Definition of Weapons: Difference between revisions

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[[Fr:Définition_des_armes]]
{{Currency2|January|2020}}
{{LevelZero}}
{{LevelZero}}
{{HeaderCrimLaw}}
{{HeaderCrimLaw}}
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==General Principles==
==General Principles==
{{seealso|Definition of Firearms}}
{{seealso|Definition of Firearms}}
[[File:weapons.png|400px|thumb|right|categories of weapons]]
A number offences in the Criminal Code concern "weapons". Those offences include:
A number offences in the Criminal Code concern "weapons". Those offences include:
* [[Possession of a Weapon for a Dangerous Purpose (Offence)|Possession of a Weapon for a Dangerous Purpose]] (88)
* [[Possession of a Weapon for a Dangerous Purpose (Offence)|Possession of a Weapon for a Dangerous Purpose]] (88)
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{{History-S2}}
{{History-S2}}
{{Annotation}}
{{Annotation}}
|[{{CCCSec|2}} CCC]
|{{CCCSec2|2}}
|{{NoteUp|2}}
|{{NoteUp|2}}
}}
}}
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{{History-S2}}
{{History-S2}}
{{Annotation}}
{{Annotation}}
|[{{CCCSec|2}} CCC]
|{{CCCSec2|2}}
|{{NoteUp|2}}
|{{NoteUp|2}}
}}
}}
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{{LegHistory00s|2009, c. 22}}, s. 1.
{{LegHistory00s|2009, c. 22}}, s. 1.
{{Annotation}}
{{Annotation}}
|[{{CCCSec|2.1}} CCC]
|{{CCCSec2|2.1}}
|{{NoteUp|2.1}}
|{{NoteUp|2.1}}
}}
}}
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Whether an object is a weapon is a subjective test and depends on all the circumstances. The accused must have intended to use of the object as a weapon.<ref>
Whether an object is a weapon is a subjective test and depends on all the circumstances. The accused must have intended to use of the object as a weapon.<ref>
{{ibid1|Roberts}}<br>
{{ibid1|Roberts}}<br>
{{CanLIIRP|Murray|g1g1g|1991 CanLII 7116 (ONCA)|, 65 CCC (3d) 507 (ONCA)}}{{TheCourtONCA}}<br>
{{CanLIIRP|Murray|g1g1g|1991 CanLII 7116 (ON CA)|65 CCC (3d) 507}}{{TheCourtONCA}}<br>
</ref>
</ref>


A weapon includes: <ref>
A weapon includes: <ref>
{{CanLIIRP|Califoux|g96w3|1973 CanLII 1355 (BCCA)|, 14 CCC (2d) 526 (BCCA)}}{{perBCCA|Branca JA}} at 13</ref>
{{CanLIIRP|Califoux|g96w3|1973 CanLII 1355 (BC CA)|14 CCC (2d) 526 (BCCA)}}{{perBCCA|Branca JA}} at 13</ref>
# anything designed to be used as a weapon;
# anything designed to be used as a weapon;
#anything that a person uses as a weapon, whether that thing is designed as a weapon or not;  and  
#anything that a person uses as a weapon, whether that thing is designed as a weapon or not;  and  
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A suggested general analytical approach to determine whether an object is a "weapon" under s. 2 requires the Court to ask the following three questions:
A suggested general analytical approach to determine whether an object is a "weapon" under s. 2 requires the Court to ask the following three questions:
<ref>
<ref>
{{CanLIIR|DAC|1rvx9|2007 ABPC 171 (CanLII)}}{{perABPC|Dalton J}}</ref>
{{CanLIIRP|DAC|1rvx9|2007 ABPC 171 (CanLII)|428 AR 355}}{{perABPC|Dalton J}}</ref>
#Did the accused ''in fact use'' the object to cause death or injury, or to threaten or intimidate any person?
#Did the accused ''in fact use'' the object to cause death or injury, or to threaten or intimidate any person?
#Did the accused ''intend to use'' the object to cause death or injury or to threaten or intimidate any person?
#Did the accused ''intend to use'' the object to cause death or injury or to threaten or intimidate any person?
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Weapons do not need to be restricted to inanimate objects. A dog can be found to be a weapon.<ref>
Weapons do not need to be restricted to inanimate objects. A dog can be found to be a weapon.<ref>
{{CanLIIRP|McLeod|gbtrv|1993 CanLII 14674 (YK CA)|, 84 CCC (3d) 336 (Y.T.C.A.)}}{{perYKCA|Toy JA}}
{{CanLIIRP|McLeod|gbtrv|1993 CanLII 14674 (YK CA)|84 CCC (3d) 336}}{{perYKCA|Toy JA}}
</ref>
</ref>


The focus is generally not on the nature of the object but on its use and capacity to cause bodily harm or death.<ref>
The focus is generally not on the nature of the object but on its use and capacity to cause bodily harm or death.<ref>
{{ibid1|McLeod}} ("focus of the definition has been shifted from the character of the instrumentality in question to the result of its use or the purpose for which it was used.")<br>
{{ibid1|McLeod}} ("focus of the definition has been shifted from the character of the instrumentality in question to the result of its use or the purpose for which it was used.")<br>
{{CanLIIR|Richards|1mrxg|1992 CanLII 2601 (NSCA)}}{{perNSCA|Hallett JA}} ("an object may become a weapon whether designed for that purpose or not, if it is used to cause death or injury or alternatively if the possessor intended to use it to cause death or injury.")<br>
{{CanLIIRP|Richards|1mrxg|1992 CanLII 2601 (NS CA)|72 CCC (3d) 349}}{{perNSCA|Hallett JA}} ("an object may become a weapon whether designed for that purpose or not, if it is used to cause death or injury or alternatively if the possessor intended to use it to cause death or injury.")<br>
</ref>
</ref>


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===Other types of Guns===
===Other types of Guns===
Any device that fits the definition of firearm will be a weapon.<ref>
Any device that fits the definition of firearm will be a weapon.<ref>
{{CanLIIRP|Felawka|1frx0|1993 CanLII 36 (SCC)|, [1993] 4 SCR 199 (CanLII)}}{{perSCC|Cory J}}<br>
{{CanLIIRP|Felawka|1frx0|1993 CanLII 36 (SCC)|[1993] 4 SCR 199}}{{perSCC|Cory J}}<br>
{{CanLIIRP|Formosa|gc29n|1992 CanLII 12828 (ONCA)| (1993) 79 CCC (3d) 95}}{{TheCourtONCA}} ("all objects which are firearms as defined in s. 84 come within the definition of "weapon" found in s. 2 of the Criminal Code")<br>
{{CanLIIRP|Formosa|gc29n|1992 CanLII 12828 (ON CA)| (1993) 79 CCC (3d) 95}}{{TheCourtONCA}} ("all objects which are firearms as defined in s. 84 come within the definition of "weapon" found in s. 2 of the Criminal Code")<br>
cf. {{CanLIIR|James|fkpqr|2011 ONCJ 125 (CanLII)}}{{perONCJ|Duncan J}}<br>
cf. {{CanLIIRx|James|fkpqr|2011 ONCJ 125 (CanLII)}}{{perONCJ|Duncan J}}<br>
</ref>
</ref>


