Canadian Criminal Law/Offences/Possession of Unauthorized Firearm

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Possession of Unauthorized Firearm
s. 92 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)*
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Maximum 2 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Possession of firearm knowing its possession is unauthorized
92. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) a registration certificate for the firearm.

Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition knowing that the person is not the holder of a licence under which the person may possess it.
...
Exceptions
(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 firearm, a registration certificate for the firearm.


Borrowed firearm for sustenance
(5) Subsection (1) does not apply to a person who possesses a firearm that is neither a prohibited firearm nor a restricted firearm and who is not the holder of a registration certificate for the firearm if the person

(a) has borrowed the firearm;
(b) is the holder of a licence under which the person may possess it; and
(c) is in possession of the firearm to hunt or trap in order to sustain the person or the person’s family.


Evidence for previous conviction
(6) Where a person is charged with an offence under subsection (1), evidence that the person was convicted of an offence under subsection 112(1) of the Firearms Act is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person knew that the person was not the holder of a registration certificate for the firearm to which the offence relates.


CCC

Proof of Offence[edit]

Including the elements of time and date, jurisdiction and identity, the crown must prove: [1]

  1. that the object is a “firearm” as defined in s.2 of the Criminal Code of Canada or a prohibited weapon;
  2. that the accused was in possession of the firearm or prohibited weapon;
  3. that the accused was not a holder of a registration certificate for the firearm in question.
  4. the accused was not aware that they did not hold a registration certificate
  1. R. v. Levesque 2009 PESC 12 at para. 16

Interpretation[edit]

Lack of certification can usually be proven by way of an affidavit confirming such from the Chief Firearms Officer of the province or from the Canadian Firearms Registry.

Where the item at issue is not a firearm, such as where it is a switch-blade, there will be no way for the person to have a registered certificate under the Firearms Act or otherwise. While this may be a blunder on the part of drafting, it does not seem to omit the need for some evidence confirming that the accused was not the holder of a certificate.

Relevant Motions[edit]