Definition of Firearms

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General Principles

See also: Definition of Weapons

Firearms are a type of weapon. They are designed to kill or wound and so are less likely to have legitimate purposes. Thus, unlike knives and clubs which do have more varied purposes, firearms are always considered weapons.[1]

2. In this Act,
...
“Firearm” means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;


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Further definitions — firearms
2.1 In this Act, “ammunition”, “antique firearm”, “automatic firearm”, “cartridge magazine”, “cross-bow”, “handgun”, “imitation firearm”, “prohibited ammunition”, “prohibited device”, “prohibited firearm”, “prohibited weapon”, “replica firearm”, “restricted firearm” and “restricted weapon”, as well as “authorization”, “licence” and “registration certificate” when used in relation to those words and expressions, have the same meaning as in subsection 84(1).
2009, c. 22, s. 1.


A firearm can include many types of barreled weapons. It is not significant whether there is ammunition available.[2]

All firearms are weapons regardless of the intention of the holder.[3]

A BB gun may not be a firearm only unless it has been established that it is "capable of causing serious bodily harm or death".[4] It may be a weapon where it is "used or intended to be used for a dangerous purpose".[5]

A paint-gun has be considered a "firearm".[6]

Generally speaking, firearms can be classified into two types:

  • Long Guns (rifles, carbines, and shotguns) and
  • Handguns (revolvers, pistols)

A handgun is defined under s. 84(1):

84
...
“handgun” means a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands;
...
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45, c. 27, s. 18.


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  1. R v Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199 (“A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design...A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.”) See also: R v Formosa (1993), 79 CCC (3d) 95(*no link)
  2. R v Covin, 1983 CanLII 151, [1983] 1 SCR 725 at p. 728
    R v Cheetham, (1980), 53 CCC (2d) 109(*no link) - unloaded rifle was a firearm
  3. R v Felawka ("A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.")
  4. R v Seyed-Nabian, 2008 ABPC 219 (CanLII) at paras 30 to 35
    R v James, 2011 ONCJ 125 (CanLII)
  5. Labrecque, 2011 ONCA 360 (CanLII)
  6. R.H.S., 2007 ONCA 311 (CanLII)

Firearm Action

The "action" of the firearm refers to the speed at which the firearm can fire.

Firearms can have:

  • Single vs. Double Action (revolvers)
  • Pump action (Shotguns)
  • Break action (Shotguns)
  • Lever action (Shotguns, Rifles)
  • Bolt action (Rifles)

Section 84(1) states:

“automatic firearm” means 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;


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Section 1 of the Regulations, SOR/98 98-462 462 states:

“Semi-Automatic Automatic”: a firearm that is equipped with a mechanism that, following the discharge of the cartridge, automatically operates to complete any part of the reloading cycle necessary to prepare for the discharge of the next cartridge


Certain weapons can be adapted to be both semi-automatic and fully automatic.

Prohibited Firearm

Restricted Firearm

Non-Restricted or Prohibited Firearms

All rifles and shotguns that do not otherwise fit in the definition of restricted or prohibited firearms.

Antique Firearms

84.
...
“antique firearm” means

(a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or
(b) any firearm that is prescribed to be an antique firearm;

...
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2.


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The Regulations Prescribing Antique Firearms, SOR/98-464, that came into force on December 1, 1998, further defines antique firearm as follows:

BLACK POWDER REPRODUCTIONS

1. A reproduction of a flintlock, wheel-lock or matchlock firearm, other than a handgun, manufactured after 1897.

RIFLES

2. A rifle manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, 22 Calibre Long or 22 Calibre Long Rifle cartridges.
3. A rifle manufactured before 1898 that is capable of discharging centre-fire cartridges, whether with a smooth or rifled bore, having a bore diameter of 8.3 mm or greater, measured from land to land in the case of a rifled bore, with the exception of a repeating firearm fed by any type of cartridge magazine.

SHOTGUNS

4. A shotgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, 22 Calibre Long or 22 Calibre Long Rifle cartridges.
5. A shotgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than 10, 12, 16, 20, 28 or 410 gauge cartridges.