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{{CanLIIR-N|Boutilier|, [1977] 4 WWR 443 (BCCA)}}</ref>
{{CanLIIR-N|Boutilier|, [1977] 4 WWR 443 (BCCA)}}</ref>
* pellet gun not necessarily a weapon<ref>
* pellet gun not necessarily a weapon<ref>
{{CanLIIR|Labrecque|fl909|2011 ONCA 360 (CanLII)}}{{TheCourtONCA}}</ref>. One suggestion is that a pellet gun can be a firearm where it passes the "pig's eye test", which considers whether the pellet's velocity surpasses 246 feet per second, which is sufficient to cause serious bodily harm.<ref>
{{CanLIIRx|Labrecque|fl909|2011 ONCA 360 (CanLII)}}{{TheCourtONCA}}</ref>. One suggestion is that a pellet gun can be a firearm where it passes the "pig's eye test", which considers whether the pellet's velocity surpasses 246 feet per second, which is sufficient to cause serious bodily harm.<ref>
{{CanLIIR|Crawford|gj2fv|2015 ABCA 175 (CanLII)}}{{perABCA|Martin JA}}<br>
{{CanLIIRP|Crawford|gj2fv|2015 ABCA 175 (CanLII)|322 CCC (3d) 528}}{{perABCA|Martin JA}}<br>
{{CanLIIR|Maguire|frqc7|2012 ONCJ 366 (CanLII)}}{{perONCJ|Cooper J}}{{atL|frqc7|12}} ("it can still be a firearm for non-registration and non-licensing offences if it is capable of causing serious bodily injury or death, and this threshold is met when the muzzle velocity is 246 feet per second or greater. At this speed the projectile can puncture an eye, and this is the standard used to measure “serious bodily harm.” A learned paper is attached to this Firearm Examination Report, which reveals that pig eyes, not human eyes, were used in the scientic experiment which was conducted.")<br>
{{CanLIIRx|Maguire|frqc7|2012 ONCJ 366 (CanLII)}}{{perONCJ|Cooper J}}{{atL|frqc7|12}} ("it can still be a firearm for non-registration and non-licensing offences if it is capable of causing serious bodily injury or death, and this threshold is met when the muzzle velocity is 246 feet per second or greater. At this speed the projectile can puncture an eye, and this is the standard used to measure “serious bodily harm.” A learned paper is attached to this Firearm Examination Report, which reveals that pig eyes, not human eyes, were used in the scientic experiment which was conducted.")<br>
{{CanLIIR|Sather|1w17m|2008 ONCJ 98 (CanLII)}}{{perONCJ|Blouin J}}{{atL|1w17m|13}}<br>
{{CanLIIRx|Sather|1w17m|2008 ONCJ 98 (CanLII)}}{{perONCJ|Blouin J}}{{atL|1w17m|13}}<br>
</ref>
</ref>


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The intent must be proven subjectively and objectively.<ref>
The intent must be proven subjectively and objectively.<ref>
{{CanLIIRP|LBS|gbtvn|1993 CanLII 8843 (SKQB)|, [1993] S.J. No. 512, 21 W.C.B. (2d) 279 (Q.B.)}}{{perSKQB|Lawton J}} - case uses new definition of weapon under s.2</ref>
{{CanLIIRP|LBS|gbtvn|1993 CanLII 8843 (SK QB)|[1993] S.J. No 512, 21 WCB (2d) 279 (Q.B.)}}{{perSKQB|Lawton J}} - case uses new definition of weapon under s.2</ref>


{{reflist|2}}
{{reflist|2}}
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===Knife===
===Knife===
Where a knife is used to intimidate or threaten a person, it becomes a weapon.<ref>
Where a knife is used to intimidate or threaten a person, it becomes a weapon.<ref>
{{CanLIIRP|MacDonald|1cf10|2002 CanLII 14251 (ONCA)| (2002), 170 CCC (3d) 46 (ONCA)}}{{perONCA|Doherty JA}}{{atL|1cf10|28}}</ref>
{{CanLIIRP|MacDonald|1cf10|2002 CanLII 14251 (ON CA)|170 CCC (3d) 46}}{{perONCA-H|Doherty JA}}{{atL|1cf10|28}}</ref>


{{reflist|2}}
{{reflist|2}}
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===Bear Spray===
===Bear Spray===
In certain courts, bear spray has been established as a weapon. It is usually necessary to have forensic expert testimony.<ref>
In certain courts, bear spray has been established as a weapon. It is usually necessary to have forensic expert testimony.<ref>
{{CanLIIR|Meier|fqtt9|2012 SKPC 41 (CanLII)}}{{perSKPC|Morgan J}} at 101</ref>
{{CanLIIRP|Meier|fqtt9|2012 SKPC 41 (CanLII)|394 Sask R 204}}{{perSKPC|Morgan J}} at 101</ref>


{{reflist|2}}
{{reflist|2}}
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===Stun Gun===
===Stun Gun===
A stun gun or taser is a weapon that is prohibited.<ref>
A stun gun or taser is a weapon that is prohibited.<ref>
e.g. {{CanLIIR|Greening|fw1w6|2013 CanLII 5319 (NLPC)}}{{perNLPC|Gorman J}}{{atL|fw1w6|1}}<br>
e.g. {{CanLIIRx|Greening|fw1w6|2013 CanLII 5319 (NL PC)}}{{perNLPC|Gorman J}}{{atL|fw1w6|1}}<br>
see also [https://en.wikipedia.org/wiki/Electroshock_weapon Electro shock weapons (wikipedia)]
see also [https://en.wikipedia.org/wiki/Electroshock_weapon Electro shock weapons (wikipedia)]
</ref>
</ref>


Such weapons generate electrical current which, when in contact with skin, creates "pain compliance".<ref>
Such weapons generate electrical current which, when in contact with skin, creates "pain compliance."<ref>
see {{CanLIIRP|Lambert|fmlvh|2011 ONSC 4740 (CanLII)|, [2011] OJ No 3665 (S.C.)}}{{perONSC|Kelly J}}{{atL|fmlvh|24}}<br>
see {{CanLIIRP|Lambert|fmlvh|2011 ONSC 4740 (CanLII)|[2011] OJ No 3665 (S.C.)}}{{perONSC|Kelly J}}{{atL|fmlvh|24}}<br>
{{CanLIIRP|Krawcar|fl90d|2011 ONCJ 236 (CanLII)|, [2011] OJ No 2056 (C.J.)}}{{perONCJ|Watson J}}{{atsL|fl90d|34| and 35}}<br>  
{{CanLIIRP|Krawcar|fl90d|2011 ONCJ 236 (CanLII)|[2011] OJ No 2056 (C.J.)}}{{perONCJ|Watson J}}{{atsL|fl90d|34| and 35}}<br>  
{{CanLIIRP|Dhaliwal|1vq8z|2007 BCSC 1936 (CanLII)|, [2007] BCJ No. 2874 (S.C.)}}{{perBCSC|Groberman J}}{{atsL|1vq8z|1| to 5}}<br>
{{CanLIIRP|Dhaliwal|1vq8z|2007 BCSC 1936 (CanLII)|[2007] BCJ No 2874 (S.C.)}}{{perBCSC|Groberman J}}{{atsL|1vq8z|1| to 5}}<br>
</ref>
</ref>


