There are strict laws surrounding the use, possession, purchase and sale of weapons in Canada. While there are many offences in the Criminal Code that address the use of a weapon during the commission of an offence (i.e. assault with a weapon, criminal negligence, manslaughter), there are also several offences that strictly relate to weapons alone. These offences are set out in section 88 to 108 of the Criminal Code.
The term “weapon” is defined under section 2 of the Criminal Code as anything that is intended to be used to threaten or intimidate someone, or to cause injury or death to a person.
A weapon can be something as obvious as a firearm, a knife, a taser, brass knuckles or a crossbow. These types of weapons will always fall within the definition of a weapon in the Criminal Code. A weapon could also include objects such as a broken beer bottle, any type of chemical used to injure another person, or a stick. For these types of weapons to meet the definition of a weapon in law, the Crown must establish that they were “used, designed to be used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person”.
TYPES OF WEAPONS OFFENCES
Use of a weapon offences are set out in section 85 to 87 of the Criminal Code and they include:
- Using a firearm (or imitation firearm) while committing an indictable offence
- Careless use of a firearm, and contravention of storage regulations
- Pointing a firearm
Intention of harm or injury is not required for a person to be charged and convicted for use a firearm. 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 sentence for “use” offences ranges anywhere from 1 to 14 years in prison. The “careless use of a firearm” has a maximum sentence of 2 years imprisonment, while “using a firearm”, if tried as an indictable offence, can result in 1 to 14 years in prison for a first offence. If prosecuted summarily, the maximum sentence for a “use” offence is 6 months imprisonment.
Possession offences are set out in section 88 to 98 of the Criminal Code and they include:
- Possession of a weapon for dangerous purpose
- Carrying a weapon while attending a public meeting
- Carrying a concealed weapon
- 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
Penalties for “possession” offences differ. Some “possession” offences are hybrid offences, accordingly the applicable sentence will be different depending on whether the Crown proceeds by way of an indictment or summary conviction. However, breaking and entering, robbery to steal firearms and carrying offences are only tried as indictable offence and therefore are subject to heavier sentences. All “possession” offences have a maximum jail term, you may not be sentenced to prison time but it is within the discretion of the Crown to seek a jail sentence.
Trafficking offences are set out in section 99 to 101 of the Criminal Code and they include:
- Weapons trafficking
- Possession for the purpose of weapons trafficking
- Transfer to another person without the authority to do so·
Weapons trafficking and possession for the purpose of weapons trafficking are straight indictable offences. If charged, a bail hearing will be set to determine your eligibility for release pending trial. If convicted, the sentence ranges from 3 to 10 years in prison. Transfer to another person without authority is a hybrid offence. If tried as an indictable offence, the maximum penalty is 5 years imprisonment.
Assembling offence is set out in section 102 of the Criminal Code. It refers to “making an automatic firearm”. Section 84 of the Criminal Code defines “automatic firearm” as 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”.
Altering a firearm to make an automatic weapon is a hybrid offence. If tried as an indictable offence, there is a mandatory minimum sentence of 1 year in prison up to a maximum of 10 years.
EXPORT AND IMPORT OFFENCES
Export and import offences are set out in section 103 and 104 of the Criminal Code and they include:
- Importing or exporting knowing it is unauthorized
- Unauthorized importing or exporting
The exporting and importing of a firearm is an indictable offence that is subject to a stricter penalty, especially if the accused was aware they were committing an illegal act. The mandatory minimum sentence for a first offence is 3 years, 5 years for a second or subsequent offence up to a maximum of 10 years. Where the weapon is something other than a firearm or prohibited device, the mandatory minimum is 1 year imprisonment up to a maximum of 10 years.
OFFENCES RELATING TO LOST, DESTROYED OR DAMAGED WEAPONS
Offences relating to Lost, Destroyed or Damaged Weapons are set out in section 105 to 108 of the Criminal Code and they include:
- 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
Offences relating to Lost, Destroyed or Damaged Weapons are hybrid offences and can be tried either as a summary or indictable offence. If tried summarily, there is no mandatory minimum term of imprisonment for the offence. If prosecuted as an indictable offence, there is a maximum sentence of 5 years imprisonment.
There are ways to defend a weapons charge. An experienced lawyer is in the best position to analyze the evidence against you and present you with all of your options. Weapons charges can be dismissed for a number of reasons. For example, if the weapon was discovered during the court of an illegal search or detention the finding of the weapon can be excluded from evidence at a trial. You may also have a lawful reason for possessing the weapon or you might have a legitimate purpose for the weapon.
Weapon related offences are complex and can negatively impact not only your personal life but also your employment and ability to travel. Many of the weapons offences are subject to mandatory minimum imprisonment sentences, as such it is critical to contact a trained criminal lawyer to explain your rights and provide you with your options.
If you or someone you know has been charged with a weapons offence, contact Sack (Q.C.) and Bogle Law today for assistance.