HANDGUNS

6. A handgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, 22 Calibre Long or 22 Calibre Long Rifle cartridges.
7. A handgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than a handgun designed or adapted to discharge 32 Short Colt, 32 Long Colt, 32 Smith and Wesson, 32 Smith and Wesson Long, 32-20 Winchester, 38 Smith and Wesson, 38 Short Colt, 38 Long Colt, 38-40 Winchester, 44-40 Winchester, or 45 Colt cartridges.


Regs

Misc. Categories of Firearms

Inoperable Firearms

An inoperable firearm will be a "Firearm" within the meaning of s.2, if it is capable of being made operable. The Crown holds the burden of establishing that an inoperable firearm is capable of operation through fixing or assembling.[1]

An inoperable weapon otherwise fitting the definition of firearm can be a firearm if it can be fixed into operating order in a relatively short period of time and with relative ease.[2] Likewise, if there is at least some evidence indicating or inferring that the alleged firearm, because of a defect or inadequacy, is incapable of being fired, then it is not a firearm.[3]

A firearm does not cease to meet the definition merely by being in a state of disrepair or disassembly such that it can be easily repaired.[4]

An air gun will generally be classified as a firearm.[5]

However, an inoperable air pistol is not a firearm as it is incapable of causing serious bodily harm.[6]

The use of an inoperable firearm during the commission of an offence such as during a robbery may still be a "firearm".[7]

  1. R v Dufour (1982), 3 CCC (3d) 14, [1982] NSJ No. 549 (NSCA)(*no link)
  2. R v Sinclair, 2005 ABCA 443 (CanLII)
    R v Covin, [1983] 1 SCR 725, 1983 CanLII 151 (SCC)
    R v Dufour
    R v Belair, 1981 CanLII 1625 (ON CA), (1981), 24 C.R. (3d) 133, [1981] O.J. No. 3129 (Ont. C.A.)
  3. R v Marchesani, 1969 CanLII 264 (ON SC), [1970] 1 CCC 350 (O.H.C.)
  4. R v Cairns (1962), 39 C.R. 154, [1962] BCJ No. 87 (BCCA)(*no link)
  5. R v Dunn, 2013 ONCA 539 (CanLII), upheld at 2014 SCC 69 (CanLII) overturning R v McManus and R v Labrecque
    R v Felawka, [1993] 4 SCR 199, 1993 CanLII 36 (SCC) at paras 11 to 14
  6. Covin
  7. R v Belair

Make-shift Firearms

Whether something can be adapted for use as a firearm depends on the amount, nature and time spent adapting the device.[1]

Certain devices such as pellet guns can be found to be a firearm where it is "used or intended to be used for a dangerous purpose".[2]

  1. R v Covin, [1983] 1 SCR 725, 1983 CanLII 151 (SCC)
  2. R v Labrecque, 2010 ONSC 754 (CanLII) appeal denied at 2011 ONCA 360 (CanLII)
    see also R v McManus, 2006 CanLII 26568 (ON CA), [2006] O.J. No. 3175 (C.A.)
    Contra: Covin, supra

Imitation Firearms

An "imitation firearm" refers to "any thing that imitates a firearm, and includes a replica firearm;" (s. 84)

An object that is found to "resemble" a firearm will be an "imitation firearm".[1]

A real firearm is also a form of imitation firearm.[2]

A starting pistol is an "imitation firearm".[3]

A "prohibited device" refers to "(e) a replica firearm;"(s. 84)

A "replica firearm" refers to "any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm;" (84)

  1. R v Taing, 1998 ABCA 108 (CanLII), [1998] A.J. No. 377 (Alta. C.A.) ("On the evidence, the only conclusion open to the trial judge was a finding that it resembled a firearm. To resemble something is to be an imitation of it.")
  2. R v Scott, 2000 BCCA 220 (CanLII), (2000), 145 CCC (3d) 52 (BCCA), affd 2001 SCC 73 (CanLII), [2001] 3 SCR 425 (S.C.C.), at para 45 ("Therefore, to avoid absurdities in firearms cases, and interpret s. 85(2) in harmony with the intention of Parliament, the term “imitation firearm” must include real firearms")
  3. R v Boutilier, [1974] 4 W.W.R. 443

Ammunition

Definitions
84. (1) In this Part,
...
“ammunition” means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell;

...
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45, c. 27, s. 18.


