Canadian Criminal Law/Offences/Possession of a Restricted or Prohibited Firearm
|Possession of a Restricted or Prohibited Firearm|
|s. 95 of the Crim. Code|
|Election / Plea|
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Maximum||1 year jail or $5,000 fine|
|Minimum||3 years jail(first) 5 years jail (second or more)|
|Maximum||10 years jail|
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.
(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.
Proof of Offence
Including the essential elements of time and date, jurisdiction and identity, the crown must prove:
- the object was a functioning firearm or could be made to function readily
- the firearm was loaded or could be readily loaded
- if loaded, that the accused knew, was wilfully blind (more than reckless) to the fact that the gun was loaded. 
- 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
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. 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.
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.  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
- the description and use of the weapon
- absence of evidence to the contrary
- R v Charbonneau  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
- R. v. Abdullah,  O.J. No. 6079 (S.C.J.) at 29
- R v Dunchie  OJ no 5455 at 55
Loaded and Unloaded
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.
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.
Knowledge that the possession was unauthorized can be proven by wilful blindness.
Any claim mistaken of mistaken belief of authorization must be "honestly held".
- R. v. Wong, 2012 ONCA 432 at 48-50
- 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
- R. v. MacDonald, 2012 NSCA 50 (CanLII)
- R v MacDonald, 2012 NSCA 50