Weapons Trafficking (Offence)

• < Criminal Law/Sentencing
• < Offences

Weapons Trafficking
s. 99, 100, 101, 102 and 103 of the Crim. Code
Election / Plea
Crown Election	Hybrid / Indictable 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.
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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) (101) 1 year incarceration (102)
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)* (* varies)
Minimum	1 year incarceration (non-firearm) 3 year incarceration (first, firearm) 5 year incarceration (subseq., firearm)
Maximum	5, 10 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to weapons trafficking are found in Part III of the Criminal Code relating to "Firearms and Other Weapons".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 99 [weapons trafficking], s. 100 [possession for purpose of weapons trafficking], and s. 103 [importing or exporting firearms knowing it is unauthorized]	Indictable Offence(s)			(under 14 years max)
s. 101 [transfer without authority], s. 102 [making automatic firearm]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], and 103 [importing or exporting firearms knowing it is unauthorized] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Offences under s. 101 [transfer without authority] and 102 [making automatic firearm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

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. 99 [weapons trafficking], s. 100 [possession for purpose of weapons trafficking] or s. 103 [importing or exporting firearms knowing it is unauthorized]
s. 101 [transfer without authority] or s. 102 [making automatic firearm]

When charged under s. 101 [transfer without authority] or 102 [making automatic firearm], 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.

Under s. 515(6)(a)(vi), there will be a reverse onus for offence charged under section 99, 100 or 103.

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));

Fingerprints and Photos

A peace officer who charges a person under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 101 [transfer without authority], 102 [making automatic firearm], or 103 [importing or exporting firearms knowing it is unauthorized] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Orders

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. 99 [weapons trafficking], s. 100 [possession for purpose of weapons trafficking], s. 102 [making automatic firearm], or s. 103 [importing or exporting firearms knowing it is unauthorized]
s. 101 [transfer without authority]

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], 102 [making automatic firearm], and 103 [importing or exporting firearms knowing it is unauthorized] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

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

Offence Wording

Weapons trafficking

99 (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or

(b) offers to do anything referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [weapons trafficking – offence] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition 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

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) [weapons trafficking – offence] 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 one year.
R.S., 1985, c. C-46, s. 99; 1995, c. 39, s. 139; 2008, c. 6, s. 10; 2015, c. 27,s. 23.
[annotation(s) added]

– CCC

---

Possession for purpose of weapons trafficking

100 (1) Every person commits an offence who possesses a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition for the purpose of

(a) transferring it, whether or not for consideration, or

(b) offering to transfer it,

knowing that the person is not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [possession for purpose of weapons trafficking – offence] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, any ammunition or any prohibited ammunition 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

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) [possession for purpose of weapons trafficking – offence] 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 one year.
R.S., 1985, c. C-46, s. 100; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 14, 203, c. 27 (2nd Supp.), s. 10, c. 1 (4th Supp.), s. 18(F); 1990, c. 16, s. 2, c. 17, s. 8; 1991, c. 40, s. 12; 1992, c. 51, s. 33; 1995, c. 22, ss. 10, 18(F), c. 39, s. 139; 1996, c. 19, s. 65; 2008, c. 6, s. 11; 2015, c. 27, s. 24.
[annotation(s) added]

– CCC

---

Transfer without authority

101 (1) Every person commits an offence who transfers a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition to any person otherwise than under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.

Punishment

(2) Every person who commits an offence under subsection (1) [transfer firearm without authority]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 101; 1991, c. 40, s. 13; 1995, c. 39, s. 139; 2015, c. 27, s. 25.
[annotation(s) added]

– CCC

---

Making automatic firearm

102 (1) Every person commits an offence who, without lawful excuse, alters a firearm so that it is capable of, or manufactures or assembles any firearm that is capable of, discharging projectiles in rapid succession during one pressure of the trigger.

Punishment

(2) Every person who commits an offence under subsection (1) [making automatic firearm]

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

R.S., 1985, c. C-46, s. 102; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991, c. 28, s. 9, c. 40, s. 14; 1995, c. 39, s. 139.
[annotation(s) added]

– CCC

---

Importing or exporting knowing it is unauthorized

103 (1) Every person commits an offence who imports or exports

(a) a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, or

(b) any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm,

knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.

Punishment — firearm

(2) Every person who commits an offence under subsection (1) [importing or exporting firearms knowing it is unauthorized] when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device or any prohibited ammunition 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

(a) in the case of a first offence, three years; and

(b) in the case of a second or subsequent offence, five years.

