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Weapons Offences

Weapons offences are varied and range widely in terms of seriousness.

Unlike in the United States, Canadian citizens don’t have a constitutional right to bear arms. It’s not uncommon for an American to keep a loaded firearm in their car for protection. When doing so, denying the presence of this firearm in their vehicle while crossing the border, if discovered at secondary inspection, can lead to several criminal charges including:

1. Unlicensed possession of a firearm – s. 91(1) Criminal Code;
2. Unauthorized possession in motor vehicle – s. 94(1) of the Code;
3. Possession of prohibited or restricted firearm with ammunition – s. 95(1) of the Code;
4. Unauthorized importing or exporting of a firearm – s. 104(1) of the Code;
5. Making a false statement – s. 153(a) Customs Act;
6. Smuggling – s. 159 Customs Act.

A defence to the above charges is the “mistake of fact” defence, which can succeed if a reasonable doubt exists as to whether the accused had knowledge of the presence of the firearm. This is not a true defence, but a negation of the knowledge component required for the Crown to prove most criminal offences.

Another type of weapon offence can flow from the imposition of a weapons prohibition order by the courts.

Weapons prohibition orders are ancillary orders routinely imposed by judges for any accused who has been convicted, or even discharged with, an offence. These orders are mandatory if the offence(s) involved, among other things, violence against an intimate partner, criminal harassment, firearms, other weapons, drugs, or other violent offences where the Crown could have proceeded by indictment and the maximum sentence is ten or more years of custody (e.g. assault causing bodily harm). Needless to say, this is a wide range of offences.

Discretionary weapon prohibitions can be ordered by judges in other cases where there was actual or implied violence (e.g. uttering threats), or where a weapon or weapon accessory (e.g. ammunition) was involved in the offence.

Weapons prohibitions are lengthy, with the starting point at ten years beginning from the date of release from imprisonment, or where no custody is ordered, the date of sentencing. For a subsequent offence, the order is made for life.

Due to the length of weapons prohibitions and their routine imposition by the courts, it is easy for an accused to forget that they have been prohibited from possessing a weapon. In such a case the accused may be liable for a breach of their weapons prohibition notwithstanding their otherwise benign purpose for possessing a weapon.

Another weapon offence involves possessing a weapon for a dangerous purpose contrary to s. 88 of the Criminal Code. Where an accused is charged with assault with a weapon and the “weapon” was not something immediately in the presence of the accused during the alleged incident, it is common for them to simultaneously be charged with an offence under s. 88.

s. 88 is worded as follows:

Possession of weapon for dangerous purpose

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. 

Aside from identity, date, and jurisdiction, the elements of the offence that the Crown must prove are as follows:

1. The accused carried or possessed an item;
2. The item is one of the items listed in s. 88(1);
3. The accused’s purpose in possessing or carrying the item was dangerous to the public peace or to commit an offence.

If the weapon is actually used to commit an offence, the fact finder may draw the inference that the accused possessed it to commit the offence. However, intent is dynamic, and where there is a reasonable doubt that the accused originally possessed or carried the weapon for
the required purpose, the offence is not proven.

Self-defence is a possible defence to this charge but requires evidence that the use of the weapon was the only possible means for the accused to defend themselves and the use of the weapon did not exceed the amount of force needed for self-defence.

Where an accused carries a concealed weapon, they may be liable for the offence of carrying a concealed weapon contrary to s. 90(1) of the Code notwithstanding that they may not have had a purpose dangerous to the public peace or intent to commit an offence. The latter are not requirements for a s. 90(1) offence.

You can find some of the firm’s case results for weapons offences HERE.

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