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2008, c. 6, s. 2;  
2008, c. 6, s. 2;  
2009, c. 22, s. 2;
2009, c. 22, s. 2;
2015, c. 3, s. 45, c. 27, s. 18.
{{LegHistory10s|2015, c. 3}}, s. 45, c. 27, s. 18;
|[{{CCCSec|84}} CCC]
2019, c. 9, s. 16;
2022, c. 15, s. 1;
2023, c. 32, s. 1.
|{{CCCSec2|84}}
|{{NoteUp|84}}
|{{NoteUp|84}}
}}
}}
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A variety of items have been found to be a weapon in certain circumstances:
A variety of items have been found to be a weapon in certain circumstances:
*A broken piece of glass<ref>  
*A broken piece of glass<ref>  
{{CanLIIRP|Allan|htvsl|1971 CanLII 1229 (NB CA)| (1971), 4 CCC (2d) 521 (NBCA)}}{{perNBCA|Bulgold JA}}</ref>
{{CanLIIRP|Allan|htvsl|1971 CanLII 1229 (NB CA)|4 CCC (2d) 521 (NBCA)}}{{perNBCA|Bulgold JA}}</ref>
* A vehicle <ref>see {{CanLIIRP|McLeod|gbtrv|1993 CanLII 14674 (YK CA)|, 84 CCC (3d) 336 (Y.T.C.A.)}}{{perYKCA|Toy JA}}<br>  
* A vehicle <ref>see {{CanLIIRP|McLeod|gbtrv|1993 CanLII 14674 (YK CA)|84 CCC (3d) 336}}{{perYKCA|Toy JA}}<br>  
{{CanLIIR|Lamy|51t2|2002 SCC 25 (CanLII)}}{{perSCC|Arbour J}}</ref>
{{CanLIIRP|Lamy|51t2|2002 SCC 25 (CanLII)|[2002] 1 SCR 860}}{{perSCC-H|Arbour J}}</ref>
* Any sort of bomb<ref>
* Any sort of bomb<ref>
{{CanLIIR|Malang|g18q2|1982 CanLII 2029 (ONCA)}}{{perONCA|Howland CJ}}<br>
{{CanLIIRP|Malang|g18q2|1982 CanLII 2029 (ON CA)|65 CCC (2d) 371}}{{perONCA|Howland CJ}}<br>
</ref>
</ref>
* A bottle of peanut butter that was thrown<ref>
* A bottle of peanut butter that was thrown<ref>
{{CanLIIRP|Vandergraf|g97h0|1994 CanLII 16617 (MB CA)|, 93 CCC (3d) 286 (Man. C.A.)}}{{perMBCA|Philp JA}}</ref>
{{CanLIIRP|Vandergraf|g97h0|1994 CanLII 16617 (MB CA)|93 CCC (3d) 286}}{{perMBCA|Philp JA}}</ref>
* a bottle of beer<ref>
* a bottle of beer<ref>
{{CanLIIRP|Richards|1mrxg|1992 CanLII 2601 |}}{{perNSCA|Hallett JA}}</ref>
{{CanLIIRP|Richards|1mrxg|1992 CanLII 2601 |}}{{perNSCA|Hallett JA}}</ref>
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</ref>
</ref>
* The use of a dildo in a sexual assault that causes injuries will be a weapon.<ref>
* The use of a dildo in a sexual assault that causes injuries will be a weapon.<ref>
{{CanLIIR|Lamy|51t2|2002 SCC 25 (CanLII)|[2002] 1 SCR 860}}{{perSCC|Arbour J}}
{{supra1|Lamy}}
</ref>
</ref>
* a sewing machine pushed onto the lap of victim.<ref>
* a sewing machine pushed onto the lap of victim.<ref>
{{CanLIIR|Hannen-Brown|flvzv|2011 ABCA 180 (CanLII)}}{{TheCourtABCA}}
{{CanLIIRx|Hannen-Brown|flvzv|2011 ABCA 180 (CanLII)}}{{TheCourtABCA}}
</ref>
</ref>


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==Use of a Weapon==
==Use of a Weapon==
The "use" of a weapon can include the accused displaying a firearm in his hand to intimidate another<ref>
The "use" of a weapon can include the accused displaying a firearm in his hand to intimidate another<ref>
{{CanLIIR|Steele|1s4lr|2007 SCC 36 (CanLII)}}{{perSCC|Fish J}}{{atL|1s4lr|27}}<br>  
{{CanLIIRP|Steele|1s4lr|2007 SCC 36 (CanLII)|[2007] 3 SCR 3}}{{perSCC-H|Fish J}}{{atL|1s4lr|27}}<br>  
{{CanLIIRPC|Rowe v The King|1ttvb|1951 CanLII 7 (SCC)|, [1951] SCR 713}}{{perSCC|Kerwin J}}{{atp|717}}<br>
{{CanLIIRPC|Rowe v The King|1ttvb|1951 CanLII 7 (SCC)|[1951] SCR 713}}{{perSCC|Kerwin J}}{{atp|717}}<br>
{{CanLIIRP|Langevin|htz5v|1979 CanLII 2999 (ONCA)| (1979), 47 CCC (2d) 138}}{{perONCA-H|Martin JA}}{{atp|145}}
{{CanLIIRP|Langevin|htz5v|1979 CanLII 2999 (ON CA)|47 CCC (2d) 138}}{{perONCA-H|Martin JA}}{{atp|145}}
</ref>
</ref>
or merely displaying it.<ref>
or merely displaying it.<ref>
{{CanLIIR-N|Neufeld|, [1984] OJ No 1747 (C.A.)}}<br>
{{CanLIIR-N|Neufeld|, [1984] OJ No 1747 (CA)}}<br>
</ref>
</ref>


It is suggested that revealing a firearm's presence by word or deed is "use".<ref>
It is suggested that revealing a firearm's presence by word or deed is "use."<ref>
{{CanLIIR|Gagnon|6jq6|1995 CanLII 1899 (ONCA)}}{{TheCourtONCA}}<br>
{{CanLIIRP|Gagnon|6jq6|1995 CanLII 1899 (ON CA)|86 OAC 381}}{{TheCourtONCA}}<br>
</ref>
</ref>


