Canadian Criminal Law/Offences/Weapons Offences/Print version

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Contents[edit]

Weapons Offences[edit]

Weapon Defined[edit]

Section 2 of the Criminal Code includes the definition of weapon:

“Weapon” means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm.

CCC

Proof of an item as a weapon depends on all of the circumstances. The determination involves a subjective test of whether the accused intended to use the item as a weapon. [1]

A weapon includes: [2]

  1. anything designed to be used as a weapon;
  2. anything that a person uses as a weapon, whether that thing is designed as a weapon or not; and
  3. anything that one intends to use as a weapon regardless of its design.

The decision of R. v. D.A.C., 2007 ABPC 171[3] proposed a general analytical approach to determine whether an object is a "weapon" under s. 2. The Court must "ask the following three questions:

i. Did the accused in fact use the object to cause death or injury, or to threaten or intimidate any person?
ii. Did the accused intend to use the object to cause death or injury or to threaten or intimidate any person?
iii. Was the object being carried by the accused designed to be used in causing death or injury to any person, or for the purpose of threatening or intimidating any person?

If the answer to any of these questions is in the affirmative, the Crown has proven that the object was a weapon."[4] The third question was considered in greater detail. The judge stated that the test for determining whether the object was designed to be used requires the following questions:

  1. Is the object’s design such that it could be readily usable to cause death or injury to any person or to threaten or intimidate any person?
  2. In all of the circumstances, would the carrying of the concealed object cause the reasonable person to fear for his own safety or for the public safety, if he were aware of the presence of the object?

If the answer to both of these questions is "yes", then the object will be considered a weapon. This requires looking at the object itself and the context of it being possessed.

  1. R. v. Roberts (1990), 60 C.C.C. (3d) 509 (NSCA)
  2. R. v. Califoux, 14 C.C.C. (2d) 526 (BCCA) at 13
  3. R v DAC, ABPC 171
  4. DAC at para. 75

Prohibited Weapon[edit]

The Criminal Code distinguishes "prohibited weapons" and "restricted weapons" as subclasses of "weapons" generally. Additional weapons-related offence apply to those weapons classified as "prohibited" or "restricted".

s. 84(1)
...
“prohibited weapon” means

(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or
(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;


CCC

Before anything can be a prohibited weapon it must first be established as a weapon under s. 2.[1]

Under section 4 of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Part of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462, provides:

The weapons listed in Part 3 of the schedule are prohibited weapons for the purposes of paragraph (b) of the definition “prohibited weapon” in subsection 84(1) of the Criminal Code.

Reg

Part 3 of the Schedule, Prohibited Weapons, Former Prohibited Weapons Order, No. 8 states:

1. Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of

(a) tear gas, Mace or other gas, or
(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.

2. Any instrument or device commonly known as “nunchaku”, being hard non-flexible sticks, clubs, pipes, or rods linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.
3. Any instrument or device commonly known as “shuriken”, being a hard non-flexible plate having three or more radiating points with one or more sharp edges in the shape of a polygon, trefoil, cross, star, diamond or other geometrical shape, and any similar instrument or device.
4. Any instrument or device commonly known as “manrikigusari” or “kusari”, being hexagonal or other geometrically shaped hard weights or hand grips linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.
5. Any finger ring that has one or more blades or sharp objects that are capable of being projected from the surface of the ring.
6. Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device.
7. A crossbow or similar device that

(a) is designed or altered to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands; or
(b) has a length not exceeding 500 mm.

8. The device known as the “Constant Companion”, being a belt containing a blade capable of being withdrawn from the belt, with the buckle of the belt forming a handle for the blade, and any similar device.
9. Any knife commonly known as a “push-dagger” that is designed in such a fashion that the handle is placed perpendicular to the main cutting edge of the blade and any other similar device other than the aboriginal “ulu” knife.
10. Any device having a length of less than 30 cm and resembling an innocuous object but designed to conceal a knife or blade, including the device commonly known as the “knife-comb”, being a comb with the handle of the comb forming a handle for the knife, and any similar device.
11. The device commonly known as a “Spiked Wristband”, being a wristband to which a spike or blade is affixed, and any similar device.
12. The device commonly known as “Yaqua Blowgun”, being a tube or pipe designed for the purpose of shooting arrows or darts by the breath, and any similar device.
13. The device commonly known as a “Kiyoga Baton” or “Steel Cobra” and any similar device consisting of a manually triggered telescoping spring-loaded steel whip terminated in a heavy calibre striking tip.
14. The device commonly known as a “Morning Star” and any similar device consisting of a ball of metal or other heavy material, studded with spikes and connected to a handle by a length of chain, rope or other flexible material.
15. The device known as “Brass Knuckles” and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.


