Careless Use or Storage of a Firearm (Offence)
|Careless Use or Storage of a Firearm|
|s. 86 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||six months jail and/or a $5,000 fine|
|Avail. Disp.||same as summary|
|Maximum||2 years incarceration (first), 5 years incarceration (subsequent)|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Traditional Defences
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 See Also
Offences relating to careless use or storage of a firearm are found in Part III of the Criminal Code relating to "Firearms and Other Weapons".
|Crown Election|| Defence Election|
|s. 86 [careless use of careless storage of a firearm]||Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment|
Before the statutory increased penalties can be applied for convictions under s. 86, notice of increased penalty under s. 727 must be made. Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.
|Offence(s)|| Attendance Notice
| Release By
On Attendance Notice
| Release By
On a Promise to Appear
Undertaking or Recognizance
| Release By
a Judge or Justice
on a PTA, Undertaking or Recog.
| Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
When charged under s. 86, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
A peace officer who charges a person under s. 86 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
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.
(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.
Proof of the Offence
Proving careless use or storage under s. 86(1) should include:
Proving breach of storage regulation under s. 86(2) should include:
Interpretation of the Offence
“Storage” does not require an intention for the weapon’s placement to be “long-term or permanent storage”. It can include temporary hiding of a firearm.
A breach of regulations under the Firearms Act does not necessarily result in a conviction under s. 86(1).
Duty of Care
This offence is consider an offence of "penal negligence".
Section 86(1) imposes a “a specific and rigorous duty of care” upon the accused to store firearms and ammunition. 
The Crown must prove that the accused’s conduct “constitutes a marked departure from the standard of care of a reasonably prudent person”.
However, even where there is a marked departure from the standard of care, where “reasonable precautions were taken” or there is otherwise doubt, then the court must acquit.  The court must also be satisfied beyond a reasonable doubt that there were not enough "precautions taken by the accused to avoid the creation of risk" and the accused had the "capacity ...to meet the standard of care of a reasonably prudent person in the circumstances” but failed to do so.
The offence does not violate s. 7 of the Charter for creating a duty of care.
This offence can be a predicate offence for manslaughter.
The standard of care is assessed objectively while taking into account the accused’s capacities in the circumstances and the “accused’s ability to control or compensate for his … incapacities”.
Unlike offences that require standard of care, there is no defence of due diligence if the offence is otherwise made out.
Federal firearms regulations are relevant to determination of the standard of care required for the firearm. Where regulations for storage cannot be relied upon an expert will normally be required to establish carelessness.
Burying ammunition in the woods amounts to careless storage of ammunition.
A rifle leaning against the wall in an upstairs bedroom in open view is stored in a "careless manner".
Discharging a firearm over the head of a person in order to scare them is careless use of the firearm.
R v Gosset, 1993 CanLII 62 (SCC), 1993 83 CCC (3d) 494 ("Negligence in a criminal setting, or what I shall hereinafter refer to as ‘penal negligence’ to distinguish it from offences involving a fault element of criminal negligence under s. 219 of the Code, subjects those convicted to the possibility of imprisonment.")
R v Blanchard (1994), 103 CCC (3d) 360, 1994 CanLII 5251 (YK TC)
- R v Finlay 1993 CanLII 63 (SCC), (1993) 83 CCC (3d) 513 (“Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care.”)
- Optimum Insurance Co. v Donovan 2009 NBCA 6 (CanLII) at para 40
- R v Finlay citing R v Gosset 1993 CanLII 62 (SCC), (1993), 83 CCC (3d) 494 (S.C.C.)
- R v Finlay, supra, ("“the existence of a reasonable doubt as to either the sufficiency of the precautions taken by the accused to avoid the creation of risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person in the circumstances.")
- R v Gosset
- R v Finlay
- R v Naglik, 1993 CanLII 64 (SCC),  3 SCR 122 at 33
- R v J.F. 2008 SCC 60 (CanLII) at para 7
R v Halliday at p. 15 ("the federal firearm storage regulations are relevant in determining the appropriate standard for those who are transporting or storing guns to the same degree that the rules of the road would be relevant in determining the basic standard of conduct for drivers.")
- R v Halliday, 1995 CanLII 982 (ON CA)
- R v Haridge, 2012 ONSC 5049 (CanLII),  O.J. No. 4222 (O.S.C.)
- R v Elsby, 2012 BCSC 125 (CanLII),  BCJ No. 157(B.C.S.C.) at para 91 to 93
- R v Zimmer, 1981 CanLII 338 (BC CA)
Violation of Regulations
Section 86(2) is a strict liability offence.
The offence under s. 86(2) is constitutional.
This offence will generally concern violations of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209
Analysis of Firearms
- Analysis of Firearm - certificate of analysis s. 117.13
- Section 2 defines "firearm" and "imitation firearm".
- "Prohibited weapon", "prohibited device", "restricted weapon", "ammunition" and "prohibited ammunition" are defined in s. 84.
- Possession - where the weapon was not found in actual possession of the accused, it can often be argued that the accused was not aware of the weapon and so did not have joint or constructive possession.
- Defence of Property
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- See Weapons Offences (Sentencing) for general principles
|s. 86 [careless use or careless storage of a firearm]||Summary Election||six months jail and/or a $5,000 fine|
|s. 86 [careless use or careless storage of a firearm]
No prior convictions
|Indictable Election||2 years custody|
|s. 86 [careless use or careless storage of a firearm]
With prior convictions
|Indictable Election||5 years custody|
Offences under s. 86 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration (no priors) and 5 years incarceration (with prior convictions under s. 86). If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.
These offences have no mandatory minimum penalties.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
There are no statutory requirements that the sentences be consecutive.
Notice of Increased Penalty
Where a prior related conviction exists there must be notice under s. 665 in order to rely on the higher penalties.
Ancillary Sentencing Orders
|DNA Orders||s. 86(a)(ii)||
|Weapons Prohibition||s. 86||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|