It can also include discharging a firearm<ref>
It can also include discharging a firearm<ref>
{{supra1|Steele}}{{atL|1s4lr|27}}<br>
{{supra1|Steele}}{{atL|1s4lr|27}}<br>
{{CanLIIRP|Switzer|2dl0d|1987 ABCA 23 (CanLII)|, 32 CCC (3d) 303 (Alta. C.A.)}}{{perABCA|Laycraft JA}}<br>
{{CanLIIRP|Switzer|2dl0d|1987 ABCA 23 (CanLII)|32 CCC (3d) 303}}{{perABCA|Laycraft JA}}<br>
</ref>
</ref>
or pointing a firearm.<ref>
or pointing a firearm.<ref>
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==Carrying a Weapon==
==Carrying a Weapon==
The meaning of "carry" is the same as it applies to s. 10(2) of the CDSA as it is to s. 85 of the Criminal Code.<ref>
The meaning of "carry" is the same as it applies to s. 10(2) of the CDSA as it is to s. 85 of the Criminal Code.<ref>
{{CanLIIR|Oickle|gldmr|2015 NSCA 87 (CanLII)}}{{perNSCA|Scanlan JA}}{{atL|gldmr|27}}<br>
{{CanLIIRP|Oickle|gldmr|2015 NSCA 87 (CanLII)|330 CCC (3d) 82}}{{perNSCA|Scanlan JA}}{{atL|gldmr|27}}<br>
</ref>
</ref>


"Carrying" is not restricted to having the weapon on one's person but can include having the weapon within reach in a vehicle for which he has care and control.<ref>
"Carrying" is not restricted to having the weapon on one's person but can include having the weapon within reach in a vehicle for which he has care and control.<ref>
{{ibid1|Oickle}}{{atL|gldmr|25}} - in relation to s. 10(2) of CDSA, citing cases relating to s. 85. Court states the meaning is the same<br>
{{ibid1|Oickle}}{{atL|gldmr|25}} - in relation to s. 10(2) of CDSA, citing cases relating to s. 85. Court states the meaning is the same<br>
{{CanLIIR|Myroon|2flb4|2011 ABPC 36 (CanLII)}}{{perABPC|Allen J}}{{atsL|2flb4|52| to 60}}<br>
{{CanLIIRx|Myroon|2flb4|2011 ABPC 36 (CanLII)}}{{perABPC|Allen J}}{{atsL|2flb4|52| to 60}}<br>
{{CanLIIRP|Crawford|gbv9g|1980 CanLII 2889 (ONCA)|, 54 CCC (2d) 412 (ONCA)}}{{perONCA|Howland CJ}}<br>
{{CanLIIRP|Crawford|gbv9g|1980 CanLII 2889 (ON CA)|54 CCC (2d) 412 (ONCA)}}{{perONCA|Howland CJ}}<br>
{{CanLIIRP|Hanabury|htz9w|1970 CanLII 1091 (PE SCTD)| (1971) 1 CCC (2d) 438 (PEISC)}}{{perPEISC|Nicholson J}}<br>
{{CanLIIRP|Hanabury|htz9w|1970 CanLII 1091 (PE SCTD)| (1971) 1 CCC (2d) 438 (PEISC)}}{{perPEISC|Nicholson J}}<br>
</ref>
</ref>
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{{LegHistory00s|2008, c. 6}}, s. 2;  
{{LegHistory00s|2008, c. 6}}, s. 2;  
{{LegHistory00s|2009, c. 22}}, s. 2;
{{LegHistory00s|2009, c. 22}}, s. 2;
{{LegHistory10s|2015, c. 3}}, s. 45, {{LegHistory10sA|2015|c. 27}}, s. 18.
{{LegHistory10s|2015, c. 3}}, s. 45, {{LegHistory10sA|2015|c. 27}}, s. 18;
|[{{CCCSec|84}} CCC]
2019, c. 9, s. 16;
2022, c. 15, s. 1;
2023, c. 32, s. 1.
|{{CCCSec2|84}}  
|{{NoteUp|84|1}}
|{{NoteUp|84|1}}
}}
}}


Before anything can be a prohibited weapon it must first be established as a weapon under s. 2.<ref>
Before anything can be a prohibited weapon it must first be established as a weapon under s. 2.<ref>
{{CanLIIRP|Murray|g95vm|1985 CanLII 3498 (ONCA)|, 24 CCC (3d) 568 (“Murray #1”)}}{{perONCA|Blair JA}} - spiked wristband found as weapon<br>
{{CanLIIRP|Murray|g95vm|1985 CanLII 3498 (ON CA)|24 CCC (3d) 568}}{{perONCA|Blair JA}} - spiked wristband found as weapon<br>
{{CanLIIR|Murray|g1g1g|1991 CanLII 7116 (ONCA)| (1991), 65 CCC (3d) 507}}{{TheCourtONCA}} (“Murray #2”) - nunchaku sticks not proven as weapons<br>
{{CanLIIRP|Murray|g1g1g|1991 CanLII 7116 (ON CA)|65 CCC (3d) 507}}{{TheCourtONCA}} (“Murray #2”) - nunchaku sticks not proven as weapons<br>
</ref>
</ref>


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|[http://www.canlii.org/en/ca/laws/regu/sor-98-462/latest/sor-98-462.html#sec4 Reg]}}
|[http://www.canlii.org/en/ca/laws/regu/sor-98-462/latest/sor-98-462.html#sec4 Reg]}}


Part 3 of the Schedule, Prohibited Weapons, Former Prohibited Weapons Order, No. 8 states:
Part 3 of the Schedule, Prohibited Weapons, Former Prohibited Weapons Order, No 8([https://canlii.ca/t/80st SOR/98-462]) states:


{{quotation1|
{{quotation1|
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; Prohibited Weapons
; Prohibited Weapons


;Former Prohibited Weapons Order, No. 1
;Former Prohibited Weapons Order, No 1
1 Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of
1 Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of
:(a) tear gas, Mace or other gas, or
:(a) tear gas, Mace or other gas, or
:(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.
:(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.


;Former Prohibited Weapons Order, No. 2
;Former Prohibited Weapons Order, No 2
2 Any instrument or device commonly known as “nunchaku”, being hard non-flexible sticks, clubs, pipes, or rods linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.
2 Any instrument or device commonly known as “nunchaku”, being hard non-flexible sticks, clubs, pipes, or rods linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.


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5 Any finger ring that has one or more blades or sharp objects that are capable of being projected from the surface of the ring.
5 Any finger ring that has one or more blades or sharp objects that are capable of being projected from the surface of the ring.


;Former Prohibited Weapons Order, No. 3
;Former Prohibited Weapons Order, No 3
6 Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device.
6 Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device.


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:(b) has a length not exceeding 500 mm.
:(b) has a length not exceeding 500 mm.


;Former Prohibited Weapons Order, No. 4
;Former Prohibited Weapons Order, No 4
8 The device known as the “Constant Companion”, being a belt containing a blade capable of being withdrawn from the belt, with the buckle of the belt forming a handle for the blade, and any similar device.
8 The device known as the “Constant Companion”, being a belt containing a blade capable of being withdrawn from the belt, with the buckle of the belt forming a handle for the blade, and any similar device.


Line 302: Line 311:
10 Any device having a length of less than 30 cm and resembling an innocuous object but designed to conceal a knife or blade, including the device commonly known as the “knife-comb”, being a comb with the handle of the comb forming a handle for the knife, and any similar device.
10 Any device having a length of less than 30 cm and resembling an innocuous object but designed to conceal a knife or blade, including the device commonly known as the “knife-comb”, being a comb with the handle of the comb forming a handle for the knife, and any similar device.