Reg

The mens rea for offences regarding prohibited weapons, it need only be proven that either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, makes it a prohibited weapon.[2]

The test for establishing a weapon as prohibited is an objective one. The Crown does not need to prove that the possessor of the object "used or intended to use" the object as a weapon.[3]

  1. R. v. Murray, (1985), 24 C.C.C. (3d) 568 (“Murray #1”) - spiked wristband found as weapon
    R v Murray, (1991), 65 C.C.C. (3d) 507 (“Murray #2”) - nunchaku sticks not proven as weapons
  2. R. v. Archer, (1983), 6 C.C.C. (3d) 129 at 132 (Ont. C.A.)
  3. R. v. Strong, 2012 BCCA 279 at para. 35

Restricted Weapon[edit]

s. 84
...
“restricted weapon” means any weapon, other than a firearm, that is prescribed to be a restricted weapon;


CCC

Specific items[edit]

Pellet guns[edit]

  • a starting pistol is an imitation of a weapon.[1]
  • pellet gun not necessarily a weapon[2]
  1. R. v. Boutilier [1977] 4 W.W.R. 443 (B.C.C.A.)
  2. R. v. Labrecque, 2011 ONCA 360

Brass knuckles[edit]

Under the Ontario Prohibited Weapons Order in Ontrio No.8 SOR/79-583, brass knuckles are classified as prohibited.[1]

The crown must prove that the holder of the brass knuckles used or intended to use the item to cause death or injury to persons or intended to use for threats or intimidation.[2]

The intent must be proven subjectively and objectively.[3]

  1. 2. The following devices are hereby declared to be prohibited weapons:

    ...

    (b) the device known as “Brass Knuckles” and any similar device consisting of a band of metal with finger holes designed to fit over the root knuckles of the hand.

  2. [1991] O.J. No. 405, 12 W.C.B.(2d) 487 (Gen.Div.)
  3. S.(L.B.), [1993] S.J. No. 512, 21 W.C.B. (2d) 279 (Q.B.) - case uses new definition of weapon under s.2

Knife[edit]

Where a knife is used to intimidate, it becomes a weapon.[1]

  1. R. v. MacDonald (2002), 170 C.C.C. (3d) 46 (ONCA)

Bear spray[edit]

In certain courts, bear spray has be established as a weapon. It is usually necessary to have forensic expert testimony.[1]

  1. R v Meier, 2012 SKPC 41 at 101

Misc Items[edit]

A broken piece of glass can be a weapon.[1]

A vehicle can be a weapon.[2]

  1. R. v. Allan (1971), 4 C.C.C. (2d) 521 (NBCA)
  2. see R. v. McLeod, (1993), 84 C.C.C. (3d) 336 (Y.T.C.A.)
    R. v. Lamy, 2002 SCC 25 (CanLII), [2002] 1 S.C.R. 860

Firearms[edit]

Firearms are a type of weapon. They are designed to kill or wound and so are less likely to have legitimate purposes. Thus, unlike knives and clubs which do have benign purposes, firearms are always considered weapons.[1]

2. In this Act,

...

“Firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;

CCC

A firearm can include many types of barreled weapons. It is not significant whether there is ammunition available.[2]

Generally speaking, firearms can be classified into two types:

  • Long Guns (rifles, carbines, and shotguns) and
  • Handguns (revolvers, pistols)

A handgun is defined under s. 84(1):

“handgun” means a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands;


CCC


Firearm Action[edit]

The "action" of the firearm refers to the speed at which the firearm can fire.

Firearms can have:

  • Single vs. Double Action (revolvers)
  • Pump action (Shotguns)
  • Break action (Shotguns)
  • Lever action (Shotguns, Rifles)
  • Bolt action (Rifles)

Section 84(1) states:

“automatic firearm” means a firearm that is capable of, or assembled or designed and manufactured with the capability of, discharging projectiles in rapid succession during one pressure of the trigger;


CCC

Section 1 of the Regulations, SOR/98 98-462 462 states:

“Semi-Automatic Automatic”: a firearm that is equipped with a mechanism that, following the discharge of the cartridge, automatically operates to complete any part of the reloading cycle necessary to prepare for the discharge of the next cartridge


Certain weapons can be adapted to be both semi-automatic and fully automatic.

Inoperable guns[edit]

An inoperable gun can be a firearm if it can be fixed into operating order in a relatively short period of time and with relative ease.[3] Likewise, if there is at least some evidence indicating or inferring that the alleged firearm, because of a defect or inadequacy, is incapable of being fired, then it is not a firearm.[4]

Make-shift firearms[edit]

Whether something can be adapted for use as a firearm depends on the amount, nature and time spent adapting the device.[5]

Certain devices such as pellet guns can be found to be a firearm where it is "used or intended to be used for a dangerous purpose".[6]

  1. R. v. Felawka [1993] 4 S.C.R. 199 (“A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design...A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.”) See also: R v Formosa (1993), 79 C.C.C. (3d) 95
  2. R. v. Covin, [1983] 1 S.C.R. 725 at p. 728 1983 CanLII 151
  3. R. v. Sinclair, 2005 ABCA 443 2005 ABCA 443
  4. R. v. Marchesani, [1970] 1 C.C.C. 350 (O.H.C.)
  5. Covin, supra
  6. R. v. Labrecque, 2010 ONSC 754 appeal denied at 2011 ONCA 360
    see also R. v. McManus [2006] O.J. No. 3175 (C.A.) Contra: Covin, supra

