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Weapons Violation Defence Lawyer

Weapons Violation Defence Lawyer

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.

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

There is a special class of weapons, known as “prohibited weapons” which are always illegal, regardless of the purpose you have them for. These weapons are listed in the Criminal Code, as well as in federal regulations passed under the legislation. Examples include tear gas, pepper spray, brass knuckles, nunchaku, and crossbows.

The Criminal Code definition of a prohibited weapon is as follows:

  • 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,
  • 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;

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:

 

Careless use of firearm, etc..
86. (1) 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.

 

Contravention of storage regulations, etc.

(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.

 

Punishment

  • (3) Every person who commits an offence under subsection (1) or (2)
    • (a) is guilty of an indictable offence and liable to imprisonment
      • (i) in the case of a first offence, for a term not exceeding two years, and
      • (ii) in the case of a second or subsequent offence, for a term not exceeding five years; or
    • (b) is guilty of an offence punishable on summary conviction.
      R.S., 1985, c. C-46, s. 86; 1991, c. 40, s. 3; 1995, c. 39, s. 139.

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.

 

Punishment

  • (2) Every person who commits an offence under subsection (1)
    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
    • (b) is guilty of an offence punishable on summary conviction.R.S., 1985, c. C-46, s. 88; 1995, c. 39, s. 139.

Unauthorized possession of firearm

  • 91. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of
    • (a) a licence under which the person may possess it; and
    • (b) a registration certificate for the firearm.

Unauthorized possession of prohibited weapon or restricted weapon

(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

Unauthorized possession of prohibited weapon or restricted weapon
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

 

Punishment

  • (3) Every person who commits an offence under subsection (1) or (2)
    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
    • (b) is guilty of an offence punishable on summary conviction.

Exceptions

  • (4) Subsections (1) and (2) do not apply to
    • (a) a person who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it;
      or
      (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it,

      • (i) lawfully disposes of it, or
      • (ii) obtains a licence under which the person may possess it and, in the case of a firearm, a registration certificate for the firearm.
  • Borrowed firearm for sustenance
    (5) Subsection (1) does not apply to a person who possesses a firearm that is neither a prohibited firearm nor a restricted firearm and who is not the holder of a registration certificate for the firearm if the person

    • (a) has borrowed the firearm.
    • (b) is the holder of a licence under which the person may possess it; and.
    • (c) is in possession of the firearm to hunt or trap in order to sustain the person or the person’s family.
      R.S., 1985, c. C-46, s. 91; 1991, c. 28, s. 7, c. 40, ss. 5, 36; 1995, c. 22, s. 10, c. 39, s. 139; 2008, c. 6, s. 4.

Unauthorized possession in motor vehicle


  • 94. (1) Subject to subsections (3) to (5), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless
  • (a) in the case of a firearm,
    • (i) the person or any other occupant of the motor vehicle is the holder of
      • (A) an authorization or a licence under which the person or other occupant may possess the firearm and, in the case of a prohibited firearm or a restricted firearm, transport the prohibited firearm or restricted firearm, and
      • (B) a registration certificate for the firearm,

    • (ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of

      • (A) an authorization or a licence under which that other occupant may possess the firearm and, in the case of a prohibited firearm or a restricted firearm, transport the prohibited firearm or restricted firearm, and
      • (B) a registration certificate for the firearm, or
    • (iii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament; and
  • (b) in the case of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition,
    • (i) the person or any other occupant of the motor vehicle is the holder of an authorization or a licence under which the person or other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
    • (ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was
      • (A) the holder of an authorization or a licence under which the other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
      • (B) a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament.

Punishment

(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.

Exception
(3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle.

 

Exception
(4) Subsection (1) does not apply to an occupant of a motor vehicle where the occupant or any other occupant of the motor vehicle is a person who came into possession of the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition by the operation of law.

Borrowed firearm for sustenance
(5) Subsection (1) does not apply to an occupant of a motor vehicle where the occupant or any other occupant of the motor vehicle is a person who possesses a firearm that is neither a prohibited firearm nor a restricted firearm and who is not the holder of a registration certificate for the firearm if the person

(a) has borrowed the firearm;
(b) is the holder of a licence under which the person may possess it; and
(c) is in possession of the firearm to hunt or trap in order to sustain the person or the person’s family.
R.S., 1985, c. C-46, s. 94; 1995, c. 39, s. 139; 2008, c. 6, s. 7.

 

Possession of prohibited or restricted firearm with ammunition
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses 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, unless the person is the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.

 

Punishment

  • (2) Every person who commits an offence under subsection (1)
  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
    • (i) in the case of a first offence, three years, and
    • (ii) in the case of a second or subsequent offence, five years; or
  • (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Exception

(3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it.
R.S., 1985, c. C-46, s. 95; 1991, c. 28, s. 8, c. 40, ss. 9, 37; 1993, c. 25, s. 93; 1995, c. 39, s. 139; 2008, c. 6, s. 8.

While these might seem to be overlapping, in most cases they are distinct offences with separate legal elements and different punishments. This reflects how seriously our society takes firearms offences.

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.

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