Gun Charges - Possession of Firearm

UNAUTHORIZED POSSESSION OF A FIREARM (S. 91)

Summary of the Offence

Unauthorized possession of a firearm is covered under s.91 in Part III of the Criminal Code, which deals with “Firearms and Other Weapons.” This section prohibits the possession of firearms without the proper licences and certifications.

Under s.91(1), a person commits an offence if they possess:

• A prohibited, restricted, or non-restricted firearm without holding:
  • (a) A licence permitting possession;
  • (b) For prohibited or restricted firearms, a registration certificate.

Classification of Firearm

Firearms fall into three categories, each with unique legal requirements:

• Prohibited firearms
• Restricted firearms
• Non-restricted firearms

Section 2 of the Criminal Code defines a “firearm” as:

a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

Possessing an unauthorized firearm means that you hold dominion or control over a firearm for which you are unlicensed or unregistered to be in possession of.

Elements of the Offence

Unauthorized possession of a firearm means holding dominion or control over a firearm without the required licensing or registration.

Possession is defined under section 4(3) of the Criminal Code which states:

(a) a person has anything in possession when he has it in his personal possession or knowingly

• i. has it in the actual possession or custody of another person, or
• ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Unauthorized possession of a firearm is a strict-liability offence. Therefore, the offence is unique because the Crown does not need to prove the mens rea element of the offence but only the actus reus.

The Guilty Act (Actus Reus)

To satisfy the actus reus under s.91(1), the Crown must prove that the accused possessed a firearm without a valid registration certificate or licence.

When charged with a section 91 offence, the Crown will rely on section 117.11 of the Criminal Code which states that:

Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration

The Guilty Mind (Mens Rea) - Not Applicable

Since unauthorized possession is a strict-liability offence, the Crown does not need to establish mens rea. In R v. MacDonald, 2014 SCC 3, the Supreme Court clarified that the Crown is not obligated to prove that a defendant understood his license and deliberately disobeyed it.

Examples of the Offence

• Knowingly possessing a non-restricted firearm without a licence
• Failing to re-register a firearm after the registration expires
• Purchasing a prohibited firearm without a valid Possession and Acquisition Licence (PAL)
• Storing a restricted or prohibited firearm without the proper licence or registration

Possible Defences

• Due Diligence:
  • The defendant must show they took all reasonable precautions to avoid the offence. This defence requires more than normal care; it demands proof of exhaustive preventive efforts.
• Applicable Charter Arguments:
  • If police officers infringe on your Charter rights during the arrest, this may support your defence. Violations could lead to evidence exclusion.

Possible Punishment If Convicted

• If Proceeded Summarily:
  • Maximum penalty: 2 years less a day imprisonment and/or a $5,000 fine.
• If Proceeded by Indictment:
  • Maximum penalty: 5 years imprisonment.

Ancillary Orders

Upon conviction, the court may issue additional orders:

• Prohibition Order: Preventing future firearm possession if prosecuted as an indictable offence
• Forfeiture: Seizure of the firearm
• DNA Order: Required for indictable offences‍
• Parole Ineligibility: Applies if the individual is convicted of an indictable offence