Imitation firearms[edit]

An "imitation firearm" refers to "any thing that imitates a firearm, and includes a replica firearm;" (s. 84)

A starting pistol is an "imitation firearm".[1]

A "prohibited device" refers to "(e) a replica firearm;"(s. 84)

A "replica firearm" refers to "any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm;" (84)

See R. v. Scott, 2000 BCCA 220

  1. R. v. Boutilier, [1974] 4 W.W.R. 443

Prohibited firearm[edit]

84. (1) In this Part,

...

“prohibited firearm” means

(a) a handgun that
(i) has a barrel equal to or less than 105 mm in length, or
(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,

but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,

(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
(i) is less than 660 mm in length, or
(ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
(d) any firearm that is prescribed to be a prohibited firearm;

...

CCC

Where a weapon can be quickly and readily converted to an automatic gun, then that weapon must fall within the definition of "prohibited weapon".[1] However, a gun frame or receiver, inoperable by itself because the selector button was welded to prevent it firing automatically, is not a prohibited weapon, because the modification required to remove the weld required specialized knowledge and considerable effort.[2]

When involving a knife that is found to be a prohibited weapon, the crown must also establish that the accused was aware of the feature that makes it a prohibited weapon.[3]


Brass knuckles are usually considered prohibited weapons. They do not have to have holes for all fingers to be prohibited. [4]

  1. R. v. Hasselwander, [1993] 2 S.C.R. 398
  2. . v. Rogan, (1994), 19 Alta. L.R. (3d) 90
  3. R. v. Puddy, 2011 OJ No 3690 (ONCJ)
  4. R. v. Montgomery, [2009] A.J. No. 559 (Alta. C.A.)

Restricted firearm[edit]

Definitions
84. (1) In this Part,

...

“restricted firearm” means

(a) a handgun that is not a prohibited firearm,
(b) a firearm that
(i) is not a prohibited firearm,
(ii) has a barrel less than 470 mm in length, and
(iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
(d) a firearm of any other kind that is prescribed to be a restricted firearm;

“restricted weapon” means any weapon, other than a firearm, that is prescribed to be a restricted weapon;

CCC

Certificate of Registration[edit]

117.11 Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate. 1995, c. 39, s.. 139.


CCC

Ammunition[edit]

Definitions 84. (1) In this Part,

...

“ammunition” means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell;

CCC

Proof that the ammunition was capable of being discharged is usually done by way of the actual discharging of at least one cartridge. However, it can also be proven by way of opinion from an expert upon examination of the cartridge and the context of the finding of the cartridge. [1]

  1. R. v. Wong, 2012 ONCA 432 at 38-40

Use of a firearm[edit]

The use of a firearm must be more than mere possession and can be less than discharging it.

Use has been found to include:[1]

  • striking a person with it
  • pointing the firearm at a person
  • holding it to intimidate
  • brandishing the firearm

It is not use where the accused merely holds the weapon, makes a threatening reference to the firearm, close accessibility to a firearm with an intent to use it.

Note that a party to a principle who is "using" a firearm can be considered a "user" of the firearm as well.[2]

  1. R v Cheetham (1980), 53 C.C.C. (3d) 209 (ONCA)
    R v Langevin (No.1) (1979), 47 C.C.C. (2d) 138 (ONCA)
    R. v. Stewart, 2010 BCCA 153 R. v. Steele, 2007 SCC 36, [2007] 3 SCR 3
  2. See McGuigan v. R., 1982 CanLII 41 (SCC), [1982] 1 SCR 284

See Also[edit]

Proving Offences[edit]

Use of Firearm in Commission of an Offence
s. 85 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable Dispositions
Minimum 1 year (first)
3 years (second or more)
Maximum 14 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Using firearm in commission of offence
85. (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.

Using imitation firearm in commission of offence
(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

...

R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.

CCC

Proving the Offence[edit]

Elements of Proof[edit]

Using a Firearm in Commission of an Offence - s. 85(1)

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ♰ the accused used a firearm
    1. committing or attempting to commit an indictable offence; or,
    2. during flight after committing or attempting to commit an indictable offence.

Using an Imitation Firearm in Commission of an Offence - s. 85(2)

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused was using an imitation firearm while
    1. committing or attempting to commit an indictable offence; or,
    2. during flight after committing or attempting to commit an indictable offence.

Items in bold are essential elements that make out the offence.

