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3. Chapter 31

The Federal Prosecution Service DESKBOOK

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Part VI
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 31

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31 FIREARMS AND OTHER OFFENSIVE WEAPONS

31.1 Purpose of the Policy

The legislative regime for controlling the abuse of firearms and other offensive weapons requires that Crown counsel be alive to a number of issues at the various stages of the criminal process.¹ The purpose of this policy is to describe the obligations of Crown counsel in dealing with those issues.

31.2 Legislative Background

Until December 1, 1998, the Criminal Code was the sole source of controls regarding the acquisition and possession of firearms. As of December 1, 1998, both the Criminal Code and the Firearms Act, S.C. 1995, c. 39 regulate the possession, acquisition, use and movement of firearms and other weapons.

The Firearms Act establishes a licensing system for persons wishing to possess firearms. Persons who meet specified criteria may be licensed to possess firearms that are neither prohibited nor restricted (e.g. most hunting guns) or restricted firearms (e.g. handguns with a barrel length over 105 mm). A licence to possess prohibited firearms (e.g. automatic firearms, assault rifles, etc.) may be issued to an individual only if the individual possessed a firearm of that kind before it was declared prohibited. Certain “grandfathered” prohibited firearms may be transferred to family members. Businesses that supply firearms to the military or the police, as well as movie armourers and museums, may also be licensed to possess prohibited firearms. In addition to licensing persons, the Firearms Act also establishes a system for the registration of all firearms. Previously, only certain firearms needed to be registered.

Provisions in the Firearms Act also include:

• a check to confirm the absence of public safety concerns before the transfer of a firearm;
• controls on the import and export of firearms²;
• controls on the transport of restricted and prohibited firearms;
• powers of inspection to ensure compliance with the Firearms Act and regulations;
• offences related to the licensing, registration and inspection of firearms and the unauthorized possession of ammunition by businesses. More specifically, these offences are:
  • false statements to procure licences, etc. (s. 106, Firearms Act)
  • tampering with licences, etc. (s. 107, Firearms Act)
  • unauthorized possession of ammunition by a business (s. 108, Firearms Act)
  • contravention of conditions of licences, etc. (s. 110, Firearms Act)
  • failure to register certain firearms (s. 112, Firearms Act)
  • non-compliance with a demand to produce a firearm (s.113, Firearms Act)
  • failure to deliver up revoked licence, etc. (s. 114, Firearms Act)

A transitional period will allow for gradual implementation of the law. Individuals have until January 1, 2001 to obtain a firearms licence, and until January 1, 2003 to register their firearms; section 98 of the Criminal Code contains deeming provisions which operate concurrently.

Part III of the Criminal Code was also amended as of December 1, 1998. The amendments therein create a variety of offences relating to the unauthorized possession, transfer, import and export of firearms and the use of firearms in the commission of offences. It continues to contain provisions restricting or prohibiting the possession of firearms that present a particular danger, such as handguns and fully automatic firearms. As previously, it also contains provisions permitting searches for and seizures of firearms. Furthermore, the Code continues to impose a mandatory minimum prison term for using firearms or imitation firearms while committing or attempting to commit an indictable offence, or while fleeing after doing either of these. There are increased penalties for subsequent offences. Such a prison term must be served consecutively to any other punishment.

It should be noted that as of January 1, 1996, 10 offences under the Criminal Code have been amended so that there is a mandatory minimum penalty of four years imprisonment when a firearm is used while committing these offences:

• s. 220, causing death by criminal negligence;
• s. 236, manslaughter;
• s. 239, attempted murder;
• s. 244, causing bodily harm with intent;
• s. 272, sexual assault with a weapon or causing bodily harm;
• s. 273, aggravated sexual assault;
• s. 279, kidnapping;
• s. 279.1, hostage-taking;
• s. 344, robbery; and
• s. 346, extortion.

Regulations under both the Criminal Code and the Firearms Act have also been enacted as of December 1, 1998.

Orders prohibiting the possession of firearms and related items are also still included in Part III of the Code, although in a somewhat amended format (see 31.3.4 – 31.3.5 herein).

