Full Text:Volume 1.1A

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See also: Full Text:Volume 1.1

Contents

TERRORISM AND ORGANIZED CRIME OFFENCES

Maintaining the List of Entities for Terrorism Offences

List of Entities

List of Entities
Establishment of list

83.05 (1) The Governor in Council may, by regulation, establish a list on which the Governor in Council may place any entity if, on the recommendation of the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that

(a) the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or
(b) the entity has knowingly acted on behalf of, at the direction of or in association with an entity referred to in paragraph (a).
Recommendation

(1.1) The Minister may make a recommendation referred to in subsection (1) [est. of list of entities] only if he or she has reasonable grounds to believe that the entity to which the recommendation relates is an entity referred to in paragraph (1)(a) or (b).

Amendment to name of listed entity

(1.2) The Minister may, by regulation,

(a) change the name of a listed entity, or add to the list any other name by which a listed entity may also be or have been known, if the Minister has reasonable grounds to believe that the listed entity is using a name that is not on the list; and
(b) delete from the list any other name by which a listed entity may also have been known, if the entity is no longer using that name.
Application to Minister

(2) On application in writing by a listed entity to be removed from the list, the Minister shall decide whether the applicant should remain a listed entity or whether the Minister should recommend to the Governor in Council that the applicant be removed from the list, taking into account the grounds set out in subsection (1) [est. of list of entities].

Deeming

(3) If the Minister does not make a decision on the application referred to in subsection (2) [est. of list of entities – application to minister] within 90 days after receipt of the application, or within any longer period that may be agreed to in writing by the Minister and the applicant, the Minister is deemed to have decided that the applicant should remain a listed entity.

Notice of the decision to the applicant

(4) The Minister shall give notice without delay to the applicant of any decision taken or deemed to have been taken respecting the application referred to in subsection (2) [est. of list of entities – application to minister].

Judicial review

(5) Within 60 days after the receipt of the notice of the decision referred to in subsection (4) [est. of list of entities – notice of decision to applicant], the applicant may apply to a judge for judicial review of the decision.

Reference

(6) When an application is made under subsection (5) [est. of list of entities – judicial review of application], the judge shall, without delay

(a) examine, in private, any security or criminal intelligence reports considered in the making of the decision on whether the applicant should remain a listed entity and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at his or her request, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person;
(b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any person;
(c) provide the applicant with a reasonable opportunity to be heard; and
(d) determine whether the decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a listed entity.
Evidence

(6.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.

Publication

(7) The Minister shall cause to be published, without delay, in the Canada Gazette notice of a final order of a court that the applicant no longer be a listed entity.

New application

(8) A listed entity may not make another application under subsection (2) [est. of list of entities – application to minister] except if, since the time when the entity made its last application,

(a) there has been a material change in its circumstances; or
(b) the Minister has completed a review under subsection (8.1) [review – listed entity] with respect to that entity.
Review — listed entity

(8.1) The Minister shall review whether there are still reasonable grounds, as set out in subsection (1) [est. of list of entities], for an entity to be a listed entity and make a recommendation to the Governor in Council as to whether the entity should remain a listed entity

(a) within five years after
(i) the day on which this subsection comes into force, if the entity is a listed entity on that day, or
(ii) the day on which the entity is added to the list, if the entity is added to the list after the day on which this subsection comes into force; and
(b) subsequently, within five years after the most recent recommendation made under this subsection with respect to the entity.
Validity

(9) Reviews undertaken under subsection (8.1) [review – listed entity] do not affect the validity of the list.

Publication

(10) The Minister shall cause notice of the results of every review of a listed entity undertaken under subsection (8.1) [review – listed entity] to be published in the Canada Gazette within five years after the review is completed.

Definition of judge

(11) In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

2001, c. 41, ss. 4, 143; 2005, c. 10, ss. 18, 34; 2019, c. 13, s. 141
[annotation(s) added]

CCC

Admission of foreign information obtained in confidence

83.06 (1) For the purposes of subsection 83.05(6) [est. of list of entities – judicial review process], in private and in the absence of the applicant or any counsel representing it,

(a) the Minister of Public Safety and Emergency Preparedness may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and
(b) the judge shall examine the information and provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure would injure national security or endanger the safety of any person.
Return of information

(2) The information shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 83.05(6)(d) [x], if

(a) the judge determines that the information is not relevant;
(b) the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 83.05(6)(b) [x]; or
(c) the Minister withdraws the application.
Use of information

(3) If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of persons, the information shall not be disclosed in the statement mentioned in paragraph 83.05(6)(b) [x], but the judge may base the determination under paragraph 83.05(6)(d) [x] on it.
2001, c. 41, s. 4; 2005, c. 10, s. 19.
[annotation(s) added]

CCC

Mistaken identity

83.07 (1) An entity whose name is the same as or similar to a name, appearing on the list, of a listed entity and who claims not to be that listed entity may apply in writing to the Minister of Public Safety and Emergency Preparedness for a certificate stating that it is not that listed entity.

Issuance of certificate

(2) The Minister shall, within 30 days after receiving the application, issue a certificate if he or she is satisfied that the applicant is not that listed entity.

2001, c. 41, s. 4; 2005, c. 10, s. 20; 2019, c. 13, s. 142.

CCC

Financing Terrorist Activity


Financing Terrorist Activity
s. 83.02, 83.03, and 83.04 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
Types of Release Judicial Release Only
Indictable 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 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to financing terrorist activity are found in Part II.1 of the Criminal Code relating to "Terrorism".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 83.02 [providing or collecting property for certain terror-related activities],
s. 83.03 [providing property or services for terrorist purposes], and
s. 83.04 [providing or collecting property for certain terror-related activities]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 83.02 [providing or collecting property for certain terror-related activities], s. 83.03 [providing property or services for terrorist purposes], and s. 83.04 [using or possessing property for terrorist purposes] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 83.02 [providing or collecting property for certain terror-related activities],
s. 83.03 [providing property or services for terrorist purposes], and
s. 83.04 [using or possessing property for terrorist purposes]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 83.02 [providing or collecting property for certain terror-related activities], 83.03 [providing property or services for terrorist purposes], and 83.04 [using or possessing property for terrorist purposes], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

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)).
Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 83.02 [providing or collecting property for certain terror-related activities],
s. 83.03 [providing property or services for terrorist purposes], and
s. 83.04 [using or possessing property for terrorist purposes]
OK Symbol.png X Mark Symbol.png X Mark Symbol.png (varies) OK Symbol.png

Offences under s. 83.02 [providing or collecting property for certain terror-related activities],
s. 83.03 [providing property or services for terrorist purposes], and
s. 83.04 [using or possessing property for terrorist purposes] are designated offences eligible for wiretap under s. 183.

Offences under s. 83.02 [providing or collecting property for certain terror-related activities],
s. 83.03 [providing property or services for terrorist purposes], and
s. 83.04 [using or possessing property for terrorist purposes] require the consent of the Attorney General to prosecute.[1]

Offences under s. 83.02 [providing or collecting property for certain terror-related activities], 83.03 [providing property or services for terrorist purposes], and 83.04 [using or possessing property for terrorist purposes] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

  1. Section 83.24 states "Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General."

Offence Wording

Part II.1 of the Code outlines terrorism related offences, including those related to financing terrorism.

Providing or collecting property for certain activities

83.02 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out

(a) an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of terrorist activity in subsection 83.01(1) [terrorism offences – definitions], or
(b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act.

2001, c. 41, s. 4; 2019, c. 25, s. 15(E).
[annotation(s) added]

CCC

Providing, making available, etc., property or services for terrorist purposes

83.03 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services

(a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or
(b) knowing that, in whole or part, they will be used by or will benefit a terrorist group.

2001, c. 41, s. 4; 2019, c. 25, s. 16(E}.

CCC

Using or possessing property for terrorist purposes

83.04 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who

(a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or
(b) possesses property intending that it be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity.

2001, c. 41, s. 4; 2019, c. 25, s. 17(E).

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving providing or collecting property for certain activities under s. 83.02 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "provides or collects property"
  5. the culprit does the prohibited act "intending that it be used or knowing that it will be used, in whole or in part, in order to carry out" either:
    1. "an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of “terrorist activity” in subsection 83.01(1)", or
    2. "any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act"; and
  6. the culprit did the prohibited conduct "wilfully and without lawful justification or excuse".

Proving providing, making available, etc., property or services for terrorist purposes under s. 83.03 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "collects property, provides or invites a person to provide, or makes available property or financial or other related services";
  5. the culprit did the prohibited act while either:
    1. "intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity," or
    2. "knowing that, in whole or part, they will be used by or will benefit a terrorist group".

Proving Using or possessing property for terrorist purposes under s. 83.04(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "uses property";
  5. the prohibited act was "for the purpose of facilitating or carrying out a terrorist activity"

Proving Using or possessing property for terrorist purposes under s. 83.04(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "possesses property intending that it be used or knowing that it will be used"
  5. the prohibited act was "for the purpose of facilitating or carrying out a terrorist activity".

Interpretation

"Terrorist Activity", "terrorist group", "terrorism offence"

See Terrorism Definitions

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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 also Terrorism Sentencing for further principles
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 83.02 [providing or collecting property for certain activities],
s. 83.03 [providing, making available, etc., property or services for terrorist purposes], and
s. 83.04 [using or possessing property for terrorist purposes]
N/A 10 years custody

Offences under s. 83.02, 83.03, and 83.04 are straight indictable. The maximum penalty is 10 years incarceration.

Minimum Penalties

Offences under s. 83.02, 83.03, and 83.04 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. 83.02, 83.03, and 83.04 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 83.02, 83.03, and 83.04 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

Under s. 83.26, all sentences for convictions under s. 83.02, 83.03, and 83.04 are to be served consecutively.

Principles

Ranges

see also: Financing Terrorist Activity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 83.02, 83.03, and 83.04
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

References

Participating in Terrorist Activity


Participating in Terrorist Activity
s. 83.19, 83.2, 83.21, and 83.22 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable 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)*

(* varies)
Minimum None
Maximum 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to participating in terrorist activity are found in Part II.1 of the Criminal Code relating to "Terrorism".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 83.18 [participation in activity of terrorist group],
s. 83.181 [leaving Canada to participate in activity of terrorist group] and
s. 83.23 [concealing person who carried out terrorist activity]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)
s. 83.19 [facilitating terrorist activity]
s. 83.201 [leaving Canada to commit offence for terrorist group]
s. 83.202 [leaving Canada to commit offence that is terrorist activity]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 83.21 [instructing to carry out activity for terrorist group]
s. 83.22 [instructing to carry out terrorist activity]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

Offences under s. 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], and 83.22 [instructing to carry out terrorist activity] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], and 83.22 [instructing to carry out terrorist activity], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

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)).

There will be a reverse onus under s. 515(6)(a)(ii) for charges under s. 83.02 to 83.04 and 83.18 to 83.23 or "otherwise is alleged to be a terrorism offence".

Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 83.18 [participation in activity of terrorist group],
s. 83.19 [facilitating terrorist activity],
s. 83.2 [commission of offence for terrorist group],
s. 83.21 [instructing to carry out activity for terrorist group],
s. 83.22 [instructing to carry out terrorist activity] and
s. 83.23 [concealing person who carried out terrorist activity]
OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 83.18 [participation in activity of terrorist group], 83.19 [facilitating terrorist activity], 83.2 [commission of offence for terrorist group], 83.21 [instructing to carry out activity for terrorist group], 83.22 [instructing to carry out terrorist activity] and 83.23 [concealing person who carried out terrorist activity] are designated offences eligible for wiretap under s. 183.

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 require the consent of the Attorney General to prosecute.[1]

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

  1. Section 83.24 states "Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General."

Offence Wording

Participation in activity of terrorist group

83.18 (1) Every person who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Prosecution

(2) An offence may be committed under subsection (1) [participation in activity of terrorist group] whether or not

(a) a terrorist group actually facilitates or carries out a terrorist activity;
(b) the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
(c) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

...
2001, c. 41, s. 4; 2019, c. 25, s. 20.
[annotation(s) added]

CCC

Leaving Canada to participate in activity of terrorist group

83.181 Every person who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1) [participation in activity of terrorist group] is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

2013, c. 9, s. 6; 2019, c. 25, s. 21.
[annotation(s) added]

CCC

Facilitating terrorist activity

83.19 (1) Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Facilitation

(2) For the purposes of this Part, a terrorist activity is facilitated whether or not

(a) the facilitator knows that a particular terrorist activity is facilitated;
(b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or
(c) any terrorist activity was actually carried out.

2001, c. 41, s. 4.

CCC

Leaving Canada to facilitate terrorist activity

83.191 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.19(1) [facilitating terrorist activty – offence] is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
2013, c. 9, s. 7.
[annotation(s) added]

CCC

Commission of offence for terrorist group

83.2 Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.

2001, c. 41, s. 4.

CCC

Leaving Canada to commit offence for terrorist group

83.201 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2013, c. 9, s. 8.

CCC

Leaving Canada to commit offence that is terrorist activity

83.202 Everyone who leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

2013, c. 9, s. 8.

