Penalties and Sentencing for Weapons Offences

What is a Firearm Offence?

With increasing concerns over gun violence in Canada and a general intolerance towards it, Canadian criminal legislation is very tough on weapons offences. Many firearms-related offences carry substantial mandatory minimum sentences, especially for offenders convicted for a second or multiple offences. A criminal conviction for a weapons offence has wide-reaching consequences, including a criminal record, jail, probation and can ultimately affect travel to the U.S. and other countries or future employment opportunities.

Generally, weapons offences under the Criminal Code of Canada refer to the illegal possession or use of prohibited or restricted firearms and other weapons, including parts of weapons such as cartridge magazines and ammunition. The Criminal Code of Canada covers an extensive range of weapons offences. If the Crown Attorney chooses to try the case as an indictable offence, you may face significant jail time.

Under section 2 of the Criminal Code of Canada, a weapon can be anything that is intended to be used to intimidate or threaten someone or to cause injury or death to a person. Depending on the context and circumstances, an article used to bind or tie up a person against their will could also be considered a weapon. This definition is used mainly in cases of assault, as any item that could be used to intimidate or harm another person could lead to an assault charge.

For example, in R. v. Huete, 2008, the Supreme Court of B.C. upheld a conviction for a man charged with carrying a concealed weapon. He was stopped near an assault scene with a large object protruding from his sweatshirt, which was determined to be a machete. The judge concluded that the size of the machete was not intended for peaceful purposes and would clearly intimidate and scare members of the public and, therefore, was to be considered a concealed weapon.

Similarly, in R. v. D.A.C., 2007, a man was tried on charges of carrying a concealed weapon and possession of a weapon for a dangerous purpose. When the man boarded a bus, the bus driver observed a knife protruding from the man’s front pocket. A bus security officer seized the knife in question, which was an ornate Japanese-style dagger. The man claimed he was transporting the dagger to an uncle’s house as his father did not want it stored in his home. In this case, the charges were not connected to any other crime, and the young man did not threaten any other person, so the trial judge ruled the man “not guilty” on the charge of carrying a weapon for a dangerous purpose. However, he was found guilty of carrying a concealed weapon. This offence is not dependent on one’s intent to harm another person. 

In any weapon-related charges, the criminal defence lawyer will examine all aspects of the arrest to determine whether arresting officers broke any arrest procedures, especially regarding respecting the rights of the accused under the Canada Charter of Rights and Freedoms. If the police did not have probable grounds for a search or did not execute the search properly, for example, a skilled Toronto criminal defence lawyer can file a Charter application for evidence to be excluded. If it can be shown that other people had access to the weapon(s), the lawyer can raise a reasonable doubt about who had actual possession or custody of the weapon.

If found guilty of a firearm offence, it is crucial to present a strong argument for a reduced sentence by demonstrating the positive character of the accused, such as holding down steady employment, supporting a family or not having committed a prior criminal offences. The primary goal is to get your charges dropped. If this is not possible, then portraying your strong rehabilitative prospects is essential in obtaining the least severe penalty.

Firearm and Weapon Offences

Using a Firearm in Commission of an Offence

You can be charged with using a firearm in the commission of an offence under section 85 of the Criminal Code of Canada, even if nobody gets hurt. There is no minimum punishment for this offence but the maximum sentence for this offence is 14 years in prison.

Careless Use of Firearm and Contravention of Storage Regulations

Handling a weapon or ammunition in a careless manner or without regard for the safety of others is considered a crime under section 86 of the Criminal Code of Canada. It also forbids the unlawful storage, transportation or shipping of a firearm. This charge can be treated as a summary conviction or indictable offence. In the case of the prosecutor treating it as an indictable offence, sentences can be up to two years in prison for first offenders and up to five years for second or subsequent offences. If they are treated as summary convictions, prison terms or fines will be reduced.

The RCMP mandates that lawfully owned non-restricted firearms must be stored in a locked, secure cabinet, container or room or secured by a trigger or cable lock or by removing the bolts so the firearm cannot be fired.

Lawfully owned restricted weapons require a secure locking device attached to the firearms so they cannot be fired. Additionally, they must be locked in a cabinet, container or room that is difficult to break into. Specifically built or modified vaults, safes, or rooms are also options for storing firearms safely. For automatic weapons, the RCMP says that bolts or bolt carriers, if removable, should be locked in a secure separate room from the weapon.

During transportation, non-restricted firearms must be unloaded. The RCMP also recommends they be carried in the trunk or a lockable compartment. If your vehicle does not have a trunk or lockable compartment, the RCMP recommends putting “firearms and firearm containers out of sight inside the vehicle and lock the vehicle.” You cannot leave any class of firearm in an unattended vehicle.