31.3 Policy in Respect to Particular Issues

31.3.1 Judicial Interim Release

Where an accused is charged with the following:

• an offence involving actual, threatened or attempted violence against a person;
• criminal harassment (s. 264, Criminal Code);
• trafficking, possession for the purpose of trafficking, importing, exporting or production of a controlled drug (subsections 5(3), 5(4), 6(3) or 7(2), Controlled Drugs and Substances Act); or
• an offence involving a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or an explosive substance,

subsection 515(4.1) of the Criminal Code requires that the court hearing a bail application by the accused include in the bail order a condition prohibiting the accused from possessing firearms, cross-bows, prohibited or restricted weapons, prohibited devices, prohibited or ordinary ammunition, explosive substances, or all such things, until such time as the accused is dealt with by the courts, unless the court is of the view that such a condition is not required in the interests of the safety of the accused or any other person. Under subsection 515(4.12), the court is required to give reasons when a condition under subsection 515(4.1) is not ordered. Lastly, under subsection 515(4.11), where a condition under subsection 515(4.1) is ordered, the court must specify the manner by which items specified in the order and firearms licences, registrations certificates or authorizations are to be surrendered and dealt with.

Accordingly, where possible before bail hearings in such cases, Crown counsel should ask the investigating officer to provide a report on whether the accused possesses any firearms, cross-bows, prohibited or restricted weapons, prohibited devices, ammunition, explosive substances, firearms licences, authorizations or registration certificates³. Counsel should then propose appropriate bail conditions relating to these items. In order to assist the court in assessing public safety concerns at the bail hearing stage, Crown counsel should ensure that all evidence relating to potential safety risks is presented to the court. To ascertain what conditions may be appropriate, counsel may wish to consult with the investigating officer and victim, keeping in mind that the conditions referred to under subsection 515(4.1) are to be ordered unless the court considers that they are not necessary in the interests of the safety of any person.

31.3.2 Charges

Where Crown counsel receives a prosecution brief involving the following:

• offences involving the use or threat of violence or attempted violence against a person; or
• firearms, other weapons or ammunition;
• criminal harassment;
• trafficking, possession for the purpose of trafficking, importing, exporting or production of controlled substances (subsections 5(3), 5(4), 6(3) or 7(2), Controlled Drugs and Substances Act),

counsel should review the brief for completeness and determine whether all appropriate charges, including weapons charges, have been laid.

If an investigation reveals sufficient evidence to charge under section 85 (use of a firearm or imitation firearm while committing or attempting to commit an indictable offence, or while trying to do either of these) counsel should normally recommend that the investigating officer lay such a charge⁴ along with other appropriate charges⁵. Only in exceptional circumstances should counsel not recommend a section 85 charge where the evidence supports such a charge.

31.3.3 Discontinuing a Section 85 Prosecution

After reviewing a prosecution brief involving a section 85 charge, Crown counsel may decide that the case is not appropriate for prosecution. If so, a stay of proceedings may be entered, or the charge may be withdrawn. Counsel should not, however, take such action without the prior approval of the Prosecution Group Head.

When deciding whether to terminate proceedings, counsel should consider the following factors:

• whether there is sufficient evidence to prosecute according to the Decision to Prosecute policy;
• whether there is evidence that the victim has been directly or indirectly threatened or intimidated by the accused in connection with the present prosecution;
• the seriousness of all present charges;
• whether the accused has prior convictions for violence, weapons or related offences;
• whether there is a likelihood that the accused will commit further related offences;
• the impact that not prosecuting may have on future cases and on the administration of justice generally;
• the principle in Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.), i.e., that where there is both a legal and factual nexus between two or more offences as charged, a conviction on only one offence is possible⁶.