CCC

Instructing to carry out activity for terrorist group

83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) An offence may be committed under subsection (1) [instructing to carry out activity for terrorist group] whether or not

(a) the activity that the accused instructs to be carried out is actually carried out;
(b) the accused instructs a particular person to carry out the activity referred to in paragraph (a);
(c) the accused knows the identity of the person whom the accused instructs to carry out the activity referred to in paragraph (a);
(d) the person whom the accused instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried out for the benefit of, at the direction of or in association with a terrorist group;
(e) a terrorist group actually facilitates or carries out a terrorist activity;
(f) the activity referred to in paragraph (a) actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
(g) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.

2001, c. 41, s. 4.
[annotation(s) added]

CCC

Instructing to carry out terrorist activity

83.22 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) An offence may be committed under subsection (1) [instructing to carry out terrorist activity] whether or not

(a) the terrorist activity is actually carried out;
(b) the accused instructs a particular person to carry out the terrorist activity;
(c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or
(d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.


2001, c. 41, s. 4.
[annotation(s) added]

CCC

Counselling commission of terrorism offence

83.221 (1) Every person who counsels another person to commit a terrorism offence without identifying a specific terrorism offence is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

Application

(2) An offence may be committed under subsection (1) [counselling commission of terrorism offence – offence] whether or not a terrorism offence is committed by the person who is counselled.

2015, c. 20, s. 16; 2019, c. 13, s. 143.
[annotation(s) added]

CCC

Concealing person who carried out terrorist activity

83.23 (1) Every person who knowingly harbours or conceals another person whom they know to be a person who has carried out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to imprisonment for life; and
(b) an indictable offence and liable to imprisonment for a term of not more than 10 years, if the person who is harboured or concealed carried out a terrorist activity that is a terrorism offence for which that person is liable to any other punishment.
Concealing person who is likely to carry out terrorist activity

(2) Every person who knowingly harbours or conceals another person whom they know to be a person who is likely to carry out a terrorist activity, for the purpose of enabling that other person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

2001, c. 41, s. 4; 2013, c. 9, s. 9; 2019, c. 25, s. 22.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Participation in activity of terrorist group under s. 83.18 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "participates in or contributes to, directly or indirectly, any activity";
  5. the activity was of a "terrorist group";
  6. the participation was done "knowingly";
  7. the prohibited conduct was "for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity".

Proving Leaving Canada to participate in activity of terrorist group under s. 83.181 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada"
  5. the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.18(1)"

Proving Facilitating terrorist activity under s. 83.19 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "facilitates a terrorist activity";
  5. the prohibited conduct was done "knowingly".

Proving Leaving Canada to facilitate terrorist activity under s. 83.191 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada"; and
  5. the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an offence under subsection 83.19(1)".

Proving Commission of offence for terrorist group under s. 83.2 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "commits an indictable offence under this or any other Act of Parliament"; and
  5. the prohibited conduct was "for the benefit of, at the direction of or in association with a terrorist group".

Proving Leaving Canada to commit offence for terrorist group under s. 83.201 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada";
  5. the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with" a group; and
  6. the group was a "terrorist group".

Proving Leaving Canada to commit offence that is terrorist activity under s. 83.202 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada";
  5. the prohibited conduct was "for the purpose of committing an act or omission outside Canada that, if committed in Canada, would be an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity".

Proving Instructing to carry out activity for terrorist group under s. 83.21 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with" a group;
  5. the group is a "terrorist group";
  6. the prohibited conduct was "for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity".
  7. the prohibited conduct was done "knowingly".

Proving Instructing to carry out terrorist activity under s. 83.22 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "instructs, directly or indirectly, any person to carry out" an activity;
  5. the activity is "a terrorist activity"; and
  6. the prohibited conduct was done knowingly.

Interpretation of the Offence

Section 83.18 does not violate s. 7 of the Charter. [1] This section does not create inchoate liability rather it is a substantive offence in-line with conspiracy and counselling.[2]

Section 83.18 prohibits "actions that clearly pose a significant danger to the community" by "criminaliz[ing] only participation or contribution which is done for the specific purpose of improving the terrorist groups ability to facilitate or carry out terrorist activity”.[3]

  1. United States of America v Nadarajah, 2010 ONCA 859 (CanLII), per curiam
  2. Hadarajah
  3. Hadarajah

"Participating or Contributing"

Participation in activity of terrorist group

83.18 ...

Meaning of participating or contributing

(3) Participating in or contributing to an activity of a terrorist group includes

(a) providing, receiving or recruiting a person to receive training;
(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group;
(c) recruiting a person in order to facilitate or commit
(i) a terrorism offence, or
(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence;
(d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and
(e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit
(i) a terrorism offence, or
(ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.
Factors

(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group;
(b) frequently associates with any of the persons who constitute the terrorist group;
(c) receives any benefit from the terrorist group; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group.

2001, c. 41, s. 4.

CCC

"Terrorist Activity", "terrorist group", "terrorism offence"

See Terrorism Definitions

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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 also Terrorism Sentencing for further principles
Maximum Penalties

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22 and 83.23 are straight indictable. The maximum penalty is 10 years incarceration [s. 83.18 and 83.23], 14 years incarceration [s. 83.19] or life [83.2, 83.21, or 83.22].

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. 83.19 [facilitating terrorist activity],
s. 83.2 [commission of offence for terrorist group],
s. 83.21 [instructing to carry out activity for terrorist group] and
s. 83.22 [instructing to carry out terrorist activity]
N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 83.18 [participation in activity of terrorist group] and
s. 83.23 [concealing person who carried out terrorist activity]
N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 83.19, 83.2, 83.21, and 83.22 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 83.18, 83.19, 83.2, 83.21, 83.22, and 83.23 are ineligible for a conditional sentence order under s. 742.1(d), as it is a terrorism offence or criminal organization offence, when prosecuted by indictment, for which the maximum term of imprisonment is 10 years or more.

Consecutive Sentences

Under s. 83.26 sentences must be served consecutive to any other sentence.

Sentences to be served consecutively

83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 [x] and 83.18 to 83.23 [x] shall be served consecutively to

(a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events; and
(b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.

2001, c. 41, s. 4.
[annotation(s) added]

{{{2}}}

Principles

The imposition of "life sentences should not be viewed as exceptional for terrorists who actively participate in plots that, to their knowledge, are designed to or are likely to result in the indiscriminate killing of innocent human beings".[1]

  1. R v Amara, 2010 ONCA 858 (CanLII), at para 18

Ranges

see also: Participating in Terrorist Activity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23
  • For offences under s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23, as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
Weapons Prohibition Orders s. 83.18, 83.19, 83.2, 83.21 or 83.22
Delayed Parole Order s. 83.18, 83.19, 83.2, 83.21, or 83.22
  • Periods of imprisonment of 2 years or more for convictions under s. 83.18, 83.19, 83.2, 83.21, or 83.22 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

Record Suspensions and Pardons

Convictions under s. 83.18, 83.181, 83.19, 83.191, 83.2, 83.201, 83.202, 83.21, 83.22, or 83.23 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Hoax Regarding Terrorist Activity


Hoax Regarding Terrorist Activity
s. 83.231(2), (3) or (4) of the Crim. Code
Election / Plea
Crown Election Indictment (causing death), Hybrid
summary proceedings must initiate within 12 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 (varies on charge)
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) or 18 months incarceration
Indictable 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)*

(* varies)
Minimum None
Maximum 5, 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to hoax regarding terrorist activity are found in Part II.1 of the Criminal Code relating to "Terrorism".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 83.231(2) [hoax regarding terrorist activity] or
s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 83.231(4) [hoax regarding terrorist activity - causing death] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

Offences under s. 83.231(2) [hoax regarding terrorist activity] or s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 83.231(4) [hoax regarding terrorist activity - causing death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 83.231(2) [hoax regarding terrorist activity] or
s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 83.231(4) [hoax regarding terrorist activity - causing death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 83.231(2) [hoax regarding terrorist activity] or 83.231(3) [hoax regarding terrorist activity - causing bodily harm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 83.231(4) [hoax regarding terrorist activity - causing death], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 83.231(2) [hoax regarding terrorist activity], s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm] or s.83.231(4) [hoax regarding terrorist activity - causing death] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 83.231 [hoax regarding terrorist activity] OK Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

Offences under s. 83.231 [hoax regarding terrorist activity] are designated offences eligible for wiretap under s. 183.

Offences under s. 83.231(3) are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

Offences under s. 83.231 [hoax regarding terrorist activity] require the consent of the Attorney General to prosecute.[1]

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

  1. Section 83.24 states "Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General."

Offence Wording

Hoax Regarding Terrorist Activity
Hoax — terrorist activity

83.231 (1) Every one commits an offence who, without lawful excuse and with intent to cause any person to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property,

(a) conveys or causes or procures to be conveyed information that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing the information to be true; or
(b) commits an act that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur.
Punishment

(2) Every one who commits an offence under subsection (1) [hoax regarding terrorist activity] is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
Causing bodily harm

(3) Every one who commits an offence under subsection (1) [hoax regarding terrorist activity] and thereby causes bodily harm to any other person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
Causing death

(4) Every one who commits an offence under subsection (1) [hoax regarding terrorist activity] and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.

2004, c. 15, s. 32; 2019, c. 25, s. 23.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving hoax of terrorist activity under s. 83.231(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit had no "lawful excuse";
  5. the culprit intented "to cause any person to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property";
  6. either:
    1. "conveys or causes or procures to be conveyed information that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing the information to be true"; or
    2. "commits an act that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur".

Proving hoax of terrorist activity (causing bodily harm) under s. 83.231(3) should include:

  1. the elements of s. 83.231(1);
  2. a person suffered "bodily harm";
  3. harm is caused by the alleged conduct.

Proving hoax of terrorist activity (causing death) under s. 83.231(4) should include:

  1. the elements of s. 83.231(1);
  2. a person dies;
  3. death is caused by the alleged conduct.

Interpretation of the Offence

"Terrorist Activity", "terrorist group", "terrorism offence"

See Terrorism Definitions

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 83.231(2)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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 also Terrorism Sentencing for further principles

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 83.231(2) [hoax regarding terrorist activity] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 83.231(2) [hoax regarding terrorist activity] indictable election 5 years incarceration
s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm] summary election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm] indictable election 10 years incarceration
s. 83.231(4) [hoax regarding terrorist activity - causing death] N/A life incarceration

Offences under s. 83.231(2) [hoax regarding terrorist activity] and (3) [hoax regarding terrorist activity - causing bodily harm] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 83.231(2) and 10 years incarceration under s. 83.231(3). If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) under s. 83.231(2) and 18 months incarceration under s. 83.231(3).

Offences under s. 83.231(4) [hoax regarding terrorist activity - causing death] are straight indictable. The maximum penalty is life incarceration.

Minimum Penalties

Offences under s. 83.231(2), (3), or (4) 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. 83.231(2) [hoax regarding terrorist activity] and
s. 83.231(3) [hoax regarding terrorist activity - causing bodily harm]
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 83.231(4) [hoax regarding terrorist activity - causing death] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

No conditional sentences available if convicted under s. 83.231(3) or (4). No discharges available if convicted under s. 83.231(4).

Consecutive Sentences

Under s. 83.26 sentences must be served consecutive to any other sentence.

Principles

Ranges

see also: Hoax Regarding Terrorist Activity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 83.231(3) or (4)
Weapons Prohibition Orders s. 83.231(3) or (4)) s. 110 discretionary order

General Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

Participating in a Criminal Organization


Participating in a Criminal Organization
s. 467.11, 467.12, 467.13 and 467.111(a) or (b) of the Crim. Code
Election / Plea
Crown Election Indictment
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 (varies on charge)
Indictable 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)

(* varies)
Minimum 6 months incarceration (467.111)
Maximum 5, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to participating in a criminal organization are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings

Offences under s. 467.11, 467.12, 467.13 and 467.111(a) or (b) are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 467.11 or 467.111(a) or (b), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 467.12 or 467.13, the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Charges under s. 467.11, 467.111, 467.12 or 467.13, or "a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization" are reverse onus offences under s. 515(6)(a) regardless of the circumstances.

Publication Bans

For all criminal or regulatory prosecutions, 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.

Designations

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

Offence Wording

Participation in activities of criminal organization

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Prosecution

(2) In a prosecution for an offence under subsection (1) [participation in activities of criminal organization], it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;
(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;
(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or
(d) the accused knew the identity of any of the persons who constitute the criminal organization.
Factors

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;
(b) frequently associates with any of the persons who constitute the criminal organization;
(c) receives any benefit from the criminal organization; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

2001, c. 32, s. 27; 2019, c. 25, s. 184.
[annotation(s) added]

CCC

Recruitment of members by a criminal organization

467.111 Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this Act or any other Act of Parliament, recruits, solicits, encourages, coerces or invites a person to join the criminal organization, is guilty of an indictable offence and liable,

(a) in the case where the person recruited, solicited, encouraged or invited is under 18 years of age, to imprisonment for a term not exceeding five years, and to a minimum punishment of imprisonment for a term of six months; and
(b) in any other case, to imprisonment for a term not exceeding five years.

2014, c. 17, s. 9.

CCC

Commission of offence for criminal organization

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Prosecution

(2) In a prosecution for an offence under subsection (1) [Commission of offence for criminal organization – offence], it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.
2001, c. 32, s. 27.
[annotation(s) added]

CCC

Instructing commission of offence for criminal organization

467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) In a prosecution for an offence under subsection (1) [instructing commission of offence for criminal organization – offence], it is not necessary for the prosecutor to prove that

(a) an offence other than the offence under subsection (1) [instructing commission of offence for criminal organization – offence] was actually committed;
(b) the accused instructed a particular person to commit an offence; or
(c) the accused knew the identity of all of the persons who constitute the criminal organization.

