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Defend weapons charges

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Our Experience

In Canada, weapons offences are treated very seriously by the Crown’s and the courts. Many jurisdictions have a dedicated Guns and Gangs department in the Crown’s office. This team focuses solely on prosecuting individuals for firearm offences, as well as those who are believed to be engaging in gang activity. Parliament has enacted very stringent rules on what weapons can be possessed in Canada, how they are to be possessed, and who may possess them. Even legal gun owners can find themselves in legal trouble for not storing their weapons correctly. Donich Law has experience representing individuals accused of various weapons offences including for the improper use or storage of a firearm.

In 2018, the Firm successfully defended a gun collector with over $100,000 worth of firearms in R. v. L.K. [2018]. The accused, a Fire Captain, was alleged to have imported 80% gun kits into Canada, putting him on the radar of the local Guns and Gangs unit of the Crown’s office. Law enforcement secured a search warrant for the accused’s residence and seized a large quantity of firearms. The Crown initially wanted three years custody for the accused. The Firm successfully challenged the search warrant used in the case, excluding much of the important evidence in the Crown’s case. Ultimately, the Crown was unable to prove their case without the evidence and the charges were withdrawn.

In 2019, the Firm represented a gun collector charged with careless storage of a firearm and ammunition in R. v. R.L. [2019]. The accused was a collector who legally owned over 50 guns and thousands of rounds of ammunition. The accused called the police himself after his home was broken into and robbed. Upon arrival at the residence, the police noticed that the accused had several long guns displayed on his walls and above his fireplace. As a result of the improperly stored guns, the accused was charged. The Firm challenged the evidence presented by the Crown and entered into a contested plea hearing. The Firm successfully secured a conditional discharge, resolving the matter without a criminal record for the accused. Such an outcome is typically uncommon in cases involving guns.

Frequently Asked Questions

What are “Import and Export” Offences?

Offences related to the import and export of guns are outlined by s. 103 and 104 of the Criminal Code. Canada is very strict in its gun laws, using the Firearms Act in conjunction with the Criminal Code to enforce regulations. Importation and exportation of firearms is a very serious crime, as firearms in the wrong hands can lead to violence and tragedy. For this reason, firearms are associated with the address on the license, and transport of firearms is strictly monitored by the government.

Importing and exporting firearms without authorization has the minimum penalty of three years on a first offence, and in the case of a second or subsequent offence, five years. If the person imported or exported weapons without knowledge that it was unauthorized under section 104, the offence is hybrid and may proceed through either summary conviction or indictment. If proceeded by indictment, the maximum penalty is five years in prison.

Can I Move My Firearms Out of My House in Guelph?

The Firearms Act along with the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations SOR/98-209 governs the storage, transport, and licensing of firearms. A firearm license is associated with address and home. Section 10 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations governs the transportation of non-restricted firearms, such as a muzzle-loading firearm. Section 11 governs the transport of restricted firearms, while section 12 governs the transport of prohibited firearms. The same principles of unloading the firearm, rendering it inoperable through a secure locking device, in a secure locking container that cannot be readily broken into or accidentally opened during transportation apply to the transport of firearms.

Section 17 of the Firearms Act details that unless there is an exception and a need for transport, the firearm must be at the dwelling-house of the licensed individual. Furthermore, section 19 prohibits transportation of a firearm unless there is a purpose, such as target practice, competitions, or instructional use. Section 19(b) elaborates that if the individual needs to transport their guns for the change of residence, to give their firearm to the police, or for barter and show purposes, they may be authorized to do so.

How Criminal Charges can be Resolved in Canada

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In 2021, the Guelph Regional Police reported 23 cases of weapons possession contrary to an order, in comparison to 18 cases in 2020. In the same year of 2021, the police charged 108 people for possession of weapons. This was a decline from 2020, where the police charged 126 people with possession of weapons. Weapons offences are considered very serious in Guelph and across Ontario. Those who are convicted of weapons offences face jail sentences as well as other ancillary consequences that may affect the offender well into the future.

Will the Police take my Guns if I am Charged with a Weapons Offence?

Yes, the Court will take the away the weapons of an accused if they are charged with a weapons offence. Generally, if someone if charged with a weapons offence one of the conditions of their release will be not to possess any weapons. If they do possess weapons at the time of their arrest, the court will order them to forfeit the weapons to the police at least until the case has resolved. Section 116(2) of the Criminal Code describes that any authorization, licence, or registration certificate in regards to the prohibited items are revoked or amended during the time where the terms of release are active.

A firearms prohibition is mandatory under s. 515(4.1) of the Code, if the offence is: a violent offence, criminal harassment, intimidation, terrorism, certain firearms/drugs offences, and certain offences under Security of Information Act. In some cases, the firearm may be returned to the owner pursuant to s. 117 of the Criminal Code, if the owner is found to be in lawful possession of a weapon that was not involved in an offence, the owner is entitled to have that item returned to them.

Consequences of a Criminal Record

If I Am Convicted of an Offence Will the Court Take My Guns in Guelph?