31.3.3.1 Other relevant Criminal Code offences attracting minimum jail sentences

It should be noted that most of the considerations outlined at 3.3 above with respect to discontinuing a s. 85 prosecution apply to other firearms or weapons-related Criminal Code offences which attract minimum jail sentences. Those offences are:

• the ten serious offences which provide for four-year mandatory minimum jail sentences when a firearm is used in the commission of the offence (ss. 220, 236, 239, 244, 272, 273, 279, 279.1, 344, 346);
• second and subsequent offences for possession of a weapon without required documents (s. 92);
• possession of prohibited or restricted firearm with ammunition, if proceeding by indictment (s. 95);
• possession of weapon obtained by commission of offence, if proceeding by indictment (s. 96);
• weapons trafficking (s. 99);
• possession for the purpose of weapons trafficking (s. 100);
• making automatic firearm, if proceeding by indictment (s. 102);
• importing or exporting weapon knowing it is unauthorized (s. 103).

31.3.4 Sentence

Where a prosecution for an offence involving firearms or other weapons results in a conviction, Crown counsel should recommend a sentence that, among other purposes, reflects public denunciation of the use of these weapons. The connection Parliament has made between firearms and the illicit drug trade should also be kept in mind (see, for example, subsection 5(2) of the Firearms Act, sections 109 and subsection 515(4.1) of the Criminal Code and section 10(2) of the Controlled Drugs and Substances Act). Counsel should oppose recommendations for a conditional or absolute discharge unless truly extraordinary circumstances are present.

If an accused is convicted of a section 85 offence, counsel should draw the attention of the court that the mandatory minimum period of imprisonment is to be served consecutively to other punishments.

Several other offences in the Criminal Code contain mandatory minimum penalties, namely: the ten serious offences which provide for four-year mandatory minimums when a firearm is used (see 3.3.1 above); the offence of possession of a weapon without required documents in s. 92, for which there is a minimum 1 year jail sentence for a second offence and a minimum sentence of 2 years less a day for third and subsequent offences; the offences in ss. 95, 96, 102 which require a minimum 1 year jail sentence if prosecuted by indictment; and for the offences in ss. 99, 100, 103, for which there is a minimum 1 year jail sentence.

In appropriate cases, Crown counsel should also draw the court's attention to sections 109⁷ and 110⁸ of the Code. These sections require or permit a court to impose an order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, ammunition, or explosive substance. If the court uses the discretion permitted by section 110, and does not thereby issue a prohibition order, or only issues a partial prohibition order, counsel should bring subsection 110(3) to the attention of the court so that reasons for not making the order are given.

Where an inadequate sentence is imposed, an appeal should be brought promptly⁹.

Finally it should be noted that subsections 109(5) and 110(5) indicate that all prohibition orders issued pursuant to sections 109 and 110 are subject to sections 113 to 117 of the Criminal Code. Those sections deal with, respectively:

• lifting of prohibition orders for sustenance or employment purposes;
• requirement to surrender items subject to a prohibition order;
• forfeiture of items subject to a prohibition order;
• revocations of and amendments to firearms-related documents (authorizations, licences and registration certificates); and
• returning property to lawful owners.

31.3.5 Forfeiture

Where a prohibition order is made under sections 109 or 110 of the Criminal Code, Crown counsel should draw the attention of the court to the forfeiture provisions of sections 113(3), 114 and 115 of the Code. Regard should also be had to subs. 117.05(4) (forfeiture and prohibition order on finding on application for disposition of thing seized), and subs. 117.03(3) (forfeiture of thing seized upon failure to produce authorization) of the Code. In the case of young offenders, the relevant provision is s. 20.1 of the Young Offenders Act.

If the court determines that a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, any ammunition or explosive substance was used in the commission of, or constitutes the subject of, an offence and the weapon, etc. has been seized and detained, Crown counsel should draw the court's attention to the forfeiture procedures under section 491¹⁰.

31.3.6 Notice of Intention to Seek Greater Punishment

When reviewing a prosecution brief involving a charge under section 85 or section 92, Crown counsel should ensure that the accused has been served with a Notice of Intention to Seek Greater Punishment in all cases where the accused has previous convictions within the meaning of paragraph 85(1)(d) or 92(3)(b) and (c).

If any such previous convictions have been recorded against an accused within ten years before the current offence, Crown counsel shall seek greater punishment by proving service of the Notice and the relevant criminal record.

If any previous convictions have been recorded against an accused, but all more than ten years before the current offence, Crown counsel may seek greater punishment by proving service of the Notice and the relevant criminal record.