2001, c. 32, s. 27.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Participation in activities of criminal organization under s. 467.11 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "by act or omission, participates in or contributes to any activity of the criminal organization";
  5. the prohibited conduct was "for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence"; and
  6. the culprit did the prohibited conduct "wilfully".

Proving Commission of offence for criminal organization under s. 467.12 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "commits an indictable offence under tis or any other Act or Parliament"; and
  5. the offence was committed "for the benefit of, at the direction of, or in association with, a criminal organization".

Proving Instructing commission of offence for criminal organization under s. 467.13 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament";
  5. the culprit is a member of "criminal organization";
  6. the prohibited conduct was "for the benefit of, at the direction of, or in association with, the criminal organization"; and
  7. the prohibited conduct was done "knowingly".

Proving Recruitment of members by a criminal organization under s. 467.111 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "recruits, solicits, encourages, coerces or invites a person to join the criminal organization";
  5. the person is under the age 18 years (aggravating factor); and
  6. the prohibited conduct was "for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this Act or any other Act of Parliament";

Interpretation of the Offence

The "focus on the offence is on the intention to participate or contribute and the foreseeable consequences of that participation or contribution".[1]

Criminal Organization
  1. R v Mastop, 2013 BCCA 494 (CanLII), per Stromberg-Stein JA (3:0) leave refused

"In association"

Where membership in the criminal organization is the "reason why the offence is undertaken" or if it "assists in the commission of the offence", then it can be concluded that the offence was undertaken "in association with the organization".[1]

  1. R v Drecic, 2011 ONCA 118 (CanLII), per curiam (3:0), at paras 3 to 4

"Facilitation"

467.1
...

Facilitation

(2) For the purposes of this section, section 467.11 [participation in activities of criminal organization] and 467.111 [recruitment of members by a criminal organization], facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
...
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.
[annotation(s) added]

CCC

Parties

467.1
...

Commission of offence

(3) In this section and in sections 467.11 to 467.13 [offences relating to criminal organizations], committing an offence means being a party to it or counselling any person to be a party to it.
...

[annotation(s) added]

CCC

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
Maximum Penalties

Offences under s. 467.11, 467.12, 467.13, 467.111 are straight indictable. The maximum penalty is 5 years incarceration under s. 467.11, 467.111(a) or (b), 14 years incarceration under s. 467.12, or life incarceration under s. 467.13..

Minimum Penalties

For offences under s. 467.111(a) there is a mandatory minimum penalty of 6 months incarceration.

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. 467.11 or 467.111(b) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 467.12, 467.13 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 467.111(a) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 467.11 or 467.111(b), 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).

If convicted under s. 467.12, 467.13 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 467.12, 467.13 are ineligible for a conditional sentence order under s. 742.1(d), as it is a terrorism offence or criminal organization offence, when prosecuted by indictment, for which the maximum term of imprisonment is 10 years or more.

Offences under s. 467.111(a) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Consecutive Sentences

Sentences to be served consecutively

467.14 A sentence imposed on a person for an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization] shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
2001, c. 32, s. 27; 2014, c. 17, s. 10.
[annotation(s) added]

CCC

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 467.11, 467.111, 467.12, 467.13
  • For offences under s. 467.11, 467.111, 467.12, 467.13, as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

Conspiracy


Conspiracy
s. 465 of the Crim. Code
Election / Plea
Crown Election Indictment (465(1)(b) and (c))
Summary (465(1)(d))
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction s. 465(1)(b), (c):
Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)
* Must be indictable. Preliminary inquiry also available.
s. 465(1)(a):
Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Preliminary inquiry also available.
s.465(1)(d):
Prov. Court only
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable 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)*

(* varies)
Minimum None
Maximum 5, 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conspiracy are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings

Offences under s. 465(1)(a) [conspiracy to commit murder] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Offences under s. 465(1)(b) and (c) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 465(1)(d) are straight summary conviction offence. The trial must be held in provincial court.

Release

When charged under s. 465(1)(a), (b), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 465(1)(d), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Publication Ban

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 465 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

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

Offence Wording

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that they did not commit that offence, is guilty of
(i) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term of not more than 14 years, or
(ii) an indictable offence and liable to imprisonment for a term of not more than five years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than 14 years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]
...
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121; 2018, c. 11, s. 28; 2019, c. 25, s. 183.

CCC

Conspiracy in restraint of trade

466 (1) A conspiracy in restraint of trade is an agreement between two or more persons to do or to procure to be done any unlawful act in restraint of trade.

Trade union, exception

(2) The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful within the meaning of subsection (1) [conspiracy in restraint of trade].
R.S., 1985, c. C-46, s. 466; 1992, c. 1, s. 60(F).
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
465 "... contrary to section 465 of the Criminal Code."
466 "... contrary to section 466 of the Criminal Code."

Proof of the Offence

Proving conspiracy under s. 465 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the words communicated in the conspiracy
  5. there was an agreement made between the parties
  6. the parties had an intention to agree to put a "common design into effect" and did in fact agree
  7. the parties did not change their minds or intention to put common design into effect
  1. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 66

Interpretation

The purpose of criminalizing conspiracies is to "prevent an unlawful object" from being fulfilled and then "prevent[ing] serious harm from occurring". Parliament intended to intervene "earlier along the continuum of the increased danger represented by a cohort or wrongdoers acting in concert".[1]

A conspiracy is an agreement between two or more persons to do an unlawful act.[2]

There must be an "intention to agree, the completion of an agreement and a common design."[3] The Crown needs only prove that there was "a meeting of the minds with regard to a common design to do something unlawful".[4]

To prove conspiracy the facts must satisfy a three-part Carter test:[5]

  1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
  2. has the Crown proven that the accused was probably a member of the conspiracy?
  3. considering all of the evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy?

A conspiracy must include (1) an agreement and (2) the unlawful objective or "common design".[6]

As well, unlawful objective does not need to come about. It is the planning that is the criminal act.[7]

A conspiracy made over the telephone will occur within the jurisdiction of both calling parties.[8]

Both legal and factual impossibility are not defences to an allegation of conspiracy.[9]

It is not necessary to prove that the predicate offence was actually committed.[10]

The fact that the co-conspirators are unidentified does not result in a failure to prove the offence of conspiracy.[11]

  1. R v Dery, [2006] 2 SCR 669, 2006 SCC 53 (CanLII), per Fish J, at para 44
    R v Meyer, 2012 ONCJ 791 (CanLII), [2012] OJ No 6235, per Pacciocco J, at para 21("The law of conspiracy achieves this policy [of preventing serious harm from occurring] by allowing a pre-emptive strike where there is a true agreement to achieve a mutual criminal objective.")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J, at pp. 668-9
    See: R v Paradis, 1933 CanLII 75 (SCC), [1934] SCR 165, 61 CCC 184 (SCC), per Rinfret J, at p. 186 - defines as two or more persons agreeing to act in concert in pursuit of a common goal
  3. United States of America v Dynar, 1997 CanLII 359, [1997] 2 SCR 462, per Cory and Iacobucci JJ, at para 86
    R v Root, 2008 ONCA 869 (CanLII), [2008] OJ No 5214 (OCA), per Watt JA, at para 66
  4. Dynar, supra, at para 87
  5. R v Carter, 1982 CanLII 35, [1982] 1 SCR 938, per McIntyre J
  6. O'Brien, supra, at paras 2 to 3, ("It is of course, essential that the conspirators have the intention to agree, and this agreement must be complete ... there must exist an intention to put the common design into effect.")
    R v Root, 2008 ONCA 869 (CanLII)(complete citation pending)
  7. O'Brien, supra, at para 4 ("The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to any one.")
  8. R v Doucette, 2003 PESCAD 7 (CanLII), per Mitchell CJ
  9. Dynar, supra, at para 105 (It is not relevant whether "from an objective point of view, commission of the offence may be impossible.")
  10. See R v Koufis, 1941 CanLII 55 (SCC), [1941] SCR 481, 76 CCC 161 (SCC), per Taschereau J
    R v Beaven, 2013 SKQB 7 (CanLII), per Rothery J, at para 73
  11. Root, supra, at para 69

Agreement

The agreement is the essence of the offence of conspiracy.[1]

An agreement can be implied or tacit. It requires a meeting of the minds to create a common intention to commit an offence. The parties must have knowledge of a common goal and agreement to achieve it.[2]

There must be a "consensus to effect an unlawful purpose".[3]

It is not enough that there be a common intention.[4] Nor is passive acquiescence to a criminal plan sufficient[5] , knowledge of the plan[6] , or nor wilful blindness.

It is not a "formal agreement" and may be implicit.[7]

Where there is a pre-existing conspiracy, the accused must have adopted it or consented to participate in achieving the goal.[8]

A conditional agreement can still be an agreement.[9]

The charge must identify the crime(s) planned.[10] And it should generally identify the co-conspirators.[11]

It is a valid defence to establish that the accused pretended to agree to the conspiracy.[12]

The trier of fact must find "that the accused intended to enter into the agreement".[13]

Conspiracy cannot be committed by way of an accused being reckless as to the object of the agreement.[14] However, the accused can be liable where he is reckless as to the method of execution of the agreement.[15]

Willful blindness can satisfy the mens rea requirement of conspiracy.[16]

A party to an offence, including conspiracy "must have some knowledge of the essential nature of the offence to be committed, but not necessarily knowledge of all the details".[17]

Evidence of "how" the agreement is to be carried out, specifically to over acts to be taken are elements to the agreement element of the offence.[18]

  1. R v Papalia, 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J ("The essence of criminal conspiracy is proof of agreement...")
  2. Atlantic Sugar Refineries Co. v Canada (Attorney General), 54 CCC (2d) 373, 1980 CanLII 226 (SCC), [1980] 2 SCR 644, per Pigeon J
  3. Papalia, supra (“two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a consensus to effect an unlawful purpose. ”)
  4. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J
  5. R v McNamara (1981), 56 CCC (2d) 193 at 452 (Ont. C.A.), 1981 CanLII 3120 (ON CA), per curiam ("Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient")
  6. Goode, Criminal Conspiracy in Canada (1975), p. 16
  7. Goode, Criminal Conspiracy in Canada (1975), p. 16
  8. R v Lamontagne, 1999 CanLII 13463 (QC CA), (1999), 142 CCC (3d) 561 (Que. C.A.), 1999 CanLII 13463 (QC CA), per curiam
  9. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 70
  10. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J
  11. R v TLB (1989), 52 CCC (3d) 72 (NSCA), 1989 CanLII 7210 (NS CA), per Hart JA
    Root, supra, at para 69
  12. R v Delay (1976), 25 CCC (2d) 575 (Ont. C.A.), 1976 CanLII 1409 (ON CA), per Jessup JA
  13. R v Barbeau, 1996 CanLII 6391 (QC CA), at p. 568
  14. R v Lessard (1982), 10 CCC (3d) 61 (QCCA), 1982 CanLII 3814 (QC CA), per Bisson JA, at p. 86
    Lamontagne, supra, at p. 576 "one notes that the crime of conspiracy cannot be committed by mere recklessness as to the object of the agreement")
  15. Barbeau, supra
    R v Park, 2009 ABQB 470 (CanLII), per Ouellette J ("recklessness may only be applied with respect to the method of execution of the agreement")
    Lessard, supra
    Lamontagne, supra
  16. Barbeau, supra
    Park, supra ("The mens rea requirement for conspiracy may be satisfied where willful blindness is established")
  17. Park, supra, at pp. 569 to 571
  18. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 28 ("How that agreement is to be carried out, that is to say, the steps taken in furtherance of the agreement (the overt acts) are simply elements going to the proof of the essential ingredient of the offence, namely the agreement.")

Common Design

There must be a "a common plan with a common objective".[1]

The Crown must establish that the accused had an intention to become a party to the common design with the knowledge of its implications.[2]

  1. R v Cotroni, (sub nom. Papalia), 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J
  2. Papalia, supra (“In addition to proof of common design, it was incumbent on the Crown to establish that each accused had the intention to become a party to that common design with knowledge of its implications.”)

