Seizure of Firearms: Difference between revisions

Latest revision as of 14:38, 14 July 2024

This page was last substantively updated or reviewed March 2017. (Rev. # 95463)

General Principles

See also: Weapon Offences

Firearms can be seized by one of several methods:

general warrantless seizure powers under s. 489;
warrant seizure powers under s. 487;
exigent seizure powers when firearm believed to be involved in an offence under s. 117.02;
seizure from a person without documentation under s. 117.03; and
seizure on belief of danger to self or public (no warrant if exigent) under s. 117.04.

Exigent Circumstances Under s. 117.02

Under s.117.02, an officer believes that a firearm or related item^[1] "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item^[2] and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant."^[3]

Section 117.02 can authorize the warrantless search of a bag that they are told contains a loaded handgun in exigent circumstances.^[4]

Section 117.02 states:

Search and seizure without warrant where offence committed

117.02 (1) Where a peace officer believes on reasonable grounds

(a) that 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, or

(b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,

and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.

Disposition of seized things

(2) Any thing seized pursuant to subsection (1) [search and seizure for firearms without warrant – power] shall be dealt with in accordance with sections 490 [detention, access and disposal of things seized] and 491 [forfeiture or return of weapons and ammo].
1995, c. 39, s. 139.

– CCC (CanLII), (DOJ)

Note up: 117.02 (1) and (2)

Defined terms: "ammunition", "dwelling-house", "explosive substance", "imitation firearm", "peace officer", "place", "prohibited ammunition", "prohibited device", and "weapon"

↑ a prohibited device, any ammunition, any prohibited ammunition or an explosive substance
↑ firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance
↑ see also s 487, 487.11
↑ R v Narayan, 2007 BCCA 429 (CanLII), 245 BCAC 243, per Finch CJ

Seizure on Failure to Produce Authorization

Seizure on failure to produce authorization

117.03 (1) Despite section 117.02 [search and seizure for firearms without warrant], a peace officer who finds

(a) a person in possession of a prohibited firearm, a restricted firearm or a non-restricted firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it, or

(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,

may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.

Return of seized thing on production of authorization

(2) If a person from whom any thing is seized under subsection (1) [seizure on failure to produce authorization] claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,

(a) a licence under which the person is lawfully entitled to possess it, and

(b) in the case of a prohibited firearm or a restricted firearm, an authorization and registration certificate for it,

the thing shall without delay be returned to that person.

Forfeiture of seized thing

(3) Where any thing seized pursuant to subsection (1) [seizure on failure to produce authorization] is not claimed and returned as and when provided by subsection (2) [return after seizure on failure to produce authorization], a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.
1995, c. 39, s. 139; 2012, c. 6, s. 8; 2015, c. 27, s. 33.

– CCC (CanLII), (DOJ)

Note up: 117.03 (1), (2) and (3)

Failure to Produce Authorization

Under s. 117.03, where a person is found in possession of a firearm or related items and cannot produce the appropriate documents authorizing them to possess it, an officer may seize the items. If the proper documentation is produced within 14 days, the officer must return the items seized. If 14 days pass without producing the authorization, the officer may apply to the court to have the firearm forfeited.

