skip to Main Content

Crash Course on the Law Surrounding “Possession of a Prohibited Weapon”

The Criminal Code of Canada is the go to source to learn about what amounts to a criminal offence and the consequent penalties set out for that offence following a conviction. In this case, we look to section 85(1) of the Criminal Code to read about using a firearm in the commission of an offence. The section reads as follows:

Using firearm in commission of offence

85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);

(b) while attempting to commit an indictable offence; or

(c) during flight after committing or attempting to commit an indictable offence.

Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,

(b) while attempting to commit an indictable offence, or

(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

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, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and

(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.

What is of interesting note is that even if a person uses an imitation weapon, and not an actual weapon, he or she will face the same criminal charges for possession of a weapon. The offence of carrying a firearm during the commission of an offence is a serious one. As evidenced above, a conviction of this offence will attract the penalty of jail time.

Careless Use of a Firearm

Another related criminal offence is that of a “Careless Use of a Firearm” under section 86(1) of the Criminal Code. The section reads as follows:

Careless use of firearm, etc.

86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores 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 other persons.

Contravention of storage regulations, etc.

(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.

Punishment

(3) Every person who commits an offence under subsection (1) or (2)

(a) is guilty of an indictable offence and liable to imprisonment

(i) in the case of a first offence, for a term not exceeding two years, and

(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

The Pointing of a Firearm

It is a criminal offence to point a firearm at someone, whether or not it is loaded. Section 87(1) of the Criminal Code speaks to this as follows:

Pointing a firearm

87 (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded.

Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Other Criminal Offences Related to the Possession of a Weapon

Where a person is found in possession of a weapon for a “dangerous purpose,” that constitutes a criminal offence. Section 88(1) of the Criminal Code states as follows:

Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

      Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

Carrying around a concealed weapon can also lead to criminal charges. Section 90(1) of the Criminal Code states as follows:

     Carrying concealed weapon

90 (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

     Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

It is commonplace that to possess a firearm, one must have valid authorization to do so. Otherwise, one may face criminal charges. Section 91(1) of the Criminal Code states as follows:

           Unauthorized possession of firearm

91 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being 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.

Unauthorized possession of prohibited weapon or restricted weapon

(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, without being 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)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

We hope you found this crash course on criminal offences surrounding firearms insightful. If you have any questions or are facing criminal related charges, call the Aitken Robertson team for a free 30-minute consultation to learn how we can help.

Free Guide to Criminal Charges

FREE CRIMINAL CHARGES BOOK

Fight the charges! A guide to common criminal charges.

"WHAT MATTERS TO YOU, MATTERS TO US."

CALL US TODAY AT 1-800-668-1657