Participation

It is not required that it be proven that every member of the conspiracy be involved in its execution or that they were involved throughout the entire time. It is enough if the evidence "demonstrates that the conspiracy proven included some of the accused; establishes that it occurred at some time within the time frame alleged in the indictment; and had as its object the type of crime alleged."[1]

A member of a conspiracy who refuses to execute the plan is still guilty.[2]

Involvement in only part of a whole plan will still be found guilty.[3]

An accused cannot be convicted for attempted conspiracy.[4]

  1. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 41
    Papalia ("The essence of criminal conspiracy is proof of agreement...")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J, at para 4
  3. R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  4. R v Dery, 2006 SCC 53 (CanLII), [2006] 2 SCR 669, per Fish J

Evidence

Words of the co-conspirator are admissible against the accused. They are not hearsay and are rather the actus reus.[1]

Further, the co-conspirators exception to hearsay makes statements admissible against the accused.[2]

Statements by the co-conspirator that are not related to the conspiracy are not admissible against the accused.[3]

  1. R v Cook (1984), 39 C.R. (3d) 300 (ONCA) aff'd in 1986 CanLII 47 (SCC), [1986] 1 SCR 144, per Dickson CJ
  2. R v Gassyt (1998), 127 CCC (3d) 546 (ONCA), 1998 CanLII 5976 (ON CA), per Charron JA
    R v Perciballi (2001), 154 CCC (3d) 481 (Ont. C.A.), 2001 CanLII 13394 (ON CA), per Charron JA aff'd in 2002 SCC 51 (CanLII), per McLachlin CJ
    R v Gagnon (2000), 147 CCC (3d) 193 (ONCA), 2000 CanLII 16863 (ON CA), per Weiler JA
  3. R v Henke, 1989 ABCA 263 (CanLII), (1989), 72 C.R. (3d) 395 (Alta C.A.), per curiam
    R v Maugey, 2000 CanLII 8488 (ON CA), (2000), 146 CCC (3d) 99 (Ont. C.A.), per Feldman JA

Aiding and Abetting

See also: Parties to an Offence

There has been a divided line of case law on whether a conviction can be made for being a party to a conspiracy.[1]

The members of a conspiracy do not need to all play an equal role in the endeavour, nor do they need to personally commit the offence they have agreed. Any degree of assistance can create membership.[2]

  1. R v Park, 2009 ABQB 470 (CanLII), per Ouellette J, at pp. 540 to 575
    R v Taylor (1984), 40 C.R. (3d) 222 (BCSC)(*no CanLII links)
  2. R v JF', [2013] 1 SCR 565, 2013 SCC 12 (CanLII), at para 54 (...it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed:... Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.")

Jurisdiction

465.
...

Conspiracy to commit offences

(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) [conspiracy – offence] in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.

Idem

(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) [conspiracy – offence] in Canada shall be deemed to have conspired in Canada to do that thing.

Jurisdiction

(5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada], proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

Appearance of accused at trial

(6) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and
(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (5) [jurisdiction of conspiracy].

If previously tried outside Canada

(7) If a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada] and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict, pardon or an expungement order under the Expungement of Historically Unjust Convictions Act, the person shall be deemed to have been so tried and dealt with in Canada.

R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121; 2018, c. 11, s. 28; 2019, c. 25, s. 183.
[annotation(s) added]

CCC

Defences

Saving

467 (1) No person shall be convicted of the offence of conspiracy by reason only that he

(a) refuses to work with a workman or for an employer; or
(b) does any act or causes any act to be done for the purpose of a trade combination, unless that act is an offence expressly punishable by law.
Definition of trade combination

(2) In this section, trade combination means any combination between masters or workmen or other persons for the purpose of regulating or altering the relations between masters or workmen, or the conduct of a master or workman in or in respect of his business, employment or contract of employment or service.
R.S., c. C-34, s. 425.

CCC

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

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 465(1)(a) [conspiracy to commit murder] N/A life incarceration
s. 465(1)(b)(i) N/A 10 years incarceration
s. 465(1)(b)(ii) N/A 5 years incarceration
s. 465(1)(d) N/A 2 years less a day incarceration and a $5,000 fine

Offences under s. 465(1)(a), (b), and (c) are straight indictable. The maximum penalty is life under s. 465(1)(a), 10 years incarceration under s. 465(1)(b)(i), and 5 years incarceration under s. 465(1)(b)(ii). Where prosecuted under s. 465(1)(c) the maximum penalty will match that of the index offence.

Offences under s. 465(1)(d) are straight summary conviction offences. The maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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. 465(1)(a) [conspiracy to commit murder] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 465(1)(d) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 465(1)(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 465(1)(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • Varies based on index offence
Order Conviction Description
DNA Orders s. 465(1)(b)(i), (ii)
Delayed Parole Order s. 465(1)(a) [conspiracy to commit murder]
  • Periods of imprisonment of 2 years or more for convictions under s. 465(1)(a) [conspiracy to commit murder] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

WEAPONS OFFENCES

Use or Possession of Explosives


Use or Possession of Explosives
s. 80, 81, 82 of the Crim. Code
Election / Plea
Crown Election Indictment
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 (varies on charge)
Indictable 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)*

(* varies)
Minimum None
Maximum 5, 14 or life incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to use or possession of explosives are found in Part II of the Criminal Code relating to "Offences Against Public Order".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 80(a) [breach of duty, risk of death]
s. 81(1)(a) [using explosives, risk death], and
s. 81(1)(b) [using explosives, risk harm]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)
s. 80(b) [breach of duty, risk of bodily harm],
s. 81(1)(c) [using explosives, risk death],
s. 81(2)(d) [using explosives, risk harm] and,
s. 82(2) [possession without lawful excuse, crim. org.]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 82(1) [possession without lawful excuse] Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 80(a), 80(b), 81(2)(a), 81(2)(b), 82(1), 82(2) are straight indictable. There is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 80(a), 80(b), 81(2)(a), 81(2)(b), and 82(2) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 82(1) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 80(a), 80(b), 81(2)(a), 81(2)(b), 82(2), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515. When charged under s. 82(1), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 82(1) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 80, 82(2) OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png
s. 81 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 80, 81, and 82 are designated offences eligible for wiretap under s. 183.

Offences under s. 81(2)(a) and (b) are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 80, 81, and 82 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Duty of care re explosive

79 Every one who has an explosive substance in his possession or under his care or control is under a legal duty to use reasonable care to prevent bodily harm or death to persons or damage to property by that explosive substance.
R.S., c. C-34, s. 77.

CCC

Breach of duty

80. Every one who, being under a legal duty within the meaning of section 79 [duty of care re explosives], fails without lawful excuse to perform that duty, is guilty of an indictable offence and, if as a result an explosion of an explosive substance occurs that

(a) causes death or is likely to cause death to any person, is liable to imprisonment for life; or
(b) causes bodily harm or damage to property or is likely to cause bodily harm or damage to property, is liable to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 78.
[annotation(s) added]

CCC

Using explosives

81. (1) Every one commits an offence who

(a) does anything with intent to cause an explosion of an explosive substance that is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property;
(b) with intent to do bodily harm to any person
(i) causes an explosive substance to explode,
(ii) sends or delivers to a person or causes a person to take or receive an explosive substance or any other dangerous substance or thing, or
(iii) places or throws anywhere or at or on a person a corrosive fluid, explosive substance or any other dangerous substance or thing;
(c) with intent to destroy or damage property without lawful excuse, places or throws an explosive substance anywhere; or
(d) makes or has in his possession or has under his care or control any explosive substance with intent thereby
(i) to endanger life or to cause serious damage to property, or
(ii) to enable another person to endanger life or to cause serious damage to property.
Punishment

(2) Every one who commits an offence under subsection (1) [using explosives] is guilty of an indictable offence and liable

(a) for an offence under paragraph (1)(a) [causes explosion with intent to cause damage, harm or death] or (b) [uses explosives or dangerous substance with intent to harm], to imprisonment for life; or
(b) for an offence under paragraph (1)(c) [places or throws explosive with intent to damage] or (d) [make or possess explsive with intent to endanger life, damage property], to imprisonment for a term not exceeding fourteen years.

R.S., c. C-34, s. 79.
[annotation(s) added]

CCC

Possession of explosive

82 (1) Every person who, without lawful excuse, makes or has in their possession or under their care or control any explosive substance is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Possession in association with criminal organization

(2) Every person who, without lawful excuse, makes or has in their possession or under their care or control any explosive substance for the benefit of, at the direction of or in association with a criminal organization is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

R.S., 1985, c. C-46, s. 82; R.S., 1985, c. 27 (1st Supp.), s. 12; 1997, c. 23, s. 2; 2001, c. 32, s. 3(F); 2018, c. 29, s. 5; 2019, c. 25, s. 14.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving breach of duty re explosives under s. 80 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses a thing or has it "under his care or control";
  5. the thing is an "explosive substance";
  6. the culprit fails to perform his duty to "use reasonable care to prevent bodily harm or death to persons or damage to property by that explosive substance"
  7. the culprit has no "lawful excuse";
  8. the result of the breach causes an explosion;
  9. the explosion either:
    1. "causes death or is likely to cause death to any person, is liable to imprisonment for life;" or
    2. "causes bodily harm or damage to property or is likely to cause bodily harm or damage to property, is liable to imprisonment for a term not exceeding fourteen years."

Proving using explosives under s. 81(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything;
  5. the culprit does the act "with intent to cause explosion of an explosive substance";
  6. the substance "is likely to cause serious bodily harm or death to persons or is likely to cause serious damage to property"

Proving using explosives under s. 81(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has "intent to do bodily harm to any person";
  5. the culprit either:
    1. "causes an explosive substances to explode"
    2. "sends or delivers to a person or causes a person to take or receive an explosive substance or any other dangerous substance or thing", or
    3. "places or throws anywhere or at or on a person a corrosive fluid, explosive substance or any other dangerous substance or thing";

Proving using explosives under s. 81(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit has "intent to destroy or damage property";
  5. the culprit "places or throws an explosive substance anywhere"; and
  6. the culprit has no "lawful excuse".

Proving using explosives under s. 81(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in his possession or has under his care or control" a thing;
  5. the thing is "any explosive substance";
  6. the culprit has "intent thereby"
    1. "to endanger life or to cause serious damage to property," or
    2. "to enable another person to endanger life or to cause serious damage to property."

Proving possession without lawful excuse under s. 82(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in the possession or under the care or control of the person" a thing
  5. the thing is an "explosive substance";
  6. the culprit has no "lawful excuse".

Proving possession in association with criminal organization under s. 82(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "makes or has in the possession or under the care or control of the person" a thing;
  5. it is " for the benefit of, at the direction of or in association with a criminal organization";
  6. the thing is an "explosive substance"; and
  7. the culprit has no "lawful excuse".

Interpretation of the Offence

Section 81(1)(a) "does not relate to mere possession of an explosive but rather to any act, whether passive or active, which is done with the intent to cause an explosion ... that is likely to cause serious damage to property". [1]

Lawful Excuse

Possession for the purpose of making a "loud noise" with no intention to destroy property or injure anyone is not a lawful excuse.[2]

  1. R v Musitano, 1985 CanLII 1983 (ON CA), per curiam
  2. R v Malang, 1982 CanLII 2029 (ON CA), per Howland CJ

Misc Definitions

"Bomb" and "Grenade"

The words "bomb" and "grenade" are to be given "it's ordinary meaning".[1]

"explosive substance"

s. 2
...
“explosive substance” includes

(a) anything intended to be used to make an explosive substance,
(b) anything, or any part thereof, used or intended to be used, or adapted to cause, or to aid in causing an explosion in or with an explosive substance, and
(c) an incendiary grenade, fire bomb, molotov cocktail or other similar incendiary substance or device and a delaying mechanism or other thing intended for use in connection with such a substance or device;

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC

Whether or not a device functions properly to satisfy the definition of explosive substances under s. 2.[2]

  1. R v Musitano, 1985 CanLII 1983 (ON CA), per curiam
  2. R v KDSA, 2010 NBCA 24 (CanLII), per Quigg JA, at para 21

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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
Maximum Penalties

Offences under s. 80(a) or 81(2)(a) are straight indictable. The maximum penalty is life incarceration. Offences under s. 80(b), 81(2)(b), or 82(2) are straight indictable. The maximum penalty is 14 years incarceration. Offences under s. 82(1) are straight indictable. The maximum penalty is 5 years incarceration.

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. 80, 81, or 82(2) any X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 80, 81, or 82(2) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 80, 81, or 82(2) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

Where the accused is convicted under s. 82(2), the sentence must be consecutive.

Sentences to be served consecutively

82.1 A sentence imposed on a person for an offence under subsection 82(2) [possession of explosive in association with criminal organization] shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection 82(2) [possession of explosive in association with criminal organization].
1997, c. 23, s. 2.
[annotation(s) added]

CCC

Principles

Ranges

see also: Use or Possession of Explosives (Sentencing Cases)

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 81(1)(a), (b), (c), or (d), 82(1) or (2)
  • For offences under s. 81(1)(a), (b), (c), or (d), as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."
  • For conviction under s. 80(a) or (b), or 82(1) or (2), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition Orders s. 80, 81, 82
  • On conviction under s. 80(a), (b), 81(1)(a), (b), (c) or (d) where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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.
  • For offences under s. 80, 81, or 82 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.
Delayed Parole Order s. 81(1)(a), (b), or (d), or 81(2)(a)
  • Periods of imprisonment of 2 years or more for convictions under s. 81(1)(a), (b), or (d), or 81(2)(a) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

Generally Available Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

History

Prior to December 13, 2018, s. 82 read:

Possession without lawful excuse

82. (1) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Possession in association with criminal organization

(2) Every person who, without lawful excuse, the proof of which lies on the person, makes or has in the possession or under the care or control of the person any explosive substance for the benefit of, at the direction of or in association with a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 82; R.S., 1985, c. 27 (1st Supp.), s. 12; 1997, c. 23, s. 2; 2001, c. 32, s. 3(F).

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See Also

Use of Firearm in Commission of an Offence


Use of Firearm in Commission of an Offence
s. 85 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable 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)

(* varies)
Minimum 1, 3 years incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to use of firearm in commission of an offence 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)
Preliminary Inquiry
s. 85(1) [use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)

Offences under s. 85(1) [use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the statutory increased penalties can be applied for convictions under s. 85(1) [use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence] , notice of increased penalty under s. 727 must be given. Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 85(1) [use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 85, the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 85(1) [[use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 85(1) [use of firearm in commission of an offence]
s. 85(2) [use of an imitation firearm in commission of an offence]
X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 85 are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. 85 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

Before the statutory increased penalties can be applied for convictions under s. 85, notice of increased penalty under s. 727 must be given. See s. 85(3), below.

