Possession of Unauthorized Firearm (Offence)

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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. 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 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)
s. 92 [possession of unauthorized firearm] Indictable Offence(s) N/A Yes

Offences under s. 92 are straight indictable. There is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 92, notice of increased penalty under s. 727 must be made. Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

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

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

s. 2 ID Crim. Act
s. 92 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 92, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 92 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 92 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), 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)...
(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; 995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27, s. 20.


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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) 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) 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; 995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27, s. 20.


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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 custody

Offences under s. 92 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 N/A

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), 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.


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Principles

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
Weapons Prohibition s. 92
  • On conviction under s. 92 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 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 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 discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

History

See also: List of Criminal Code Amendments


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.


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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.


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See Also

Reference