Non-Restricted and Other Types of Firearms

From Criminal Law Notebook
This page was last substantively updated or reviewed October 2023. (Rev. # 90846)

General Principles

See also: Definition of Firearms, Definition of Restricted Firearms, and Definition of Prohibited Firearms

All rifles and shotguns that do not otherwise fit in the definition of restricted or prohibited firearms is a "non-restricted firearm".

84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
non-restricted firearm means a firearm that is neither a prohibited firearm nor a restricted firearm;  ...
[omitted (2), (3), (3.1), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45, c. 27, s. 18; 2019, c. 9, s. 16; 2022, c. 15, s. 1; 2023, c. 32, s. 1.

CCC (CanLII), (DOJ)


Note up: 84(1)

This category will generally capture many sports rifles and shotguns.

Prescribed Non-Restricted Firearms

3.2 The firearms listed in Part 2.1 of the schedule that have a barrel that is at least 470 mm in length, and the firearms listed in items 1, 2, 5, 8 and 11 to 15 of that Part that do not have a barrel, are non-restricted firearms for the purposes of paragraph (b) of the definition non-restricted firearm in subsection 84(1) of the Criminal Code, except for those firearms that

(a) discharge projectiles in rapid succession during one pressure of the trigger; or
(b) are prohibited firearms within the meaning of paragraph (b) of the definition prohibited firearm in subsection 84(1) of the Criminal Code.

SOR/2015-213, s. 2.

PART 2.1
Firearms for the Purposes of Sections 3.1 and 3.2

1 Ceská Zbrojovka (CZ) Model CZ858 Tactical-2P rifle

2 Ceská Zbrojovka (CZ) Model CZ858 Tactical-2V rifle

3 Ceská Zbrojovka (CZ) Model CZ858 Tactical-4P rifle

4 Ceská Zbrojovka (CZ) Model CZ858 Tactical-4V rifle

5 SAN Swiss Arms Model Classic Green rifle

6 SAN Swiss Arms Model Classic Green carbine

7 SAN Swiss Arms Model Classic Green CQB rifle

8 SAN Swiss Arms Model Black Special rifle

9 SAN Swiss Arms Model Black Special carbine

10 SAN Swiss Arms Model Black Special CQB rifle

11 SAN Swiss Arms Model Black Special Target rifle

12 SAN Swiss Arms Model Blue Star rifle

13 SAN Swiss Arms Model Heavy Metal rifle

14 SAN Swiss Arms Model Red Devil rifle

15 SAN Swiss Arms Model Swiss Arms Edition rifle

Antique Firearms

Definitions

84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
"antique firearm" means

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

...
[omitted (2), (3), (3.1), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2.

CCC (CanLII), (DOJ)


Note up: 84(1)

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

BLACK POWDER REPRODUCTIONS

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

RIFLES

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

SHOTGUNS

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

HANDGUNS

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

Regs

Inoperable Firearms

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

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

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

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

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

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

  1. R v Dufour, 1982 CanLII 3903 (NSCA), 3 CCC (3d) 14, [1982] NSJ No 549 (NSCA), per Pace JA
  2. R v Sinclair, 2005 ABCA 443 (CanLII), 207 CCC (3d) 80, per curiam
    R v Covin, 1983 CanLII 151 (SCC), [1983] 1 SCR 725, per Lamer J
    Dufour, supra
    R v Belair, 1981 CanLII 1625 (ON CA), 24 CR (3d) 133, [1981] OJ No 3129, per Martin JA
  3. R v Marchesani, 1969 CanLII 264 (ONSC), [1970] 1 CCC 350 (O.H.C.), per Hartt J
  4. R v Cairns, 1962 CanLII 579 (BCCA), (1962), 39 CR 154, [1962] BCJ No 87 (BCCA), per Wilson JA
  5. R v Dunn, 2013 ONCA 539 (CanLII), 305 CCC (3d) 372, per Rosenberg JA, upheld at 2014 SCC 69 (CanLII), per McLachlin CJ overturning R v McManus and R v Labrecque
    R v Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199, per Cory J, at paras 11 to 14
  6. Covin, supra
  7. Belair, supra

Make-shift Firearms

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

  1. R v Covin, 1983 CanLII 151 (SCC), [1983] 1 SCR 725, per Lamer J

Imitation and Replica Firearms

See also: Use of Firearm in Commission of an Offence (Offence)

An "imitation firearm" is defined in s. 84:

Definitions

84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
"imitation firearm" means any thing that imitates a firearm, and includes a replica firearm; (fausse arme à feu)
...
"replica firearm" means any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm that is designed or adapted to discharge a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second and at a muzzle energy exceeding 5.7 Joules, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm; (réplique) ...
[omitted (2), (3), (3.1), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45, c. 27, s. 18; 2019, c. 9, s. 16; 2022, c. 15, s. 1; 2023, c. 32, s. 1.

