Forfeiture of Weapons and Firearms
Section 491 requires the forfeiture of weapons:
Under 491(1), the court shall order the forfeiture of weapons or ammunition where it is determined that:
- a weapon was used in the commission of an offence and the weapon has been seized by police, or
- an offence involved or the subject-matter is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and it has been seized
If so, the thing seized is to be "forfeited to Her Majesty and shall be disposed of as the Attorney General directs."
In December 1998, s. 491(1) was amended to expand the application of mandatory forfeiture order to include firearms that are the subject-matter of the offence regardless of whether they were used in the offence. The purpose was the address the problem of the circulation of illegal guns in the public as well as those who hold guns legally.
Forfeiture in the "Interests of the Safety" of Persons
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".
In order to succeed in an application for a forfeiture order, the applicant must prove:
- the respondent is the owner of the item to be forfeited
- 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."
Hearsay evidence is admissible in a hearing under s. 117.05.
R v Robinson, 2011 CanLII 3758 (NL PC), per Gorman J, at para 7
R v Dagenais, 2009 SKPC 113 (CanLII), per Labach J
R v Day, 2006 CanLII 26587 (ON SC),  OJ No 3187 (S.C.J.), per Durno J, at para 36
R v Douglas, 2013 ONCJ 649 (CanLII), per M Green J, at paras 46 to 48
- R v Zeolkowski, 1989 CanLII 72 (SCC),  1 SCR 1378, per Sopinka J
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.
- s. 117.05(4)(b)