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You Have Been Caught with Unlawful Possession of a Firearm – What’s the Release Button?

It is commonplace that to possess a firearm, one must have valid authorization to do so. Otherwise, one may and will likely face criminal charges. 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. Let’s take a look at the law on this topic.

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.

As you read above, if you are in possession of a firearm without a licence or a registration certificate (as required), then you are violating section 91(1) of the Criminal Code. If you are found in violation of this section, then you will face criminal charges. Now let’s look at the associated penalty for this charge. For that, we refer to section 91 (3) of the Criminal Code, which states as follows:

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.

In order for the penalty above to trigger, an accused person must be “convicted” of the criminal offence. A conviction takes place where the accused either pleads guilty or takes his or her matter to trial and is found guilty by the judge or jury. If an accused charged of the offence under section 91(1) is convicted, then the penalty will depend on if the case was proceeded by indictment (means more serious) or summarily (means less serious). If the case proceeded by indictment, then the penalty is imprisonment up to 5 years. The length of time will depend on a number of factors including aggravating and mitigating factors.  If the case proceeded summarily, then the penalty can vary. It can include a combination of, but not limited to, charitable donation, community service work, counselling, weapons prohibition, house arrest, etc.

EXCEPTIONS

There are exceptions for the offence under section 91(1) of the Criminal Code. The exceptions as set out in section 91(4) are as follows:

Exceptions

(4) Subsections (1) and (2) do not apply to

(a) a person who possesses a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition while the person is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or

(b) a person who comes into possession of a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by the operation of law and who, within a reasonable period after acquiring possession of it,

(i) lawfully disposes of it, or

(ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

As you read above, if you are under the direct and immediate supervision of a person who has lawful authorization to posses a weapon, and are using it for lawful purposes, or if you come across a firearm and ensure its immediate and safe disposition, then there is likely no violation of section 91(1) of the Criminal Code.

The Aitken Robertson Team

If you or someone you know has been charged with a firearm related offence, then give our office a call for a free 30-minute consultation. We can explain the charge and the potential defences available. We have flexible working hours as well as accommodate the modern day schedule. If you need to meet on the weekend, we can accommodate. If you need to speak after hours, we can accommodate. Check out the rest of our website to get to know our firm better and determine if we are the right fit for your needs.

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