Experienced Criminal Lawyers

What Are The Best Defences To Firearms Offences?

By: Jillian Williamson

The Firearms Act of Canada sets out the governing principles and requirements for firearm ownership and possession in Canada. The Criminal Code of Canada is the governing legislation for any contraventions relating to unauthorized possession, trafficking, or illegal use of a firearm.

First it is important to understand the classification of firearms. There are three classifications. These include:

1. Non-restricted firearms include ordinary rifles and shotguns which are commonly used for hunting and/or target shooting.
2. Prohibited firearms include most .32 or .25 calibre handguns, and handguns with a barrel length of 105 mm or shorter. Fully automatic firearms, converted automatics, firearms with a sawed-off barrel, and some military rifles like the AK-47 are also prohibited.
3. Restricted firearms include certain handguns and some semi-automatic long guns Rifles that can be fired when telescoped or folded to shorter than 660 mm are also restricted.

What about air-soft guns?

It is important to note that air-soft guns may fall within the definition of a non-restricted firearm, but it will depend on certain factors including the velocity and barrel length. It is common to be charged with possession or careless use of firearms offence (to wit: an airsoft gun). However, these offences require a firearms expert to prove beyond a reasonable doubt that the airsoft gun is a firearm.

What are the most common firearms offences?

• Careless use of a firearm
• Pointing a firearm
• Possession of a weapon for a dangerous purpose
• Carrying a concealed weapon
• Unauthorized possession of a firearm
• Improper storage of a firearm
• Possession of a weapon obtained by commission of offence
• Trafficking weapons
• Aggravated assault (using a weapon)
• Assault with a deadly weapon

What constitutes unauthorized possession of a firearm?

Section 91(1) of the Criminal Code, sets out the offence for possessing a firearm without a licence.  If the firearm is considered to be restricted, the license must be accompanied by a registration certificate. An exception to unauthorized possession exists where a person possesses a firearm under the direct supervision of the lawful owner and operator of the firearm. However, it is an indictable offence to possess a firearm knowing that the person is not a holder of a licence for the firearm and a registration certification. A summary disposition for unauthorized possession can range anywhere from a suspended sentence, a fine or probation to a maximum of six months in prison. The maximum penalty for the indictable variation of unauthorized possession is five years imprisonment.

What are the common defences to unauthorized possession of a firearm?

1. Having no knowledge, control or possession of the firearm at issue

Any possession offence requires proof beyond a reasonable doubt that you had knowledge of the firearm, control over the firearm and possession of the firearm (personal, constructive or joint possession). Often times the best defence is wreaking havoc on the prosecution’s case to demonstrate that you had no knowledge, control and possession of the firearm. In many circumstances, the prosecution’s case is entirely circumstantial. Therefore, your criminal lawyer should understand the leading jurisprudence on this evidentiary issue and be ready to argue the weaknesses found in the prosecutor’s case. Finally, the prosecution has alternate ways to impute knowledge onto you. There is a legal concept known as “willful blindness”. This is a very high standard because the court imputes actual knowledge onto you. If a judge or jury finds that you had a reason to suspect a firearm was in your presence, but you chose to deliberately and figuratively shut your eyes or fail to ask questions, then you could have this knowledge imputed onto you which could lead to a guilty verdict. It is critical to have a skilled and experienced lawyer at your side who understands these legal concepts and can build a strategic defence for you.

2. Arguing to exclude evidence based on an illegal search

Any admissible evidence collected by the police must be obtained lawfully.  If the search was unlawful, your criminal lawyer could make an application to exclude the evidence based on the illegalities at issue and a breach of your Charter rights. If this argument is accepted, the prosecutor will have no admissible evidence to support a conviction. This will result in an acquittal at trial. However, it is also important to know that the prosecution can pursue forfeiture hearings in certain circumstances.

What are the common defences to careless use of firearm?

One of the best defences to careless usage of a firearm is demonstrating that you were acting with the applicable standard of care. In order to demonstrate this at trial witnesses will need to give evidence in court that contradict what the prosecution witnesses state. Your lawyer will need to establish that you took all necessary precautions to ensure there was no threat to the public safety. Another argument may be that it was impossible for you (at the time) to know that you were potentially endangering anyone through the use of your firearm.

Firearms offences involve technical legal arguments. Strategic defences to firearms offences involve objecting and arguing that critical evidence that is to be used against you is inadmissible based on technical rules of evidence.

Some of the minor offences involving possession of a firearm can be challenged for technical reasons where no mental intent is required. The more serious and complex firearm charges are difficult to prove beyond a reasonable doubt which means your criminal lawyer should have multiple paths to challenge and potentially exclude otherwise admissible evidence.

How can my lawyer help me avoid a conviction of a firearm offence?

• Convincing the prosecution to withdraw the charges
• Acquittal at trial
• Negotiating the case leading to multiple options,
• Convincing the Court to discharge you in some creative manner such as a conditional discharge

Firearms offences are treated seriously in criminal court. It is critical to have a serious lawyer who defends these allegations at your side.