regarding the "antique firearm" definition in CC s. 84(1). It is strong evidence that Parliament intended that "any firearm manufactured before 1898" means "any firearm of a design manufactured before 1898", not "any particular firearm that was itself manufactured before 1898".
CC s. 2 defines "firearm" as "a barrelled weapon...and includes and frame or receiver of such a barrelled weapon".
Therefore, clearly, once a "frame or receiver" has been manufactured, a "firearm" has been manufactured, under Canadian law. That was not the understanding of a factory at the turn of the century when it was compiling production records. In their view, a firearm had not been manufactured until it was assembled and completed in all respects.
A manufacturer may make a "frame or receiver," and stamp it with a serial number immediately -- or manufacture many receivers, and not stamp them with serial numbers until the date that an entire firearm is assembled using that "frame or receiver". It is therefore obvious that the date of manufacture of a particular firearm -- as determined by current Canadian law -- can at best be approximated, but not definitively known.
Clearly, accepting the word of some "authority" that a particular serial number marks a solid and definitive dividing line between firearms "manufactured" on or before 11:59 PM 31 Dec 1897 and firearms "manufactured" on or after 00:01 AM 01 Jan 1898 is unrealistic. The "frame or receiver" might well have been manufactured well before the dividing moment, but did not receive its serial number until after the dividing moment. It may have received its serial number before the dividing moment, but not have been recorded in the manufacturer's record books as a firearm until after the dividing moment. The truth is, in most cases, unknowable.
Many manufacturers did not stamp the serial number on the "frame or receiver". They stamped it on the barrel. A barrel, in Canadian law, is an uncontrolled spare part, not a "firearm". In other cases they stamped the number on some other uncontrolled spare part. Where that happened, the serial number is clearly useless for determining the date of manufacture of the "frame or receiver". There may well have been an innocent substitution of parts that altered the apparent serial number of the firearm, somewhere in the interval between 01 Jan 1898 and the present.
Many manufactures, particularly manufacturers of cheap "utility" firearms, did not stamp them with serial numbers at all. In such cases, there is no possibility, at this late date, of determining the actual date of manufacture of a particular "frame or receiver", or event the date that the complete firearm was first assembled.
Parliament clearly intended that its legislation should have one meaning. It seems unlikely that Parliament intended to write legislation requiring its officials to know the unknowable. That would have been rather silly.
It is therefore highly probable that Parliament intended that the legislation's words, "any firearm manufactured before 1898" to mean "any firearm of a design manufactured before 1898" and not "any particular firearm that was itself manufactured before 1898".
It is also probable that Parliament did not intend to create the ridiculous situation that the latter interpretation would require. It is not reasonable to believe that Parliament intended the "frame or receiver" of a single-shot rifle manufactured at 11:59 PM on 31 Dec 1897 is an "antique firearm" not requiring registration, while an identical rifle manufactured two minutes later is not an "antique firearm".
Clearly, a Walker Colt cap-and-ball revolver manufactured in 1847 is an "antique firearm". The 1847 batch of Walker Colts was not manufactured by Colt. Each specimen was manufactured in a factory not owned by Colt, marked "Colt," and sold to Colt. Colt then sold it to Colt's customers.
It may well be that a Walker Colt manufactured in 1974, bearing the Colt factory markings and sold by Colt, is also an "antique firearm". Like the 1847 Walker Colt, the 1974 batch of Walker Colts was not manufactured by Colt. Each specimen was manufactured in a factory not owned by Colt, marked "Colt," and sold to Colt. Colt then sold it to Colt's customers.
The 1974 Walker Colts are identical to the 1847 Walker Colts, and their serial numbers begin where the 1847 Walker Colt series of serial numbers end.
That may well be sufficient to have the 1974 batch of 1847 Walker Colt revolvers ruled to be "antique firearms".
If that is how a judge rules, and it may well be, then another 1847 Walker Colt -- made in the same Italian factory but marked differently and sold in or from the United States by a different importer -- may also be an "antique firearm" under the CC s. 84(1)(a) definition.
The dividing line between what is and what is not an "antique firearm" is undefined at present. The only person who can give us an answer is a judge in a court of criminal law, and a final answer is only available at the Supreme Court of Canada level. The law allows everyone to have an opinion -- but it does not allow anyone but a judge to rule on what this sadly vague legislation actually means.
