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.
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.
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."
- Appellate Review
The making of an order under s. 491 is a form of "punishment" and so is subject to appeal with leave under s. 675(1)(b).
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.
By changing the law, Parliament meant to expand the scope of mandatory forfiteure orders.
The Queen v Montague, 2012 ONSC 2300 (CanLII), per J De Wright J
R v Montague, 2014 ONCA 439 (CanLII), per Feldman J
Montague, ibid., at para 52
See R v Roberts, 2005 SKPC 88 (CanLII), per Tucker J, at para 16 (" plain reading of section 491 as it presently reads indicates that the basis for a mandatory forfeiture order has been expanded substantially since the cases of Pawlivsky, Annas, and Parsons were decided. The item involved is no longer just referred to as a “weapon” but now specifically includes, inter alia, a firearm. The mandatory order is no longer based upon the “use” of the weapon...")
Roberts, ibid., at para 17 ("The intention of Parliament was clearly to expand mandatory forfeiture orders to include situations and items which were not covered by the previous ambit of section 491.")
Forfeiture in the "Interests of the Safety" of Persons