Toronto Gun, Firearms & Weapon Offence Lawyers
What to do if you’re charged with a weapons offence?
A conviction for any weapons offence has serious consequences. Many weapons offences currently carry mandatory minimum jail sentences. And any weapons offence – no matter how serious or trivial – carries the real risk of a permanent criminal record, which can have life changing consequences. A criminal record can make it harder to enter certain professions, to get a job, or to travel to the United States.
Our firm has a lot of experience defending people charged with weapons and firearms offences all across Ontario. We know how to craft a defence to these charges, to find and preserve the evidence needed to back it up, and to marshal that evidence in court to provide the best defence possible to the charge. We also use our experience in the court system to successfully negotiate withdrawals and other resolutions to many charges before they ever get to trial. Sometimes, trials can’t be avoided, and in that case having a lawyer with a proven track record in Court is the most important thing you can do to help your case. You need a lawyer who can persuasively tell your story and present your defence through cross-examination, by preparing you to testify, and by using the law and the facts to persuasively argue your defence in closing submissions.
If you have been charged with a weapons offence or believe that you might be, contact us using the form on this web page immediately for a free consultation about your case.
Weapon offences in Canada
The Criminal Code contains many different weapons offences, with firearms offences being among the most common. Gun ownership is strictly regulated in Canada. The unregistered use, possession and trafficking of firearms carry severe penalties, including mandatory minimum jail sentences.
Weapons and firearms offences are also complicated. They often involve complex police investigations that raise difficult constitutional issues, an understanding of the regulatory schemes that apply to firearms and other weapons, and the ability to uncover police misconduct and violations of Charter rights through cross-examination and effective trial advocacy.
Firearms Possession Offences:
The Criminal Code contains many different types of firearms offences, including offences relating to the possession of firearms, the sale of firearms, and the illegal use of firearms.
Some of the offences in the Criminal Code that relate to possession include:
Careless use of a firearm:
Section 86(1) of the Criminal Code criminalizes anyone who uses, carries, handles, ships, transports or stores a prohibited firearm in a careless manner without reasonable precautions for the safety of other persons. This charge is often laid on people who are arrested while carrying a firearm in public, or who are found to have an illegal firearm in their home, car, or some other location. Federal regulations set out strict rules around the proper storage of firearms, and violations of these rules can lead to criminal charges.
Unauthorized possession of a firearm:
Section 91(1) and (2) of the Criminal Code make it an offence to possess any type of firearm without a licence and/or a registration certificate. The offence carries a maximum penalty of five years in jail.
Possession of a prohibited or restricted firearm:
Section 95(1) of the Criminal Code makes it an offence to possess a loaded prohibited or restricted firearm, or an unloaded firearm with “readily accessible” ammunition. This is a more serious offence than simple possession because it is essentially penalizing the illegal possession of a loaded gun. The Criminal Code used to set out a three year mandatory minimum jail sentence for this offence. Janani Shanmuganathan was counsel at the Supreme Court of Canada on the case that saw this minimum struck down as a violation of the Charter of Rights and Freedoms.
Possession of a firearm with a serial number defaced:
Section 108(1) of the Code criminalizes the possession of a firearm where the serial number on the firearm has been altered, defaced or removed. The offence is only made out if the Crown can prove that the accused knew the firearm had been defaced. The offence is designed to criminalize those who would seek to make a firearm “untraceable” by removing the serial number.
Sale of Firearms Offences:
Section 99(1) makes it an offence to manufacture or transfer a firearm. The offence is drafted broadly to include offering to manufacture or transfer a firearm as well. This means that offering to sell someone a firearm constitutes trafficking a firearm – whether or not the firearm was ever actually sold. Trafficking carries severe penalties because of the belief that the sale of firearms contributes directly to street level gun crime in Toronto and other major urban centres in Ontario and elsewhere in Canada.
Section 103(1) makes it an offence to import a firearm into Canada without being authorized to do so. Importing is one of the most serious firearms offences in the Criminal Code, carrying a three year mandatory minimum for a first offence and a five year minimum for a second offence. Although these minimums may be unconstitutional, courts have held that severe penalties are nonetheless warranted for any importing offence. Importing applies to anyone who carries a firearm into the country, and also those who organize or arrange for a firearm to get into Canada.
Use of Firearms Offences:
Pointing a firearm:
Section 87(1) of the Criminal Code makes it an offence to point a firearm at another person, whether or not the firearm is actually loaded. The offence is punishable by up to five years in jail.
Discharging firearm with intent: Section 244(1) of the Criminal Code makes it an offence to discharge a firearm at another person with the intent to wound, main, disfigure or endanger their life, or to prevent the arrest or detention of any person. Once the Crown proves that an accused person fired a gun at someone else, it is easy to prove there was an intent to wound. This is a serious offence that carries a minimum punishment of five years in prison for a first offence, with a maximum term of 14 years in jail.
Discharging a firearm with intent:
Section 244(1) of the Criminal Code makes it an offence to discharge a firearm at another person with the intent to wound, main, disfigure or endanger their life, or to prevent the arrest or detention of any person. Once the Crown proves that an accused person fired a gun at someone else, it is easy to prove there was an intent to wound. This is a serious offence that carries a minimum punishment of five years in prison for a first offence, with a maximum term of 14 years in jail.
Using a firearm in the commission of an offence:
Section 85(2) of the Criminal Code makes it a crime to use a firearm while committing another offence. The offence captures those who use a firearm while committing other crimes, like robbery. The offence carries a mandatory minimum punishment of one year in jail.
Frequently asked questions about firearm offences:
What does “possession” mean?
The technical definition of possession is set out in section 4(3) of the Criminal Code. It includes situations where someone has a firearm in their actual possession, has stored the firearm somewhere, has left the firearm in someone else’s possession (e.g. if someone has their friend store something for them), or situations where more two or more people jointly have possession of something.
The courts have held that proving possession requires the Crown to prove that the accused had “knowledge” and “control” over the firearm. Put simply, knowledge means that the accused will be guilty of possession only where the Crown can prove that he or she had knowledge of that they were in possession of a firearm. Someone who has a firearm in their garage, for example, but who legitimately has no idea it is there because they are not the one who put it there, would not have the knowledge needed to prove the offence. That being said, someone who is reckless or “wilfully blind” about what it is that they possess can be found to have had knowledge.
Control requires the Crown to prove that a person exercised some amount of control over the firearm. Just because someone knows where a firearm is, for example, (e.g. in a friend’s backpack) doesn’t mean that person is guilty of possession. Before that can happen, the person must have some measure of control over the firearm.
However, the concept of control doesn’t just mean immediate physical control. For example, someone can be deemed to have control over a firearm that is stored on someone else’s property. If a person asks their friend to keep a gun in their garage, that person can still be deemed to be in possession of the firearm, even if they can’t physically get into the garage without their friend, because they have exercised some degree of control over the gun.
How do the police get a warrant?
To get a warrant, the police have to apply to a Judge or a Justice of the Peace. The warrant should only be granted if the police can show they have reasonable grounds to believe an offence has been committed, and that searching the place they want to search is likely to provide evidence of the offence. These search warrant applications require the police to set out their grounds for believing that an offence has been committed by the accused, and that evidence will be found in the place they want to search. The process requires the police to provide “full, frank and fair” disclosure of their investigation to the courts – meaning the police are not allowed to lie, mislead, or cherry pick from the evidence simply to try and justify a warrant being issued.
In many weapons cases involving search warrants, challenging the search warrant may be the only viable defence. These challenges involve carefully examining the warrant application along with all of the other notes and records of the police investigation. It is critical to see whether the information set out in the warrant was sufficient to justify issuing the warrant. In addition, it is important to see whether the rest of the evidence in the case reveals that the police were dishonest or misleading when they applied for the warrant.
Even if a search warrant was legally issued, the police must conduct the search in a reasonable way. If the police destroy property while they “turn a house upside down” looking for evidence, it is possible that they will be found to have violated the Charter.
What happens if the police did something illegal in finding the weapon?
If the police found a weapon by illegally searching someone, that does not mean that the evidence or the charges will automatically be thrown out. Instead, the courts have held that they must balance the police conduct and its effect on the accused against society’s interest in having the case prosecuted. This makes it critically important to show at trial not just that a search was illegal, but that the police acted in bad faith, were negligent, that the misconduct reflects a systemic problem with the police force, and that the search profoundly violated the accused’s privacy rights.
When are the police allowed to search someone?
The police often find weapons by searching people or places. In many weapons cases, the question of possession may not be controversial, and the issue will surround how the police found the weapon or gun, and whether they did anything illegal in the process. The Charter of Rights and Freedoms protects everyone in Canada against “unreasonable” search and seizure. Many weapons cases involve challenges to police decisions to search people, which led to the discovery of the weapon.
Search and seizure is a complicated legal subject in Canada, but in general the police can only search someone in a few situations:
- If the police have “reasonable grounds to believe” someone has committed a crime, they are empowered to arrest that person. After making an arrest, the police are allowed to search that person and their possessions to look for evidence. So, for example, if the police see someone with a weapon, or if they see someone commit another offence like an assault, they can arrest that person and search them.
- If the police have “reasonable grounds to believe” someone is in possession of a weapon, they can apply for a warrant to search that person’s house, car, or any other place they believe the weapon is being stored.
- If the police “reasonably suspect” someone is committing an offence, they are entitled to detain that person to investigate. As part of that investigative detention, they are allowed to conduct a “pat down” search in order to ensure their safety. Many weapons offences begin with the police detaining someone on suspicion that they might have a weapon on them, and then trying to develop the grounds they need to make an arrest or to search the person.
In many weapons cases, whether the police had the authority they needed to conduct a search, and whether they used that authority properly, become pivotal issues. The sad reality is that there are cases where the police abuse the powers they have been given, lie about the reasons for conducting a search, or how the search was conducted, or simply don’t know the rules around what they are allowed to do. Racial profiling is real. In many cases, challenging the search that was conducted provides the best defence against weapons charges.
What is the sentence for weapons offences in Canada?
There is a wide range of possible sentences for weapons offences in Canada. Every case depends on its facts. Someone charged with possession of a knife for a dangerous purpose, who doesn’t have a criminal record, could well end up being given diversion and having their charges withdrawn. Someone else who is convicted of trafficking a large number of firearms with a criminal record for similar offences, could end up serving more than a decade in a federal penitentiary. Every case depends on its unique facts.
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