Careless Use or Storage of a Firearm (Offence)

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Careless Use or Storage of a Firearm
s. 86 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration (first), 5 years incarceration (subsequent)
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

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".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 86 [careless use of careless storage of a firearm] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 86 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

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.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 86 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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.

Publication Bans
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.

Offence Designations

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.


CCC

Proof of the Offence

Proving careless use or storage under s. 86(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. accused carried, handled, shipped, transported or stored an item
  5. the item is a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition
    (see Firearms: barreled weapon, capable of causing serious bodily injury or death)
  6. the item was stored in an unsafe or careless manner and no reasonable precautions taken for the safety of others(e.g. no trigger locks, out of case, loaded)
    1. a marked departure from the standard of care of a reasonably prudent person in the circumstances

Proving breach of storage regulation under s. 86(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit violated any regulation under s. 117(h) of the Firearms Act concerning "storage, handling, transportation, shipping, display, advertising and mail order sales" of firearms and restricted weapons.

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.[1]

A breach of regulations under the Firearms Act does not necessarily result in a conviction under s. 86(1).[2]

Lesser Included Offences
This offence is not a lesser included offence to pointing a firearm.[3]

  1. R v Carlos 2002 SCC 35 (CanLII)
    R v Critch, 2012 CanLII 17795 (NL PC) -- stored weapon under bed for 1 hour
  2. R v Gorr [2003] OJ No. 3252 (Ont. CJ)(*no link)
  3. R v Morrison, 1991 CanLII 995 (BC CA)

Duty of Care

See also: Duty of Care

This offence is consider an offence of "penal negligence".[1]

Section 86(1) imposes a “a specific and rigorous duty of care” upon the accused to store firearms and ammunition. [2]

The Crown must prove that the accused’s conduct “constitutes a marked departure from the standard of care of a reasonably prudent person”.[3]

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. [4] 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.[5]

The offence does not violate s. 7 of the Charter for creating a duty of care.[6]

This offence can be a predicate offence for manslaughter.[7]

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”.[8]

Unlike offences that require standard of care, there is no defence of due diligence if the offence is otherwise made out.

Offences of breach of duty of care do not require a purely subjective intention.[9] They only require "proof of intention or actual foresight of a prohibited consequence.[10]

Federal firearms regulations are relevant to determination of the standard of care required for the firearm.[11] Where regulations for storage cannot be relied upon an expert will normally be required to establish carelessness.[12]

Examples
Burying ammunition in the woods amounts to careless storage of ammunition.[13]

A rifle leaning against the wall in an upstairs bedroom in open view is stored in a "careless manner".[14]

Discharging a firearm over the head of a person in order to scare them is careless use of the firearm.[15]

See also: Firearms Act, SC 1995, c 39 and Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209

  1. 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)
  2. 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.”)
  3. Optimum Insurance Co. v Donovan 2009 NBCA 6 (CanLII) at para 40
  4. R v Finlay citing R v Gosset 1993 CanLII 62 (SCC), (1993), 83 CCC (3d) 494 (S.C.C.)
  5. 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.")
  6. R v Gosset
  7. Gosset
  8. R v Finlay
  9. R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122 at 33
  10. R v J.F. 2008 SCC 60 (CanLII) at para 7
  11. 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.")
  12. R v Halliday, 1995 CanLII 982 (ON CA)
  13. R v Haridge, 2012 ONSC 5049 (CanLII), [2012] O.J. No. 4222 (O.S.C.)
  14. R v Elsby, 2012 BCSC 125 (CanLII), [2012] BCJ No. 157(B.C.S.C.) at para 91 to 93
  15. R v Zimmer, 1981 CanLII 338 (BC CA)

Violation of Regulations

Section 86(2) is a strict liability offence.[1]

The offence under s. 86(2) is constitutional.[2]

This offence will generally concern violations of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209

  1. R v Porter, 2004 BCSC 1520 (CanLII)
  2. R v Smillie, 1998 CanLII 7050 (BC CA)

Analysis of Firearms

Misc Definitions

Traditional Defences

  • 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[1]

A defence of mistake of fact or due diligence is available against offences under s. 86(2).[2]

  1. see R v Gunning, [2005] 1 SCR 627, 2005 SCC 27 (CanLII)
  2. R v Smillie, 1998 CanLII 7050 (BC CA)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
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 also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See Weapons Offences (Sentencing) for general principles

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
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.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 86 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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).

Consecutive Sentences
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.

Principles

Ranges

see also: Careless Use or Storage of a Firearm (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 86(a)(ii)
Weapons Prohibition s. 86
  • For offences under s. 86 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 86 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))

General Sentencing Orders

Order Conviction Description
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 Conviction Description
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.

See Also