The legal of storage of firearms is an issue that is confusing to many firearms owners. It is equally confusing to police officers, conservation officers and even to judges in a court of law.
There are three areas where a firearms charge can be laid. A firearm owner could be charged with the offence of a ‘firearm being used illegally’ of the offence of a firearm ‘illegally being transported’ or the offence of a firearm ‘carelessly being stored’. Careless storage of a firearm is the most frequently laid charge. That section of the Regulations is also one of the most confusing sections of the law.
Section 86. (1) of the Canadian Criminal Code states:
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.
Problems come from the confusion between what is actually storage, what is actually meant by the words, ‘use of a firearm’, what is actually transported and finally, and what is meant by the words, ‘display of a firearm’. The Regulations on storage, display and transportation display differ — depending on what type of firearm it is—non-restricted, restricted, or prohibited. They also differ depending on whether the firearm is in the possession of an individual, or of a business.
There are certain areas here that are readily understandable. For example;
The firearm must be stored unloaded. That is pretty obvious, and it is the same for all classes of firearms, in the possession of anyone. The firearm must be either trigger locked, or have the bolt removed, or must be stored in a secure locked container, receptacle or room.
The regulations say that a firearm must be stored so that 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.’
Again, there is no definitive meaning in the Regulations to tell the reader what “not readily accessible” means. Does it refer to a separate room, or is it in the box the ammunition came in sitting beside the firearm or does it mean locked in a safe-like container?
Canada's laws on the storage and handling of guns and ammunition are so confusing that a veteran judge needed to adjourn court in a recent court case to allow two experienced lawyers more time to prepare their legal arguments and to search case law to help them explain their position on the issue before the court.
The matter was adjourned after two days of trial in the case of Ian Thomson, a 54-year-old Port Colborne man who fired three shots from his legally owned gun to scare off three masked men who were firebombing his secluded farmhouse. One of them threatened him by yelling; “Are you ready to die?”
Two of the charges against Mr. Thomson were dangerous use of a firearm and pointing a firearm however, both charges were dropped before the trial began. He then pleaded not guilty to two charges of careless storage of a firearm.
The shocking attack on Mr. Thomson's home, which was caught on video by surveillance cameras, and the fact that Mr. Thomson is a former firearms instructor, didn’t appear to concern the prosecutor. He went ahead with the two charges of careless storage of a firearm anyway.
Assistant Crown attorney (asst. prosecutor) Robert Mahler questioned Mr. Thomson's credibility. He argued that Mr. Thomson concocted an improbable sequence of events to explain away the probability that he had kept loaded handguns ready in his bedside table because he was involved in a neighbourhood dispute, and not, as he maintains, locked away in a safe. It is beyond understanding as to how he can make that presumption without any evidence to support his theory.
Mr. Thomson’s response to that allegation was, “If those guns were in my bedside table, I would not have needed to run out the front door to shoot, once the firebombs started landing on my house. I would have used that gun right there, through the bedroom window. I wouldn't have hesitated when I noticed a masked assassin outside my house.”
I guess he thought the fire bomber was going to kill him. Certainly fire bombing a man’s house in the dead of night could lead a reasonable man to believe that there was an assassin outside his house.
Mr. Mahler said Mr. Thomson was less than forthcoming and secretive when police arrived. He suggested Mr. Thomson even picked up the spent shell casings from his porch and hid them in his bedside table. If he did that, he risks being subjected to the suspicions of the police when they came onto the scene.
"Didn't they fall to the ground?" Mr. Mahler asked, apparently thinking shell casings from a .38-calibre revolver were ejected from the gun with each shot. Obviously the assistant prosecutor is in water that is over his head since everyone other than him knows that when bullets are fired from a revolver, the shell casings remain in the revolver until they are purposely ejected by the person firing the gun.
"No," said Mr. Thomson as the crowd of gun advocates watching from the public gallery laughed at Mr. Mahler's blunder.
Mr. Thomson said that he took the shell casings out at the same time he opened the gun to reload it, and when the police arrived, the shell casings were on his bedside table. That doesn’t necessarily mean that he stored it in a drawer of his bedside table. However, even if he did after firing his gun towards the fire bombers that night, he would be justified at keeping the gun at arm’s reach lest they return later to complete their task of burning his house down. Keeping his handgun in a locked safe with the ammunition locked in another locked container after the incident would be foolhardy since by the time he retrieved them and reloaded his gun, the house would be in flames.
It was during Mr. Mahler's closing arguments that questions of what exactly the gun laws mean came into focus. Mr. Thomson had testified he had 61 rounds of ammunition in his bedside table but that his guns were locked away.
Mr. Mahler argued that even if everything Mr. Thomson said was true, he was still guilty of unsafe storage of his gun because the prosecutor's interpretation of the Criminal Code was that the gun must be locked up and the ammunition must not be readily accessible, unless it too is stored in a secure container.
The assistant prosecutor was right on that point. Although he could hardly prove that the gun was not secured in a secured container, he would have no probably establishing the fact that the ammunition was not.
That interpretation of the Regulations by Mr. Thomson's lawyer, Ed Burlew, was different. His expertise is based on the fact that he is one of Ontario's respected gun-law lawyers, having fought more than 600 gun cases in court. He said the law means that ammunition should not be readily available to people other than the lawful gun owner. In Mr. Thomson's case, the ammunition was in a secured home with an extensive security system in which he lived alone.
I am not sure he’s right on that point. My understanding of the gun laws in Canada is that the ammunition should also be secured in a home so that children in the home won’t get access to it or even criminals won’t get access to it. He may not have any children in his home but certainly criminals could break into his home and steal the ammunition from his night table. Ammunition cannot be purchased in Canada in stores by anyone unless they have a permit that permits them to purchase ammunition. This sis why criminals like breaking into homes where they suspect the homeowner has guns.
In any event, Mr. Burlew told Judge Tory Colvin, that the Crown led no evidence or examination of the bedside table, whether the drawer had a lock, what it was made of or how it was accessible. Further, the Crown didn’t present any evidence of whether the ammunition was capable of being successfully fired from a gun or whether it fit either gun Mr. Thomson had in his possession during the incident.
In my opinion, the ammunition in the drawer could be successfully fired from Mr. Thompson’s gun otherwise why did he have it in his drawer?
Such different positions appeared to trouble Judge Colvin who suggested the lawyers present past case law on the issues before the court.
What I find interesting about this case is that recently the chief of police in a small town in Ontario was discovered to have placed his handgun under the seat of his car which as anyone can surmise, is not a safe place to put a loaded handgun. Instead of being charged like Mr. Thompson was, all that happened to him was that he got a letter from the Police Board telling him not to do it again. There appears to be two laws—one for the police and one for the citizens. But then you knew that all along, didn’t you.
There is no doubt in my mind that guns, be they handguns or long barreled guns, must be secured in one’s home. Too often we hear of children playing with them and other children dying after being accidentally shot with them. One day a friend of mine aimed what he thought was an empty gun at me. I asked him to hand me the gun which he did. I discovered to the horror of both of us that there was a bullet in the chamber. Another friend of mine was accidentally shot to death by my neighbour’s kid who didn’t know that his dad’s gun was loaded.
Mr. Thompson’s return to court will be on May 2nd. I will keep my eyes open for the results of that case and report the judge’s findings to you when I get them.