Tendering Exhibits[edit]

  • ♰ the firearm or imitation firearm

Interpretation[edit]

A firearm must not merely "proximate for future use”, but rather must be ready for present use during the offence.[1]

  1. R. v. Steele, 2007 SCC 36, [2007] 3 SCR 3

Motions and Orders[edit]

  • s.486.2(2) or 486.2(4) order for private testimony
  • s. 486.3(2) Order prohibiting cross examination
  • s. 486.5(1) or (2) publication ban
  • Video-recorded evidence by disabled person (s.715.2) or person under age 18 (s.715.1)
Careless Use or Storage of a Firearm
s. 86 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 (first)
5 years (second or more)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Careless use of firearm, etc.
86. (1) 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.
Contravention of storage regulations, etc.
(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
...


CCC

Proof of Offence[edit]

Elements of Proof[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ♰ accused carried, handled, shipped, transported or stored an item
  5. ♰ the item is a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition
    (see Firearms: barrelled weapon, capable of causing serious bodily injury or death)
  6. ♰ the item was stored in an unsafe or careless manner and no reasonable precautions taken for the safety of others(e.g. no trigger locks, out of case, loaded)
    1. ♰ a marked departure from the standard of care of a reasonably prudent person in the circumstances

Tending Exhibits[edit]

  • the firearm, device or ammunition
  • any other related objects such as cases or trigger locks, etc.

Interpretation[edit]

“Storage” does not require an intention for the weapon’s placement to be “long-term or permanent storage”. It can include temporary hiding of a firearm.[1]

A breach of regulations under the Firearms Act does not necessarily result in a conviction under s. 86(1).[2]


  1. R v Carlos 2002 SCC 35
    R. v. Critch, 2012 CanLII 17795 (NL PC) -- stored weapon under bed for 1 hour
  2. R v Gorr [2003] OJ No. 3252 (Ont. CJ)

Duty of Care[edit]

Section 86(1) imposes a “a specific and rigorous duty of care” upon the accused to store firearms and ammunition. [1]

The Crown must prove that the accused’s conduct “constitutes a marked departure from the standard of care of a reasonably prudent person”.[2]

However, even where there is a marked departure from the standard of care, where “reasonable precautions were taken” or there is otherwise doubt, then the court must acquit. [3] The court must also be satisfied beyond a reasonable doubt that there were not enough "precautions taken by the accused to avoid the creation of risk" and the accused had the "capacity ...to meet the standard of care of a reasonably prudent person in the circumstances” but failed to do so.[4]

The standard of care is assessed objectively while taking into account the accused’s capacities in the circumstances and the “accused’s ability to control or compensate for his … incapacities”.[5]

Unlike offences that require standard of care, there is no defence of due diligence if the offence is otherwise made out.

Offences of breach of duty of care do not require a purely subjective intention.[6] They only require "proof of intention or actual foresight of a prohibited consequence.[7]


  1. R v Finlay 1993 CanLII 63 (SCC), (1993) 83 CCC (3d) 513 (“Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care.”)
  2. Optimum Insurance Co. v. Donovan 2009 NBCA 6 at 40
  3. R v Finlay, 1993 CanLII 63 (SCC) citing R. v. Gosset 1993 CanLII 62 (SCC), (1993), 83 C.C.C. (3d) 494 (S.C.C.)
  4. R v Finlay, supra, ("“the existence of a reasonable doubt as to either the sufficiency of the precautions taken by the accused to avoid the creation of risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person in the circumstances.")
  5. R v Finlay, supra
  6. R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 at 33
  7. R v J.F. 2008 SCC 60 at 7

Traditional Defences[edit]

  • Possession - where the weapon was not found in actual possession of the accused, it can often be argued that the accused was not aware of the weapon and so did not have joint or constructive possession.

Typical Motions and Orders[edit]

  • s.486.2(2) or 486.2(4) order for private testimony
  • s. 486.3(2) Order prohibiting cross examination
  • s. 486.5(1) or (2) publication ban
  • Video-recorded evidence by disabled person (s.715.2) or person under age 18 (s.715.1)


Pointing a Firearm
s. 87 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests


Legislation[edit]

Pointing a firearm
87. (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.
...
R.S., 1985, c. C-46, s. 87; 1995, c. 39, s. 139.

CCC

Proof of Offence[edit]

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused possessed an object
  5. the object was a firearm
    1. ♰ description of the firearm / ballistics test report
  6. the accused pointed it at a person

The essential elements to prove are those in bold.

Interpretation[edit]

Section 2 defines "firearm".

This offence does not include imitation firearms.[1]

Careless Use of a Firearm is not an included offence to pointing a firearm.[2]

  1. R. v. A.W., 2012 ONCA 778
  2. R. v. Copp, 2009 NBCA 16 (CanLII)
Possession of a Weapon for a Dangerous Purpose
s. 88 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 10 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.


CCC

Proof of Offence[edit]

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

  1. that the object was in the possession of the accused,
  2. that the object was a weapon as defined in the Criminal Code, and
  3. that the purpose for which the respondent had possession was one which was dangerous to the public peace[1]
  4. that there was a danger to the public peace
  5. continuity of the object
  6. the object was filed as an exhibit


  1. R. v. Cassidy 1989 CanLII 25 (S.C.C.), (1989), 50 C.C.C. (3d) 193 at 197 (S.C.C.)

Interpretation[edit]

The actus reus of the offence is established through possession.

