Canadian Criminal Sentencing/Offences/Possession of a Restricted or Prohibited Firearm

From Wikibooks, open books for an open world
Jump to: navigation, search
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