Canadian criminal legislation is tough on weapons offences in accordance with increasing concerns over, and intolerance of gun violence in Canada. In an attempt to prevent and reduce assaults with a weapon as well as gun violence, the mandatory minimum sentencing for many offences involving firearms is substantial, particularly for offenders who are convicted of a second or multiple offences. Certainly, for anyone who is convicted on a weapons offence, the ability to travel to the U.S. and other countries will be affected, as well as their future employment opportunities.
The Criminal Code and the courts refer to a weapon in two contexts:
- a weapon is essentially any object that may be used to harm another person
- ‘weapon’ refers to prohibited or unauthorized firearms and other weapons
A weapon, under Canada’s Criminal Code s.2, can be anything that is intended to be used to threaten or intimidate someone, or to cause injury or death to a person. An article that may be used in binding or tying up a person against their will may also be defined as a weapon, within a certain context. This definition pertains particularly to assault charges, as any item that someone uses to intimidate or harm another person may lead to an assault charge.
In R. v. Huete, 2008, on appeal, the Supreme Court of B. C. upheld a conviction for a man charged with carrying a concealed weapon. The charge resulted when a man was stopped near the scene of an assault; officers observed a large object protruding from his sweatshirt, and a pat down determined that the object was a machete. At his trial, the judge concluded that something the size of a machete is not intended for peaceful purposes and would clearly intimidate and scare members of the public (and as there was no tropical underbrush in the area that needed to be removed), the machete would be considered to be a concealed weapon.
In a similar case, R. v. D.A.C., 2007, a young man was tried on the charges of possession of a weapon for a dangerous purpose and carrying a concealed weapon. The charges were laid after a bus driver observed a knife protruding from the man’s front pocket when he boarded the bus. A bus security officer seized an ornate Japanese-style dagger which the man said he was simply transporting to an uncle’s house because his father did not want it stored in his home. The charges, in this case, were not connected with any other crime and the young man did not directly threaten another person. Therefore, the trial judge found the man ‘not guilty’ of carrying a weapon for a dangerous purpose; however, he was found guilty of carrying a concealed weapon, as this offence is not necessarily dependent on someone’s intent to harm another person.
Weapons offences, under the Criminal Code, generally pertain to the illegal possession or use of prohibited or restricted firearms and other weapons, including parts of weapons such as cartridge magazines and ammunition, designated under the Criminal Code of Canada. However, there are a very broad range of weapons offences under the Criminal Code. For most of these offences, particularly in the case of a first offence, the Crown may choose to try the case as a summary offence, for which there is no mandatory jail time and lower sentencing maximums, often up to 6 months in prison. On the other hand, if they choose to try as an indictable offence, the offender may be sentenced to significant jail time.
Although judges are under an obligation to decide on sentencing for various offences based on the guidelines defined in the Criminal Code, these sentencing guidelines are sometimes challenged in Canada’s higher court. In the 2015 trial, R. v. Nur, to decide possession of firearms charges in violation of s. 95.1 of the Code, the Supreme Court of Canada, on appeal, held that the mandatory minimum sentences imposed in section 95(2) violate the Canadian Charter of Rights and Freedoms, s. 12 and are therefore null and void. Specifically, the judges’ findings were that the mandatory minimum sentences of 3 to 5 years, particularly for first-time offenders, may constitute cruel and unusual punishment by invoking a grossly disproportionate sentence in some cases. For example, a licensed and responsible gun owner could face a minimum of 3 years in jail if he/she stores their unloaded firearm with ammunition nearby, in an improper or unauthorized location.
In R. v. Nur, the Court recognized that firearms are inherently dangerous and the more lengthy mandatory minimums imposed by Parliament are intended to discourage careless practices by gun owners, as well as to deter and denounce serious criminal activity involving firearms. Nevertheless, the court concluded that “a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.” The dissenting judges who were overridden in this case argued that the mandatory minimum provisions do not violate the Charter because s. 95.1 (as in the case of many weapons charges) provides a safety valve to allow less serious cases to be tried as summary conviction cases with no minimum sentencing.