Much of s. 88 consideration is upon the purpose for which the accused possessed the weapon.

Possessing a weapon in a reckless manner is not sufficient for proof of s.88. [1]

  1. R. v. McCullough, 2012 ONCJ 17

Purpose[edit]

Proof of the purpose for possessing the weapon may be established by the manner in which the weapon is used, circumstances and statements surrounding its use and the rational inferences to be drawn from the facts[1]

A person's initial intent in possessing a weapon "does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possession was not a dangerous one."[2]

It has been suggested that the lawful possession of a weapon does not suddenly become unlawful by virtue of the possessor acting out in sudden anger with the weapon.[3]

It is not sufficient to simply establish that "what was done was in fact dangerous to the public peace". There must be an intent for that purpose. [4]

  1. R. v. Chalifoux (1974), 14 C.C.C. (2d) 526 (BCCA) at p. 529
  2. R. v. Calder, (1984), 11 C.C.C. (3d) 546 (Alta. C.A.) at p. 549
  3. R. v. Flack, [1969] 1 C.C.C. 55 (B.C.C.A.)
  4. R. v. Kerr 2003 ABCA 92 (CanLII), (2003), 12 C.R. (6th) 308 (Alta. C.A.) at para. 27

Self-Defence[edit]

Self-defence can be a limited defence to this charge.[1] However, self-defence will only apply where the attack is imminent and inescapable.[2]


  1. R. v. Sulland, 1982 CanLII 495 (BCCA)
  2. R. v. Kerr, [2004] SCJ 39 at para. 25 (the test) and para. 38 [1]; R. v. Nelson (1972) 8 CCC (2d) 29 (ONCA)

Kiennapple[edit]

Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.[1]

  1. R. v. Briscoe 1992 CanLII 938 (BC CA), (1992), 76 C.C.C. (3d) 563 (B.C.C.A.)

See Also[edit]

Carrying a Concealed Weapon
s. 90 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests


Legislation[edit]

Carrying concealed weapon
90. (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

CCC

Proof of Offence[edit]

In addition to the essential elements of jurisdiction, time and identity, the crown should prove the following:

  1. the accused was in Possession of an item
  2. the item is a weapon as defined in s. 2, prohibited device or prohibited ammunition
  3. the accused knew the item was a weapon, prohibited device or prohibited ammunition
  4. the item was concealed by the accused
  5. the accused intended to conceal the item

Interpretation[edit]

Concealed
It must be proved that the accused hid the object so that it would not be detected, and that he knew the object to be a weapon.

Storing a firearm in the trunk of a motor vehicle is not considered concealing. [1]

  1. R. v. Felawka, [1993] 4 S.C.R. 199 1993 CanLII 36
Unauthorized Possession of a Firearm
s. 91 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Unauthorized possession of firearm
91. (1) Subject to subsection (4), every person commits an offence who possesses a firearm without being the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

Unauthorized possession of prohibited weapon or restricted weapon
(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, without being 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 prohibited firearm or a restricted firearm, a registration certificate for it.

...

R.S., 1985, c. C-46, s. 91; 1991, c. 28, s. 7, c. 40, ss. 5, 36; 1995, c. 22, s. 10, c. 39, s. 139; 2008, c. 6, s. 4; 2012, c. 6, s. 2.


CCC

Proof of Offence[edit]

Unauthorized possession of firearm[edit]

  1. time and date of the offence
  2. jurisdiction of the offence
  3. identity of the accused
  4. the accused possessed an object
  5. the object is a firearm
  6. the accused does not hold a licence to possess it
  7. if firearm is restricted or prohibited, the accused does not hold a registration certificate.

Unauthorized possession of prohibited weapon or restricted weapon[edit]

  1. time and date of the offence
  2. jurisdiction of the offence
  3. identity of the accused
  4. the accused possessed an object
  5. the object is:
    1. prohibited weapon,
    2. a restricted weapon,
    3. a prohibited device, other than a replica firearm, or
    4. prohibited ammunition
  6. the accused does not hold a licence to possess it

Interpretation[edit]


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]

Possession of a Restricted or Prohibited Firearm
s. 95 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 1 year jail or $5,000 fine
Indictable Dispositions
Minimum 3 years jail(first) 5 years jail (second or more)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Possession of prohibited or restricted firearm with ammunition
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.

...
Exception
(3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it.


