Proving the Existence of Firearms and Related Issues: Difference between revisions
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'''Onus on the accused'''<br> | '''Onus on the accused'''<br> | ||
117.11 Where, in any proceedings for an offence under any of sections 89 [''[[Carrying a Concealed Weapon (Offence)|carrying concealed weapon to meeting]]''], 90 [''[[Carrying a Concealed Weapon (Offence)|carrying concealed weapon]]''], 91 [''[[Unauthorized Possession of a Firearm (Offence)|unauthorized possession of a firearm]]''], 93 [''[[Possession of a Firearm in an Unauthorized Place (Offence)|Possession at unauthorized place]]''], 97, 101 [''[[Weapons Trafficking (Offence)|transfer firearm without authority]]''], 104 [''Unauthorized importing or exporting''] and 105 [''Losing or finding firearm''], any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate. <br> | 117.11 Where, in any proceedings for an offence under any of sections 89 [''[[Carrying a Concealed Weapon (Offence)|carrying concealed weapon to meeting]]''], 90 [''[[Carrying a Concealed Weapon (Offence)|carrying concealed weapon]]''], 91 [''[[Unauthorized Possession of a Firearm (Offence)|unauthorized possession of a firearm]]''], 93 [''[[Possession of a Firearm in an Unauthorized Place (Offence)|Possession at unauthorized place]]''], 97 [''repealed offence''], 101 [''[[Weapons Trafficking (Offence)|transfer firearm without authority]]''], 104 [''Unauthorized importing or exporting''] and 105 [''Losing or finding firearm''], any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate. <br> | ||
1995, c. 39, s. 139. | 1995, c. 39, s. 139. | ||
|[http://canlii.ca/t/7vf2#sec117.11 CCC]}} | |[http://canlii.ca/t/7vf2#sec117.11 CCC]}} | ||
Revision as of 17:32, 28 September 2018
- < Criminal Law
- < Firearms
General Principles
Certificate of Analysis
Certificate of analyst
117.13 (1) A certificate purporting to be signed by an analyst stating that the analyst has analyzed any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or any part or component of such a thing, and stating the results of the analysis is evidence in any proceedings in relation to any of those things under this Act or under section 19 of the Export and Import Permits Act in relation to subsection 15(2) of that Act without proof of the signature or official character of the person appearing to have signed the certificate.
Attendance of analyst
(2) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.
Notice of intention to produce certificate
(3) No certificate of an analyst may be admitted in evidence unless the party intending to produce it has, before the trial, given to the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate.
(4) and (5) [Repealed, 2008, c. 18, s. 2]
1995, c. 39, s. 139; 2008, c. 18, s. 2.
– CCC
Proof Where Firearm Not Recovered
There is no obligation upon the Crown to produce testing results in order to prove that a weapon is a firearm.[1] It is possible to prove that a weapon was a "firearm" within the meaning of s. 2 from the totality of the circumstances even where the weapon was not fired or recovered.[2]
The trier-of-fact is permitted to make an inference that the weapon is a actual firearm within the meaning of s. 2 based on the observations of witnesses and actions of accused.[3]
- ↑
R v Cater, 2014 NSCA 74 (CanLII) at para 46
- ↑
R v Wills, 2014 ONCA 178 (CanLII) at para 50
R v Gordon, 2017 ONCA 436 (CanLII) at para 31
- ↑
Gordon, ibid.
R v Grizzle, 2012 ONSC 2478 (CanLII), per Benotto SCJ
Cater, supra at para 46 ("It is up to the trier of fact, based on the totality of the evidence, to determine if a gun is a firearm, as defined by s. 2 of the Criminal Code. The circumstances surrounding the transactions, the words used, and the conduct of the accused are obviously highly relevant.")
R v Abdullah, [2005] O.J. No. 6079 (ONSC)(*no CanLII links) R v Charbonneau, [2004] O.J. No. 1503 (ONCA)(*no CanLII links)
R v Carlson, 2002 CanLII 44928 (ON CA)
R v Mills, [2001] O.J. No. 3675 (ONSC)(*no CanLII links)
R v Carrie, [1998] B.C.J. No. 1535 (BCCA)(*no CanLII links)
R v Osiowy, 1997 ABCA 50 (CanLII)
R v Robbie, 1989 ABCA 182 (CanLII)
R v Lemoine, [1988] O.J. No. 601 (ONCA)
R v Downey, 1987 ABCA 65 (CanLII), per Laycraft CJ
Certificate of Authorization or Registration
Onus on the accused
117.11 Where, in any proceedings for an offence under any of sections 89 [carrying concealed weapon to meeting], 90 [carrying concealed weapon], 91 [unauthorized possession of a firearm], 93 [Possession at unauthorized place], 97 [repealed offence], 101 [transfer firearm without authority], 104 [Unauthorized importing or exporting] and 105 [Losing or finding firearm], any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.
1995, c. 39, s. 139.
– CCC
Authorizations, etc., as evidence
117.12 (1) In any proceedings under this Act or any other Act of Parliament, a document purporting to be an authorization, a licence or a registration certificate is evidence of the statements contained therein.
Certified copies
(2) In any proceedings under this Act or any other Act of Parliament, a copy of any authorization, licence or registration certificate is, if certified as a true copy by the Registrar or a chief firearms officer, admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the authorization, licence or registration certificate would have had if it had been proved in the ordinary way.
1995, c. 39, s. 139.
– CCC
Definitions
Definitions
84 (1) In this Part,
...
authorization means an authorization issued under the Firearms Act; (autorisation)
...
chief firearms officer means a chief firearms officer as defined in subsection 2(1) of the Firearms Act; (contrôleur des armes à feu)
Commissioner of Firearms means the Commissioner of Firearms appointed under section 81.1 of the Firearms Act; (commissaire aux armes à feu)
...
Meaning of holder
(4) For the purposes of this Part, a person is the holder of
- (a) an authorization or a licence if the authorization or licence has been issued to the person and the person continues to hold it; and
- (b) a registration certificate for a firearm if
- (i) the registration certificate has been issued to the person and the person continues to hold it, or
- (ii) the person possesses the registration certificate with the permission of its lawful holder.
...
– CCC