Punishment — other cases

(2.1) In any other case, a person who commits an offence under subsection (1) [importing or exporting firearms knowing it is unauthorized] 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 one year.
(3) [Repealed, 2019, c. 25, s. 28]
R.S., 1985, c. C-46, s. 103; 1991, c. 40, s. 15; 1995, c. 39, s. 139; 2008, c. 6, s. 12; 2015, c. 27, s. 26; 2019, c. 25, s. 28.
[annotation(s) added]

– CCC

---

Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving weapons trafficking under s. 99 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "manufactures or transfers" or "offers to" manufacture or transfer a thing to anyone ; ☐ the thing was "a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition" ; ☐ the culprit knew that he was "not authorized to do so under the Firearms Act" or any other federal act or regulations .	Proving possession of weapons for the purpose of trafficking under s. 100 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit possesses a thing ☐ the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition "; ☐ the culprit possesses it for the purpose of "transferring it" or "offering to transfer it"; ☐ the culprit knew that possession was "not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations".
Proving Transfer without authority under s. 101 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit transfers a thing to a person; ☐ the thing was "a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition"; and ☐ the transfer was not "under the authority of the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament."	Proving Making automatic firearm under s. 102 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "alters a firearm" or "manufactures or assembles any firearm"; ☐ the prohibited conduct results in the firearm being "capable of, discharging projectiles in rapid succession during one pressure of the trigger"; and ☐ the culprit does the prohibited conduct without "lawful excuse".
Proving Importing or exporting knowing it is unauthorized under s. 103 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "imports or exports" a thing; the thing is either: ☐ " prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition", or ☐ "any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm" and ☐ the culprit knew that they were "not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament".

Interpretation of the Offence

Weapons trafficking is a wiretap eligible offence under s. 183.

Section 84(1) defines "transfer" which means to "sell, provide, barter, give lend, rent, send, transport, ship, distribute or deliver".

Traffic by Offer

Similar to drug trafficking, the act of trafficking in weapons can be made out by an offer alone regardless of the actual intention to sell or give the thing offered.

Definitions

Section 84 defines "firearms".

Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See Weapons Offences (Sentencing) for general principles

Sentencing Profile

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 99 [weapons trafficking], s. 100 [possession for purpose of weapons trafficking], s. 103 [importing or exporting firearms knowing it is unauthorized]	N/A	10 years incarceration
s. 101 [transfer without authority], s. 102 [making automatic firearm]	Summary Election	1 year incarceration
s. 101 [transfer without authority]	Indictable Election	5 years incarceration
s. 102 [making automatic firearm]	Indictable Election	10 years incarceration

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking] and 103 [importing or exporting firearms knowing it is unauthorized] are straight indictable. The maximum penalty is 10 years incarceration.

Offences under s. 101 [transfer without authority] and 102 [making automatic firearm] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration' under s. 101 and 10 years incarceration under s.102. If prosecuted by summary conviction, the maximum penalty is 1 year incarceration.

Minimum Penalties

For offences under s. 99, 100 and 103, the minimum penalty is 3 years incarceration or 5 years incarceration with a prior conviction(s) where the offence involved a "firearm, a prohibited device, any ammunition or any prohibited ammunition". Otherwise, the minimum penalty is 1 year incarceration incarceration.

For offences under s. 102, the minimum penalty is 1 year incarceration when prosecuted by indictment.

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. 99 [weapons trafficking], s. 100 [possession for purpose of weapons trafficking], and s. 103 [importing or exporting firearms knowing it is unauthorized]	N/A
s. 102 [making automatic firearm]	summary election
s. 102 [making automatic firearm]	indictable election

Offences under s. 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking], and 103 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

For convictions under s. 102, there are no conditional sentence, discharges, stand-alone fines or suspended sentences when prosecuted by indictment.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ranges

see also: Weapons Trafficking (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 99, 100, 101, 102 or 103	For conviction under s. 99, 100, or 103, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). If an offence under s. 101 or 102 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition Orders	s. 99, 100, 101, 102 or 103	For offences under s. 99(1), 100(1), 102 or 103(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. On conviction under s. 99, 100, 101, 102 or 103 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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. For offences under s. 99, 100, 101, 102 or 103 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required 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". 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. Where there is a conviction under s. 99, 100, 101, 102 or 103 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person". Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration. If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))

General 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).

General 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.

Record Suspensions and Pardons

Convictions under s. 99 [weapons trafficking] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

• History of Weapons Trafficking (Offence)

See Also

• Drug Trafficking

References

• Pre-Trial and Trial Motions Checklist