CCC

Proof of Offence[edit]

Including the essential elements of time and date, jurisdiction and identity, the crown must prove:

  1. the object was a functioning firearm or could be made to function readily
  2. the firearm was loaded or could be readily loaded
  3. if loaded, that the accused knew, was wilfully blind (more than reckless) to the fact that the gun was loaded. [1]


  1. R. v. Budden, 2005 ABQB 757, 386 A.R. 313 at paras 77-81
    R. v. Moffatt, 2005 ONCJ 126 at paras. 13 and 15
    R. v. Eastgaard, 2011 ABCA 152 at 8 aff’d at 2012 SCC 11

Interpretation[edit]

The mens rea is satisfied where the offender knew that he or she was in possession of a loaded firearm. This is a subjective standard and so can be proven by actual knowledge or wilful blindness, but not recklessness.[1] Whether the firearm is prohibited or restricted does not matter and whether the accused knew it was prohibited or restricted is not a necessary element. So it is irrelevant whether the accused knew of the length and diameter of the barrel.[2]

  1. R. v. Raglon, 2001 ABPC 117 [2] at 52 - 63
  2. R. v. Williams, 2009 ONCA 342 at para 21

Handgun[edit]

To prove that a weapon is a handgun can be made by inference based on the surrounding evidence alone, without need for the actual weapon in evidence. [1] Factors used to draw the inference include:

  • accused’s conduct in relation to the weapon
  • presence of any threats to shoot
  • how people react to the weapon[2]
  • the description and use of the weapon[3]
  • absence of evidence to the contrary


  1. R v Charbonneau [2004] O.J. No. 1503 (C.A.) at 3 (the judge had “the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge's finding that it was a handgun.”)
    R. v. Willis, 2007 ONCJ 605 at 31
  2. R. v. Abdullah, [2005] O.J. No. 6079 (S.C.J.) at 29
  3. R v Dunchie [2006] OJ no 5455 at 55

Loaded and Unloaded[edit]

Loaded is not defined in the Criminal Code.

Unloaded is defined in the regulations to the Firearms Act, SC 1995, c. 39:

“unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.

This definition equally applies to s. 95.[1]

Knowledge
It must be proven that the accused knew that the gun was loaded and that the possession of the gun was unauthorized.

Knowledge that a gun was loaded can be inferred from the circumstances.[2]

Knowledge that the possession was unauthorized can be proven by wilful blindness.[3]

Any claim mistaken of mistaken belief of authorization must be "honestly held".[4]

  1. R. v. Wong, 2012 ONCA 432 at 48-50
  2. R. v. Raglon, 2001 ABPC 117 at paras. 9, 10, 65 and 66 -- court found knowledge, said the context of the possession would make the gun far more useful if loaded
    R v Eastgaard, 2011 ABCA 152 at 12-14
  3. R. v. MacDonald, 2012 NSCA 50 (CanLII)
  4. R v MacDonald, 2012 NSCA 50
Weapons Trafficking
s. 99 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable 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)
Minimum 1 years jail(non-firearm) 3 years jail (first)
5 years jail (second or more)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Weapons trafficking
99. (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of


a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
...
R.S., 1985, c. C-46, s. 99; 1995, c. 39, s. 139; 2008, c. 6, s. 10.
Possession for purpose of weapons trafficking
100. (1) Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of

(a) transferring it, whether or not for consideration, or
(b) offering to transfer it,


knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
...
R.S., 1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s. 12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139; 1996, c. 19, s. 65; 2008, c. 6, s. 11.
Transfer without authority
101. (1) Every person commits an offence who transfers a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.
...
R.S., 1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s. 139.


CCC

Possession of a Weapon Contrary to an Order
s. 117.01 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Maximum 10 years
References
Offence Elements
Sentence Principles
Sentence Digests


Legislation[edit]

Possession contrary to order
117.01 (1) Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament.
...
Punishment

(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.


Exception

(4) Subsection (1) does not apply to a person who possessed a firearm in accordance with an authorization or licence issued to the person as the result of an order made under subsection 113(1).


1995, c. 39, s. 139.

CCC

Proof of Offence[edit]

  1. the accused was in possession of a weapon
  2. the accused was subject to a weapons prohibition order at the time of possession

If weapon is a firearm:

  1. the firearm must meet definition of firearm
  2. there was no licence or order giving exception to prohibtion (see 117.01(4))

Interpretation[edit]

Sentencing[edit]

General Principles[edit]

Offences involving handguns is a “serious and growing societal danger”.[1] There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[2] There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[3]

  1. R v Clayton 2005 CaLII 16569 (ONCA) at 41
  2. R v Danvers [2005] OJ 3532 ONCA at 77
    R. v. Bellamy,2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, at para. 76
    R. v. Brown, [2006] O.J. No. 4681 (Ont. S.C.J.) at para. 9
  3. R v. Clayton 2007 SCC 32 at 110
Use of Firearm in Commission of an Offence
s. 85 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable Dispositions
Minimum 1 year (first)
3 years (second or more)
Maximum 14 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Using firearm in commission of offence
85. (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.

Using imitation firearm in commission of offence
(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
(c) [Repealed, 2008, c. 6, s. 3]

...

R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.

[3]

Application[edit]

Under s. 85(4), all sentences under s. 85(1) or 85(2) must be served consecutively to any other penalty imposed.