Danger to Self or Public

Seizure and Forfeiture of Firearms for Public Safety

@@ Line 1: / Line 1: @@
+[[fr:Saisie_d%27armes_à_feu]]
+{{Currency2|March|2017}}
 {{LevelZero}}{{HeaderProperty}}
 ==General Principles==
+{{seealso|Weapon Offences}}
 Firearms can be seized by one of several methods:
 * general warrantless seizure powers under s. 489;
@@ Line 9: / Line 12: @@
 ==Exigent Circumstances Under s. 117.02==
-Under s.117.02, an officer believes that a firearm or related item<ref> a prohibited device, any ammunition, any prohibited ammunition or an explosive substance</ref> "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item<ref>firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance</ref> and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant".<ref>
+Under s.117.02, an officer believes that a firearm or related item<ref> a prohibited device, any ammunition, any prohibited ammunition or an explosive substance</ref> "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item<ref>firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance</ref> and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant."<ref>
 see also s 487, 487.11</ref>
 Section 117.02 can authorize the warrantless search of a bag that they are told contains a loaded handgun in exigent circumstances.<ref>
-{{CanLIIR|Narayan|1srl6|2007 BCCA 429 (CanLII)}}{{perBCCA|Finch CJ}}<br>
+{{CanLIIRP|Narayan|1srl6|2007 BCCA 429 (CanLII)|245 BCAC 243}}{{perBCCA|Finch CJ}}<br>
 </ref>
 Section 117.02 states:
-{{quotation|
+{{quotation3|
 ; Search and seizure without warrant where offence committed
 .02 (1) Where a peace officer believes on reasonable grounds
@@ Line 26: / Line 29: @@
 <br>
 ; Disposition of seized things
-(2) Any thing seized pursuant to subsection (1) shall be dealt with in accordance with sections 490 and 491.
+(2) Any thing seized pursuant to subsection (1) {{AnnSec1|117.02(1)}} shall be dealt with in accordance with sections 490 {{AnnSec4|490}} and 491 {{AnnSec4|491}}.
 <br>
 {{LegHistory90s|1995, c. 39}}, s. 139.
-|[{{CCCSec|117.02}} CCC]
+|{{CCCSec2|117.02}}
+|{{NoteUp|117.02|1|2}}
+|{{terms-
+|"ammunition"
+|"dwelling-house"
+|"explosive substance"
+|"imitation firearm"
+|"peace officer"
+|"place"
+|"prohibited ammunition"
+|"prohibited device"
+|"weapon"
+}}
 }}
@@ Line 36: / Line 51: @@
 ==Seizure on Failure to Produce Authorization==
-{{quotation|
+{{quotation2|
 ; Seizure on failure to produce authorization
-.03 (1) Despite section 117.02, a peace officer who finds
+.03 (1) Despite section 117.02 {{AnnSec1|117.02}}, a peace officer who finds
 :(a) a person in possession of a prohibited firearm, a restricted firearm or a non-restricted firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it, or
 :(b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it,
@@ Line 44: / Line 59: @@
 <br>
 ; Return of seized thing on production of authorization
-(2) If a person from whom any thing is seized under subsection (1) claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,
+(2) If a person from whom any thing is seized under subsection (1) {{AnnSec1|117.03(1)}} claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it,
 :(a) a licence under which the person is lawfully entitled to possess it, and
 :(b) in the case of a prohibited firearm or a restricted firearm, an authorization and registration certificate for it,
@@ Line 50: / Line 65: @@
 ; Forfeiture of seized thing
-(3) Where any thing seized pursuant to subsection (1) is not claimed and returned as and when provided by subsection (2), a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.
+(3) Where any thing seized pursuant to subsection (1) {{AnnSec1|117.03(1)}} is not claimed and returned as and when provided by subsection (2) {{AnnSec1|117.03(2)}}, a peace officer shall forthwith take the thing before a provincial court judge, who may, after affording the person from whom it was seized or its owner, if known, an opportunity to establish that the person is lawfully entitled to possess it, declare it to be forfeited to Her Majesty, to be disposed of or otherwise dealt with as the Attorney General directs.
 <br>
-{{LegHistory90s|1995, c. 39}}, s. 139; 2012, c. 6, s. 8;
+{{LegHistory90s|1995, c. 39}}, s. 139;
+{{LegHistory10s|2012, c. 6}}, s. 8;
 {{LegHistory10s|2015, c. 27}}, s. 33.
-|[{{CCCSec|117.03}} CCC]
+|{{CCCSec2|117.03}}
+|{{NoteUp|117.03|1|2|3}}
 }}
@@ Line 61: / Line 78: @@
 ==Danger to Self or Public==
-Under s.117.04, an officer may seize a firearm from someone in lawful possession of it where the officer believes he may pose a danger to themselves or the public. A warrant is required unless there are exigent circumstances such that "by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant".(s. 117.04(2))
+* [[Seizure and Forfeiture of Firearms for Public Safety]]
-Under 117.04(2), an officer may search for and seize weapon-related items where it is in the "interests of the safety".
-{{Quotation|
-; Application for warrant to search and seize
-.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
-<br>
-; Search and seizure without warrant
-(2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person.
-<br>
-; Return to justice
-(3) A peace officer who executes a warrant referred to in subsection (1) or who conducts a search without a warrant under subsection (2) shall forthwith make a return to the justice who issued the warrant or, if no warrant was issued, to a justice who might otherwise have issued a warrant, showing
-:(a) in the case of an execution of a warrant, the things or documents, if any, seized and the date of execution of the warrant; and
-:(b) in the case of a search conducted without a warrant, the grounds on which it was concluded that the peace officer was entitled to conduct the search, and the things or documents, if any, seized.
-; Authorizations, etc., revoked
-(4) Where a peace officer who seizes any thing under subsection (1) or (2) is unable at the time of the seizure to seize an authorization or a licence under which the person from whom the thing was seized may possess the thing and, in the case of a seized firearm, a registration certificate for the firearm, every authorization, licence and registration certificate held by the person is, as at the time of the seizure, revoked.
-<br>
-{{LegHistory90s|1995, c. 39}}, s. 139; {{LegHistory00s|2004, c. 12}}, s. 3.
-|[{{CCCSec|117.04}} CCC]
-}}
-{{quotation|
-; Where no finding or application
-.06 (1) Any thing or document seized pursuant to subsection 117.04(1) or (2) shall be returned to the person from whom it was seized if
-:(a) no application is made under subsection 117.05(1) within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be; or
-:(b) an application is made under subsection 117.05(1) within the period referred to in paragraph (a), and the justice does not make a finding as described in subsection 117.05(4).
-; Restoration of authorizations
-(2) Where, pursuant to subsection (1), any thing is returned to the person from whom it was seized and an authorization, a licence or a registration certificate, as the case may be, is revoked pursuant to subsection 117.04(4), the justice referred to in paragraph (1)(b) may order that the revocation be reversed and that the authorization, licence or registration certificate be restored.
-<br>
-{{LegHistory90s|1995, c. 39}}, s. 139.
-|[{{CCCSec|117.06}} CCC]
-}}
-Under s.117.05, the officer may apply to forfeit the firearm after 30 days where it can be established that forfeiture is in the "interests of the safety of the person". (see [[Forfeiture Orders#interests of the safety|Forfeiture Orders]])
-{{reflist|2}}
 ==See Also==