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

Offence Wording

Using firearm in commission of offence

85. (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.
Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) [use of firearm in commission of an offence] or (2) [use of an imitation firearm in commission of an offence] is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
(c) [Repealed, 2008, c. 6, s. 3]

...
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving using a Firearm in Commission of an Offence under s. 85(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit used a firearm
  5. the prohibited act occurs while:
    1. "committing" an indictable offence except for the offences of:
      1. criminal negligence causing death (220),
      2. manslaughter (236),
      3. attempted murder (239),
      4. discharging firearm with intent (244),
      5. discharging firearm — recklessness (244.2),
      6. sexual assault with a weapon (272) or
      7. aggravated sexual assault (273),
      8. kidnapping (279(1)),
      9. hostage taking (279.1),
      10. robbery (344) or
      11. extortion (346)
    2. "attempting to commit an indictable offence"; or,
    3. "during flight after committing or attempting to commit an indictable offence".

Proving using an imitation firearm in commission of an offence under s. 85(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "uses an imitation firearm"
  5. the prohibited act occurs while:
    1. committing or attempting to commit an indictable offence; or,
    2. "during flight after committing or attempting to commit an indictable offence".

Interpretation of the Offence

A firearm must not merely "proximate for future use”, but rather must be ready for present use during the offence.[1]

The phrase "in commission of an offence" requires that the underlying offence be proven.[2]

  1. R v Steele, 2007 SCC 36 (CanLII), [2007] 3 SCR 3, per Fish J
  2. R v Pringles, [1989] 1 SCR 1645, 1989 CanLII 65 (CanLII), per Lamer J

Misc Definitions

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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. 85 [use of firearm in commission of an offence] N/A 14 years custody

Offences under s. 85(1) and (2) are straight indictable. The maximum penalty is 14 years incarceration.

Minimum Penalties

For offences under s. 85(1) and (2), where the aggravating factors listed under ? are established, the minimum penalty is 1 year incarceration with no prior convictions under s. 85. Where no aggravating factors are present the minimum penalty is 3 years incarceration with one or more priors.

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. 85 [use of firearm or imitation in commission of an offence]
No Priors
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 85 [use of firearm or imitation in commission of an offence]
With Priors
N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 85 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

If convicted under s. 85 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 85 are ineligible for a conditional sentence order under s. 742.1(b) as there are mandatory minimum periods of incarceration.

Subsequent Convictions

Where the prior conviction relates to an offence that occurred subsequent to the index offence, the increased penalties do not apply.[1]

Where the offender was convicted as a party in a previous offence. The increased penalty provision still applies.[2]

Consecutive Sentences

Under s. 85(4), all sentences under s. 85(1) or 85(2) must be served consecutively to any other penalty imposed.

s. 85
...

Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) [use of firearm in commission of an offence] or (2) [use of an imitation firearm in commission of an offence] shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) [use of firearm in commission of an offence] or (2) [use of an imitation firearm in commission of an offence].

R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.
[annotation(s) added]

CCC

Notice to Rely on Prior Conviction

Where a prior record is alleged notice must be given under s. 727 to reply upon the mandatory minimum.

Principles

Increased Penalty

The increased penalty does not require that the previous offence to involve actual possession. It includes offences where the offender was previously a party to the possession.[3]

Constitutionality

The mandatory minimum of 1 year incarceration under s. 85 is constitutional.[4]

  1. R v Oswald, 1981 CanLII 326 (BC CA), per Craig JA
  2. R v Nicholson, [1981] 2 SCR 600, 1981 CanLII 216 (SCC), per Laskin CJ
  3. R v Nicholson, [1981] 2 SCR 600, 1981 CanLII 216 (SCC), per Laskin CJ
  4. R v Stewart, Stewart, 2010 BCCA 153 (CanLII), per Frankel JA

Ranges

see also: Use of Firearm in Commission of an Offence (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 85
Weapons Prohibition Orders s. 85(1) or (2)
  • For offences under s. 85(1) or (2) that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory 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"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.
  • For offences under s. 85(1) or (2) 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.
Delayed Parole Order s. 85(1) or (2)
  • Periods of imprisonment of 2 years or more for convictions under s. 85(1) or (2) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

History of Use of Firearm in Commission of an Offence

History

See also: List of Criminal Code Amendments and Use of Firearm in Commission of an Offence (Offence)

2009 to Present

Using firearm in commission of offence

85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.
Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
(c) [Repealed, 2008, c. 6, s. 3]
Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.

CCC

The changes from 2009 are underlined.

2008 to 2009

Using firearm in commission of offence

85. (1) Every person commits an offence who uses a firearm

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm.

Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
(c) [Repealed, 2008, c. 6, s. 3]
Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3.

CCC

The changes from 2008 are underlined.

2003 to 2008

Using firearm in commission of offence

85. (1) Every person commits an offence who uses a firearm

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (causing bodily harm with intent — firearm), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm.

Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year;
(b) in the case of a first offence committed by a person who, before January 1, 1978, was convicted of an indictable offence, or an attempt to commit an indictable offence, in the course of which or during flight after the commission or attempted commission of which the person used a firearm, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of three years; and
(c) in the case of a second or subsequent offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of three years.
Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3.

CCC

The changes from 2003 are underlined.

1995 to 2003

Using firearm in commission of offence

85. (1) Every person commits an offence who uses a firearm

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (causing bodily harm with intent — firearm), 272 (sexual assault with a weapon), 273 (aggravated sexual assault), 279 (kidnapping), 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm.

Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year;
(b) in the case of a first offence committed by a person who, before January 1, 1978, was convicted of an indictable offence, or an attempt to commit an indictable offence, in the course of which or during flight after the commission or attempted commission of which the person used a firearm, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of three years; and
(c) in the case of a second or subsequent offence, to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of three years.
Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139.

CCC

Careless Use or Storage of a Firearm


Careless Use or Storage of a Firearm
s. 86 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
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)
Preliminary Inquiry
s. 86 [careless use of careless storage of a firearm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 86 [careless use of careless storage of a firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the statutory increased penalties can be applied for convictions under s. 86 [careless use of careless storage of a firearm] , notice of increased penalty under s. 727 must be given. Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 86 [careless use of careless storage of a firearm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 86 [careless use of careless storage of a firearm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 86 [careless use of careless storage of a firearm] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 86 [careless use of careless storage of a firearm] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (varies) X Mark Symbol.png

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) [careless use of firearm, etc.] or (2) [contravention of storage regulations, etc.]

(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.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
86 "... contrary to section 86 of the Criminal Code."

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), per Arbour J (7:0)
    R v Critch, 2012 CanLII 17795 (NL PC), per Gorman J -- stored weapon under bed for 1 hour
  2. R v Gorr, [2003] OJ No. 3252 (Ont. CJ)(*no CanLII links)
  3. R v Morrison, 1991 CanLII 995 (BC CA), per Taylor JA (3:0)

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 a 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, per McLachlin J ("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), per Manson J
  2. R v Finlay, 1993 CanLII 63 (SCC), (1993) 83 CCC (3d) 513, per McLachlin J (“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), per Drapeau CJ, at para 40
  4. Finlay, supra citing R v Gosset, 1993 CanLII 62 (SCC), (1993), 83 CCC (3d) 494 (SCC), per McLachlin J
  5. 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. Gosset, supra
  7. Gosset, supra
  8. Finlay, supra
  9. R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, per McLachlin J at 33
  10. R v JF, 2008 SCC 60 (CanLII), per Fish J (6:1), at para 7
  11. Halliday, supra, 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), per curiam
  13. R v Haridge, 2012 ONSC 5049 (CanLII), [2012] OJ No 4222 (O.S.C.), per M Linhares De Sousa J
  14. R v Elsby, 2012 BCSC 125 (CanLII), [2012] BCJ No. 157(B.C.S.C.), per Arnold-Bailey J, at paras 91 to 93
  15. R v Zimmer, 1981 CanLII 338 (BC CA), per McFarlane JA (3:0)

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), per Dorgan J
  2. R v Smillie, 1998 CanLII 7050 (BC CA), per Ryan JA (3:0)

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), per Charron J (9:0)
  2. R v Smillie, 1998 CanLII 7050 (BC CA), per Ryan JA (3:0)

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 of careless storage of a firearm] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 86 [careless use of careless storage of a firearm]
No prior convictions
indictable election 2 years incarceration
s. 86 [careless use of careless storage of a firearm]
With prior convictions
indictable election 5 years incarceration

Offences under s. 86 [careless use of careless storage of a firearm] 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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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 [careless use of careless storage of a firearm] 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 [careless use of careless storage of a firearm]
  • 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

Pointing a Firearm


Pointing a Firearm
s. 87 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to pointing 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)
Preliminary Inquiry
s. 87 [pointing a firearm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 87 [pointing a firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 87 [pointing a firearm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 87 [pointing a firearm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 87 [pointing a firearm] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 87 [pointing a firearm] X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 87 [pointing a firearm] are "designated" offences under s. 752 for dangerous offender applications.

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

Offence Wording

Pointing a firearm

87. (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.

Punishment

(2) Every person who commits an offence under subsection (1) [pointing a firearm]

(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.

R.S., 1985, c. C-46, s. 87; 1995, c. 39, s. 139.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving pointing a firearm under s. 87 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed an object
  5. the object was a firearm
    1. description of the firearm / ballistics test report
  6. the culprit pointed it at a person
  7. the culprit had not "lawful excuse".

Interpretation of the Offence

Lesser Included Offences

This offence does not include imitation firearms.[1]

Careless Use of a Firearm is not an included offence to pointing a firearm.[2]

  1. R v AW, 2012 ONCA 778 (CanLII), per curiam
  2. R v Copp, 2009 NBCA 16 (CanLII), per Richard JA

Misc Definitions

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

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 87), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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. 87 [pointing a firearm] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 87 [pointing a firearm] Indictable Election 5 years custody

Offences under s. 87 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

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.

Principles

See also: Weapons Offences (Sentencing)

Where a handgun is used in a public place, there is a significant emphasis on denunciation and deterrence.[1]

  1. R v Danvers, 2005 CanLII 30044 (ON CA), (2005), 199 CCC (3d) 490, per Armstrong JA, at para 77 - "the use of handguns in public places cries out for lengthy increased periods of parole ineligibility"

Ranges

see also: Pointing a Firearm (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 87 [pointing a firearm]
Weapons Prohibition Orders s. 87 [pointing a firearm]
  • For offences under s. 87 [pointing a firearm] 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. 87 [pointing a firearm] 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))
Delayed Parole Order s. 87 [pointing a firearm]
  • Periods of imprisonment of 2 years or more for convictions under s. 87 [pointing a firearm] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

History

Prior to December 1, 1998 s. 87 read:

97. Every one who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded,

(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.

See Also

References

Possession of a Weapon for a Dangerous Purpose


Possession of a Weapon for a Dangerous Purpose
s. 88 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable 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 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to possession of a weapon for a dangerous purpose 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)
Preliminary Inquiry
s. 88 [possession of a weapon for a dangerous purpose] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 88 [possession of a weapon for a dangerous purpose] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
88}} OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 88 [possession of a weapon for a dangerous purpose] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 88 [possession of a weapon for a dangerous purpose] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 88 [possession of a weapon for a dangerous purpose] X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 88 [possession of a weapon for a dangerous purpose] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

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) [possession of weapon for dangerous purpose – offence]

(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.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving Possession of weapon for dangerous purpose under s. 88 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "carries or possesses" an object;
  5. that the object was a weapon as defined in the Criminal Code, "an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition" and
  6. that the purpose for which the respondent had possession was one which was dangerous to the public peace[1] and
  7. that there was a danger to the public peace.
  1. R v Cassidy, 1989 CanLII 25 (SCC), (1989), 50 CCC (3d) 193 at 197 (SCC), per Lamer J

Interpretation of the Offence

The actus reus of the offence is established through possession.

To make out the offence there must be "possession and proof that the purpose of that possession was one dangerous to the public." [1] The two elements must occur at the same time to be an offence. [2]

Much of s. 88 consideration is upon the purpose for which the accused possessed the weapon.