Ancillary Orders[edit]

See Also[edit]

Careless Use or Storage of a Firearm
s. 86 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 (first)
5 years (second or more)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Careless use of firearm, etc.
86. (1) 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.


...
Punishment
(3) Every person who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment
(i) in the case of a first offence, for a term not exceeding two years, and
(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 86; 1991, c. 40, s. 3; 1995, c. 39, s. 139.

CCC

See also: Firearms Act, SC 1995, c 39 and Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209

Application[edit]

Factors[edit]

Mitigating Factors[edit]

  • Youthful offender
  • guilty plea (early or late plea, amount of court resources saved)
  • no prior record or no related record

Ancillary Orders[edit]

Ranges[edit]

  • R. v. Grice, 2008 ONCJ 476 -- $500 fine -- found accused was videotaping ex-wife in shower, found carelessly stored .22 cal rifle.


Pointing a Firearm
s. 87 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Pointing a firearm
87.
...
Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 87; 1995, c. 39, s. 139.


CCC

Application[edit]

Principles[edit]

Where a handgun is used in a public place, there is a significant emphasis on denunciation and deterrence.[1]

  1. R. v. Danvers 2005 CanLII 30044 (ON CA), (2005), 199 C.C.C. (3d) 490, at para. 77 - "the use of handguns in public places cries out for lengthy increased periods of parole ineligibility"

Factors[edit]

  • Youthful offender
  • guilty plea (early or late plea, amount of court resources saved)
  • no prior record or no related record

Ancillary Sentencing Orders[edit]

Recommended Probationary Terms[edit]

Ranges[edit]

See Also[edit]

Possession of a Weapon for a Dangerous Purpose
s. 88 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 10 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Possession of weapon for dangerous purpose
88.
...
Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.


R.S., 1985, c. C-46, s. 88; 1995, c. 39, s. 139.


CCC

Application[edit]

Ancillary Orders[edit]

  • Weapons Prohibition (109 or 110)
  • Forfeiture of weapon (if seized)
  • DNA Order

Recommended Probationary Terms[edit]

  • not to possess weapons, firearms, ammunition or explosives


Carrying a Concealed Weapon
s. 90 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

90.
...
Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.


CCC

Application[edit]

Ancillary Orders[edit]

Recommended Probationary Terms[edit]

  • Weapons Prohibition
  • Counselling/Treatment (if underlying treatable issue)
  • Contact Provision (if facts concern a potential victim)
Unauthorized Possession of a Firearm
s. 91 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 5 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Unauthorized possession of firearm
91.
...
Punishment
(3) Every person who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 91; 1991, c. 28, s. 7, c. 40, ss. 5, 36; 1995, c. 22, s. 10, c. 39, s. 139; 2008, c. 6, s. 4; 2012, c. 6, s. 2.


CCC

Application[edit]

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

  • Weapons Prohibition
  • Forfeiture of weapon (if seized by police)
  • DNA Order

Recommended Probationary Terms[edit]

  • no possession of weapons, explosives or ammunition

Case Digests[edit]

  • R v Trecartin, 2012 NBQB 162 - 12 months - found in possession of a shotgun, handgun, and assault rifle--guns found locked away
  • R. v. Veranski, 2010 BCCA 211 -- 21 month CSO -- 9 mm CA semi automatic pistol; 38 years old; no criminal record--arrested carrygin a bag with a firearm--ammo in the magazine and chamber


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.
Punishment
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.


...
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

Application[edit]

See Canadian Criminal Sentencing/Offences/Weapons Offences

Ancillary Orders[edit]

  • Weapons Prohibition
  • Forfeiture of weapon
  • DNA Order


Possession of a Restricted or Prohibited Firearm
s. 95 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 1 year jail or $5,000 fine
Indictable Dispositions
Minimum 3 years jail(first) 5 years jail (second or more)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

possession of prohibited or restricted firearm with ammunition
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.


Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, three years, and
(ii) in the case of a second or subsequent offence, five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.


...
R.S., 1985, c. C-46, s. 95; 1991, c. 28, s. 8, c. 40, ss. 9, 37; 1993, c. 25, s. 93; 1995, c. 39, s. 139; 2008, c. 6, s. 8.


CCC

The mandatory minimum came into force on May 1, 2008. This does not apply to offences pre-dating the amendment. Subsequent offences include any conviction under s. 85, 95, 96, 98, 98.1, 99, 100, 102 or 103.

