Possession of a Restricted or Prohibited Firearm (Offence): Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
m Text replacement - "}, at para ([0-9]+)<" to "}{{at|$1}}<"
m Text replacement - "{{ReverseOnusCirc}}" to ":''Reverse Onus Bail'' {{ReverseOnusCirc}}"
Line 25: Line 25:
{{ReleaseAllOptions|s. 95}}
{{ReleaseAllOptions|s. 95}}


:''Reverse Onus Bail''
{{ReverseOnusCirc}}
{{ReverseOnusCirc}}


Revision as of 14:51, 16 January 2019


Possession of a Restricted or Prohibited Firearm
s. 95 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 1 year incarceration 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 3 years incarceration** (first)
5 years incarceration** (subseq.)
** see Constitutionality below
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Weapon Offences

Offences relating to possession of a restricted or prohibited firearm are found in Part III of the Criminal Code relating to "Firearms and Other Weapons".

Pleadings
Template:PleadingsHybridList
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)

Offences under s. 95 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
a Judge or Justice
on a Release Order
s. 515 to 519		 Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
s. 95 Template:ReleaseProfileAll

When charged under s. 95, 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. xxx

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Possession of prohibited or restricted firearm with ammunition
95 (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.

Punishment
(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, three years, and
(ii) in the case of a second or subsequent offence, five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

Exception
(3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it.
R.S., 1985, c. C-46, s. 95; 1991, c. 28, s. 8, c. 40, ss. 9, 37; 1993, c. 25, s. 93; 1995, c. 39, s. 139; 2008, c. 6, s. 8; 2012, c. 6, s. 5(E).


– CCC

Proof of the Offence

Proving possession of a restricted or prohibited weapon with ammunition under s. 95 should include:

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. the culprit possessed an object;
  5. the object was a "prohibited firearm or restricted firearm'
  6. the object was functioning or could be made to function readily;
  7. the firearm was loaded or could be readily loaded;
  8. the ammunition was capable of being discharged;
  9. if loaded, that the accused knew, was wilfully blind (more than reckless) to the fact that the gun was loaded. [1]
  10. the culprit was not the holder of a) authorization or a licence under which the person may possess the firearm in that place; and the registration certificate for the firearm.
  11. the use of the firearm was not "under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it."
  1. ↑ R v Budden, 2005 ABQB 859 (CanLII), 386 A.R. 313, per Lee J at paras 77-81
    R v Moffatt, 2005 ONCJ 126 (CanLII), per Maund J at paras 13 and 15
    R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam (2:1) at 8 aff’d at 2012 SCC 11 (CanLII), per McLachlin J

Interpretation of the Offence

The mens rea is satisfied where the offender knew that he or she was in possession of a loaded firearm. This is a subjective standard and so can be proven by actual knowledge or wilful blindness, but not recklessness.[1] Whether the firearm is prohibited or restricted does not matter and whether the accused knew it was prohibited or restricted is not a necessary element. So it is irrelevant whether the accused knew of the length and diameter of the barrel.[2]

Restricted Firearms

see Restricted Firearms

  1. ↑ R v Raglon, 2001 ABPC 117 (CanLII), per Allen J at paras 52 - 63
  2. ↑ R v Williams, 2009 ONCA 342 (CanLII), per Blair JA at para 21

Handgun

To prove that a weapon is a handgun can be made by inference based on the surrounding evidence alone, without need for the actual weapon in evidence. [1] Factors used to draw the inference include:

  • accused’s conduct in relation to the weapon
  • presence of any threats to shoot
  • how people react to the weapon[2]
  • the description and use of the weapon[3]
  • absence of evidence to the contrary
  1. ↑ R v Charbonneau, 2004 CanLII 9527 (ON CA), [2004] OJ No 1503 (C.A.), per curiam at 3 (the judge had “the evidence of the complainant's clear belief that it was a gun, her description of the object, the appellant's conduct in relation to it and his use of it together with the appellant's threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge's finding that it was a handgun.”)
    R v Willis, 2007 ONCJ 605 (CanLII), per Pringle J at 31
  2. ↑ R v Abdullah, [2005] OJ No 6079 (S.C.J.)(*no CanLII links) at 29
  3. ↑ R v Dunchie [2006] OJ no 5455(*no CanLII links) at 55

Loaded and Unloaded

Loaded is not defined in the Criminal Code.

Unloaded is defined in the regulations to the Firearms Act, SC 1995, c. 39:

“unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.