Possessing a weapon in a reckless manner is not sufficient for proof of s.88. [3]

  1. R v Cassidy, 1989 CanLII 25 (SCC) [1989] 2 SCR 345, per Lamer J, at p. 351
  2. Cassidy, ibid., at p. 351
  3. R v McCullough, 2012 ONCJ 17 (CanLII), per Fairgrieve J

Purpose

Proof of the purpose for possessing the weapon may be established by the manner in which the weapon is used, circumstances and statements surrounding its use and the rational inferences to be drawn from the facts[1]

A person's initial intent in possessing a weapon "does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possession was not a dangerous one."[2]

It has been suggested that the lawful possession of a weapon does not suddenly become unlawful by virtue of the possessor acting out in sudden anger with the weapon.[3]

It is not sufficient to simply establish that "what was done was in fact dangerous to the public peace". There must be an intent for that purpose. [4]

A person intending to commit suicide will commit this offence if there is an awareness of risk to someone who may try to stop him.[5]

  1. R v Chalifoux (1974), 14 CCC (2d) 526 (BCCA), 1973 CanLII 1355 (BC CA), per Branca JA, at p. 529
    R v Flack, [1969] 1 CCC 55 (BCCA), 1968 CanLII 812 (BC CA), per Davey CJ, at p. 56
  2. R v Calder (1984), 1984 ABCA 45 (CanLII), 11 CCC (3d) 546 (Alta. C.A.), per McGillivray JA, at p. 549
  3. Flack, supra
  4. R v Kerr, 2003 ABCA 92 (CanLII), (2003), 12 C.R. (6th) 308 (Alta. C.A.), per Berger JA, at para 27
  5. R v Bell, 2016 ONCJ 145 (CanLII), per Crewe J

Self-Defence

Self-defence can be a limited defence to this charge.[1] However, self-defence will only apply where the attack is imminent and inescapable.[2]

  1. R v Sulland, 1982 CanLII 495 (BCCA), per Seaton JA
  2. R v Kerr, 2004 SCC 44 (CanLII), [2004] 2 SCR 371, at para 25 (the test) and para 38
    R v Nelson, 1972 CanLII 400 (ON CA), (1972) 8 CCC (2d) 29 (ONCA), per Gale CJ

Kienapple

Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.[1]

  1. R v Briscoe, 1992 CanLII 938 (BC CA), (1992), 76 CCC (3d) 563 (BCCA), per Wood JA

Analysis of Firearm

Misc Definitions

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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. 88 [possession of a weapon for a dangerous purpose] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 88 [possession of a weapon for a dangerous purpose] Indictable Election 10 years custody

Offences under s. 88 [possession of a weapon for a dangerous purpose] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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. 88 [possession of a weapon for a dangerous purpose] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 88 [possession of a weapon for a dangerous purpose] are ineligible for a conditional sentence order under s. 742.1(e), when (i) prosecuted by way of indictment and where the maximum penalty is 10 years incarceration, that resulted in "bodily harm", "involved the import, export, trafficking or production of drugs", or "involved the use of a weapon".

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Possession of a Weapon for a Dangerous Purpose (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 88 [possession of a weapon for a dangerous purpose]
Weapons Prohibition Orders s. 88 [possession of a weapon for a dangerous purpose]
  • On conviction under s. 88 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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.
  • For offences under s. 88 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. 88 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 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(1) 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.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

See Also

References

Carrying a Concealed Weapon


Carrying a Concealed Weapon
s. 89 or 90 of the Crim. Code
Election / Plea
Crown Election Summary/Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to carrying a concealed weapon 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)
Preliminary Inquiry
s. 89 [carrying a weapon to a meeting] Summary Offence(s) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 14 years max)
s. 90 [carrying a concealed weapon] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 89 [carrying a weapon to a meeting] are straight summary conviction offence. The trial must be held in provincial court.

Offences under s. 90 [carrying a weapon to a meeting] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 89 [carrying a weapon to a meeting] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 90 [carrying a concealed weapon] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 89 [carrying a weapon to a meeting] or 90 [carrying a concealed weapon], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 90 [carrying a concealed weapon] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 90 [carrying a concealed weapon] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Carrying weapon while attending public meeting

89. (1) Every person commits an offence who, without lawful excuse, carries a weapon, a prohibited device or any ammunition or prohibited ammunition while the person is attending or is on the way to attend a public meeting.

Punishment

(2) Every person who commits an offence under subsection (1) [Carrying weapon while attending public meeting] is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 89; 1995, c. 39, s. 139.
[annotation(s) added]

CCC

Carrying concealed weapon

90. (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

Punishment

(2) Every person who commits an offence under subsection (1) [Carrying concealed weapon]

(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.

R.S., 1985, c. C-46, s. 90; 1991, c. 28, s. 6, c. 40, ss. 4, 35; 1994, c. 44, s. 6; 1995, c. 39, s. 139.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
89 "... contrary to section 89 of the Criminal Code."
90 "... contrary to section 90 of the Criminal Code."

Proof of the Offence

Proving carrying a concealed weapon under s. 90 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "carries" (possession) an item
  5. the item is a weapon as defined in s. 2, prohibited device or prohibited ammunition
  6. the culprit knew the item was "a weapon, a prohibited device or any prohibited ammunition"
  7. the item was "concealed" by the accused

Proving carrying weapon while attending a public meeting under s. 89 should include:

  1. the culprit "carries" (possession) an item;
  2. the item was "a weapon, a prohibited device or any ammunition or prohibited ammunition"
  3. the alleged act was while "attending" or was "on the way to attend a public meeting"
  4. the culprit had no "lawful excuse" for committing the offence.

Interpretation of the Offence

Carrying

See also: Definition of Weapons

"Carrying" is not restricted to having the weapon on one's person but can include having the weapon within reach in a vehicle for which he has care and control.[1]

  1. R v Oickle, 2015 NSCA 87 (CanLII), per Scanlan JA, at para 25 - in relation to s. 10(2) of CDSA, citing cases relating to s. 85. Court states the meaning is the same
    R v Myroon, 2011 ABPC 36 (CanLII), per Allen J, at to 60 paras 52 to 60{{{3}}}
    R v Crawford, (1980) 54 CCC (2d) 412 (ONCA), 1980 CanLII 2889 (ON CA), per Howland CJ
    R v Hanabury (1971) 1 CCC (2d) 438 (PEISC), 1970 CanLII 1091 (PE SCTD), per Nicholson J

Concealed

It must be proved that the accused hid the object so that it would not be detected, and that he knew the object to be a weapon.

Storing a firearm in the trunk of a motor vehicle is not considered concealing. [1]

  1. R v Felawka, [1993] 4 SCR 199, 1993 CanLII 36 (SCC), per Cory J

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. 89 [carrying a weapon to a meeting] N/A two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 90 [carrying a concealed weapon] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 90 [carrying a concealed weapon] Indictable Election 5 years custody

Offences under s. 89 [carrying a weapon to a meeting] are straight summary conviction offences. The maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Offences under s. 90 [carrying a concealed weapon] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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. 89 [carrying a weapon to a meeting],
90 [carrying a concealed weapon]
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.

Principles

Ranges

see also: Carrying a Concealed Weapon (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 90 [carrying a concealed weapon]
Weapons Prohibition Orders s. 89 [carrying a weapon to a meeting]
  • For offences under s. 89 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. 89 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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

References

Unauthorized Possession of a Firearm


Unauthorized Possession of a Firearm
s. 91 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to unauthorized possession 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)
Preliminary Inquiry
s. 91 [unauthorized possession of a firearm] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 91 [unauthorized possession of a firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 91 [unauthorized possession of a firearm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 91 [unauthorized possession of a firearm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 91 [unauthorized possession of a firearm] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

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

Offence Wording

Unauthorized possession of firearm

91 (1) Subject to subsection (4) [unauthorized possession of firearm or weapon – exceptions], every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Unauthorized possession of prohibited weapon or restricted weapon

(2) Subject to subsection (4) [unauthorized possession of firearm or weapon – exceptions], 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) [unauthorized possession of firearm – offence] or (2) [unauthorized possession of prohibited weapon or restricted weapon – offence]

(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) [unauthorized possession of firearm – offence] and (2) [unauthorized possession of prohibited weapon or restricted weapon – offence] do not apply to

(a) a person who possesses a prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm or a restricted firearm, a registration certificate for it.


(5) [Repealed, 2012, c. 6, s. 2]
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; 2012, c. 6, s. 2; 2015, c. 27,s. 19.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving unauthorized possession of firearm under s. 91(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed an object;
  5. the object is a firearm;
  6. the culprit does not hold a licence to possess it;
  7. if firearm is restricted or prohibited, the accused does not hold a registration certificate.
  8. the culprit was not "under the direct and immediate supervision of a person who may lawfully possess it" at the time of the prohibited act.

Proving unauthorized possession of prohibited weapon or restricted weapon under s. 91(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed an object;
  5. the object is:
    1. prohibited weapon,
    2. a restricted weapon,
    3. a prohibited device, other than a replica firearm, or
    4. prohibited ammunition
  6. the culprit does not hold a licence to possess it, and
  7. either
    1. the culprit was not "under the direct and immediate supervision of a person who may lawfully possess it" at the time of the prohibited act and it was for the "purpose of using it in a manner in which the supervising person may lawfully use it" or
    2. the culprit "who, within a reasonable period after acquiring possession of it, ... lawfully disposes of it, or ... obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it."

Interpretation

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. 91 [unauthorized possession of a firearm] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 91 Indictable Election 5 years custody

Offences under s. 91 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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. 91 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.

Principles

See Weapons Offences (Sentencing)

Ranges

see also: Unauthorized Possession of a Firearm (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 91
Weapons Prohibition Orders s. 91
  • For offences under s. 91 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. 91 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 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(1) 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.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

Record Suspensions and Pardons

Convictions under s. 91 [unauthorized possession of a firearm] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

History of Unauthorized Possession of a Firearm

History

See also: List of Criminal Code Amendments and Unauthorized Possession of a Firearm (Offence)

2012 to Present

Unauthorized possession of firearm

91 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for 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 prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm or a restricted firearm, a registration certificate for it.


(5) [Repealed, 2012, c. 6, s. 2]
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; 2012, c. 6, s. 2; 2015, c. 27,s. 19.

CCC

2008 to 2012

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.

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.

CCC

1995 to 2008

Unauthorized possession of firearm

91. (1) Subject to subsections (4) and (5) and section 98, every person commits an offence who possesses a firearm, unless the person is 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) and section 98, 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, unless the person is 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.

CCC

Possession of Unauthorized Firearm


Possession of Unauthorized Firearm
s. 92 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable.
Types of Release Judicial Release Only
Indictable 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)*

(* varies)
Minimum 1 year incarceration (second)
2 years less day incarceration (subseq.)
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to possession of unauthorized 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)
Preliminary Inquiry
s. 92 [possession of unauthorized firearm] Indictable Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 92 [possession of unauthorized firearm] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Before the statutory increased penalties can be applied for convictions under s. 92 [possession of unauthorized firearm], notice of increased penalty under s. 727 must be given. Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 92 [possession of unauthorized firearm] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 92 [possession of unauthorized firearm], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 92 [possession of unauthorized firearm] 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 criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 92 [possession of unauthorized firearm] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (varies) X Mark Symbol.png

Offences under s. 92 [possession of unauthorized firearm] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Possession of firearm knowing its possession is unauthorized

92 (1) Subject to subsection (4) [possession of weapon, firearm, device, or ammo – exceptions], every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized

(2) Subject to subsection (4) [possession of weapon, firearm, device, or ammo – exceptions], 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 knowing that the person is not the holder of a licence under which the person may possess it.

Punishment

(3) Every person who commits an offence under subsection (1) [possession of firearm knowing its possession is unauthorized] or (2) [possession of prohibited weapon, devcie or ammunition knowing its possession is unauthorized] is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.

[omitted (4), (5) and (6)]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27,s. 20.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving possession of firearm knowing its possession is unauthorized under s. 92 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses an object;
  5. the object is a “firearm” as defined in s.2 of the Criminal Code of Canada or a prohibited weapon;
  6. the culprit was not a holder of a "licence under which a person may possess" the object;
  7. that the accused was not a holder of a registration certificate for the firearm in question;
  8. the culprit knew or was wilfully blind to the fact he was not a holder of such a licence or registration.

Proving possession of prohibited weapon, device or ammunition knowing its possession is unauthorized under s. 92 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses an object;
  5. the object is a "prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition";
  6. the culprit knows that they are "not the holder of a licence under which the person may possess it".


  1. R v Levesque, 2009 PESC 12 (CanLII), per Campbell J, at para 16

Interpretation of the Offence

The absence of firearms certification can be proven with an affidavit of the Chief Firearms Officer of the province or federal government.

Defences

92.
...

Exceptions

(4) Subsections (1) [possession of firearm knowing its possession is unauthorized] and (2) [possession of prohibited weapon, devcie or ammunition knowing its possession is unauthorized] do not apply to

(a) a person who possesses a prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm or a restricted firearm, a registration certificate for it.

(5) and (6) [Repealed, 2012, c. 6, s. 3]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27,s. 20.
[annotation(s) added]

CCC

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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. 92 [possession of unauthorized firearm] N/A 10 years incarceration

Offences under s. 92 [possession of unauthorized firearm] are straight indictable. The maximum penalty is 10 years incarceration.

Minimum Penalties

Where there is no prior conviction, there is no mandatory minimum. If the accused has one prior conviction, the minimum penalty is 1 year. If there is two or more prior convictions, the minimum penalty is 2 years less a day.

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. 92 [possession of unauthorized firearm] N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If the offence involves the "use of a weapon", there is no conditional sentence available. If the accused has one or more prior convictions, there is no discharge of conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Notice of Prior Convictions

92.
...

