Possession of a Restricted or Prohibited Firearm (Offence)
|Possession of a Restricted or Prohibited Firearm|
|s. 95 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||1 year incarceration 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Minimum||3 years incarceration** (first)|
5 years incarceration** (subseq.)
** see Constitutionality below
|Maximum||10 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Special Defences
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 Record Suspensions and Pardons
- 10 History
- 11 See Also
Offences relating to possession of a restricted or prohibited firearm are found in Part III of the Criminal Code relating to "Firearms and Other Weapons".
|Crown Election||Defence Election
|s. 95 [possession of a restricted or prohibited firearm]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
Offences under s. 95 [possession of a restricted or prohibited firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 95 [possession of a restricted or prohibited firearm]|
When charged under s. 95 [possession of a restricted or prohibited firearm] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 95 [possession of a restricted or prohibited firearm]||(varies)|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|"..., contrary to section XXX of the Criminal Code.|
Proof of the Offence
Proving possession of a restricted or prohibited weapon with ammunition under s. 95 should include:
Interpretation of the Offence
The mens rea is satisfied where the offender knew that he or she was in possession of a loaded firearm. This is a subjective standard and so can be proven by actual knowledge or wilful blindness, but not recklessness. Whether the firearm is prohibited or restricted does not matter and whether the accused knew it was prohibited or restricted is not a necessary element. So it is irrelevant whether the accused knew of the length and diameter of the barrel.
- Restricted Firearms
To prove that a weapon is a handgun can be made by inference based on the surrounding evidence alone, without need for the actual weapon in evidence.  Factors used to draw the inference include:
- accused’s conduct in relation to the weapon
- presence of any threats to shoot
- how people react to the weapon
- the description and use of the weapon
- absence of evidence to the contrary
R v Charbonneau, 2004 CanLII 9527 (ON CA),  OJ No 1503 (C.A.), per curiam, at para 3 (the judge had “the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge's finding that it was a handgun.”)
R v Willis, 2007 ONCJ 605 (CanLII), per Pringle J at 31
- R v Abdullah,  OJ No 6079 (S.C.J.)(*no CanLII links) at 29
- R v Dunchie,  OJ no 5455(*no CanLII links) at 55
Loaded and Unloaded
Loaded is not defined in the Criminal Code.
Unloaded is defined in the regulations to the Firearms Act, SC 1995, c. 39:
- “unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.
This definition equally applies to s. 95.
The Crown must prove that the accused intended to possess the weapon.
It must be proven that the accused knew that the gun was loaded and that the possession of the gun was unauthorized.
Knowledge that a gun was loaded can be inferred from the circumstances.
The mens rea does not require proof that the accused knew the barrel of the handgun was less than 105 mm.
For a conviction under section 95 (one) grounded needs to prove that the offender knew he was in the possession of a firearm that was loaded.supra
Knowledge that the possession was unauthorized can be proven by wilful blindness.
Any claim mistaken of mistaken belief of authorization must be "honestly held".
There is no need to prove that the accused knew that possession was unauthorized.
- R v Williams, 2009 ONCA 342 (CanLII), per Blair JA
R v Raglon, 2001 ABPC 117 (CanLII), per Allen J, at paras 9, 10, 65 and 66 -- court found knowledge, said the context of the possession would make the gun far more useful if loaded
R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam, at paras 12 to 14
- Williams, supra
R v MacDonald, 2012 NSCA 50 (CanLII), per Beveridge JA appealed 2014 SCC 3 (CanLII), per LeBel J
MacDonald (SCC), ibid.
- MacDonald, ibid.
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 95 [possession of a restricted or prohibited firearm]||summary election||12 months incarceration|
|s. 95 [possession of a restricted or prohibited firearm]||indictable election||10 years incarceration|
Offences under s. 95 [possession of a restricted or prohibited firearm] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 12 months incarceration.
- Minimum Penalties
If prosecuted by summary conviction, there is no mandatory minimum. If prosecuted by indictment, the mandatory minimum penalty is 3 years with no prior convictions and 5 years with one or more prior convictions.
The constitutionality of the mandatory minimum has been found to unconstitutional in several decisions.
The mandatory minimum came into force on May 1, 2008. This does not apply to offences pre-dating the amendment. Subsequent offences include any conviction under s. 85, 95, 96, 98, 98.1, 99, 100, 102 or 103.
- Available Dispositions
s. 718.3, 787
|s. 95 [possession of a restricted or prohibited firearm]||summary election|
|s. 95 [possession of a restricted or prohibited firearm]
With or Without Prior Convictions
When prosecuted by indictment, discharges and conditional sentences are not available.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
- Increased Penalties
Notice is required under s. 727 for increased penalties.
Section 84(5) and (6) must be complied with for increased penalties. 
As with all mandatory minimums, the minimum is an "inflationary floor" which sets a minimal punishment for the "best" offender.
The "possession of a loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and a trigger-pull away."
The range of sentences for convictions under s. 95 will usually be a penitentiary sentence, even for first time offenders. The lowest range will still be in the high end range of reformatory sentences of less than two years.
Most convictions under s. 95 should "attract a penitentiary term even for first offenders". "Less serious" versions of these offences will "demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders".
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 95 [possession of a restricted or prohibited firearm]||
|Weapons Prohibition Orders||s. 95(1)||
Circumstance-specific Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "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 has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Other Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
Record Suspensions and Pardons
Convictions under s. 95(1) are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".