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Part 5 of the Regulations state:

PART 5
Prohibited Ammunition
Former Prohibited Weapons Order, No. 10

1 Any cartridge that is capable of being discharged from a commonly available semi-automatic handgun or revolver and that is manufactured or assembled with a projectile that is designed, manufactured or altered so as to be capable of penetrating body armour, including KTW, THV and 5.7 x 28 mm P-90 cartridges.

2 Any projectile that is designed, manufactured or altered to ignite on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter.

3 Any projectile that is designed, manufactured or altered so as to explode on impact, where the projectile is designed for use in or in conjunction with a cartridge and does not exceed 15 mm in diameter.

4 Any cartridge that is capable of being discharged from a shotgun and that contains projectiles known as “fléchettes” or any similar projectiles.

SOR/2015-213, s. 3.


Regs

Evidence
Proof that the ammunition was capable of being discharged is usually done by way of the actual discharging of at least one cartridge. However, it can also be proven by way of opinion from an expert upon examination of the cartridge and the context of the finding of the cartridge. [1]

There generally is no need for expert evidence to prove that certain items fit the definition of ammunition. [2]The officer's observational description of the items as bullets should be sufficient.[3]


  1. R v Wong, 2012 ONCA 432 (CanLII) at paras 38-40
  2. R v Singh, 2004 BCCA 428 (CanLII) at paras 14 to 15
  3. Singh

"Prohibited device"

Use of a Firearm

The use of a firearm must be more than mere possession and can be less than discharging it.

Use has been found to include:[1]

  • striking a person with it
  • pointing the firearm at a person
  • holding it to intimidate
  • brandishing the firearm

It is not use where the accused merely holds the weapon, makes a threatening reference to the firearm, close accessibility to a firearm with an intent to use it.[2]

Note that a party to a principle who is "using" a firearm can be considered a "user" of the firearm as well.[3]

  1. R v Cheetham (1980), 53 CCC (3d) 209 (ONCA)(*no link)
    R v Langevin (No.1) (1979), 47 CCC (2d) 138 (ONCA)(*no link)
    R v Stewart, 2010 BCCA 153 (CanLII)
    R v Steele, 2007 SCC 36 (CanLII), [2007] 3 SCR 3
  2. R v Steele, at para 32 ( use occurs where "the offender reveals by words or conduct the actual presence or immediate availability of a firearm. The weapon must then be in a physical possession of the offender or readily at hand.")
  3. See R v McGuigan, 1982 CanLII 41 (SCC), [1982] 1 SCR 284

Evidence

It is possible to prove that a weapon was a "firearm" within the meaning of s. 2 from the totality of the circumstances even where the weapon was not fired or recovered.[1]

  1. R v Wills, 2014 ONCA 178 (CanLII) at para 50

Certificate of Analysis

Certificate of analyst
117.13 (1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in any proceedings in relation to any of those things under this Act or under section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof of the signature or official character of the person appearing to have signed the certificate.
Attendance of analyst
(2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.
Notice of intention to produce certificate
(3) No certificate of an analyst may be admitted in evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
(4) and (5) [Repealed, 2008, c. 18, s. 2]
1995, c. 39, s. 139; 2008, c. 18, s. 2.


Certificate of Authorization or Registration

Onus on the accused
117.11 Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.
1995, c. 39, s. 139.


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Authorizations, etc., as evidence
117.12 (1) In any proceedings under this Act or any other Act of Parliament, a document purporting to be an authorization, a licence or a registration certificate is evidence of the statements contained therein.
Certified copies
(2) In any proceedings under this Act or any other Act of Parliament, a copy of any authorization, licence or registration certificate is, if certified as a true copy by the Registrar or a chief firearms officer, admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the authorization, licence or registration certificate would have had if it had been proved in the ordinary way.
1995, c. 39, s. 139.


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See Also