;Former Prohibited Weapons Order, No. 5
;Former Prohibited Weapons Order, No 5
11 The device commonly known as a “Spiked Wristband”, being a wristband to which a spike or blade is affixed, and any similar device.[https://en.wikipedia.org/wiki/Studded_bracelet]
11 The device commonly known as a “Spiked Wristband”, being a wristband to which a spike or blade is affixed, and any similar device.[https://en.wikipedia.org/wiki/Studded_bracelet]


;Former Prohibited Weapons Order, No. 6
;Former Prohibited Weapons Order, No 6
12 The device commonly known as “Yaqua Blowgun”, being a tube or pipe designed for the purpose of shooting arrows or darts by the breath, and any similar device.[https://en.wikipedia.org/wiki/Blowgun]
12 The device commonly known as “Yaqua Blowgun”, being a tube or pipe designed for the purpose of shooting arrows or darts by the breath, and any similar device.[https://en.wikipedia.org/wiki/Blowgun]


;Former Prohibited Weapons Order, No. 7
;Former Prohibited Weapons Order, No 7
13 The device commonly known as a “Kiyoga Baton” or “Steel Cobra” and any similar device consisting of a manually triggered telescoping spring-loaded steel whip terminated in a heavy calibre striking tip.[https://en.wikipedia.org/wiki/Baton_(law_enforcement)]
13 The device commonly known as a “Kiyoga Baton” or “Steel Cobra” and any similar device consisting of a manually triggered telescoping spring-loaded steel whip terminated in a heavy calibre striking tip.[https://en.wikipedia.org/wiki/Baton_(law_enforcement)]


14 The device commonly known as a “Morning Star” and any similar device consisting of a ball of metal or other heavy material, studded with spikes and connected to a handle by a length of chain, rope or other flexible material.[https://en.wikipedia.org/wiki/Morning_star_(weapon)]
14 The device commonly known as a “Morning Star” and any similar device consisting of a ball of metal or other heavy material, studded with spikes and connected to a handle by a length of chain, rope or other flexible material.[https://en.wikipedia.org/wiki/Morning_star_(weapon)]


;Former Prohibited Weapons Order, No. 8
;Former Prohibited Weapons Order, No 8
15 The device known as “Brass Knuckles” and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.
15 The device known as “Brass Knuckles” and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.
|[http://canlii.ca/t/80st Regs]
|[http://canlii.ca/t/80st Regs]
Line 321: Line 330:
; Mens rea
; Mens rea
The ''mens rea'' for offences regarding prohibited weapons, it need only be proven that either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, makes it a prohibited weapon.<ref>
The ''mens rea'' for offences regarding prohibited weapons, it need only be proven that either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, makes it a prohibited weapon.<ref>
{{CanLIIRP|Archer|g98vb|1983 CanLII 3510 (ONCA)|, 6 CCC (3d) 129 at 132 (Ont. C.A.)}}{{perONCA-H|Martin JA}}</ref>
{{CanLIIRP|Archer|g98vb|1983 CanLII 3510 (ON CA)|6 CCC (3d) 129 at 132}}{{perONCA-H|Martin JA}}</ref>




When involving a knife that is found to be a prohibited weapon, the crown must also establish that the accused was aware of the feature that makes it a prohibited weapon.<ref>  
When involving a knife that is found to be a prohibited weapon, the crown must also establish that the accused was aware of the feature that makes it a prohibited weapon.<ref>  
{{CanLIIRP|Puddy|fmmgt|2011 ONCJ 399 (CanLII)|, 2011 OJ No 3690 (ONCJ)}}</ref>
{{CanLIIRP|Puddy|fmmgt|2011 ONCJ 399 (CanLII)|OJ No 3690 (ONCJ)}}</ref>


; Objective test
; Objective test
The test for establishing a weapon as prohibited is an objective one. The Crown does not need to prove that the possessor of the object "used or intended to use" the object as a  weapon.<ref>
The test for establishing a weapon as prohibited is an objective one. The Crown does not need to prove that the possessor of the object "used or intended to use" the object as a  weapon.<ref>
{{CanLIIR|Strong|frt17|2012 BCCA 279 (CanLII)}}{{perBCCA|Levine JA}}{{atL|frt17|35}}</ref>
{{CanLIIRP|Strong|frt17|2012 BCCA 279 (CanLII)|288 CCC (3d) 357}}{{perBCCA|Levine JA}}{{atL|frt17|35}}</ref>


; Centrifugal Force
; Centrifugal Force
Proof of a weapon that can be opened by centrifugal force may be proven by way of the officer's demonstration.<ref>
Proof of a weapon that can be opened by centrifugal force may be proven by way of the officer's demonstration.<ref>
{{CanLIIR|Wlodkowski|1qtq1|2007 ONCA 167 (CanLII)}}{{TheCourtONCA}}
{{CanLIIRx|Wlodkowski|1qtq1|2007 ONCA 167 (CanLII)}}{{TheCourtONCA}}
</ref>
</ref>


The imposition of centrifugal force is upon the blade not the handle.<Ref>
The imposition of centrifugal force is upon the blade not the handle.<Ref>
{{CanLIIRP|Richard|gc5ns|1981 CanLII 3163 (NB CA)|, 63 CCC (2d) 333}}{{perNBCA|Limerick JA}}
{{CanLIIRP|Richard|gc5ns|1981 CanLII 3163 (NB CA)|63 CCC (2d) 333}}{{perNBCA|Limerick JA}}
</ref>
</ref>


Line 345: Line 354:


A butterfly knife the requires the operation of two segments of a handle while exercising centrifugal force will be a prohibited.<ref>
A butterfly knife the requires the operation of two segments of a handle while exercising centrifugal force will be a prohibited.<ref>
{{CanLIIR|Vaughan|1phr9|1990 CanLII 3059 (QC CA)|, 60 CCC (3d) 87}}{{perQCCA|Beauregard JA}}
{{CanLIIRP|Vaughan|1phr9|1990 CanLII 3059 (QC CA)|60 CCC (3d) 87}}{{perQCCA|Beauregard JA}}
</ref>
</ref>


; Brass knuckles
; Brass knuckles
Brass knuckles are usually considered prohibited weapons. They do not have to have holes for all fingers to be prohibited. <ref>
Brass knuckles are usually considered prohibited weapons. They do not have to have holes for all fingers to be prohibited. <ref>
{{CanLIIRP|Montgomery|23n8q|2009 ABCA 197 (CanLII)|, [2009] AJ No 559 (Alta. C.A.)}}{{fix}}</ref>
{{CanLIIRP|Montgomery|23n8q|2009 ABCA 197 (CanLII)|[2009] AJ No 559}}{{perABCA|Costigan JA}}</ref>


{{reflist|2}}
{{reflist|2}}
Line 371: Line 380:
2009, c. 22, s. 2;  
2009, c. 22, s. 2;  
2015, c. 3, s. 45, c. 27, s. 18.
2015, c. 3, s. 45, c. 27, s. 18.
|[{{CCCSec|84}} CCC]
|{{CCCSec2|84}}  
|{{NoteUp|84}}
|{{NoteUp|84}}
}}
}}
Line 390: Line 399:


==Legislative History==
==Legislative History==
Protection of Communities and Exploited Persons Act, SC 2014, c 25 modified the definition by adding the following after para (b):
: "and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will;"


From December 1, 1998 to 2014, the definition of "weapon" read:
From December 1, 1998 to 2014, the definition of "weapon" read:
Line 446: Line 458:
|
|
}}
}}
==See Also==
==See Also==
* [[Definition of Firearms]]
* [[Definition of Firearms]]


[[Category:Definitions]]
[[Category:Definitions]]

Latest revision as of 13:11, 7 September 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 96399)

General Principles

See also: Definition of Firearms
categories of weapons

A number offences in the Criminal Code concern "weapons". Those offences include:

Section 2 of the Code includes the definition of weapon:

2
...
 "weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88 [possession of weapon for dangerous purpose], 267 [assault with a weapon or causing bodily harm] and 272 [sexual assault with a weapon or causing bodily harm], any thing used, designed to be used or intended for use in binding or tying up a person against their will;
...
 R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 2

2
...
 "offensive weapon" has the same meaning as “weapon”; ...
 R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 2

Similarly in s. 2.1:

Further definitions — firearms

2.1 In this Act, "ammunition", "antique firearm", "automatic firearm", "cartridge magazine", "cross-bow", "handgun", "imitation firearm", "prohibited ammunition", "prohibited device", "prohibited firearm", "prohibited weapon", "replica firearm", "restricted firearm" and "restricted weapon", as well as "authorization", "licence" and "registration certificate" when used in relation to those words and expressions, have the same meaning as in subsection 84(1) [firearms and other weapons — definitions].
2009, c. 22, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 2.1

Proof of an item as a weapon depends on all of the circumstances. The determination involves a subjective test of whether the accused intended to use the item as a weapon.[1]

Whether an object is a weapon is a subjective test and depends on all the circumstances. The accused must have intended to use of the object as a weapon.[2]

A weapon includes: [3]

  1. anything designed to be used as a weapon;
  2. anything that a person uses as a weapon, whether that thing is designed as a weapon or not; and
  3. anything that one intends to use as a weapon regardless of its design.

A suggested general analytical approach to determine whether an object is a "weapon" under s. 2 requires the Court to ask the following three questions: [4]

  1. Did the accused in fact use the object to cause death or injury, or to threaten or intimidate any person?
  2. Did the accused intend to use the object to cause death or injury or to threaten or intimidate any person?
  3. Was the object being carried by the accused designed to be used in causing death or injury to any person, or for the purpose of threatening or intimidating any person?

If the answer to any of these questions is in the affirmative, the Crown has proven that the object was a weapon."[5] The third question was considered in greater detail. The judge stated that the test for determining whether the object was designed to be used requires the following questions:

  1. Is the object’s design such that it could be readily usable to cause death or injury to any person or to threaten or intimidate any person?
  2. In all of the circumstances, would the carrying of the concealed object cause the reasonable person to fear for his own safety or for the public safety, if he were aware of the presence of the object?

If the answer to both of these questions is "yes", then the object will be considered a weapon. This requires looking at the object itself and the context of it being possessed.

Weapons do not need to be restricted to inanimate objects. A dog can be found to be a weapon.[6]

The focus is generally not on the nature of the object but on its use and capacity to cause bodily harm or death.[7]

  1. ↑ R v Roberts, 1990 CanLII 2524 , per Jones JA
  2. ↑ Roberts, ibid.
    R v Murray, 1991 CanLII 7116 (ON CA), 65 CCC (3d) 507, per curiam
  3. ↑ R v Califoux, 1973 CanLII 1355 (BC CA), 14 CCC (2d) 526 (BCCA), per Branca JA at 13
  4. ↑ R v DAC, 2007 ABPC 171 (CanLII), 428 AR 355, per Dalton J
  5. ↑ DAC, ibid., at para 75
  6. ↑ R v McLeod, 1993 CanLII 14674 (YK CA), 84 CCC (3d) 336, per Toy JA
  7. ↑ McLeod, ibid. ("focus of the definition has been shifted from the character of the instrumentality in question to the result of its use or the purpose for which it was used.")
    R v Richards, 1992 CanLII 2601 (NS CA), 72 CCC (3d) 349, per Hallett JA ("an object may become a weapon whether designed for that purpose or not, if it is used to cause death or injury or alternatively if the possessor intended to use it to cause death or injury.")

Specific Items

Other types of Guns

Any device that fits the definition of firearm will be a weapon.[1]

Pellet guns, paint guns and the like are variable:

  • a starting pistol is an imitation of a weapon.[2]
  • pellet gun not necessarily a weapon[3]. One suggestion is that a pellet gun can be a firearm where it passes the "pig's eye test", which considers whether the pellet's velocity surpasses 246 feet per second, which is sufficient to cause serious bodily harm.[4]
  1. ↑ R v Felawka, 1993 CanLII 36 (SCC), [1993] 4 SCR 199, per Cory J
    R v Formosa, 1992 CanLII 12828 (ON CA), (1993) 79 CCC (3d) 95, per curiam ("all objects which are firearms as defined in s. 84 come within the definition of "weapon" found in s. 2 of the Criminal Code")
    cf. R v James, 2011 ONCJ 125 (CanLII), per Duncan J
  2. ↑ R v Boutilier, [1977] 4 WWR 443 (BCCA)(*no CanLII links)
  3. ↑ R v Labrecque, 2011 ONCA 360 (CanLII), per curiam
  4. ↑ R v Crawford, 2015 ABCA 175 (CanLII), 322 CCC (3d) 528, per Martin JA
    R v Maguire, 2012 ONCJ 366 (CanLII), per Cooper J, at para 12 ("it can still be a firearm for non-registration and non-licensing offences if it is capable of causing serious bodily injury or death, and this threshold is met when the muzzle velocity is 246 feet per second or greater. At this speed the projectile can puncture an eye, and this is the standard used to measure “serious bodily harm.” A learned paper is attached to this Firearm Examination Report, which reveals that pig eyes, not human eyes, were used in the scientic experiment which was conducted.")
    R v Sather, 2008 ONCJ 98 (CanLII), per Blouin J, at para 13

Brass Knuckles

Under the Ontario Prohibited Weapons Order No.8 SOR/79-583, brass knuckles are classified as prohibited.[1]

The intent must be proven subjectively and objectively.[2]

  1. ↑ 2. The following devices are hereby declared to be prohibited weapons:
    ...
    (b) the device known as “Brass Knuckles” and any similar device consisting of a band of metal with finger holes designed to fit over the root knuckles of the hand.
  2. ↑ R v LBS, 1993 CanLII 8843 (SK QB), [1993] S.J. No 512, 21 WCB (2d) 279 (Q.B.), per Lawton J - case uses new definition of weapon under s.2

Knife

Where a knife is used to intimidate or threaten a person, it becomes a weapon.[1]

