Canadian Criminal Law/Firearms

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

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]