Evidence for previous conviction

(6) Where a person is charged with an offence under subsection (1) [x], evidence that the person was convicted of an offence under subsection 112(1) of the Firearms Act is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person knew that the person was not the holder of a registration certificate for the firearm to which the offence relates.
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3.
[annotation(s) added]

CCC

Principles

See Weapons Offences (Sentencing)

Ranges

see also: Possession of Unauthorized Firearm (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Order s. 92 [possession of unauthorized firearm]
Weapons Prohibition s. 92 [possession of unauthorized firearm]
  • On conviction under s. 92 [possession of unauthorized firearm] where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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.
  • For offences under s. 92 [possession of unauthorized firearm] 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. 92 [possession of unauthorized firearm] 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 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(1) 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.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

Record Suspensions and Pardons

Convictions under s. 92 [poss'n of unauthorized firearm] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

Reference

History of Possession of Unauthorized Firearms (Offence)

History

See also: Possession of Unauthorized Firearm (Offence)

2015 to Present

Possession of firearm knowing its possession is unauthorized

92 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized

(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 knowing that the person is not 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) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.
Exceptions

(4) Subsections (1) and (2) do not apply to

(a) a person who possesses a prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm or a restricted firearm, a registration certificate for it.

(5) and (6) [Repealed, 2012, c. 6, s. 3]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27,s. 20.

CCC

2012 to 2015

Possession of firearm knowing its possession is unauthorized

92. (1) Subject to subsection (4), every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized

(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 knowing that the person is not 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) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.
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 prohibited firearm or a restricted firearm, a registration certificate for it.

(5) and (6) [Repealed, 2012, c. 6, s. 3]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3.

CCC

2008 to 2012

Possession of firearm knowing its possession is unauthorized

92. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) a registration certificate for the firearm.
Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized

(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 knowing that the person is not 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) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.
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.
Evidence for previous conviction

(6) Where a person is charged with an offence under subsection (1), evidence that the person was convicted of an offence under subsection 112(1) of the Firearms Act is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person knew that the person was not the holder of a registration certificate for the firearm to which the offence relates.
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5.

CCC

1995 to 2008

Possession of firearm knowing its possession is unauthorized

92. (1) Subject to subsections (4) and (5) and section 98, every person commits an offence who possesses a firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and
(b) a registration certificate for the firearm.
Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized

(2) Subject to subsection (4) and section 98, 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 knowing that the person is not 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) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;
(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and
(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.
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.
Evidence for previous conviction

(6) Where a person is charged with an offence under subsection (1), evidence that the person was convicted of an offence under subsection 112(1) of the Firearms Act is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person knew that the person was not the holder of a registration certificate for the firearm to which the offence relates.
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139.

CCC

Possession of a Firearm in an Unauthorized Place


Possession of a Firearm in an Unauthorized Place
s. 93 and 94 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable 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)*

(* varies)
Minimum None
Maximum Life 5 or 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to possession of a firearm in an unauthorized place 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)
Preliminary Inquiry
s. 93 [possession at unauthorized place] and
s. 94 [unauthorized possession in motor vehicle]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 93 [possession at unauthorized place] and
s. 94 [unauthorized possession in motor vehicle] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 93 [possession at unauthorized place] or
s. 94 [unauthorized possession in motor vehicle]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 93 [possession at unauthorized place] or 94 [unauthorized possession in motor vehicle] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 93 [possession at unauthorized place] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 94 [unauthorized possession in motor vehicle] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (varies) X Mark Symbol.png

Offences under s. 94 [unauthorized possession in motor vehicle] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Possession at unauthorized place

93 (1) Subject to subsection (3) [possession weapon or firearm at unauthorized place – exception], every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses them at a place that is

(a) indicated on the authorization or licence as being a place where the person may not possess it;
(b) other than a place indicated on the authorization or licence as being a place where the person may possess it; or
(c) other than a place where it may be possessed under the Firearms Act.
Punishment

(2) Every person who commits an offence under subsection (1) [possession weapon or firearm at unauthorized place]

(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.
Exception

(3) Subsection (1) [possession weapon or firearm at unauthorized place] does not apply to a person who possesses a replica firearm.
R.S., 1985, c. C-46, s. 93; 1991, c. 40, s. 8; 1995, c. 39, s. 139; 2008, c. 6, s. 6; 2015, c. 27, s. 21.
[annotation(s) added]

CCC

Unauthorized possession in motor vehicle

94 (1) Subject to subsections (3) [unauthorized possession of weapon or firearm in a motor vehicle – exception] and (4) [unauthorized possession of weapon or firearm in a motor vehicle – exception], every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm or a non-restricted firearm,
(i) the person or any other occupant of the motor vehicle is the holder of
(A) a licence under which the person or other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,
(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of
(A) a licence under which that other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, 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 [exempted persons to firearms rules, including exception] 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 [exempted persons to firearms rules, including exception] or any other Act of Parliament.
Punishment

(2) Every person who commits an offence under subsection (1) [unauthorized possession of weapon or firearm in a motor vehicle – offence]

(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) [unauthorized possession of weapon or firearm in a motor vehicle – offence] does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, weapon, device or 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) [unauthorized possession of weapon or firearm in a motor vehicle – offence] does not apply to an occupant of a motor vehicle when the occupant or any other occupant of the motor vehicle is a person who came into possession of the firearm, weapon, device or ammunition by the operation of law.
(5) [Repealed, 2012, c. 6, s. 4]
R.S., 1985, c. C-46, s. 94; 1995, c. 39, s. 139; 2008, c. 6, s. 7; 2012, c. 6, s. 4; 2015, c. 27, s. 22.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving Possession at unauthorized place under s. 93 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed a thing;
  5. the thing was a "firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition";
  6. the thing was not a replica firearm;
  7. the culprit was a "holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition";
  8. the place of the prohibited act was either:
    1. indicated on the authorization or licence as being a place where the person may not possess it;
    2. other than a place indicated on the authorization or licence as being a place where the person may possess it; or
    3. other than a place where it may be possessed under the Firearms Act.

Proving Unauthorized possession in motor vehicle under s. 94 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "is an occupant of a motor vehicle";
  5. the culprit "knows there is a firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition" within it;
  6. if it is a "firearm":
    1. neither the culprit nor any other occupant is the holder of 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, an authorization and a registration certificate for it,"
    2. the culprit did not have "reasonable grounds to believe that any other occupant of the motor vehicle was the holder of ... a licence under which that other occupant may possess the firearm, and ... in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it"; or
    3. the culprit did not have "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";
  7. if it is a "prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition":
    1. the culprit or any other occupant of the motor vehicle was not "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
    2. the culprit did not have "had reasonable grounds to believe that any other occupant of the motor vehicle was ... the holder of an authorization or a licence under which the other occupant may transport" the weapon(s) or "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."
  8. the culprit did not attempt "to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle" once they became aware of the presence of the weapon(s); and
  9. neither the culprit nor any occupant "came into possession" of the weapon(s) "by operation of law".

Interpretation

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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. 93 [possession at unauthorized place] and
s. 94 [unauthorized possession in motor vehicle]
Summary Conviction two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 93 [possession at unauthorized place] Indictable Conviction 5 years incarceration
s. 94 [unauthorized possession in motor vehicle] Indictable Conviction 10 years incarceration

Offences under s. 93 [possession at unauthorized place] and 94 [unauthorized possession in motor vehicle] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 93 and 10 years incarceration under s. 94 [unauthorized possession in motor vehicle]. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

All dispositions are available, unless there is a conviction under s. 94 and involves the "use of a weapon" in which case there is no conditional sentence.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Possession of a Firearm in an Unauthorized Place (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 93 [possession at unauthorized place] or 94 [unauthorized possession in motor vehicle]
Weapons Prohibition Orders s. 93 [possession at unauthorized place] or 94 [unauthorized possession in motor vehicle]
  • On conviction under s. 94 [unauthorized possession in motor vehicle] where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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.
  • For offences under s. 93 [possession at unauthorized place] and 94 [unauthorized possession in motor vehicle] 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. 93 [possession at unauthorized place] or 94 [unauthorized possession in motor vehicle] 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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

Record Suspensions and Pardons

Convictions under s. 93 [possession at unauthorized place] or 94 [unauthorized possession in motor vehicle] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

History of Possession of a Firearm in an Unauthorized Place

See also: Possession of a Firearm in an Unauthorized Place (Offence)

History of Section 93

2015 to Present

Possession at unauthorized place

93 (1) Subject to subsection (3), every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses them at a place that is

(a) indicated on the authorization or licence as being a place where the person may not possess it;
(b) other than a place indicated on the authorization or licence as being a place where the person may possess it; or
(c) other than a place where it may be possessed under the Firearms Act.
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 five years; or
(b) is guilty of an offence punishable on summary conviction.
Exception

(3) Subsection (1) does not apply to a person who possesses a replica firearm.
R.S., 1985, c. C-46, s. 93; 1991, c. 40, s. 8; 1995, c. 39, s. 139; 2008, c. 6, s. 6; 2015, c. 27,s. 21.

CCC

2008 to 2015

Possession at unauthorized place

93. (1) Subject to subsection (3), every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition at a place that is

(a) indicated on the authorization or licence as being a place where the person may not possess it;
(b) other than a place indicated on the authorization or licence as being a place where the person may possess it; or
(c) other than a place where it may be possessed under the Firearms Act.
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 five years; or
(b) is guilty of an offence punishable on summary conviction.
Exception

(3) Subsection (1) does not apply to a person who possesses a replica firearm.
R.S., 1985, c. C-46, s. 93; 1991, c. 40, s. 8; 1995, c. 39, s. 139; 2008, c. 6, s. 6.

CCC

History of Section 94

2015 to Present

Unauthorized possession in motor vehicle

94 (1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted 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 prohibited firearm, a restricted firearm or a non-restricted firearm,
(i) the person or any other occupant of the motor vehicle is the holder of
(A) a licence under which the person or other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,
(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of
(A) a licence under which that other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, 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, weapon, device or 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 when the occupant or any other occupant of the motor vehicle is a person who came into possession of the firearm, weapon, device or ammunition by the operation of law.
(5) [Repealed, 2012, c. 6, s. 4]
R.S., 1985, c. C-46, s. 94; 1995, c. 39, s. 139; 2008, c. 6, s. 7; 2012, c. 6, s. 4; 2015, c. 27,s. 22.

CCC

The changes from 2015 are underlined.

2012 to 2015

Unauthorized possession in motor vehicle

94. (1) Subject to subsections (3) and (4), 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) a licence under which the person or other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,
(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of
(A) a licence under which that other occupant may possess the firearm, and
(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, 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.
(5) [Repealed, 2012, c. 6, s. 4]
R.S., 1985, c. C-46, s. 94; 1995, c. 39, s. 139; 2008, c. 6, s. 7; 2012, c. 6, s. 4.

CCC

2008 to 2012

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.

CCC

The changes from 2008 are underlined.

1995 to 2008

Possession at unauthorized place

93. (1) Subject to subsection (3) and section 98, every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition at a place that is

(a) indicated on the authorization or licence as being a place where the person may not possess it;
(b) other than a place indicated on the authorization or licence as being a place where the person may possess it; or
(c) other than a place where it may be possessed under the Firearms Act.
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 five years; or
(b) is guilty of an offence punishable on summary conviction.
Exception

(3) Subsection (1) does not apply to a person who possesses a replica firearm.
R.S., 1985, c. C-46, s. 93; 1991, c. 40, s. 8; 1995, c. 39, s. 139.

CCC

Unauthorized possession in motor vehicle

94. (1) Subject to subsections (3) to (5) and section 98, 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.

CCC

Possession of a Restricted or Prohibited Firearm


Possession of a Restricted or Prohibited Firearm
s. 95 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
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 1 year incarceration two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable 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 3 years incarceration** (first)
5 years incarceration** (subseq.)
** see Constitutionality below
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to possession of a restricted or prohibited 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)
Preliminary Inquiry
s. 95 [possession of a restricted or prohibited firearm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 95 [possession of a restricted or prohibited firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 95 [possession of a restricted or prohibited firearm] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 95 [possession of a restricted or prohibited firearm] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Publication Bans

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 95 [possession of a restricted or prohibited firearm] X Mark Symbol.png X Mark Symbol.png OK Symbol.png (varies) X Mark Symbol.png

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

Offence Wording

Possession of prohibited or restricted firearm with ammunition

95 (1) Subject to subsection (3) [possession of prohibited or restricted firearm with ammo – exception], 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, without being 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) [possession of prohibited or restricted firearm with ammo – offence]

(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.
Exception

(3) Subsection (1) [possession of prohibited or restricted firearm with ammo – offence] 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; 2012, c. 6, s. 5(E); 2019, c. 25, s. 25.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving possession of a restricted or prohibited weapon with ammunition under s. 95 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possessed an object;
  5. the object was a "prohibited firearm or restricted firearm'
  6. the object was functioning or could be made to function readily;
  7. the firearm was loaded or could be readily loaded;
  8. the ammunition was capable of being discharged;
  9. if loaded, that the accused knew, was wilfully blind (more than reckless) to the fact that the gun was loaded. [1]
  10. the culprit was not the holder of a) authorization or a licence under which the person may possess the firearm in that place; and the registration certificate for the firearm.
  11. the use of the firearm was not "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."
  1. R v Budden, 2005 ABQB 859 (CanLII), 386 A.R. 313, per Lee J, at paras 77 to 81
    R v Moffatt, 2005 ONCJ 126 (CanLII), per Maund J, at paras 13 and 15
    R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam (2:1) at 8 aff’d at 2012 SCC 11 (CanLII), per McLachlin J

Interpretation of the Offence

The mens rea is satisfied where the offender knew that he or she was in possession of a loaded firearm. This is a subjective standard and so can be proven by actual knowledge or wilful blindness, but not recklessness.[1] Whether the firearm is prohibited or restricted does not matter and whether the accused knew it was prohibited or restricted is not a necessary element. So it is irrelevant whether the accused knew of the length and diameter of the barrel.[2]

Restricted Firearms

see Restricted Firearms

  1. R v Raglon, 2001 ABPC 117 (CanLII), per Allen J, at paras 52 to 63
  2. R v Williams, 2009 ONCA 342 (CanLII), per Blair JA , at para 21

Handgun

To prove that a weapon is a handgun can be made by inference based on the surrounding evidence alone, without need for the actual weapon in evidence. [1] Factors used to draw the inference include:

  • accused’s conduct in relation to the weapon
  • presence of any threats to shoot
  • how people react to the weapon[2]
  • the description and use of the weapon[3]
  • absence of evidence to the contrary
  1. R v Charbonneau, 2004 CanLII 9527 (ON CA), [2004] OJ No 1503 (C.A.), per curiam, at para 3 (the judge had “the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge's finding that it was a handgun.”)
    R v Willis, 2007 ONCJ 605 (CanLII), per Pringle J at 31
  2. R v Abdullah, [2005] OJ No 6079 (S.C.J.)(*no CanLII links) at 29
  3. R v Dunchie, [2006] OJ no 5455(*no CanLII links) at 55

Loaded and Unloaded

Loaded is not defined in the Criminal Code.