Pointing a Firearm

Pointing a firearm “without lawful excuse” can lead to a charge, even if the weapon is not loaded, as section 87 of the Criminal Code of Canada states. It can be tried as an indictable offence, with a maximum prison term of 5 years, or as a summary conviction, with reduced penalties.

Possession Offences

Possession of Weapon for Dangerous Purposes

A charge of possessing a weapon for dangerous purposes can be laid based on section 88 of the Criminal Code of Canada. If treated as an indictable offence, you can face up to 10 years in prison, with reduced sentences for summary convictions.

Carrying a Weapon While Attending a Public Meeting

Carrying a weapon while attending a public meeting is punishable by summary conviction as per section 89 of the Criminal Code of Canada.

Carrying a Concealed Weapon

Unless you have authorization to carry a concealed weapon under the Firearms Act, you can be charged for hiding a firearm or ammunition under section 90 of the Criminal Code of Canada. It carries up to five years of prison if tried as an indictable offence or less severe sentences if treated as a summary conviction.

Unauthorized Possession of a Firearm

You could face charges for unauthorized possession of a firearm under section 91 of the Criminal Code of Canada if you possess a non-restricted firearm without being properly licensed or a restricted or prohibited firearm without the proper registration papers. If convicted of an indictable offence, you could face up to five years in prison, with less severe penalties under a summary conviction.

Some exceptions may apply if you are under the direct supervision of a person who may lawfully possess these firearms or for those coming into possession of such a firearm, like an executor of an estate. They are granted a “reasonable period” by the Criminal Code of Canada to dispose of the weapon lawfully.

Possession of Firearm Knowing its Possession is Unauthorized

It is an offence to have someone possess a non-restricted firearm if you know this person lacks a license or, in the case of a restricted or prohibited firearm, a registration certificate. Section 92 of the Criminal Code of Canada treats this as an indictable offence, with a maximum 10-year sentence for a first offence.

Possession at an Unauthorized Place

Under section 93 of the Criminal Code of Canada, you can be charged with possessing a weapon at an unauthorized place if you have a firearm at a place where it may not be as indicated in authorization papers or allowable under the Firearms Act. If tried on an indictable offence, you could face 5 years in prison or lesser sentences, facing a summary conviction.

Unauthorized Possession in Motor Vehicle

As per section 94 of the Criminal Code of Canada, it is illegal to be in a vehicle if you know there is a firearm inside unless the person carrying it is licensed to possess this firearm or has a valid registration certificate for it if it is a restricted or prohibited firearm. If found guilty of an indictable offence, the maximum sentence is 10 years in prison, with lesser penalties if convicted under a summary conviction.

Some exceptions apply, such as if you attempt to exit the vehicle or leave the motor vehicle when becoming aware of the firearm.

Possession of Prohibited or Restricted Firearm with Ammunition

Section 95 of the Criminal Code of Canada states that you could be charged if you possess restricted or prohibited firearms that are loaded if there is readily accessible ammunition and you don’t have the necessary authorization or licence to have the firearm in that place. If found guilty of an indictable offence, you could face up to 10 years in prison, with lesser sentences if handled as a summary conviction.

Possession of Weapon Obtained by Commission of Offence

It is illegal to possess any prohibited weapons or ammunition if you know that it was obtained in the commission of an offence, as outlined in section 96 of the Criminal Code of Canada. A conviction as an indictable offence carries a maximum sentence of 10 years, with less severe penalties if convicted on a summary conviction.

Breaking and Entering to Steal a Firearm

Breaking into a residence to steal a firearm is an indictable offence and carries a maximum penalty of imprisonment for life, section 98 of the Criminal Code of Canada states.

Assembling Offence

Making Automatic Firearm

Under section 102 of the Criminal Code of Canada, it is illegal to alter a firearm to make it capable of discharging projectiles in rapid succession with one pull of the trigger. This offence can be treated as an indictable office with a minimum of 1 year and a maximum of 10 years in prison or as a summary conviction with reduced sentences.

Offences Relating to Lost, Destroyed or Defaced Weapons, etc.

Losing or Finding

If you lose or find a firearm, you must report it to a peace officer, firearms officer or chief firearms officer, as section 105 of the Criminal Code of Canada states. If you are found guilty of failing to do so as an indictable offence, the maximum sentence is 5 years in prison, less if it is treated as a summary conviction. 

Weapons Offences Identified Under Canada’s Criminal Code

There are a wide array of Weapons, Guns and Firearms Offences defined in the Criminal Code of Canada under “Part III – Firearms and Other Weapons.” In addition to the criminal offences contained in this part of the Criminal Code, there are other related weapons and gun offences, including, but not limited to, robbery offences and criminal organization offences. 

Use Offences (s. 85-87)

• Section 85 – Using a Weapon/Firearm/Gun during the Commission of a Criminal Offence

You can be convicted of “using a firearm” even if you did not mean to cause any harm to another person.