  1. ↑ R v MacDonald, 2002 CanLII 14251 (ON CA), 170 CCC (3d) 46, per Doherty JA, at para 28

Bear Spray

In certain courts, bear spray has been established as a weapon. It is usually necessary to have forensic expert testimony.[1]

  1. ↑ R v Meier, 2012 SKPC 41 (CanLII), 394 Sask R 204, per Morgan J at 101

Stun Gun

A stun gun or taser is a weapon that is prohibited.[1]

Such weapons generate electrical current which, when in contact with skin, creates "pain compliance."[2]

  1. ↑ e.g. R v Greening, 2013 CanLII 5319 (NL PC), per Gorman J, at para 1
    see also Electro shock weapons (wikipedia)
  2. ↑ see R v Lambert, 2011 ONSC 4740 (CanLII), [2011] OJ No 3665 (S.C.), per Kelly J, at para 24
    R v Krawcar, 2011 ONCJ 236 (CanLII), [2011] OJ No 2056 (C.J.), per Watson J, at paras 34 and 35
    R v Dhaliwal, 2007 BCSC 1936 (CanLII), [2007] BCJ No 2874 (S.C.), per Groberman J, at paras 1 to 5

Cross-Bow

Definitions

84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
 "cross-bow" means a device with a bow and a bowstring mounted on a stock that is designed to propel an arrow, a bolt, a quarrel or any similar projectile on a trajectory guided by a barrel or groove and that is capable of causing serious bodily injury or death to a person; (arbalète)
...

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, c. 27, s. 18; 2019, c. 9, s. 16; 2022, c. 15, s. 1; 2023, c. 32, s. 1.

– CCC (CanLII), (DOJ)

Note up: 84

Misc Items

A variety of items have been found to be a weapon in certain circumstances:

  • A broken piece of glass[1]
  • A vehicle [2]
  • Any sort of bomb[3]
  • A bottle of peanut butter that was thrown[4]
  • a bottle of beer[5]
  • a dog [6]
  • The use of a dildo in a sexual assault that causes injuries will be a weapon.[7]
  • a sewing machine pushed onto the lap of victim.[8]
  1. ↑ R v Allan, 1971 CanLII 1229 (NB CA), 4 CCC (2d) 521 (NBCA), per Bulgold JA
  2. ↑ see R v McLeod, 1993 CanLII 14674 (YK CA), 84 CCC (3d) 336, per Toy JA
    R v Lamy, 2002 SCC 25 (CanLII), [2002] 1 SCR 860, per Arbour J
  3. ↑ R v Malang, 1982 CanLII 2029 (ON CA), 65 CCC (2d) 371, per Howland CJ
  4. ↑ R v Vandergraf, 1994 CanLII 16617 (MB CA), 93 CCC (3d) 286, per Philp JA
  5. ↑ R v Richards, 1992 CanLII 2601 , per Hallett JA
  6. ↑ McLeod, supra
  7. ↑ Lamy, supra
  8. ↑ R v Hannen-Brown, 2011 ABCA 180 (CanLII), per curiam

Use of a Weapon

The "use" of a weapon can include the accused displaying a firearm in his hand to intimidate another[1] or merely displaying it.[2]

It is suggested that revealing a firearm's presence by word or deed is "use."[3]

It can also include discharging a firearm[4] or pointing a firearm.[5]

  1. ↑ R v Steele, 2007 SCC 36 (CanLII), [2007] 3 SCR 3, per Fish J, at para 27
    Rowe v The King, 1951 CanLII 7 (SCC), [1951] SCR 713, per Kerwin J, at p. 717
    R v Langevin, 1979 CanLII 2999 (ON CA), 47 CCC (2d) 138, per Martin JA, at p. 145
  2. ↑ R v Neufeld, [1984] OJ No 1747 (CA)(*no CanLII links)
  3. ↑ R v Gagnon, 1995 CanLII 1899 (ON CA), 86 OAC 381, per curiam
  4. ↑ Steele, supra, at para 27
    R v Switzer, 1987 ABCA 23 (CanLII), 32 CCC (3d) 303, per Laycraft JA
  5. ↑ Steele, supra, at para 27
    R v Griffin, 1996 CanLII 3210 , per Prowse JA

Carrying a Weapon

The meaning of "carry" is the same as it applies to s. 10(2) of the CDSA as it is to s. 85 of the Criminal Code.[1]

"Carrying" is not restricted to having the weapon on one's person but can include having the weapon within reach in a vehicle for which he has care and control.[2]


  1. ↑ R v Oickle, 2015 NSCA 87 (CanLII), 330 CCC (3d) 82, per Scanlan JA, at para 27
  2. ↑ Oickle, ibid., at para 25 - in relation to s. 10(2) of CDSA, citing cases relating to s. 85. Court states the meaning is the same
    R v Myroon, 2011 ABPC 36 (CanLII), per Allen J, at paras 52 to 60
    R v Crawford, 1980 CanLII 2889 (ON CA), 54 CCC (2d) 412 (ONCA), per Howland CJ
    R v Hanabury, 1970 CanLII 1091 (PE SCTD), (1971) 1 CCC (2d) 438 (PEISC), per Nicholson J

Prohibited Weapon

The Criminal Code distinguishes "prohibited weapons" and "restricted weapons" as subclasses of "weapons" generally. Additional weapons-related offence apply to those weapons classified as "prohibited" or "restricted".

Note that a "prohibited weapon" does not include any form of "prohibited firearm".

s. 84 (1) In this Part
...
 "prohibited weapon" means

(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or
(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;

...
 [omitted (2), (3), (3.1), (4), (5) and (6)]
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, c. 27, s. 18; 2019, c. 9, s. 16; 2022, c. 15, s. 1; 2023, c. 32, s. 1.

– CCC (CanLII), (DOJ)

Note up: 84(1)

Before anything can be a prohibited weapon it must first be established as a weapon under s. 2.[1]

Under section 4 of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Part of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462, provides:

4 The weapons listed in Part 3 of the schedule are prohibited weapons for the purposes of paragraph (b) of the definition “prohibited weapon” in subsection 84(1) of the Criminal Code.

– Reg

Part 3 of the Schedule, Prohibited Weapons, Former Prohibited Weapons Order, No 8(SOR/98-462) states:

PART 3

Prohibited Weapons
Former Prohibited Weapons Order, No 1

1 Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of

(a) tear gas, Mace or other gas, or
(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.
Former Prohibited Weapons Order, No 2

2 Any instrument or device commonly known as “nunchaku”, being hard non-flexible sticks, clubs, pipes, or rods linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.

3 Any instrument or device commonly known as “shuriken”, being a hard non-flexible plate having three or more radiating points with one or more sharp edges in the shape of a polygon, trefoil, cross, star, diamond or other geometrical shape, and any similar instrument or device.

4 Any instrument or device commonly known as “manrikigusari” or “kusari”, being hexagonal or other geometrically shaped hard weights or hand grips linked by a length or lengths of rope, cord, wire or chain, and any similar instrument or device.

5 Any finger ring that has one or more blades or sharp objects that are capable of being projected from the surface of the ring.