If the principles established by the Orders in Council of 01 Dec 98 that put so many firearms into the "prohibited firearm" and "restricted firearm" classes are followed, the "antique firearm" class is again expanded. Those Orders in Council named one "firearm of the design commonly known as the..." and then included under that designation "and any variant or modified version of it". Lists of "variants" accompanied some of the designated 'parent' firearms [Canada Gazette Part II, Vol 132, No 20, 2702 to 2711].
On those lists, firearms made in a different factory in a different country in a different calibre, but with a similar mechanism, were listed as "variants" of the "firearm of the design commonly known as the...", and therefore also became, in law, a "firearm of the design commonly known as the..."
Firearms that had totally different mechanisms, and merely looked somewhat like the designated "firearm of the design commonly known as the..." were listed as "variants" of the firearm designated by law. They therefore also became, in law, "restricted firearms" or "prohibited firearms" by virtue of their relationship to the designated firearm.
If those broad-brush principles apply to the definition of "antique firearm," then minor changes such as calibre or altered mechanism would not be enough to take a firearm based on a design that began to be manufactured before 01 Jan 1898 out of the "antique firearm" class.
There is another major change between the previous legislation and current legislation. In the previous Act, CC s. 84(2) said:
Ø84. (2) Notwithstanding the definition "firearm" in susection (1), for the purposes of the definitions "prohibited weapon" and "restricted weapon" in that subsection and for the purposes of section 93, subsections 97(1) and (3), and sections 102, 104, 105 and 116, the following weapons shall be deemed not to be firearms:
Ø (a) an antique firearm unless
Ø (i) but for this subsection, it would be a restricted weapon, and
Ø (ii) the person in possession thereof intends to discharge it... [emphasis added throughout].
The equivalent subsection in the current legislation says,
Ø84... (3) For the purposes of sections 91 to 95, 99 to 101, 103 to 1007 and 117.03 of this Act and the provisions of the Firearms act, the following weapons are deemed not to be firearms:
Ø (a) any antique firearm [emphasis added throughout]...
Therefore, under the previous legislation, any antique firearm became a "firearm" and a "restricted weapon" or a "prohibited weapon" (if it met the CC s. 84(1) physical characteristic list for such a designation) at the moment the possessor formed an intention to discharge it.
Under the current legislation, "any antique firearm" (including, apparently, a loaded one) is not a "firearm" for the following purposes:
Ø1. Firearms Act: None of the provisions of the Firearms Act, including those requiring registration, licences, ATTs and/or ATCs, apply to any "antique firearm".
Ø2. CC s. 91 and 92: Possession of any "antique firearm" without a licence or registration certificate is legal.
Ø3. CC s. 93: Possession of any "antique firearm" at any location is legal.
Ø4. CC s. 94: Being in a motor vehicle with any "antique firearm" is legal.
Ø5. CC s. 95: Being in possession of a loaded "antique firearm" (which is also a "restricted firearm" or a "prohibited firearm"), or one with readily accessible ammunition is legal even if the person is not the holder of any licence, registration certificate, ATT, or ATC.
Ø6. CC s. 99: Transferring or offering to transfer any "antique firearm" is legal.
Ø7. CC s. 100: Dealing in any type of any "antique firearm" is legal.
Ø8. CC s. 101: Transferring any "antique firearm" is legal if the transfer apparently violates the Firearms Act.
Ø9. CC s. 103 and 104: Importing or exporting any "antique firearm" is legal.
Ø10. CC s. 105: Not reporting the loss or finding of any "antique firearm" is legal.
Ø11. CC s. 106 and 107: Not reporting the destruction of any "antique firearm" is legal, and knowingly making a false report of that type to a firearms official or the police is legal.
Ø12. CC s. 117.03: A peace officer who finds a person in possession of any "antique firearm" is not authorized to demand that the person present a licence, registration certificate, ATT, and/or ATC.
On the other hand, an "antique firearm" is still a "firearm" for the purposes of all sections of the Criminal Code other than those listed above. For example, an "antique firearm" is a "firearm" for the purposes of CC s. 85 (using while committing an offence), 86 (storage and transportation rules -- but the rules for "antique firearms" are very mild), 87 (points a firearm at another person), 88 (possession for a purpose dangerous to the public peace), 89 (possession at or on the way to a public meeting, and 90 (carrying a weapon [see CC s. 2 "weapon" and "firearm"] concealed).