Application[edit]

See Canadian Criminal Sentencing/Offences/Weapons Offences

Principles[edit]

As with all mandatory minimums, the minimum is an "inflationary floor" which sets a minimal punishment for the "best" offender.[1]

The "possession of a loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and a trigger-pull away."[2]

  1. R. v. Morrisey, 2000 SCC 39, [2000] 2 SCR 90, at para 75
  2. R. v. Chin, 2009 ABCA 226 (CanLII) at para. 10

Factors[edit]

Aggravating factors:

  • Type of firearm (particularly how dangerous it is)
  • the firearm was stolen or had serial numbers removed
  • children nearby
  • drugs nearby
  • suggestion of drug dealing or organized crime

Mitigating factors:

  • guilty plea
  • remorse
  • no prior criminal record

Ancillary Orders[edit]

  • Weapons Prohibition
  • Forfeiture of firearm (if seized by police)
  • DNA Order

Offence-related Probationary Terms[edit]

  • not to possess weapons, ammunition, or explosive substances


Weapons Trafficking
s. 99 of the Crim. Code
Election / Plea
Crown Election Indictable
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Indictable 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)
Minimum 1 years jail(non-firearm) 3 years jail (first)
5 years jail (second or more)
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Weapons trafficking
99. (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of


a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
Punishment — firearm
(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.


Punishment — other cases
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
R.S., 1985, c. C-46, s. 99; 1995, c. 39, s. 139; 2008, c. 6, s. 10.

Possession for purpose of weapons trafficking
100. (1) Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of

(a) transferring it, whether or not for consideration, or
(b) offering to transfer it,


knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.
Punishment — firearm
(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.


Punishment — other cases
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
R.S., 1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s. 12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139; 1996, c. 19, s. 65; 2008, c. 6, s. 11.

Transfer without authority
101. (1) Every person commits an offence who transfers a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.
Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.


R.S., 1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s. 139.


CCC

Proof of the Offence[edit]

Application[edit]

Principles[edit]

Factors[edit]

Ancillary Orders[edit]

  • Weapons Prohibition
  • Forfeiture of weapon

Recommended Probationary Terms[edit]

See Also[edit]

Possession of a Weapon Contrary to an Order
s. 117.01 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Maximum 10 years
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Possession contrary to order
117.01 (1) Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament.
Failure to surrender authorization, etc.
(2) Every person commits an offence who wilfully fails to surrender to a peace officer, a firearms officer or a chief firearms officer any authorization, licence or registration certificate held by the person when the person is required to do so by any order made under this Act or any other Act of Parliament.
Punishment
(3) Every person who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.


CCC

Application[edit]

Ancillary Orders[edit]

Ranges[edit]

  • R. v. Morrow, 2011 BCCA 155 || 5 years
  • R. v. Charles, 2010 ONSC 5437|| 5 months
  • R. v. Chan, 2011 NSSC 471|| 1 year
  • R. v. Moss, [2006] NJ No 174 (SC)|| 1 year|| also charged w robbery (9 years); guilty plea
  • R. v. Boutilier, [2006] NJ No 42 (NLSC)|| also convicted for other firearm offences (3 years)|| 1 year
  • R. v. Lavers [2010] NJ No 390 (NLCA)|| 2 months
  • R. v. Maddigan, 2009 ONCA 269|| 12 months consecutive|| connection to Hells Angels; also convicted of firearms offences (2 years)
  • R. v. Clark, 2008 ABPC 371|| 2 years || also convicted of drug trafficking (4 years)
  • R. v. Barnett, 2011 BCPC 320|| 30 months|| also convicted of trafficking (30 months)

Digests[edit]

General[edit]

Case Citation Sentence Summary
R. v. Wong 2012 ONCA 767 (CanLII) 3 years drugs and guns


Section 86: Careless Storage[edit]


Section 87: Pointing a Firearm[edit]


Section 88: Dangerous Purpose[edit]

Case Citation Sentence Summary
R. v. Sousa 2011 ONSC 6463 2.5 years handgun

Section 90: Concealed Weapon[edit]

Case Citation Sentence Summary
R. v. Ramirez 2012 ABPC 176 discharge no record


Section 91: Unauthorized Possession of Firearm[edit]

Section 92: Possession of Unauthorized Firearm[edit]

Section 95: Possession of a Restricted or Prohibited Firearm[edit]

Case Citation Sentence Summary
R. v. Johnsrud 2012 ABPC 298 (CanLII) 5 years offender pointed unloaded firearm at victim and pulled trigger
R. v. Choken 2012 MBPC 44 (CanLII) 5 years offender was 19 years old connected to biker gang, also convicted of drug traffficking
R. v. Frohock 2009 BCCA 227 6 years 8 months after 14 mo remand found with loaded sawed-off shotgun; 45 year old with extensive record.
R. v. Cross 2006 CanLII 33193 (ON C.A.) 2 years less a day 19 year old;limited record; .45 calibre handgun concealed in the waistband of the offenders’s pants.
R. v. Syed 2005 CanLII 4773 (ON C.A.) 2 years less a day numerous loaded weapons, 590 grams of marijuana
R. v. Smith 2006 NSCA 95 2 years 9mm handgun outside a bedroom; 39 year old with a significant drug addiction; 49 prior convictions
R. v. Dickson 2007 ABCA 322 25.5 months sawed-off shotgun

Section 99, 100: Weapons Trafficking[edit]

References[edit]