Weapons Offences (Sentencing)

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General Principles

Firearms

Possession of a loaded firearm is inherently dangerous. Death and serious injury are only a "impulse and trigger pull away".[1]

Offences involving handguns is a “serious and growing societal danger”.[2]

There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[3] This is necessary in order to maintain confidence in the administration of justice.[4]

Handguns

One distinctive feature of illegal handgun offences is that the guns are exclusively "used to kill people or threaten them with physical harm".[5]

Range of Conduct

For firearms offences, such as those under s. 95, there is a broad spectrum of culpability, ranging from the "outlaw" who is “engaged in truly criminal conduct” and who "poses a real and immediate danger to the public" at one end. And at the other end the "law-abiding responsible gun owner...with readily accessible ammunition stored nearby" but possesses an illegal firearm.[6]

Ontario Ranges

Ontario has set a range of 7 to 11 years for "serious firearm offences".[7]

Judicial Notice of Increase in Gun Violence

There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[8]

  1. R v Chin, 2009 ABCA 226 (CanLII), [2009] AJ No 711 (C.A.), per curiam
    see also R v Elliston, 2010 ONSC 6492 (CanLII), per Aston J
    Foster v Prince, 2012 ONSC 205 (CanLII), [2012] O.J. No. 89 (O.S.C.), per MacLeod J, at para 18
  2. R v Clayton, 2005 CaLII 16569 (ONCA), per Doherty JA at 41
  3. R v Danvers [2005] OJ 3532, 2005 CanLII 30044 (ONCA), per Armstrong JA, at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, per Boswell J, at para 76
    R v Brown, 2006 CanLII 39311 (ON SC), [2006] O.J. No. 4681 (Ont. S.C.J.), per Trafford J, at para 9
    R v Gomes, 2015 ONCA 763 (CanLII), per curiam, at para 4 ("...possession of deadly prohibited firearms requires a denunciatory sentence.")
  4. R v Whervin, [2006] O.J. No. 443 (S.C.J.)(*no CanLII links) , at para 14
    R v David, [2006] O.J. No. 3833 (S.C.J.)(*no CanLII links)
  5. R v Omar, 2018 ONCA 975 (CanLII) (CanLII), per Brown JA (dissenting), at para 123 SCC adopts opinion of Brown at 2019 SCC 32 (CanLII)
  6. R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA, at para 51
  7. R v Bellissimo, 2009 ONCA 49 (CanLII), per curiam, at para 3
    R v Danvers (2005), 2005 CanLII 30044 (ON CA)(complete citation pending)
  8. R v Clayton, 2007 SCC 32 (CanLII), per Abella J, at para 110

Notice of Increased Penalties

See also: Notice of Increased Penalty

Section 84(5) and (6) state:

84.
[omitted (1), (2), (3), (3.1) and (4)]

Subsequent offences

(5) In determining, for the purpose of subsection 85(3) [use of firearm in commission of an offence – punishment], 95(2) [possession of prohibited or restricted firearm with ammo – punishment], 99(2) [firearms trafficking – punishment], 100(2) or 103(2) , whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under section 85 [use of firearm or imitation in commission of an offence], 95 [possession of prohibited or restricted firearm with ammunition], 96 [possession of weapon obtained by commission of offence], 98 [breaking and entering to steal firearm], 98.1 [robbery to steal firearm], 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 102 [making automatic firearm] or 103 [importing or exporting firearms knowing it is unauthorized] or subsection 117.01(1) [possession contrary to order – order];
(b) an offence under section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness]; or
(c) an offence under section 220 [criminal negligence causing death], 236 [manslaughter], 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking], 344 [robbery] or 346 [extortion] if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only

(6) For the purposes of subsection (5) [determining subsequent offences for various firearms offences], the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 84; R.S., 1985, c. 27 (1st Supp.), ss. 185(F), 186; 1991, c. 40, s. 2; 1995, c. 39, s. 139; 1998, c. 30, s. 16; 2003, c. 8, s. 2; 2008, c. 6, s. 2; 2009, c. 22, s. 2; 2015, c. 3, s. 45.
[annotation(s) added]

CCC


Note up: 84(5) and (6)

Ranges

Ontario

Where an offender "is an outlaw who carries a loaded firearm as a tool of his or her trade, a penitentiary sentence of 3 or more years is generally appropriate"[1]

Newfoundland and Labrador

The lower end of the range for firearm offences is 5 years.[2]

  1. R v Shomonov, 2016 ONSC 4015 (CanLII), per McCombs J, at para 12
    R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 82
  2. R v Marsh, 2017 CanLII 84460 (NL SCTD), per Goodridge J, at para 20

See Also