Seizure and Forfeiture of Firearms for Public Safety

From Criminal Law Notebook
Jump to navigation Jump to search

General Principles - Seizure

See also: Seizure of Firearms and Forfeiture of Weapons and Firearms

Under s.117.04, an officer may seize a firearm from someone in lawful possession of it where the officer believes he may pose a danger to themselves or the public. A warrant is required unless there are exigent circumstances such that "by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant".(s. 117.04(2))

Under 117.04(2), an officer may search for and seize weapon-related items where it is in the "interests of the safety".

Application for warrant to search and seize

117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

Search and seizure without warrant

(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) [application for warrant to search and seizure] exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.

Return to justice

(3) A peace officer who executes a warrant referred to in subsection (1) [application for warrant to search and seizure] or who conducts a search without a warrant under subsection (2) [search and seizure weapon without warrant – public safety] shall forthwith make a return to the justice who issued the warrant or, if no warrant was issued, to a justice who might otherwise have issued a warrant, showing

(a) in the case of an execution of a warrant, the things or documents, if any, seized and the date of execution of the warrant; and
(b) in the case of a search conducted without a warrant, the grounds on which it was concluded that the peace officer was entitled to conduct the search, and the things or documents, if any, seized.
Authorizations, etc., revoked

(4) Where a peace officer who seizes any thing under subsection (1) [application for warrant to search and seizure] or (2) [search and seizure weapon without warrant – public safety] is unable at the time of the seizure to seize an authorization or a licence under which the person from whom the thing was seized may possess the thing and, in the case of a seized firearm, a registration certificate for the firearm, every authorization, licence and registration certificate held by the person is, as at the time of the seizure, revoked.
1995, c. 39, s. 139; 2004, c. 12, s. 3.
[annotation(s) added]

CCC


Note up: 117.04(1), (2), (3), and (4)

Where no finding or application

117.06 (1) Any thing or document seized pursuant to subsection 117.04(1) [application for warrant to search and seizure] or (2) [search and seizure weapon without warrant – public safety] shall be returned to the person from whom it was seized if

(a) no application is made under subsection 117.05(1) [application for disposition for items seized under s. 117.04] within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be; or
(b) an application is made under subsection 117.05(1) [application for disposition for items seized under s. 117.04] within the period referred to in paragraph (a), and the justice does not make a finding as described in subsection 117.05(4) [forfeiture and prohibition order].
Restoration of authorizations

(2) Where, pursuant to subsection (1) [return of thing seized under s. 117.04], any thing is returned to the person from whom it was seized and an authorization, a licence or a registration certificate, as the case may be, is revoked pursuant to subsection 117.04(4) [revocation of licences at time of seizure], the justice referred to in paragraph (1)(b) [return of thing seized under s. 117.04 – where s. 117.05 application as made] may order that the revocation be reversed and that the authorization, licence or registration certificate be restored.
1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 117.06(1) and (2)

Under s.117.05, the officer may apply to forfeit the firearm after 30 days where it can be established that forfeiture is in the "interests of the safety of the person". (see Forfeiture Orders)

General Principles - Forfeiture

See also: Seizure of Firearms and Forfeiture of Weapons and Firearms

Section 117.06 permits a justice to make an order disposing of any items seized under s. 117.04 where it is in the "interests of safety".

Application for disposition

117.05 (1) Where any thing or document has been seized under subsection 117.04(1) [application for warrant to search and seizure] or (2) [application for warrant to search and seizure], the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.

Ex parte hearing

(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) [application for disposition for items seized under s. 117.04] in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a summary conviction court may, under Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], proceed with a trial in the absence of the defendant.

Hearing of application

(3) At the hearing of an application made under subsection (1) [application for disposition for items seized under s. 117.04], the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.

Forfeiture and prohibition order on finding

(4) Where, following the hearing of an application made under subsection (1) [application for disposition for items seized under s. 117.04], the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall

(a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
(b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.
Reasons

(5) Where a justice does not make an order under subsection (4) [forfeiture and prohibition order], or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice’s reasons.

Application of ss. 113 to 117

(6) Sections 113 to 117 [consequence of 109 and 110 prohibition orders] apply in respect of every order made under subsection (4) [forfeiture and prohibition order].

Appeal by person

(7) Where a justice makes an order under subsection (4) [forfeiture and prohibition order] in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.

Appeal by Attorney General

(8) Where a justice does not make a finding as described in subsection (4) [forfeiture and prohibition order] following the hearing of an application under subsection (1) [application for disposition for items seized under s. 117.04], or makes the finding but does not make an order to the effect described in paragraph (4)(b) [forfeiture and prohibition order – additional 5 year prohibition], the Attorney General may appeal to the superior court against the failure to make the finding or to make an order to the effect so described.

Application of Part XXVII to appeals

(9) The provisions of Part XXVII [Pt. XXVII – Summary Convictions (s. 785 to 840)], except sections 785 to 812 [provisions re summary conviction trial excluding appeals], 816 to 819 [procedural provisions re summary trial appeal] and 829 to 838 [summary appeal on transcript or agreed statement of facts], apply in respect of an appeal made under subsection (7) [forfeiture and prohibition order – appeal by person] or (8) [forfeiture and prohibition order – appeal by Crown] with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.
[annotation(s) added]

CCC


Note up: 117.05(1), (2), (3), (4), (5), (6), (7), (8), and (9)

In order to succeed in an application for a forfeiture order, the applicant must prove:[1]

  1. the respondent is the owner of the item to be forfeited
  2. the respondent did not have reasonable grounds to believe that the item forfeited would or might be used in the commission of the offence.

The test is "whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners."[2]

Hearsay evidence is admissible in a hearing under s. 117.05.[3]

  1. R v Robinson, 2011 CanLII 3758 (NLPC), per Gorman J, at para 7
  2. R v Dagenais, 2009 SKPC 113 (CanLII), per Labach J
    R v Day, 2006 CanLII 26587 (ONSC), [2006] OJ No 3187 (SCJ), per Durno J, at para 36
    R v Douglas, 2013 ONCJ 649 (CanLII), per M Green J, at paras 46 to 48
  3. R v Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 SCR 1378, per Sopinka J

Prohibition Order

Where a forfeiture order is granted on application under 117.05 for the court shall also order that the accused be placed on a prohibition order from possessing any "weapon, prohibited device, ammunition, prohibited ammunition and explosive substance" or any such thing specified in the order.[1]

  1. s. 117.05(4)(b)