Possession of Unauthorized Firearm (Offence)

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Possession of Unauthorized Firearm
s. 92 of the Crim. Code
Election / Plea
Crown Election	Indictment
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable. Preliminary inquiry also available.
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 (second) 2 years less day incarceration (subseq.)
Maximum	10 years incarceration
Reference
Offence Elements Sentence Digests

Overview

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

Pleadings

Template:PleadingsIndictableList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 92 are straight indictable. There is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 92, notice of increased penalty under s. 727 must be given. 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. 92	Template:ReleaseProfileOnlyBail

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));

A peace officer who charges a person under s. 92 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 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

Offences under s. 92 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

Possession of firearm knowing its possession is unauthorized
92 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and

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

Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition knowing that the person is not the holder of a licence under which the person may possess it.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;

(b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and

(c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.

Exceptions

(4)...
(5) and (6) [Repealed, 2012, c. 6, s. 3]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27, s. 20.

– CCC

Proof of the Offence

Proving possession of firearm knowing its possession is unauthorized under s. 92 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit possesses an object; the object is a “firearm” as defined in s.2 of the Criminal Code of Canada or a prohibited weapon; the culprit was not a holder of a "licence under which a person may possess" the object; that the accused was not a holder of a registration certificate for the firearm in question; the culprit knew or was wilfully blind to the fact he was not a holder of such a licence or registration.

Proving possession of prohibited weapon, device or ammunition knowing its possession is unauthorized under s. 92 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit possesses an object; the object is a "prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition"; the culprit knows that they are "not the holder of a licence under which the person may possess it".

Interpretation of the Offence

The absence of firearms certification can be proven with an affidavit of the Chief Firearms Officer of the province or federal government.

Defences

92.
...

Exceptions

(4) Subsections (1) and (2) do not apply to

(a) a person who possesses a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or

(b) a person who comes into possession of a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it,

(i) lawfully disposes of it, or

(ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

(5) and (6) [Repealed, 2012, c. 6, s. 3]
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3; 2015, c. 27, s. 20.

– CCC

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

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

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 92 [possession of unauthorized firearm]	N/A	10 years custody

Offences under s. 92 are straight indictable. The maximum penalty is 10 years incarceration.

Minimum Penalties

Where there is no prior conviction, there is no mandatory minimum. If the accused has one prior conviction, the minimum penalty is 1 year. If there is two or more prior convictions, the minimum penalty is 2 years less a day.

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. 92	N/A

If the offence involves the "use of a weapon", there is no conditional sentence available. If the accused has one or more prior convictions, there is no discharge of conditional sentences available.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Notice of Prior Convictions

92.
...
Evidence for previous conviction
(6) Where a person is charged with an offence under subsection (1), evidence that the person was convicted of an offence under subsection 112(1) of the Firearms Act is admissible at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person knew that the person was not the holder of a registration certificate for the firearm to which the offence relates.
R.S., 1985, c. C-46, s. 92; R.S., 1985, c. 1 (2nd Supp.), s. 213; 1991, c. 40, s. 7; 1995, c. 39, s. 139; 2008, c. 6, s. 5; 2012, c. 6, s. 3.

– CCC

Ranges

see also: Possession of Unauthorized Firearm (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Order	s. 92	For conviction under s. 92, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Weapons Prohibition	s. 92	On conviction under s. 92 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. 92 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. 92 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 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.

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).

History

• History of Possession of Unauthorized Firearms (Offence)

See Also

Reference

• Pre-Trial and Trial Motions Checklist