Society is very concerned about gun violence. As a result, the use of weapons, particularly firearms, in committing a crime is investigated and prosecuted to the full extent of the law. Weapons violations will attract harsh penalties including minimum jail sentences, consecutive sentences (see Sentencing), firearms prohibitions, DNA seizures and travel restrictions to the U.S. A firearms conviction will also have serious consequences for your immigration status, employment prospects and ability to travel, especially to the U.S.
When police respond to a gun call, they will do so with maximum force. When the Crown Attorney’s office approaches a gun case, they do so with special prosecution teams, red-flagged files, and a zero-tolerance approach.
Preparing Your Defence in a Firearms Case
In many instances, a firearm is seized by police in a location frequented by more than one person, such as a house, or a car with several occupants. The police investigation might start with an investigative hunch, a police informant, or perhaps a traffic stop. A search warrant might be involved. In each of these scenarios, part of the defence strategy will be to analyze the actions of the police to determine if they exercised their authority lawfully. If they did not, the evidence might be excluded by the court.
In most firearms cases, the Charter of Rights plays a central role, because after the police have seized a gun, they must follow proper procedures in making the arrest and processing the suspects. If they are too rough, or take impermissible shortcuts, or try to coerce a statement, they could be violating your rights under the Charter, and the evidence might be excluded for those reasons as well.
Also, in cases where more than one person is present or has access to the location where the gun is found, such as a house or car, the Crown must prove beyond a reasonable doubt that you had knowledge and control over the gun at the relevant point in time. Rules of law involving joint or constructive possession can be tricky and easily misapplied by the Crown or the courts.
Many aspects of firearms cases are similar to drug cases (see Drug Offences), including the use of police techniques such as search warrants and informants. Just like drug cases, these charges are very serious and require lawyers with the specialized knowledge to defend them properly. At the Defence Group, we have former Crown attorneys who have handled these cases from every angle, and who will bring that experience to work for you.
What is a Weapon?
While this might seem obvious, a weapon is not just an object that is inherently dangerous, like a gun or a knife. Even something as ordinary as a chair or a remote control can be a weapon depending on the circumstances.
The Criminal Code definition of a weapon is as follows:
- 2. “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
- 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;
Firearms Offences
Firearms are classified according to their type and whether one is licensed to own them. These classifications are complicated and scientific, but are important in determining whether the police have properly charged you with the right offence.
The following are two examples of the classification of firearms:
- s.84(1)”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;
- “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,
- (a) a handgun that
- 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;
- (b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
When police investigate a firearms offence, they will frequently lay multiple charges for the same weapon. As an example, if the police pull over a car in which you are a passenger, and locate under the seats a loaded handgun and a clip of ammunition, you could be charged with all of the following offences:
- Careless storage of a firearm (s. 86(1) of the Code);
- Possession of a weapon for a purpose dangerous to the public peace (s.88(1) of the Code);
- Unauthorized possession of a firearm (s. 91(1) of the Code);
- Unauthorized possession of a prohibited ammunition (s. 91(2) of the Code)
- Unauthorized possession of a firearm in a motor vehicle (s. 94(1) of the Code);
- Possession of a prohibited firearm with ammunition (s. 95(1) of the Code).
The legal definitions for each of these charges is listed below: