WHAT IS A FIREARMS OFFENCE?
The use, registration, storage and handling of firearms is subject to various laws and regulations which are set out in the Criminal Code and Firearms Act. There are many types of firearms offences, however this article will outline some of the most common varieties. This article is not meant to be an exhaustive legal guide to gun charges in Canada, but rather a glimpse into their complex legislative and regulatory nature.
UNSAFE STORAGE OF A FIREARM
This offence involves the crown proving that you contravened one of the Firearms Act regulations respecting the storage, handling, transportation, shipping, display, advertising or mail-order sales of firearms and restricted weapons.
For example, forgetting to use a trigger lock on a firearm on display. Oftentimes, these types of charges, when standalone, do not proceed to trial.
CARELESS USE OF A FIREARM
Careless use of a firearm charges can arise if, without lawful excuse, you use, carry, handle, transport, or store a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner, or without reasonable precautions for the safety of others. The crown must prove beyond a reasonable doubt that you were careless with your firearm in the specific circumstances of your case.
This offence may arise out of a mere accident on the part of the handler. For example, forgetting to unload a rifle after hunting and then transporting it. Charges of this nature are sometimes laid without the full context of the situation, and it is important to have proper representation to argue the context in your defence.
DISCHARGING A FIREARM
The Criminal Code contains several offences relating to discharging a firearm. These include recklessness in discharging a firearm, and discharging with intent to wound, maim, disfigure, endanger the life/prevent the arrest of a person.
Accidental discharge of a firearm can happen to almost anyone – even the most careful of people. In these scenarios, I have been successful in resolving these charges without my clients receiving a criminal conviction.
In cases where the discharge was not an overt accident, a successful defence is still possible. The crown is tasked with proving your discharge of the firearm was reckless, or that you had specific intention. There are several ways you might be able to challenge the allegations, such as testifying to your state of mind, or testifying to the specific actions you took to ensure the firearm was handled properly. Or, if the crown has not been able to prove intent, then the Court would have to find you not guilty.
UNAUTHORIZED POSSESSION OF A FIREARM
You could be charged with the offence of unauthorized possession of a firearm if you possess a prohibited firearm or restricted firearm without a license and a registration certificate, or if you possess a non-restricted firearm without a license. The element of “possession” is often a contentious factor at trial. To be found guilty of a possession-related firearms offence, it is not necessary that you actually have a gun on you.
Depending on where and how the police found the firearm, then the crown may have to establish constructive possession, which can provide many opportunities to defend against the crown’s case. The Criminal Code establishes that there can be “constructive” possession, meaning that the law considers you to have possession where any of the following are true:
- The firearm is found on you.
- The firearm is found on your property, or in your immediate vicinity, when you know it is a firearm, and you also have some sort of control over it.
- You knowingly place the firearm in the possession or custody of another person to hold it for you, but you continue to have some measure of control over the firearm.
- You place the firearm in a location that you do not own, but you keep it there for your own use or benefit or that of another person, and you still retain some degree of control over the firearm.
Again, the context surrounding the charge is important to determine the available defences, as there are exceptions to lawfully possessing an unauthorized firearm. For example, if you come into possession of a prohibited firearm lawfully and, within a reasonable period afterwards, obtain a license and registration certificate for it, you cannot be found guilty of this offence. However, the police issue a charge if they think you waited too long to obtain these documents.
Depending on the context and seriousness of the scenario, there is a wide range of sentences that you may face if convicted or if you plea guilty to firearms offences. However, in some situations, it may be possible to have your matter diverted to a diversionary program like Alternative Measures, thus leaving you without a conviction upon successful completion of the program. If convicted or if you plead guilty the range of sentences is from a fine to probation to jail time.
The seriousness of the charge is elevated based on a number of factors. For example, it is more likely you will face a higher penalty where aggravating circumstances exist such as if you have a prior related criminal record of these types of offences.
For less serious charges, the maximum penalties you will face will be on the lower end of the spectrum. For example, unsafe storage of a firearm or careless use of a firearm charges have a maximum penalty of two years imprisonment when they are proceeded by indictment on a first offence. However, with these charges the penalty maximum increases to five years imprisonment for a second or subsequent offences.
For possession charges, the maximum penalties increase. On the lower end, such as for an unauthorized possession of a firearm charge, you will face a maximum penalty of five years imprisonment for a first offence when proceeded by indictment. However, for more serious possession charges, you will face a maximum penalty of 10 years imprisonment.
Because of the nature, complexity, and possible penalties associated with firearm offences, it is important to contact an experienced criminal lawyer at the early stages of your criminal case. I have years of experience in these types of offences, both as a former crown prosecutor and as a criminal defence lawyer.