Bill C-21- An Act to amend certain Acts and to make certain consequential amendments (firearms)

 

This blog has been written by Sandra Arsenault, Law Clerk at Fasken LLP

Estates practitioners should be aware that Bill C-21, the controversial legislation which imposes strict gun control provisions Canada-wide, received Royal Assent and became law on December 15, 2023.

 Bill C-21 amends several federal statutes, including, inter alia, the Criminal Code of Canada and the Firearms Act.

 

THE CONTROVERSY

 Bill C-21 supporters highlight sections which are primarily amendments to the Criminal Code which impose stricter penalties for gun smuggling from a maximum of 10 to 14 years, an added definition and ban of specific prohibited weapons, a ban on illegally manufactured “ghost guns,” as well as the expanded prohibition or revocation of gun ownership for persons suspected of domestic violence or stalking.

However, Bill C-21 opponents denounce sections of the Bill that currently enforce a freeze on the sale, purchase, or transfer of legal handguns by licenced individuals within Canada and argue that rather than targeting criminals using illegally possessed firearms and smuggled handguns from the U.S., the Bill unfairly targets legal firearms owners such as collectors and sport shooters, all of whom have had to follow strict licencing and ownership requirements under the Firearms Act including extensive safety training, ongoing background checks, spousal consent, and disclosure of personal information (including questions about mental health and life events such as divorce or hospitalization).

 

FIREARMS ACT: RELEVANT AMENDMENTS (for the purposes of this article)

12.‍2 A registration certificate for a handgun must not be issued to an individual.

97.1 Sections 12.2 (and 19.1) do not apply in respect of an individual who:

(a) holds an authorization to carry in respect of a handgun; or

(b) meets the prescribed criteria and annually provides a letter to a chief firearms officer from a provincial or national sport shooting governing body indicating:

(i) that they are training, competing or coaching in a handgun shooting discipline that is on the programme of the International Olympic Committee or the International Paralympic Committee,

(ii) the disciplines in which they train, compete or coach, and

(iii) that the handgun in question is necessary for training, competing or coaching in those disciplines.

Pursuant to section 20 of the Firearms Act, an authorization (“ATC”) referred to above is only issued to an individual who needs the particular restricted firearm or handgun:

(a) to protect their life or the life of other individuals; or

(b) for use in connection with their lawful profession or occupation.

 

IMPACT ON TESTATORS

Handguns are not banned in Canada (yet). Individuals can continue to possess and use their registered handguns if they are currently held in compliance with all laws and licencing requirements. However, owners of handguns no longer have testamentary freedom to leave these assets to an individual of their choosing upon death. Essentially, unless a testator’s intended heir competes in shooting events at an Olympic level or works as a police officer or security guard, regardless of what the Will states or when the Will was prepared an executor will be unable to honour the testator’s wishes and complete the transfer to an intended beneficiary.

 

ESTATE PLANNERS

 Inquiries should be made of clients when drafting Wills as to whether the client owns any firearms and which category the firearms fall under (unrestricted, restricted, or prohibited). Clients should be notified that restricted and prohibited types of firearms can only be gifted to a select, limited group of individuals. Testators may need to revise existing Wills if restricted or prohibited firearms are willed to ineligible beneficiaries. Gifting such assets while alive is also no longer an option since the current freeze is already in effect. Alternate options for the executors should be contemplated by specific clauses which deal with these assets. Directions given in a Will are subject to applicable law and can’t be carried out if contrary to the applicable law. Costs associated with instructions other than turning the firearms over to the police for destruction should also be considered. If a testator is insistent that the firearms not be destroyed, the burden of high costs for deactivation, exportation, or indefinite storage should also be addressed in such a clause.

 

EXECUTORS AND ESTATES WITH FIREARMS INCLUDING HANDGUNS

Upon the death of a firearms owner, restricted and prohibited firearms—including collectors’ items—are likely to immediately lose all value as the deceased person no longer continues to own them and the executor cannot, with limited exceptions, transfer or sell them. Due to the very limited number of individuals and businesses eligible to register and own restricted and prohibited firearms, the market for these assets is essentially dead. Executors may struggle to find an eligible individual buyer given that the market is flooded with so many potential sellers selling to a limited number of potential buyers.  Eligible businesses are advising that they are not purchasing any restricted or prohibited firearms because they already are holding inventory for which there is no longer a market.

Without the option of selling or transferring these specific kinds of firearms, including handguns, executors will have little choice but to turn them over to the appropriate authorities for destruction. At this time, there is no federal buy-back program in place so the executor and beneficiaries should anticipate no value to be attributable to these assets.

 

WHAT TO DO WITH FIREARMS INCLUDING HANDGUNS IN AN ESTATE

 Even if an executor does not have a licence to have firearms, the firearm can be left in an estate for a reasonable amount of time while the estate is being settled.

An executor must provide the following documents to the Canadian Firearms Program (CFP):

1. a completed form RCMP 6016 Declaration of Authority to Act on Behalf of an Estate; and
2. confirmation that the registered owner is deceased by providing:
   • the death certificate,
   • or letters of probate, or
   • a document (on letterhead) from a police department or coroner

It is advisable to send in the deceased’s firearms licence at the same time to have it cancelled to prevent misuse.

Within a reasonable length of time, an executor must:

• ensure the firearms are transferred and registered to a properly licensed individual or business; or
• dispose of the firearms in a safe and lawful manner.

Until then, an executor must ensure that the firearms are safely stored.

An executor must also determine if a valid firearms licence and registration certificate exist. If either document does not exist at the time of death, the CFP will work with the executor to resolve this situation.

 

The Canadian Firearms Program (CFP) advises that executors have the following options:

• use the phone transfer process to sell or give the firearm to any person, museum, or business with a licence to have that particular type of firearm;
• export it to a country that allows it; call Global Affairs Canada at 1-800-267-8376 for information;
• call the CFP 1-800-731-4000 to get an approved gun smith to deactivate it; this means it no longer meets the definition of a firearm, and is exempt from the requirements of the Firearms Act; or
• turn the firearm in to a police officer or firearms officer for disposal—but call first to arrange for disposal.

Note: I called the CFP and the CFP officer (the “Officer”) I spoke with was unaware of any museums or businesses accepting these firearms at this time.

 

SOME FINAL POINTS FOR CONSIDERATION:

• Executors are allowed to hold firearms for a “reasonable” amount of time – the reasonable timeframe is not defined, however the Officer advised that it is generally as a rule of thumb months, not years.
• The handgun freeze applies only to transfers of the handguns. Those in possession of handguns are allowed to retain them, for the time being.
• The handgun freeze does not yet have a defined end date. It appears to be an indefinite freeze on the transfer of handguns. Whether a change in political leadership affects a change in the current legislation or an end date is announced remains to be seen.
• An executor would have a personal liability for any firearms not transferred from the deceased should one of the firearms be stolen, go missing or be used inappropriately.
• The Officer advised that the local police department can store firearms until someone obtains the necessary paperwork, as in the case of an unrestricted firearm to be transferred to an unlicensed beneficiary. This would give the beneficiary time to take the necessary safety courses and apply for the appropriate licence.

 

 DISCLAIMER

This blog is not legal advice and is intended to be for general information purposes. For specific information about firearms, please get legal advice from your lawyer or contact the Canadian Firearms Program (CFP) at 1-800-731-4000 for more information.