Former Prohibited Weapons Order, No 3

6 Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device.

7 A crossbow or similar device that

(a) is designed or altered to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands; or
(b) has a length not exceeding 500 mm.
Former Prohibited Weapons Order, No 4

8 The device known as the “Constant Companion”, being a belt containing a blade capable of being withdrawn from the belt, with the buckle of the belt forming a handle for the blade, and any similar device.

9 Any knife commonly known as a “push-dagger” that is designed in such a fashion that the handle is placed perpendicular to the main cutting edge of the blade and any other similar device other than the aboriginal “ulu” knife.[1]

10 Any device having a length of less than 30 cm and resembling an innocuous object but designed to conceal a knife or blade, including the device commonly known as the “knife-comb”, being a comb with the handle of the comb forming a handle for the knife, and any similar device.

Former Prohibited Weapons Order, No 5

11 The device commonly known as a “Spiked Wristband”, being a wristband to which a spike or blade is affixed, and any similar device.[2]

Former Prohibited Weapons Order, No 6

12 The device commonly known as “Yaqua Blowgun”, being a tube or pipe designed for the purpose of shooting arrows or darts by the breath, and any similar device.[3]

Former Prohibited Weapons Order, No 7

13 The device commonly known as a “Kiyoga Baton” or “Steel Cobra” and any similar device consisting of a manually triggered telescoping spring-loaded steel whip terminated in a heavy calibre striking tip.[4]

14 The device commonly known as a “Morning Star” and any similar device consisting of a ball of metal or other heavy material, studded with spikes and connected to a handle by a length of chain, rope or other flexible material.[5]

Former Prohibited Weapons Order, No 8

15 The device known as “Brass Knuckles” and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.

– Regs


Mens rea

The mens rea for offences regarding prohibited weapons, it need only be proven that either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, makes it a prohibited weapon.[2]


When involving a knife that is found to be a prohibited weapon, the crown must also establish that the accused was aware of the feature that makes it a prohibited weapon.[3]

Objective test

The test for establishing a weapon as prohibited is an objective one. The Crown does not need to prove that the possessor of the object "used or intended to use" the object as a weapon.[4]

Centrifugal Force

Proof of a weapon that can be opened by centrifugal force may be proven by way of the officer's demonstration.[5]

The imposition of centrifugal force is upon the blade not the handle.[6]

The fact that the knife was not designed to open centrifugal, but can by wear or alteration, does not prevent it from being prohibited.[7]

A butterfly knife the requires the operation of two segments of a handle while exercising centrifugal force will be a prohibited.[8]

Brass knuckles

Brass knuckles are usually considered prohibited weapons. They do not have to have holes for all fingers to be prohibited. [9]

  1. ↑ R v Murray, 1985 CanLII 3498 (ON CA), 24 CCC (3d) 568, per Blair JA - spiked wristband found as weapon
    R v Murray, 1991 CanLII 7116 (ON CA), 65 CCC (3d) 507, per curiam (“Murray #2”) - nunchaku sticks not proven as weapons
  2. ↑ R v Archer, 1983 CanLII 3510 (ON CA), 6 CCC (3d) 129 at 132, per Martin JA
  3. ↑ R v Puddy, 2011 ONCJ 399 (CanLII), OJ No 3690 (ONCJ)
  4. ↑ R v Strong, 2012 BCCA 279 (CanLII), 288 CCC (3d) 357, per Levine JA, at para 35
  5. ↑ R v Wlodkowski, 2007 ONCA 167 (CanLII), per curiam
  6. ↑ R v Richard, 1981 CanLII 3163 (NB CA), 63 CCC (2d) 333, per Limerick JA
  7. ↑ Richard, ibid. ("Similarly a knife may be a "prohibited weapon" even though it was not designed to be used as such if in fact its blade, through wear or alteration, can be fully opened for use by applying centrifugal force or gravity to the blade or by applying pressure to a button spring or device in or attached to the handle. In other words, it is the capability and not the design of the knife which determines whether or not it is a "prohibitive weapon"")
  8. ↑ R v Vaughan, 1990 CanLII 3059 (QC CA), 60 CCC (3d) 87, per Beauregard JA
  9. ↑ R v Montgomery, 2009 ABCA 197 (CanLII), [2009] AJ No 559, per Costigan JA

Restricted Weapon

s. 84 (1) In this Part [Pt. III – Firearms and Other Weapons (ss. 84 to 117.15)],
...
 "restricted weapon" means any weapon, other than a firearm, that is prescribed to be a restricted weapon;
...
 [omitted (2), (3), (3.1), (4), (5) and (6)]
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, c. 27, s. 18.

– CCC (CanLII), (DOJ)

Note up: 84

Photographs of Weapons

"butterfly knife" (prohibited weapon)
"brass knuckles" (prohibited weapon)
"bear spray"/"mace"
crossbow
spiked wristband
spring-loaded baton
"push dagger"
taser

Legislative History

Protection of Communities and Exploited Persons Act, SC 2014, c 25 modified the definition by adding the following after para (b):

"and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will;"

From December 1, 1998 to 2014, the definition of "weapon" read:

"Weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm.

–

From August 1, 1992 to December 1, 1998, the definition of "weapon" read:

"Weapon" means

(a) anything used, designed to be used or intended for use in causing death or injury to any person, or
(b) anything used, designed to be used or intended for use for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes any firearm as defined in Subsection 84(1).

–

Between December 4, 1985 and August 1, 1992[1], the definition of "weapon" read:

Weapon means

(a) anything used or intended for use in causing death or injury to persons whether designed for such purpose or not, or
(b) anything used or intended for use for the purpose of threatening or intimidating any person,

and, without restricting the generality of the foregoing, includes any firearm as defined in section 84.

–

Prior to 1985, the definition of "weapon" and "offensive weapon" read:

2
...
 "Offensive weapon" or "weapon" means

(a) anything that is designed to be used as a weapon, or
(b) anything that a person uses or intends to use as a weapon, whether or not it is designed to be used as a weapon,

and, without restricting the generality of the foregoing, includes any firearm as defined in section 82. ...

–

Criminal Code, 1906

2
...
 "offensive weapon" or "weapon" includes any gun or other firearm, or airgun, or any part thereof, or any sword, sword blade, bayonet, pike, pike-head, spear, spearhead, dirk, dagger, knife, or other instrument intended for cutting or stabbing, or any metal knuckles, or other deadly or dangerous weapon, and any instrument or thing intended to be used as a weapon, and all ammunition which may be used with or for any weapon;
...

–

  1. ↑ As amended by SC 1991, c 40
    See List of Criminal Code Amendments (1984 to 1999)

Criminal Code, 1892

s. 3...
The expression "offensive weapon" includes any gun or other firearm, or airgun, or any part thereof, or any sword, sword blade, bayonet, pick, pike-head, spear, spear-head, dirk, dagger, knife, or other instrument intended for cutting or stabbing, or any metal knuckles, or other deadly or dangerous weapon, and any instrument or thing intended to be used as a weapon, and all ammunition which may be used with or for any weapon;

–

See Also

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