In defending a person on any weapons charge, defence counsel will examine all the aspects of the arrest to ascertain whether arresting officers adhered to all proper arrest procedures, particularly with respect to respecting the rights of the accused under the Charter. Defence could file a Charter application to have the evidence excluded, for example, if the police did not have reasonable and probable grounds for a search or did not properly execute their search. Also, if it can be shown that other people had access to the firearm(s), defence counsel can raise reasonable doubt with regards to who had actual custody or possession of the weapon.
A strong defence will bring any and all evidence to convince the judge or jury that the accused is of upstanding character, for example, in holding down steady employment, supporting a family, not having committed a prior criminal offence and so on. The foremost goal is to have all charges dropped. However, portrayal of the accused’s character in the best possible light is also an important consideration in obtaining the least severe penalty in the event of a guilty verdict.
Weapons Offences Identified Under Canada’s Criminal Code
- Use Offences
- Possession Offences
- Trafficking Offences
- Weapon Assembly Offence
- Import or Export of Weapons Offences
- Lost, Damaged or Destroyed Weapons Offences
Use Offences (s. 85-87)
- Using a firearm (or imitation firearm) while committing an indictable offence
- Careless use of a firearm, and contravention of storage regulations
- Pointing a firearm
A person can be convicted of ‘using a firearm’ even if they did not mean to cause harm to another person. Careless use or storage of a firearm includes ammunition. Also, a firearm does not have to be loaded to result in one of these offences. The sentencing for these offences varies from up to 2 years for ‘careless use of a firearm’ to ‘using a firearm’ which can result in 1 to 14 years in prison for a first offence if tried as an indictable offence.
Possession Offences (s. 88-98)
- Possession of a weapon for dangerous purpose
- Carrying a weapon while attending a public meeting
- Carrying a concealed weapon
- Unauthorized possession of a firearm
- Unauthorized possession of a prohibited or restricted weapon
- Possession (knowingly) of an unauthorized firearm, weapon or ammunition
- Possession in an unauthorized place
- Unauthorized possession in a motor vehicle
- Possession of a restricted or prohibited firearm with ammunition
- Possession of a weapon that was obtaining by committing an offence
- Breaking and entering to steal a firearm
- Robbery to steal a firearm
Sentencing if convicted of any of these possession offences varies, as follows:
- maximum 5 years in prison for carrying a concealed weapon when tried as an indictable offence
- maximum 10 years for unauthorized possession in a motor vehicle, when tried as an indictable offence
- maximum life imprisonment for breaking and entering or robbery to steal a firearm
For less serious ‘use’ or ‘possession’ charges, the Crown may choose to try the case as a summary conviction, for which the maximum sentencing is significantly lower: up to 6 months in prison for ‘use’ offences; and up to 6 months or 1 year for less serious possession offences. However, breaking and entering or robbery to steal firearms offences, along with carrying potentially substantial jail time, are only tried as indictable offences.
Trafficking Offences (s. 99-101)
- Weapons trafficking
- Possession for the purpose of weapons trafficking
- Transfer to another person without the authority to do so
Weapons trafficking offences carry a sentence of 3 to 10 years in prison if convicted, except for transfer without authority which carries a maximum sentence of 5 years if tried as an indictable offence.
Assembling Offence (s. 102)
- Making an automatic firearm.
Anyone convicted of altering a firearm to make an automatic weapon may be sentenced to a maximum of one year, or from 1 to 10 years, depending on how the Crown chooses to try a case.
Import/Export Offences (s. 103-104)
- Importing or exporting knowing it is unauthorized
- Unauthorized importing or exporting
The sentencing for import/export of a firearm is greater if the accused was aware they were committing an illegal act, which is 3 to 10 years for a first offence.
Lost, Damaged, or Destroyed Weapons Offences (s. 105-108)
- Losing or finding a firearm (and failing to immediately report it to an officer)
- Destroying a firearm
- False statements to an officer
- Tampering with a serial number
As with most weapons charges, these offences can be tried as a summary offence (carrying lower sentencing maximums) or as an indictable offence that carries a maximum sentence of 5 years for a first offence.
Contact Our Ontario Defence Lawyers Today
If you have been detained or arrested on weapons or assault charges, contact the experienced criminal lawyers at Kruse Law to ensure that you know your legal rights and are defended to the full extent of the law.