Unloaded is defined in the regulations to the Firearms Act, SC 1995, c. 39:

“unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.

This definition equally applies to s. 95.[1]

  1. R v Wong, 2012 ONCA 432 (CanLII), per Weiler JA, at paras 48 to 50

Mens Rea

The Crown must prove that the accused intended to possess the weapon.[1]

  1. R v MacDonald, 2014 SCC 3 (CanLII), per LeBel J

Knowledge

It must be proven that the accused knew that the gun was loaded and that the possession of the gun was unauthorized.[1]

Knowledge that a gun was loaded can be inferred from the circumstances.[2]

The mens rea does not require proof that the accused knew the barrel of the handgun was less than 105 mm.[3]

For a conviction under section 95 (one) grounded needs to prove that the offender knew he was in the possession of a firearm that was loaded.supra


Knowledge that the possession was unauthorized can be proven by wilful blindness.[4]

Any claim mistaken of mistaken belief of authorization must be "honestly held".[5]

There is no need to prove that the accused knew that possession was unauthorized.[6]

  1. R v Williams, 2009 ONCA 342 (CanLII), per Blair JA
  2. R v Raglon, 2001 ABPC 117 (CanLII), per Allen J, at paras 9, 10, 65 and 66 -- court found knowledge, said the context of the possession would make the gun far more useful if loaded
    R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam, at paras 12 to 14
  3. Williams, supra
  4. R v MacDonald, 2012 NSCA 50 (CanLII), per Beveridge JA appealed 2014 SCC 3 (CanLII), per LeBel J
  5. MacDonald (SCC), ibid.
  6. MacDonald, ibid.

Special Defences

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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 also: Weapons Offences (Sentencing)
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 95 [possession of a restricted or prohibited firearm] Summary Election 12 months custody
s. 95 [possession of a restricted or prohibited firearm] Indictable Election 10 years custody

Offences under s. 95 [possession of a restricted or prohibited firearm] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 12 months incarceration.

Minimum Penalties

If prosecuted by summary conviction, there is no mandatory minimum. If prosecuted by indictment, the mandatory minimum penalty is 3 years with no prior convictions and 5 years with one or more prior convictions.

The constitutionality of the mandatory minimum has been found to unconstitutional in several decisions.[1]

The mandatory minimum came into force on May 1, 2008. This does not apply to offences pre-dating the amendment. Subsequent offences include any conviction under s. 85, 95, 96, 98, 98.1, 99, 100, 102 or 103.

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. 95 [possession of a restricted or prohibited firearm] Summary OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 95 [possession of a restricted or prohibited firearm]
With or Without Prior Convictions
Indictment X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

When prosecuted by indictment, discharges and conditional sentences are not available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Increased Penalties

Notice is required under s. 727 for increased penalties.[2]

Section 84(5) and (6) must be complied with for increased penalties. [3]

  1. See R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA appealed to SCC
    R v Vandyke, 2013 ABPC 347 (CanLII), per Lamoureux J
    R v Smickle, 2012 ONSC 602 (CanLII), (2012) 280 CCC (3d) 365, per Molloy J
  2. see Notice of Increased Penalty
  3. see Weapons Offences (Sentencing)

Principles

See also: Weapons Offences (Sentencing)

As with all mandatory minimums, the minimum is an "inflationary floor" which sets a minimal punishment for the "best" offender.[1]

The "possession of a loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and a trigger-pull away."[2]

The range of sentences for convictions under s. 95 will usually be a penitentiary sentence, even for first time offenders. The lowest range will still be in the high end range of reformatory sentences of less than two years.[3]

  1. R v Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 75
  2. R v Chin, 2009 ABCA 226 (CanLII), per curiam, at para 10
  3. R v Smickle, 2014 ONCA 49 (CanLII), per curiam, at para 19

Ranges

see also: Possession of a Restricted or Prohibited Firearm (Sentencing Cases)

Most convictions under s. 95 should "attract a penitentiary term even for first offenders".[1] "Less serious" versions of these offences will "demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders".[2]

  1. R v Smickle, 2014 ONCA 49 (CanLII), per curiam, at para 19
  2. R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA, at paras 107 to 109 aff'd at 2015 SCC 15 (CanLII), per McLachlin CJ
    R v Farah, 2016 ONSC 5000 (CanLII), per K Campbell J, at para 29

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 95 [possession of a restricted or prohibited firearm]
Weapons Prohibition Orders s. 95(1)
  • For offences under s. 95(1) that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory 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"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.

Circumstance-specific 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(1) 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.

Other Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

History

See Also

References

History of Possession of a Restricted or Prohibited Firearm (Offence)

History

See also: List of Criminal Code Amendments and Possession of a Restricted or Prohibited Firearm (Offence)

2012 to Present

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, without being 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; 2012, c. 6, s. 5(E).

CCC

2008 to 2012

On May 1, 2008, s. 95 was amended to read as follows:

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.

CCC

1995 to 2008

Possession of prohibited or restricted firearm with ammunition

95. (1) Subject to subsection (3) and section 98, 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 ten years and to a minimum punishment of imprisonment for a term of one year; 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.

CCC

Weapons Trafficking


Weapons Trafficking
s. 99, 100, 101, 102 and 103 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

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

* Must be indictable.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) (101)
1 year incarceration (102)
Indictable 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)*

(* varies)
Minimum 1 year incarceration (non-firearm)

3 year incarceration (first, firearm)

5 year incarceration (subseq., firearm)
Maximum 5, 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to weapons trafficking 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)
Preliminary Inquiry
s. 99 [weapons trafficking],
s. 100 [possession for purpose of weapons trafficking], and
s. 103 [importing or exporting firearms knowing it is unauthorized]
Indictable Offence(s) N/A Yes, but no preliminary inquiry available. {{{4}}}
s. 101 [transfer without authority],
s. 102 [making automatic firearm]
Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment, but no preliminary inquiry. {{{4}}}

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], and 103 [importing or exporting firearms knowing it is unauthorized] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Offences under s. 101 [transfer without authority] and 102 [making automatic firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 99 [weapons trafficking],
s. 100 [possession for purpose of weapons trafficking] or
s. 103 [importing or exporting firearms knowing it is unauthorized]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 101 [transfer without authority] or
s. 102 [making automatic firearm]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], or 103 [importing or exporting firearms knowing it is unauthorized], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

When charged under s. 101 [transfer without authority] or 102 [making automatic firearm], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Under s. 515(6)(a)(vi), there will be a reverse onus for offence charged under section 99, 100 or 103.

Reverse Onus Bail

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)).
Fingeprints and Photos

A peace officer who charges a person under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 101 [transfer without authority], 102 [making automatic firearm], or 103 [importing or exporting firearms knowing it is unauthorized] 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 Orders

For all criminal or regulatory prosecutions, 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
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 99 [weapons trafficking],
s. 100 [possession for purpose of weapons trafficking],
s. 102 [making automatic firearm], or
s. 103 [importing or exporting firearms knowing it is unauthorized]
OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png
s. 101 [transfer without authority] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 102 [making automatic firearm], and 103 [importing or exporting firearms knowing it is unauthorized] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Weapons trafficking

99 (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [weapons trafficking – offence] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition 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

(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.
Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) [weapons trafficking – offence] 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 one year.
R.S., 1985, c. C-46, s. 99; 1995, c. 39, s. 139; 2008, c. 6, s. 10; 2015, c. 27,s. 23.
[annotation(s) added]

CCC

Possession for purpose of weapons trafficking

100 (1) Every person commits an offence who possesses a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of

(a) transferring it, whether or not for consideration, or
(b) offering to transfer it,

knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [possession for purpose of weapons trafficking – offence] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition 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

(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.
Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) [possession for purpose of weapons trafficking – offence] 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 one year.
R.S., 1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s. 12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139; 1996, c. 19, s. 65; 2008, c. 6, s. 11; 2015, c. 27, s. 24.
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CCC

Transfer without authority

101 (1) Every person commits an offence who transfers a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.

Punishment

(2) Every person who commits an offence under subsection (1) [transfer firearm without authority]

(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.

R.S., 1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s. 139; 2015, c. 27, s. 25.
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CCC

Making automatic firearm

102. (1) Every person commits an offence who, without lawful excuse, alters a firearm so that it is capable of, or manufactures or assembles any firearm that is capable of, discharging projectiles in rapid succession during one pressure of the trigger.

Punishment

(2) Every person who commits an offence under subsection (1) [making automatic firearm]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

R.S., 1985, c. C-46, s. 102; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991, c. 28, s. 9, c. 40, s. 14; 1995, c. 39, s. 139.
[annotation(s) added]

CCC

Importing or exporting knowing it is unauthorized

103 (1) Every person commits an offence who imports or exports

(a) a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, or
(b) any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm,

knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [importing or exporting firearms knowing it is unauthorized] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device or any prohibited ammunition 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

(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.
Punishment — other cases

(2.1) In any other case, a person who commits an offence under subsection (1) [importing or exporting firearms knowing it is unauthorized] 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 one year.
(3) [Repealed, 2019, c. 25, s. 28]
R.S., 1985, c. C-46, s. 103; 1991, c. 40, s. 15; 1995, c. 39, s. 139; 2008, c. 6, s. 12; 2015, c. 27, s. 26; 2019, c. 25, s. 28.
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CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving weapons trafficking under s. 99 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "manufactures or transfers" or "offers to" manufacture or transfer a thing to anyone ;
  5. the thing was "a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition" ;
  6. the culprit knew that he was "not authorized to do so under the Firearms Act" or any other federal act or regulations .

Proving possession of weapons for the purpose of trafficking under s. 100 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit possesses a thing
  5. the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition ";
  6. the culprit possesses it for the purpose of "transferring it" or "offering to transfer it";
  7. the culprit knew that possession was "not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations".

Proving Transfer without authority under s. 101 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit transfers a thing to a person;
  5. the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition"; and
  6. the transfer was not "under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament."

Proving Making automatic firearm under s. 102 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "alters a firearm" or "manufactures or assembles any firearm";
  5. the prohibited conduct results in the firearm being "capable of, discharging projectiles in rapid succession during one pressure of the trigger"; and
  6. the culprit does the prohibited conduct without "lawful excuse".

Proving Importing or exporting knowing it is unauthorized under s. 103 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "imports or exports" a thing;
  5. the thing is either:
    1. " prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition", or
    2. "any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm" and
  6. the culprit knew that they were "not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament".

Interpretation of the Offence

Weapons trafficking is a wiretap eligible offence under s. 183.[1]

Section 84(1) defines "transfer" which means to "sell, provide, barter, give lend, rent, send, transport, ship, distribute or deliver".

Traffic by Offer

Similar to drug trafficking, the act of trafficking in weapons can be made out by an offer alone regardless of the actual intention to sell or give the thing offered. [2]

Definitions

Section 84 defines "firearms".[3]

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

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

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

Sentencing Profile

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 99 [weapons trafficking],
s. 100 [possession for purpose of weapons trafficking],
s. 103 [importing or exporting firearms knowing it is unauthorized]
N/A 10 years custody
s. 101 [transfer without authority],
s. 102 [making automatic firearm]
Summary Election 1 year custody
s. 101 [transfer without authority] Indictable Election 5 years custody
s. 102 [making automatic firearm] Indictable Election 10 years custody

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking] and 103 [importing or exporting firearms knowing it is unauthorized] are straight indictable. The maximum penalty is 10 years incarceration.

Offences under s. 101 [transfer without authority] and 102 [making automatic firearm] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration under s. 101 and 10 years incarceration under s.102. If prosecuted by summary conviction, the maximum penalty is 1 year incarceration.

Minimum Penalties

For offences under s. 99, 100 and 103, the minimum penalty is 3 years or 5 years with a prior conviction(s) where the offence involved a "firearm, a prohibited device, any ammunition or any prohibited ammunition". Otherwise, the minimum penalty is 1 year incarceration.

For offences under s. 102, the minimum penalty is 1 year when prosecuted by indictment.

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. 74