Firearms & Weapons Lawyers

What is a Firearm?

A firearm is any barrelled weapon that discharges ammunition and can be used to seriously injure or kill a person. In Canada, firearms fall into three categories: prohibited, restricted and non-restricted.

Items not normally considered firearms for the purpose of the Firearms Act and the Criminal Code include antique firearms, devices used for signaling or industrial projects, shooting devices for terminating domestic animals or tranquilizing wildlife, and low velocity air guns.

Prohibited Firearms

Prohibited firearms include handguns with a barrel length equal to or less than 105 mm and most 25 or 32 calibre handguns. Fully automatic and converted automatic firearms, some military firearms (like the AK-47), and firearms with sawed-off barrels are also prohibited.

Restricted Firearms

Restricted firearms include certain non prohibited handguns and semi-automatic long guns, as well as firearms designed to be fired when telescoped or folded shorter than 660 mm. Purposes for which you may be licensed to have a restricted firearm include target practice and shooting competitions, collections and, in certain circumstances, use in your occupation.

Non-Restricted and Imitation Firearms

Non-restricted firearms include any rifle or shotgun that is neither restricted nor prohibited, like those used for sport and hunting. An imitation firearm is anything that imitates a firearm, including replica firearms.

What is a weapon?

A weapon is anything used, designed, or intended to cause death or injury to a person, or for the purpose of threatening or intimidating a person. Weapons can therefore be any common object used or intended to injure or threaten someone. Items used to restrain a person against their will may also be deemed weapons.

Prohibited Weapons

While a weapon is anything intended for use in the threatening, injuring or killing of a person, the Criminal Code distinguishes subclasses of prohibited and restricted weapons from everyday items that can be wielded as weapons.

Weapons prohibited by the Canadian government include:

• Pepper spray
• Mace
• Tear gas
• Crossbows
• Switchblade knives
• Brass knuckles
• Spiked wristbands
• Finger rings with one or more blades capable of projecting from the surface
• Yaqua blowguns: a tube designed to shoot arrows by breath
• Nunchaku: clubs or pipes linked by a length of rope, cord, wire or chain
• Shuriken: hard plates with three or more radiating points and one or more sharp edges in the shape of a polygon, trefoil, cross, star or diamond
• Manrikigusari or kusari: geometrically shaped hard weights or hand grips linked by rope, cord, wire or chain

Firearms & Weapons Offences

Firearms offences under Canadian law stem from the Firearms Act and the Criminal Code, which create regulatory and criminal offences, respectively.

Regulatory Firearms Offences

The licencing, possession, sale, storage and transfer of firearms in Canada is regulated by the Firearms Act. Each province and territory has a designated Chief Firearms Officer with certain powers under the Act, including:

• The power to determine whether or not a person is eligible to hold a firearms licence, and
• The power to determine whether or not a person should be allowed to transport a firearm from one place to another.

The Firearms Act creates regulatory offences for failing to comply with rules and regulations, including:

• Lying in order to obtain a firearms licence
• Tampering with a licence
• Breaking the terms of a licence or registration certificate
• Improper storage of a firearm
• Failing to comply with a demand made by a firearms inspector
• Criminal firearms offences

Criminal Firearms & Weapons Offences

The Criminal Code creates a number of criminal firearms related offences, including:

• Unauthorized possession of a firearm
• Carrying a concealed firearm
• Possession of a weapon for a dangerous purpose
• Possession of a firearm contrary to an order
• Use of a firearm in the commission of an offence
• Possession of an unauthorized firearm
• Pointing a firearm
• Careless use of a firearm
• Firearm trafficking
• Aggravated assault with a weapon
• Assault with a weapon
• Robbery with a weapon
• Weapons offences

The Criminal Code creates the following weapons related offences:

• Carrying a concealed weapon
• Possession of a weapon for a dangerous purpose
• Weapons trafficking
• Aggravated assault with a weapon
• Assault with a weapon
• Robbery with a weapon
• Possession of a weapon contrary to an order

Firearms & Weapons in the Criminal Code of Canada

Regarding the careless use of a firearm, Section 86 of the Criminal Code states that every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

Regarding the possession of weapon for dangerous purpose, Section 88 of the Criminal Code states that 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.

In dealing with the unauthorized possession of firearm, Section 91 of the Criminal Code states that every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of

1. a licence under which the person may possess it; and
2. in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

Section 95 of the Criminal Code makes it an offence to possess 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, without being the holder of a license and registration certificate.

