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  1. #201
    Senior Member Doug_M's Avatar
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    Quote Originally Posted by shootemup604 View Post
    Dwelling house in common law includes your curtilage. Your curtilage is often considered to be anything within the four walls/roof, and attached structures such as a garage connected by a breezeway. There's hordes of case law out there, but when I called the CFO for an ATT to take my restricteds to my stand alone shop to tinker, they laughed at me. The origin of curtilage is the wall around your keep - so if your home is your castle, the house is the keep, or main structure, and in modern terms, your curtilage is your fence. I have a fenced acreage, with gates across the driveway. A judge may agree or disagree that the whole property is a dwelling house, but if the CFO says go ahead, take them out to your shop, that's officially induced error if I get charged. Anyone is welcome to chime in with a copy of their ATT for taking their guns to the shop/garage, other structure at the same address.
    I wouldn't be so smug. First, if you don't have it in writing from the CFO then it doesn't mean squat in court. Second, pretty sure there is case law against doing this. No not case law that says what is or isn't curtilage, but case law specifically about having your restricteds/prohibs out and about on your property other than moving it from your house to your vehicle to transport. Just because one can get away with it doesn't mean it is legally safe to do and one isn't putting themselves at serious legal risk.

    Going out in your backyard with your rifles, hidden from the road and maybe being seen by a neighbour who knows you is one thing. But if you believe this to be legal then why not walk your front yard fence or property line with a pistol in a holster? Or spread a big blanket on your front lawn and lay out all your prohibs?
    Liberate Hong Kong, revolution of our times [#uc# you CCP!]

  2. #202
    Member awndray's Avatar
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    I'm curious. I haven't bothered looking into it. I'll just ask. Is there any mention of "dwelling house" in the Firearms Act. Is there any mention of dwelling house anywhere with regard to ATT's?

  3. #203
    Senior Member Gunrunner's Avatar
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    If your marriage/CL relationship goes south your Achilles heel and her first line/lie of attack will be the gun you threatened her or her new boy friend with.
    Whether it's true or not will be irrelevant.
    Be careful who you tell you have guns or who you show them to ... you're giving them a powerful legal weapon to use against you should the occasion arise.
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  4. #204
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    Criminal Code definition of dwelling House
    dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
    (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
    (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;
    Curtilage is defined in common law - and not too clearly. A definitive examination is from R. v. N.M., 2007 CanLII 31570 (ON SC), <http://canlii.ca/t/1sg9k>, retrieved on 2020-08-05

    The Crown submitted that the out-buildings were effectively an extension of the house and properly considered a part of its curtilage. The detached buildings fall outside the definitional scope of “dwelling-house” in s. 2 of the Code and accordingly, using that statutory measuring stick, the buildings would not be considered part of the dwelling. A break-in of one of the out-buildings would not amount to the offence of breaking and entering a dwelling-house.

    At common law, “the hoary concept of “curtilage”” (U.S. v. Arboleda, 633 F. 2d 985, 992 (2nd Cir. 1980)) relates to property considered to be an integral part of the house. In Lauda, at 374, the court referred to “…the house, including the area immediately surrounding it (referred to as the “curtilage”)”. In U.S. v. Dunn, 480 U.S. 294, 300 (1987), in a discussion of the curtilage issue, the court cited 4 W. Blackstone Commentaries 225, “no distant barn, warehouse or the like are under the same privileges, nor looked upon as a man’s castle of defence.” Hutchinson, in Search and Seizure Law in Canada (Carswell) at page 16-31, states:

    As the common law consistently recognized that authority to search must be strictly limited to the precise structure or place set out in the order (which would only include the “curtilage”), a search of a dwelling-house does not import authority to search any outbuildings, garages, sheds, barns, receptacles, lockers, etc., at the same location as the principal residence. Accordingly, if the police want to search such outbuildings, they should be expressly included in the warrant. (emphasis added)

    Although the American authorities must be read with caution because of the relationship in that jurisdiction between the subject of curtilage and the “open fields” doctrine, the U.S. cases are not uninstructive. Curtilage has been described as the area “immediately” surrounding a private house: U.S. v. Dunn, at 300; Dow Chemical Co. v. U.S., 476 U.S. 227, 235, 237 (1986); Oliver v. U.S., 466 U.S. 170, 178, 180 (1984). At page 180 of the Oliver decision, the court stated:

    At common law, the curtilage is the area to which extends activity associated with the sanctity of a man’s home and the privacies of life…

    Similarly, in California v. Ciraolo, 476 U.S. 207, 212 (1986), the court stated that the curtilage of a house is essentially:

    …a protection of families and personal privacy in an area intimately linked to the house, both physically and psychologically, where privacy expectations are most heightened.

