Forfeiture of Weapons and Firearms

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General Principles

Where a firearm is seized and detained under s. 490(1) to (3), then the forfeiture process would be pursuant to s. 490(9). Alternatively, it could be forfeited as offence related property.

Forfeiture of Offence-related Weapons

Section 491 requires the forfeiture of weapons:

Forfeiture of weapons and ammunition

491 (1) Subject to subsection (2) [return of weapons, etc. that were seized], where it is determined by a court that

(a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or
(b) 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 and any such thing has been seized and detained,

the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.

Return to lawful owner

(2) If the court by which a determination referred to in subsection (1) [forfeiture of weapons, etc. that were seized] is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) [forfeiture of weapons, etc. that were seized] was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

Application of proceeds

(3) Where any thing in respect of which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2) [return of weapons, etc. that were seized], to the person who was, immediately prior to the sale, the lawful owner of the thing.
R.S., 1985, c. C-46, s. 491; 1991, c. 40, s. 30; 1995, c. 39, s. 152.
[annotation(s) added]

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Note up: 491(1), (2) and (3)

Under 491(1), the court shall order the forfeiture of weapons or ammunition where it is determined that:

  1. a weapon was used in the commission of an offence and the weapon has been seized by police, or
  2. 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.[1]

See R v Roberts, 2005 SKPC 88 (CanLII), per Tucker J
The Queen v Montague, 2012 ONSC 2300 (CanLII), per J De Wright J

  1. R v Montague, 2014 ONCA 439 (CanLII), per Feldman J, at para 52

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".

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 [x], 816 to 819 [x] 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]

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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 (NL PC), per Gorman J, at para 7
  2. R v Dagenais, 2009 SKPC 113 (CanLII), per Labach J
    R v Day, 2006 CanLII 26587 (ON SC), [2006] 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
  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)

See Also