Regarding robbery with a firearm, Section 344 of the Criminal Code states that Robbery every person who commits robbery is guilty of an indictable offence and liable

1. if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
1. in the case of a first offence, five years, and
2. (ii) in the case of a second or subsequent offence, seven years;

Firearms & Weapons Charges

Firearms and weapons offences are treated seriously by the police, Crown Counsel and courts. Upon an allegation of a firearms or weapons offence, police will seize any and all firearms they locate and usually proceed to recommend charges to Crown Counsel. 

When you are charged with a firearms or weapons offence, you will either be released by police or held for a bail hearing. If allowed to leave, officers will provide you with a document stating when and where you must appear in court and any conditions related to your release. Conditions will be imposed on your release regardless of whether you appear before a Justice of the Peace or are released by police.

Firearms & Weapons Bail Conditions

So long as you lack a history of violence, the court can usually be satisfied that releasing you from custody before trial is safe and appropriate. Your problem then becomes navigating the restrictive bail conditions imposed on your release.

Your bail conditions will likely require you to:

• Surrender all weapons and firearms and any related authorizations
• Not be in possession of any weapons, including knives (except for the consumption of food)
• Abstain from alcohol and non prescription drugs
• Demonstrate law abiding behaviour
• Provide your current address to the court (and notify the Court of any address changes)

If your case involves a complainant, victim or co-conspirator, your bail conditions will also require that you:

• Avoid all contact with the complainant, victim or co-conspirator
• Abstain from all direct or indirect communication with the complainant, victim or co-conspirator
• Avoid the complainant, victim or co-conspirator’s residence, business, school, place of worship and other frequented establishments

Factors that may affect your bail conditions include your:

• Alleged crime or assaultive behaviour
• Likelihood of attending court 
• Criminal history
• History of drug and alcohol use 
• Physical state
• Mental condition
• Employment situation
• Living situation
• Standing in the community

In certain circumstances bail conditions can be varied, but this takes time and negotiations with the Crown. Bail conditions must be complied with unless and until they are varied lest you be charged with breaching bail and jailed.

Penalties for Firearms & Weapons Offences

Penalties for weapons and firearms offences depend on the type (regulatory or criminal) and severity of the offence. Firearms and weapons violations are primarily hybrid offences, which means they can be prosecuted as either summary or indictable offences. Most penalties for the unregistered use, possession, and trafficking of a firearm include mandatory minimum sentences.

Careless Use and Contravention of Storage Regulations Penalties

• First offence: maximum two years’ imprisonment when charged indictably
• Second offence: maximum five years’ imprisonment when charged indictably
• Maximum two years’ imprisonment if charged summarily
• Possible $5,000 fine
• Possible criminal record
• Possible travel restrictions to the United States

Pointing a Firearm Penalties

• Up to five years’ imprisonment if charged indictably
• Maximum two years’ imprisonment if charged summarily
• Possible $5,000 fine
• Possible criminal record
• Possible travel restrictions to the United States

Carrying a Concealed Weapon Penalties

• Maximum five years’ imprisonment if charged indictably
• Maximum two years’ imprisonment if charged summarily
• Possible $5,000 fine
• Possible criminal record
• Possible travel restrictions to the United States

Possession of a Weapon for Dangerous Purposes Penalties

• Maximum ten years’ imprisonment if charged indictably
• Maximum two years’ imprisonment if charged summarily
• Possible $5,000 fine
• Possible prohibition against ownership of firearms
• Possible criminal record
• Possible travel restrictions to the United States

Unauthorized Possession of a Firearm Penalties

• Possible prohibition against ownership of firearms
• Possible criminal record
• Possible travel restrictions to the United States

Unauthorized Possession of a Restricted Firearm with Ammunition Penalties

• Maximum two years’ imprisonment if charged summarily
• Maximum ten years’ imprisonment if charged indictably
• Possible $5,000 fine
• Possible prohibition against ownership of firearms
• Possible criminal record
• Possible travel restrictions to the United States

Using a Firearm (or Imitation) in the Commission of an Offence Penalties

• First offence: minimum one year and maximum 14 years’ imprisonment
• Second offence: minimum three years and maximum 14 years’ imprisonment
• Possible prohibition against ownership of firearms
• Criminal record
• Travel restrictions to the United States