• Section 86 – Careless Use of a Weapon/Firearm/Gun

Careless use or storage of a firearm includes its ammunition.

• Section 87 – Pointing a Gun/Firearm at Another Person

Please note that a firearm does not have to be loaded to commit one of these offences. Sentences can vary greatly, depending on the circumstances of the offence and offender.

Possession Offences (s. 88-98)

• Section 88 – Possession of a Weapon/Firearm/Gun for Dangerous Purposes
• Section 89 – Carrying a Weapon/Firearm/Gun While Attending Public Meetings
• Section 90 – Carrying a Concealed Weapon/Firearm/Gun
• Section 91 – Unauthorized Possession of a Weapon/Firearm/Gun
• Section 92 – Possession of a Weapon/Firearm/Gun Knowing Its Possession Is Unauthorized
• Section 93 – Possession of a Weapon/Firearm/Gun at an Unauthorized Place
• Section 94 – Unauthorized Possession of a Weapon/Firearm/Gun in a Vehicle
• Section 95 – Possession of a Restricted or Prohibited Weapon/Firearm/Gun
• Section 96 – Possession of a Weapon/Firearm/Gun Obtained by the Commission of a Criminal Offense
• Section 98 – Breaking and Entering to Steal a Weapon/Firearm/Gun

Sentences for these possession offences vary greatly when tried as an indictable offence:

• Maximum of 5 years in prison for carrying a concealed weapon
• Maximum of 10 years for unauthorized possession in a motor vehicle
• Maximum life imprisonment for breaking and entering or robbery to steal a firearm

The Crown has the option to try a case as a summary conviction for any of the less severe use or possession charges. The maximum sentence in these cases is significantly lower, up to 6 months in prison for ‘use’ offences and up to 6 months or 1 year for less severe possession offences.

Breaking and entering or robbery to steal a firearm will always be tried as an indictable offence and carries potentially substantial prison time.

Trafficking Offences (s. 99-101)

• Section 99 – Weapons/Firearms/Guns Trafficking
• Section 100 – Possession for the Purpose of Weapons/Firearms/Guns Trafficking
• Section 101 – Transferring Weapons/Firearms/Guns without Authority

If convicted, weapons trafficking offences carry sentences between 3 and 10 years in prison, except for transfer without authority, with a maximum sentence of 5 years if tried as an indictable offence.

Import/Export Offences (s. 103-104)

• Section 103 –Exporting and Importing Weapons/Firearms/Guns Knowing It Is Unauthorized
• Section 104 – Unauthorized Export and Import of Weapons/Firearms/Guns

If the accused was aware they were committing an illegal act, the sentencing for import/export of a firearm is greater, at 3 to 10 years for a first offence.

Lost, Damaged, or Destroyed Weapons Offences (s. 105-108)

• Section 105 – Finding or Losing Weapons/Firearms/Guns
• Section 106 – Destroying Weapons/Firearms/Guns
• Section 107 – Making False Statements about Losing, Destroying, or Theft of Weapons/Firearms/Guns
• Section 108 – Tampering with Weapons/Firearms/Guns Serial Numbers

Like with most weapons charges, lost/damaged/destroyed weapons offences can be tried as summary or indictable offences. The latter carry maximum sentences of 5 years for a first offence, with summary convictions carrying lower maximums.

Glossary of Legal Terms

Firearm

A firearm is defined as a barrelled weapon from which a projectile can be discharged and is capable of causing bodily harm or death to a person.

Indictable Offence

Indictable offences are the most serious offences under the Criminal Code of Canada and carry more severe punishments, up to a maximum sentence of life in prison.

Prohibited Firearms

Prohibited weapons in Canada include:

• Handguns with barrels equal to or less than 105 mm in length
• Handguns designed or adapted to discharge a 25 or 32-calibre cartridge
• Firearms adapted from a rifle or shotgun that are less than 660 mm in length or have a barrel less than 457 mm in length
• Automatic firearms, whether or not altered to discharge only one projectile with one pressure of the trigger
• Firearms prescribed to be prohibited firearms

Restricted Firearms

• The Criminal Code of Canada defines a restricted firearm as:
• A handgun that is not a prohibited firearm
• A firearm that is not a prohibited firearm has a barrel less than 470 mm in length and is capable of discharging centre-fire ammunition in a semi-automatic manner
• A firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise
• A firearm of any other kind that is prescribed to be a restricted firearm.

Summary Conviction

Summary conviction offences are used for less severe offences with penalties, fines or jail sentences generally no more than six months. Many offences defined in the Criminal Code of Canada are hybrid offences, meaning that the Crown Attorney has the right to make an election regarding how they wish to proceed.  

Please note that this article is strictly for informational purposes. You should consult with a criminal lawyer regarding any weapons-related charges. 

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