INTRODUCTION AND BRIEF DESCRIPTION

This section specifies exceptions for possession of firearms and prohibited items under the direct supervision of lawful possessors and for those who come into possession by operation of law and dispose of or acquire proper licenses or registration certificates.

SECTION WORDING

92(4) Subsections (1) and (2) do not apply to (a) a person who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it, (i) lawfully disposes of it, or (ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

EXPLANATION

Section 92(4) is a provision of the Criminal Code of Canada that creates two exceptions to subsections (1) and (2) of Section 92. Subsections (1) and (2) of Section 92 prohibit the possession of certain firearms, prohibited weapons, restricted weapons, prohibited devices, and prohibited ammunition. However, Section 92(4) establishes two circumstances under which individuals may possess these prohibited items without committing an offense under the Criminal Code of Canada. The first exception outlined in Section 92(4)(a) permits a person to possess a prohibited item while under the direct and immediate supervision of someone who may lawfully possess it. This exception applies when the item is being used in a manner that the supervising person may lawfully use it. For example, if a person is at a shooting range with an owner of a prohibited firearm, they may hold and use the firearm while the owner provides direct and immediate supervision. The second exception outlined in Section 92(4)(b) permits a person who comes into possession of a prohibited item through operation of law to lawfully dispose of it or obtain a license that permits them to possess it. This exception ensures that individuals who acquire prohibited items through legal means (such as through inheritance or gift) are given a reasonable period to dispose of it or obtain proper licensing. Section 92(4) serves to provide limited exceptions to the offense of possessing prohibited items and to ensure that individuals who come into possession of these items through legal means can legally dispose of them or obtain the necessary licensing.

COMMENTARY

Section 92(4) of the Criminal Code of Canada provides an exemption from certain provisions of the Act on possession of firearms, prohibited or restricted weapons, devices, and ammunition. It allows individuals to possess these items while under the direct and immediate supervision of a lawful possessor and for the lawful use of the item. Moreover, the section provides an exemption for individuals who come into possession of these items by operation of law and dispose of them in a lawful manner or obtain licenses to possess them. The section has political and social implications. On one hand, it balances public safety and individual rights to possess firearms, which are enshrined in the Canadian Constitution. Owning firearms in Canada is a legal and regulated activity that requires a license, a security check, and training. The licensing process ensures that firearms are kept in the hands of responsible individuals who understand the risks and responsibilities of firearm use. The supervision requirement of Section 92(4)(a) adds an extra layer of responsibility to the activity, and the lawful use requirement emphasizes that the use of the firearm must conform to Canadian laws. On the other hand, the section might be seen as lacking strictness regarding possession and use of firearms, which could potentially harm public safety. Critics of the section could point out that in cases of supervising a person who has a history of violence or mental instability, their access to firearms could increase the risk of gun-related violence or accidents. In addition, the section might seem vague when it comes to defining direct and immediate supervision." This could give rise to different interpretations of the requirement, which could result in inconsistencies in implementation and enforcement. Furthermore, the operation of law exemption in Section 92(4)(b) might also be questioned. The provision allows the possession of prohibited firearms or ammunition under certain conditions and licenses. A possible issue is that individuals who acquire these items by operation of law might not have the same level of safety training and expertise as those who obtained firearms through the licensing system. Furthermore, individuals who acquire firearms by operation of law might not be aware of the legal conditions or responsibilities related to possessing restricted firearms. In conclusion, Section 92(4) provides a balancing act between individual rights and public safety regarding the possession and use of firearms. The section ensures that firearms are handled only by responsible, properly licensed individuals, and that the possession by individuals who acquire firearms by operation of law is closely monitored. However, the potential for inconsistent interpretation, a lack of clarity in supervision requirements, and the safety risks associated with guns should be addressed to ensure public safety. Overall, the implementation of Section 92(4) must take into account the legal conditions, social implications, and political pressures surrounding the possession and use of firearms in Canada.

STRATEGY

Section 92(4) of the Criminal Code of Canada can be a helpful tool for individuals charged with possession of prohibited weapons and firearms. The section provides several exemptions to the offence, which can be valuable defence options. Some of the strategic considerations and strategies that can be employed when dealing with this section of the Criminal Code are discussed below. First, it is essential to understand the scope of the exemptions provided by section 92(4). Subsections (1) and (2) of section 92 make it an offence to possess prohibited weapons and firearms. Subsection (4) provides an exemption to these offences in certain circumstances. These exemptions include possession under direct and immediate supervision, disposal of the weapon or obtaining a licence and registration certificate. Therefore, individuals charged with possession of prohibited weapons and firearms should determine whether they have met any of these exemptions. One key strategic consideration is the timing of obtaining a licence or registration certificate. For individuals who have come into possession of a prohibited weapon or firearm by the operation of law, it may be possible to obtain a licence or registration certificate within a reasonable period. This strategy can help the accused avoid a criminal conviction and provide a legitimate defence to the charges. Another critical consideration is the nature and purpose of possession. Section 92(4)(a) provides an exemption for individuals who possess firearms or prohibited weapons under the direct and immediate supervision of a person who may lawfully use them. This exemption can be helpful in situations where the accused was using the weapon for a lawful purpose, such as hunting, target shooting or self-defence. The supervising person must have the requisite license or registration certificate, and the accused must use the weapon in a manner in which the supervising person may lawfully use it. In addition to the above considerations, other strategies can be employed when dealing with section 92(4). One particular tactic is to negotiate a plea bargain with the prosecution, which can help avoid a criminal conviction. This option can be explored where the accused does not meet any of the exemptions under section 92(4) or where the evidence against them is significant. Another strategy is to challenge the validity of the charges. This includes challenging the legality of the search and seizure of the weapon or firearm, the admissibility of evidence or the elements of the offence. It is essential to have a skilled and experienced criminal defence lawyer who can review the evidence and determine the best course of action. In conclusion, section 92(4) of the Criminal Code of Canada provides several exemptions to the offence of possession of prohibited weapons and firearms. It is essential to understand the scope of these exemptions and determine whether they can be used as a defence. Strategies such as obtaining a licence or registration certificate, negotiating a plea bargain, challenging the charges and hiring a skilled criminal defence lawyer can be helpful when dealing with this section of the Criminal Code.