Assault with a Weapon Penalties

• Maximum 18 months’ imprisonment if charged summarily
• Maximum ten years’ imprisonment if charged indictably
• Possible revocation of immigration status
• Possible prohibition against ownership of firearms
• Fines
• Compensation to victim
• Probation
• Criminal record
• Travel restrictions to the United States

Defending Firearms & Weapons Charges

Firearms and weapons allegations require immediate legal attention. Outcomes in firearms and weapons cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled lawyer by your side, but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Diverting your case from the court process via peace bond
• Defending you at trial
• Firearms prohibition hearings 
• Sentencing

Peace Bonds

For less severe cases, you may enter a peace bond. A statutory peace bond may be used when you enter an agreement in return for the Crown Attorney withdrawing charges. Peace bonds are not an admission of guilt, but an acknowledgment the complainant had reasonable grounds to fear for their safety, or the welfare of their child, intimate partner, or property. Upon signing a peace pond, your charges are withdrawn and you do not gain a criminal record.

Statutory peace bonds require you to agree to certain conditions for a length of time not exceeding one year. Conditions may include:

• Law abiding behaviour
• Surrendering weapons and firearms
• Attending anger management counselling
• Abstaining from alcohol
• Avoiding direct and indirect communication with any victims
• Avoiding the victim’s residence, business, school, place of worship and other frequented establishments
• Reporting to a probation officer

Firearms & Weapons Trial Defences

Should your case go to trial, defences to firearms and weapons charges depend on the nature of the weapon and circumstances of your criminal case. Defences to firearms and weapons charges include (but are not limited to):

• Expected standard of care: Criminal liability stems from the charge that you intentionally deviated from the expected standard of care in a given situation. If you took all precautions to ensure those around you were safe, or if you could not have been aware that your use of a firearm or weapon could have endangered those in your vicinity, you may be able to demonstrate that you met the expected standard of care for the situation in question.
• Illegal search: Evidence of your illegal use of a firearm or weapon must be gathered during a legal search. If the search was unlawful, some or all of the evidence gathered against you may be inadmissible in court.
• Knowledge: For possession charges, the Crown must demonstrate you had knowledge and control of a firearm or weapon to secure a conviction. If you can point to evidence that leaves the court in doubt you had knowledge or control, you may be acquitted. If the Crown successfully argues you were willfully blind to the firearm or weapon’s presence — that you failed to confirm or disconfirm the presence of the weapon, specifically to protect your ability to plead ignorance in the event it was discovered in your vicinity — you may still be found guilty.
• Violations of the Charter of Rights and Freedoms: Charter applications, motions detailing the ways police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer. When police violate Charter rights during an investigation, the evidence obtained over the course of the investigation may be deemed inadmissible. Charter applications can be challenging in firearms and weapons cases because the legal test to exclude evidence weighs the public interest, and firearms and weapons are considered a serious threat to the public.

Firearms Prohibition Hearings

For some minor firearms offences, the Crown can choose to proceed with an application under section 111 of the Criminal Code to prohibit you from possessing firearms for up to five years.

At the hearing of the application, the Crown presents evidence to try and satisfy the judge that it is appropriate and necessary to issue a firearms prohibition order. You may need to attend a firearms hearing if:

• A peace officer or firearms officer deems you to be unfit to possess firearms (regardless of whether your criminal charges are dismissed or you are acquitted) and applies for a prohibition order, or
• Your firearms are seized in a warrantless search (conducted in the interest of your safety or that of the public).

For a prohibition order to be granted at a firearms hearing, the Crown must prove that it is not in the interest of your safety or that of any other person that you possess any of the following:

• Firearms
• Crossbows
• Prohibited weapons
• Restricted weapons
• Prohibited devices
• Ammunition
• Explosive substances

Held in provincial court, it’s the judge’s responsibility to weigh the existence (or lack thereof) of the reasonable grounds that led the peace or firearms officer to apply for the prohibition order. The judge needn’t apply the rules of evidence strictly. Indeed, hearsay evidence is permitted in firearm hearings.

Sentencing

If your case cannot be resolved by way of a peace bond, dismissal or acquittal, we can negotiate sentencing options with the Crown, helping you to avoid a criminal record, or ensuring your freedom is minimally curbed upon sentencing.

Learn About Firearms & Weapons

• What is a Firearm
• What is a Weapon
• Firearms & Weapons Offences
• Firearms & Weapons in the Criminal Code of Canada
• Firearms & Weapons Charges
• Firearms & Weapons Bail Conditions
• Penalties for Firearms & Weapons Offences
• Defending Firearms & Weapons Charges