Possession of a Weapon for a Dangerous Purpose (Offence)
|Possession of a Weapon for a Dangerous Purpose|
|s. 88 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||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Avail. Disp.||Discharge (730)|
|Maximum||10 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 Record Suspensions and Pardons
- 9 See Also
Offences relating to possession of a weapon for a dangerous purpose are found in Part III of the Criminal Code relating to "Firearms and Other Weapons".
|Crown Election||Defence Election
|s. 88 [possession of a weapon for a dangerous purpose]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
Offences under s. 88 [possession of a weapon for a dangerous purpose] 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
When charged under s. 88 [possession of a weapon for a dangerous purpose] , 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)).
- Fingerprints and Photos
A peace officer who charges a person under s. 88 [possession of a weapon for a dangerous purpose] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- 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. 88 [possession of a weapon for a dangerous purpose]|
Offences under s. 88 [possession of a weapon for a dangerous purpose] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
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 weapon for dangerous purpose under s. 88 should include:
Interpretation of the Offence
The actus reus of the offence is established through possession.
To make out the offence there must be "possession and proof that the purpose of that possession was one dangerous to the public."  The two elements must occur at the same time to be an offence. 
Much of s. 88 consideration is upon the purpose for which the accused possessed the weapon.
Possessing a weapon in a reckless manner is not sufficient for proof of s.88. 
Proof of the purpose for possessing the weapon may be established by the manner in which the weapon is used, circumstances and statements surrounding its use and the rational inferences to be drawn from the facts
A person's initial intent in possessing a weapon "does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possession was not a dangerous one."
It has been suggested that the lawful possession of a weapon does not suddenly become unlawful by virtue of the possessor acting out in sudden anger with the weapon.
It is not sufficient to simply establish that "what was done was in fact dangerous to the public peace". There must be an intent for that purpose. 
A person intending to commit suicide will commit this offence if there is an awareness of risk to someone who may try to stop him.
R v Chalifoux (1974), 14 CCC (2d) 526 (BCCA), 1973 CanLII 1355 (BC CA), per Branca JA, at p. 529
R v Flack,  1 CCC 55 (BCCA), 1968 CanLII 812 (BC CA), per Davey CJ, at p. 56
- R v Calder (1984), 1984 ABCA 45 (CanLII), 11 CCC (3d) 546 (Alta. C.A.), per McGillivray JA, at p. 549
- Flack, supra
- R v Kerr, 2003 ABCA 92 (CanLII), (2003), 12 C.R. (6th) 308 (Alta. C.A.), per Berger JA, at para 27
- R v Bell, 2016 ONCJ 145 (CanLII), per Crewe J
Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.
Analysis of Firearm
- Analysis of Firearms - certificate of analysis s. 117.13
- "Weapons" is defined in s. 2.
- "Prohibited device", "ammunition" and "prohibited ammunition" are defined in s. 84.
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
- See Weapons Offences (Sentencing) for general principles
- Maximum Penalties
|s. 88 [possession of a weapon for a dangerous purpose]||summary election||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|s. 88 [possession of a weapon for a dangerous purpose]||indictable election||10 years incarceration|
Offences under s. 88 [possession of a weapon for a dangerous purpose] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 88 [possession of a weapon for a dangerous purpose]||any|
Offences under s. 88 [possession of a weapon for a dangerous purpose] are ineligible for a conditional sentence order under s. 742.1(e), when (i) prosecuted by way of indictment and where the maximum penalty is 10 years incarceration, that resulted in "bodily harm", "involved the import, export, trafficking or production of drugs", or "involved the use of a weapon".
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 88 [possession of a weapon for a dangerous purpose]||
|Weapons Prohibition Orders||s. 88 [possession of a weapon for a dangerous purpose]||
- General 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.|
- General 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. 88 [possession of a weapon for a dangerous purpose] 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".