Before making a probation order, under s. 731.1, a sentencing judge must consider the possibility of imposing a weapons prohibition order under s. 109 or 110 of the Criminal Code. A prohibition order is mandatory if a person is convicted of or discharged under s. 730 of an indictable violent offence, domestic violence, certain firearms offences, or certain offences related to the Controlled Drugs and Substances Act. This means that if a crime is particularly serious, a weapons prohibition order will be entered. Crimes committed with firearms are especially serious, as the Court would see that the accused is irresponsible in the possession of a weapon. Section 109(2) and section 109(3) of the Criminal Code describes the length a weapons prohibition order can last.  A weapons prohibition, upon first offence, may last for ten years. However, if the offence was serious, or there were subsequent offences, a weapons prohibition can be entered for life.

Under section 114 and section 115 of the Criminal Code, surrendering the prohibited weapons may be mandatory. This does not apply for judicial interim release provisions. Sometimes the police will allow the accused to deposit weapons. If choosing to deposit a weapon with a peace officer, it is important to notify them beforehand and make transport arrangements.

What is “Prohibited Ammunition”?

Prohibited ammunition, described under section 84(1) of the Criminal Code, is any ammunition that is listed as prohibited. These types of ammunition are further listed under Part Five of Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted. Prohibited ammunition may include but is not limited to: armour-penetrating ammunition, incendiary ammunition, explosive ammunition, or any cartridge that contains “flechettes.”

These weapons regulations are also tied to Canada’s international relations. International humanitarian law bans specific types of weapons, such as biological and chemical weapons. These laws are primarily based on the Geneva Conventions and its two Additional Protocols, but also includes the 1972 Biological Weapons Convention, the 1980 Conventional Weapons Convention, and the 1997 Ottawa Convention. All international humanitarian laws are binding, and prohibit explosive projectiles weighing less than 400 grams, bullets that expand or flatten in the human body, weapons that injure by fragments, incendiary weapons, cluster munitions, and many more.

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Recent Cases

R. v. Jeyakanthan, 2021 ONSC 8250

In the Ontario Superior Court of Justice case of R. v. Jeyakanthan, the accused was charged on six counts in relation to possession of a loaded handgun. They are: carrying a concealed handgun contrary to s. 90(1), unauthorized possession of a prohibited firearm contrary to s. 91(1), possession of a prohibited firearm knowingly without a license contrary to s. 92(1), unauthorized possession of a prohibited firearm with ammunition contrary to s. 95(1), unauthorized possession of a prohibited device (gun magazine) contrary to s. 91(2), and possession of a prohibited device knowingly without a license contrary to s. 92(2). The issue regarded possession of the gun.

The accused was with two other persons in a car at a shopping mall. The police proceeded to takedown the person(s), who were suspected to be involved in an earlier shooting. The accused was the lone occupant in the backseat, and the police discovered a loaded handgun down his pants in his crotch area. The defendant testified that he had been just meeting a friend, and when the police arrived, someone had shoved a handgun into his lap. In his moment of panic, he shoved it down his pants. The accused’s evidence was believable, and he was not found to have known about the gun or the gun’s presence in the vehicle. The Crown did not prove possession beyond a reasonable doubt, and the accused was acquitted.

R. v. Stewart, 2021 ONSC 8062

In the Ontario Superior Court of Justice case of R. v. Stewart, the accused was charged with four counts relating the possession of a firearm. They are: possession of a loaded prohibited/restricted firearm without licence (s. 95(1)), careless handling of a firearm (s. 86(1)), carrying a concealed weapon (s. 90(1)), possession of a prohibited device sans license (s. 92(2)). These counts all stem from the same incident and the same firearm. The police had conducted an investigation searching for a suspect of an attempted murder with a firearm. The accused was reported to have a firearm in his satchel as he was walking on a street in a residential neighbourhood with another man. When the police initiated a takedown, the accused reached into his satchel and removed the firearm. After the police acknowledged the firearm, the accused put it back into his satchel and ran.

The accused was later apprehended the same night with the satchel, but no firearm. The following morning, the same firearm was found in a schoolyard on the accused’s path of flight from the police. The accused denied that he had a gun in his satchel at any point, testifying that he only had a silver and black hair pick, his phone, a bottle of cologne, some marijuana, a condom, and some cash. There was no wallet or identification information on him. The evidence of the accused was not believed by the Court, as it was found to be inconsistent, illogical, and does not comply with objective evidence. The accused was convicted of all four counts.

R. v. Davis, 2021 ONSC 8163 

In the Ontario Superior Court of Justice case of R. v. Davis, the accused was charged with possession of a firearm for a dangerous purpose (s. 88(2)), possession of a firearm sans a license (s. 91(3)), occupying a motor vehicle knowing that there was a firearm present (s. 94(2)), and possession of a loaded prohibited firearm sans a license (s. 95(1)). The accused drove a police suspect to his probation office. A search warrant was executed on the car. A firearm was discovered under the passenger seat. The firearm was a Polymer 80 Model PF940C (frame) / Rock Slide USA (slide and Barrel) .40 Smith & Wesson caliber pistol with a high capacity magazine and accompanying ammunition. These objects fell into the definition of prohibited firearms and prohibited devices respectively.

The Crown alleged that the accused had possession of the weapon, while the defence submitted that the accused should be acquitted. There were multiple factors. The firearm was proximate to the suspect instead of the accused, the firearm would not have been visible to the accused, the firearm was not found near the accused’s property, the accused was focused on driving, and the accused’s action of running/walking away from the police has multiple explanations other than a guilty mind. The Crown did not prove that the accused possessed the gun beyond a reasonable doubt. The accused was acquitted of all four counts.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.