CCC (CanLII), (DOJ)


Note up: 84(1)

Meaning of "imitates"

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

Types of Weapons

A real firearm can also meet the definition of imitation firearm.[2]

Pellet Guns and Paint Guns

Certain devices such as pellet guns can be found to be a firearm where it is "used or intended to be used for a dangerous purpose."[3] The prove that a pellet gun is a firearm, the Crown will usually tender expert evidence who has test-fired the device and measure muzzle velocity.[4]

A starting pistol is an "imitation firearm."[5]

Prohibited Device

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

"Toy" guns

A BB gun may not be a firearm only unless it has been established that it is "capable of causing serious bodily harm or death."[6] It may be a weapon where it is "used or intended to be used for a dangerous purpose."[7]

A paint-gun has been considered a "firearm."[8]

  1. R v Taing, 1998 ABCA 108 (CanLII), [1998] AJ No 377, per curiam ("On the evidence, the only conclusion open to the trial judge was a finding that it resembled a firearm. To resemble something is to be an imitation of it.")
  2. R v Scott, 2000 BCCA 220 (CanLII), 145 CCC (3d) 52, per Braidwood JA, affd 2001 SCC 73 (CanLII), [2001] 3 SCR 425 (SCC), per McLachlin CJ, at para 45 ("Therefore, to avoid absurdities in firearms cases, and interpret s. 85(2) in harmony with the intention of Parliament, the term “imitation firearm” must include real firearms")
  3. R v Labrecque, 2010 ONSC 754 (CanLII), per Rutherford J appeal denied at 2011 ONCA 360 (CanLII), per curiam
    see also R v McManus, 2006 CanLII 26568 (ON CA), [2006] OJ No 3175 (CA), per curiam
    Contra: Covin, supra
  4. R v Eyre, 2019 BCCA 333 (CanLII), per Frankel JA, at para 30 ("To prove a particular pellet gun is a firearm the Crown will often tender evidence from an expert who test-fired that gun to establish that it has a muzzle velocity sufficient to cause serious bodily injury or death")
    R v Goard, 2014 ONSC 2215 (CanLII), 310 CCC (3d) 491, per Trotter J, at paras 45 to 48
    R v Wainwright, 2016 ONSC 1963 (CanLII), per Roccamo J, at para 13
    R v Crawford, 2015 ABCA 175 (CanLII), 322 CCC (3d) 528, per Martin JA, at para 24
  5. R v Boutilier, [1974] 4 WWR 443(*no CanLII links)
  6. R v Seyed-Nabian, 2008 ABPC 219 (CanLII), 451 AR 310, per Ogle J, at paras 30 to 35
    R v James, 2011 ONCJ 125 (CanLII), per Duncan J
  7. R v Labrecque, 2011 ONCA 360 (CanLII), per curiam
  8. R v RHS, 2007 ONCA 311 (CanLII), per curiam

Exempt Firearms

84
[omitted (1) and (2)]

Certain weapons deemed not to be firearms

(3) For the purposes of sections 91 to 95 [firearm posssession offences], 99 to 101 [weapons trafficking offences], 103 to 107 [offences relating to transport and modifying firearms] and 117.03 [seizure, return and forfeiture on failure to produce authorization] of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms:

(a) any antique firearm;
(b) any device that is
(i) designed exclusively for signalling, for notifying of distress, for firing blank cartridges or for firing stud cartridges, explosive-driven rivets or other industrial projectiles, and
(ii) intended by the person in possession of it to be used exclusively for the purpose for which it is designed;
(c) any shooting device that is
(i) designed exclusively for the slaughtering of domestic animals, the tranquillizing of animals or the discharging of projectiles with lines attached to them, and
(ii) intended by the person in possession of it to be used exclusively for the purpose for which it is designed; and
(d) any other barrelled weapon, where it is proved that the weapon is not designed or adapted to discharge
(i) a shot, bullet or other projectile at a muzzle velocity exceeding 152.4 m per second or at a muzzle energy exceeding 5.7 Joules, or
(ii) a shot, bullet or other projectile that is designed or adapted to attain a velocity exceeding 152.4 m per second or an energy exceeding 5.7 Joules.
Exception — antique firearms

(3.1) Notwithstanding subsection (3) , an antique firearm is a firearm for the purposes of regulations made under paragraph 117(h) of the Firearms Act and subsection 86(2) [contravention of storage regulations, etc.] of this Act.
[omitted (4), (5) and (6)]

[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 84(3) and (3.1)