    What have come to be known as the Dunn factors in the U.S. arise from the dicta at 301 of that case:

    Drawing upon the Court’s own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home’s curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U.S. 207, 221 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956); United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). N4 We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a “correct” answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration - - whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of Fourth Amendment protection. Applying these factors to respondent’s barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house.

    In support of his argument, Mr. Coroza quite properly relied on R. v. Benz and Haley (1986), 1986 CanLII 4641 (ON CA), 27 C.C.C. (3d) 454 (Ont. C.A.) (notice of discontinuance, Haley, [1987] 1 S.C.R. ix). In that case, the police possessed a Code warrant to search the “premises” of Haley at “8 East 35th Street” in Hamilton. During the search, using car keys located in the dwelling, the police searched two vehicles associated with Haley. At page 465, the court stated:

    Apparently at trial, Crown counsel “conceded” that the motor vehicle was “improperly searched”, although the trial judge found that the police acted without malice and with an honest but mistaken belief as to their right to search the car. The concession having been made, the Crown felt bound by that concession on the appeal. Although the concession cannot be directly disturbed now, I would not want to be taken as accepting it as necessarily legally correct. There was a valid warrant to search the premises at 8 East 35th St. The car belonging to the respondent containing the lease was out on the street in front of the house (within 100 ft.). The keys to that car were in the respondent’s residence which was being legally searched. Certainly if the car had been in the garage of the premises or even on the driveway there would be little doubt but that the search warrant would cover a search of the car. We do not have a description of the premises, so we do not know whether there was either a garage or a driveway attached to the premises. One might conclude there was neither, as neither car was on a driveway or in a garage, the unlicensed car being in an adjacent parking-lot.

    These points should be noted about the Haley decision: the warrant referred to “premises” not to a dwelling-house; and the obiter comments of the court relate to motor vehicles visible from the street.

    Apart from the Haley examples of a car in the garage or driveway, these examples consider instances of inclusion in the curtilage: R. v. LeClaire (2006), 2005 NSCA 165 (CanLII), 208 C.C.C. (3d) 559 (N.S.C.A.) at 572 (“the open garage was like an extension of the driveway, forming part of the approach to the door”); R. v. Tesfai, 1995 CanLII 4153 (NS SC), [1995] N.S.J. No. 559 (S.C.) at para. 19, 25 (patio physically touching the house equivalent to “an outdoor extension of the house”); U.S. v. Oaxaca, 233 F.3d 1154, 1157 (10th Cir. 2000) (attached garage part of curtilage); U.S. v. Karagozian, 715 F.Supp. 1160, 1164 (U.S. Dist. Conn. 1989) (rear deck of home within curtilage).

    Turning to decisions where the courts have considered the curtilage to not include places searched by the police: Dunn (barn 50’ from residence); R. v. LaPlante (1987), 1987 CanLII 209 (SK CA), 40 C.C.C. (3d) 63 (Sask. C.A.) (workshop 40’ from dwelling); Tesfai, at para. 20, 24-5 (retaining wall a few feet distant from home’s patio).
    Most of the curtilage definitions in common law relate to police warrants for a dwelling house, premises, or property, and at what point do the police require a specific warrant for an outbuilding, vehicle, etc that does not fall within the curtilage.

    Doug - I'm not trying to be smug. What I am pointing out is that curtilage is an extension of your actual house as the law considers a dwelling house to be more than four walls and a roof. There is sufficient grey area there that the CFC will not give me an ATT for my shop - they don't want to go there, either, and of course they won't provide that in writing, like every other bit of policy they gladly give over the phone. The "reasonable person" test would apply here, and illustrates why this should be regulatory, not criminal law - it's not all black and white.

    I'd hazard there are a good many folks that store their firearms at the address specified, but there is no such legal requirement that the storage be in a dwelling house, only that it be at the address, and in accordance with the regulations. The only mention of dwelling house in the regs is in regards to display of the firearms.

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