This definition equally applies to s. 95.[1]

  1. ↑ R v Wong, 2012 ONCA 432 (CanLII), per Weiler JA at 48-50

Mens Rea

The Crown must prove that the accused intended to possess the weapon.[1]

  1. ↑ R v MacDonald, 2014 SCC 3 (CanLII), per LeBel J

Knowledge

It must be proven that the accused knew that the gun was loaded and that the possession of the gun was unauthorized.[1]

Knowledge that a gun was loaded can be inferred from the circumstances.[2]

The mens rea does not require proof that the accused knew the barrel of the handgun was less than 105 mm.[3]

For a conviction under section 95 (one) grounded needs to prove that the offender knew he was in the possession of a firearm that was loaded.supra


Knowledge that the possession was unauthorized can be proven by wilful blindness.[4]

Any claim mistaken of mistaken belief of authorization must be "honestly held".[5]

There is no need to prove that the accused knew that possession was unauthorized.[6]

  1. ↑ R v Williams, 2009 ONCA 342 (CanLII), per Blair JA
  2. ↑ R v Raglon, 2001 ABPC 117 (CanLII), per Allen J at paras 9, 10, 65 and 66 -- court found knowledge, said the context of the possession would make the gun far more useful if loaded
    R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam at 12-14
  3. ↑ Williams, supra
  4. ↑ R v MacDonald, 2012 NSCA 50 (CanLII), per Beveridge JA appealed 2014 SCC 3 (CanLII), per LeBel J
  5. ↑ MacDonald (SCC), ibid.
  6. ↑ MacDonald, ibid.

Special Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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
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 also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
See also: Weapons Offences (Sentencing)
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
s. 95 [possession of a restricted or prohibited firearm] Summary Election 12 months custody
s. 95 [possession of a restricted or prohibited firearm] Indictable Election 10 years custody

Offences under s. 95 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 12 months incarceration.

Minimum Penalties

If prosecuted by summary conviction, there is no mandatory minimum. If prosecuted by indictment, the mandatory minimum penalty is 3 years with no prior convictions and 5 years with one or more prior convictions.

The constitutionality of the mandatory minimum has been found to unconstitutional in several decisions.[1]

The mandatory minimum came into force on May 1, 2008. This does not apply to offences pre-dating the amendment. Subsequent offences include any conviction under s. 85, 95, 96, 98, 98.1, 99, 100, 102 or 103.

Available Dispositions
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
s. 95
Summary
s. 95
With or Without Prior Convictions		 Indictment

When prosecuted by indictment, discharges and conditional sentences are not available.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Increased Penalties

Notice is required under s. 727 for increased penalties.[2]

Section 84(5) and (6) must be complied with for increased penalties. [3]

  1. ↑ See R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA appealed to SCC
    R v Vandyke, 2013 ABPC 347 (CanLII), per Lamoureux J
    R v Smickle, 2012 ONSC 602 (CanLII), (2012) 280 CCC (3d) 365, per Molloy J
  2. ↑ see Notice of Increased Penalty
  3. ↑ see Weapons Offences (Sentencing)

Principles

As with all mandatory minimums, the minimum is an "inflationary floor" which sets a minimal punishment for the "best" offender.[1]

The "possession of a loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and a trigger-pull away."[2]

The range of sentences for convictions under s. 95 will usually be a penitentiary sentence, even for first time offenders. The lowest range will still be in the high end range of reformatory sentences of less than two years.[3]

  1. ↑ R v Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 75
  2. ↑ R v Chin, 2009 ABCA 226 (CanLII), per curiam at para 10
  3. ↑ R v Smickle, 2014 ONCA 49 (CanLII), per curiam at para 19

Ranges

see also: Possession of a Restricted or Prohibited Firearm (Sentencing Cases)

Most convictions under s. 95 should "attract a penitentiary term even for first offenders".[1] "Less serious" versions of these offences will "demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders".[2]

  1. ↑ R v Smickle, 2014 ONCA 49 (CanLII), per curiam at para 19
  2. ↑ R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA at paras 107 to 109 aff'd at 2015 SCC 15 (CanLII), per McLachlin CJ
    R v Farah, 2016 ONSC 5000 (CanLII), per K Campbell J at para 29

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 95
Weapons Prohibition Orders s. 95(1)
  • For offences under s. 95(1) that are enumerated under s. 109(1)(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.

Circumstance-specific Forfeiture Orders

Forfeiture Conviction Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Other Sentencing Orders

Order Conviction Description
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).

History

See Also

References

v • e
 
Weapons and Firearms Offences
Offences / Sentencing
Retrieved from "https://criminalnotebook.ca/index.php?title=Possession_of_a_Restricted_or_Prohibited_Firearm_(Offence)&oldid=20520"