Greater punishment may be appropriate in the following circumstances:

• if there is a history of related weapons offence convictions;
• if violence against a person was used, threatened, or attempted during the current offence;
• numerous weapons were involved, or the weapons involved were particularly dangerous, such as restricted or prohibited firearms;
• if the victim received physical injuries or suffered severe psychological trauma;
• if the accused attempted to flee arrest; or
• if the totality of the circumstances suggests a need to protect the public by incarcerating the accused for at least the minimum period that would ordinarily follow proof of serving the Notice.

31.3.7 Preventive Prohibition Orders

Under section 111 of the Criminal Code, a peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting any person from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substances, if he or she believes on reasonable grounds that it is not desirable in the interests of public safety that the person possess these items. These orders can be made whether or not an offence has been committed, and whether or not the person currently possesses firearms, other weapons or ammunition. Crown counsel may advise the police to make such an application where other means of removing these items have not been successful or are not appropriate. When considering this action, counsel should consider the following:

• any history of violence by the subject of the application;
• any misuse or inappropriate storage of firearms;
• the likelihood of a future weapons offence;
• whether the subject lives with a person who is under a prohibition order¹¹;
• whether there is a reasonable basis to believe that the subject may injure themselves or someone else with the firearms or other weapons.

Note that preventive orders under section 111 of the Code are generally brought against persons who do not currently possess weapons, in order to prevent them from obtaining any in the future. For people who currently possess weapons, if there are public safety concerns, police may proceed under s. 117.04 of the Code to search for and seize the weapons. Under s. 117.04, a peace officer may search for and seize weapons, etc. under a warrant or, without a warrant where grounds for obtaining a warrant exist but because of a possible danger to the safety of a person, obtaining a warrant would be impracticable. Upon an application for disposition of items seized under s. 117.05, a justice of the peace may issue a prohibition order (see subsection 117.05(4) in particular). Also note that these applications may arise following the refusal to issue or revocation of firearms-related documents.

31.3.8 Limitations on Access to Firearms

As of December 1, 1998, section 117.011 of the Criminal Code provides for court orders limiting the access a person may have to firearms and related items. A peace officer, firearms officer or chief firearms officer may apply to the court for an order limiting access where a person who has been prohibited from possessing firearms, etc. cohabits or associates with another person who possesses firearms, etc. The order may also be revoked pursuant to s. 117.012 where the circumstances for which it was made have ceased to exist.

31.3.9 Prohibition Orders in Peace Bonds

If Crown counsel appears before a court on an application under section 810,¹² counsel should draw the attention of the court to subsection 810(3.1)¹³. Subsection 810(3.11) requires the court which issues a condition pursuant to subsection 810(3.1) to specify the manner by which the items referred to, and any firearms-related documents (licence, registration certificate, authorization) are to be surrendered or otherwise dealt with. Finally, note that subsection 810(3.12) requires the court to give reasons where it does not add a condition as described in subsection 810(3.1).

31.3.10 Prohibition Orders in Probation Orders

Crown counsel should request a prohibition order under sections 109, 110, 111 or 117.05 of the Code where these sections apply. Counsel should not seek to have the court impose a prohibition order in a probation order as an alternative to the use of the aforementioned sections.

31.4 Co-ordination of Litigation

The centre of expertise in firearms matters is the Canadian Firearms Centre (CFC), located in Ottawa. To assist in co-ordination of litigation, there is a Federal Prosecution Service Headquarters Firearms Co-ordinator, and a Regional Firearms Supervisor in each regional office. The CFC is consulted on positions to be taken in litigation, through the Headquarters Co-ordinator.

A Memorandum of Understanding is being developed between the FPS and the CFC to describe more completely the roles and responsibilities of these individuals.

31.4.1 Reporting Obligations

To ensure proper co-ordination of litigation positions, Regional Firearms Supervisors must maintain regular and timely contact with the Headquarters Co-ordinator to advise of pending cases and of dispositions. The Headquarters Co-ordinator in turn advises the CFC of these matters. The form and timing of reporting obligations is to be determined by agreement between the Headquarters Co-ordinator and the Regional Supervisors.

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Date Modified:

2008-12-24