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defending weapons charges

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Our Experience

In Canada, weapons offences are considered very serious and those who are convicted will face strict penalties, including lengthy periods of incarceration. Donich Law has over a decade of experience representing individuals charged with a wide array of weapons offences including those who have been charged with improper storage of a firearm and ammunition. Those convicted of weapons offences may be affected well into their future. In addition to jail, those convicted may also face lengthy periods of probation, weapons prohibitions that could last decades, and issues with employment and travel. As a result, it is important to those charged with a weapons offence to seek legal counsel as soon as possible.

In 2018, the Firm represented a Fire Captain accused of various weapons offences in the case of R. v. L.K. [2018]. Law enforcement officials secured a search warrant for the accused’s residence after he allegedly illegal imported 80% gun kits into Canada. An 80% gun kit is a kit that contains 80% of the necessary parts to make a gun. Such kits are illegal in Canada and are considered a firearm. Upon searching the home officers discovered more than $100,000 in guns inside. The Firm engaged in three years of litigation in the case, challenging the search warrant, and ultimately securing a withdrawal of the importing firearm, careless storage of firearms and ammunition, and possession of prohibited weapons charges. The Firm was also able to protect the accused’s job with the fire department.

In 2019, the Firm represented an individual charged with careless storage of a firearm and ammunition in the case of R. v. R.L. [2019]. The accused was charged after his home was burglarized and he called the police to report the robbery. Upon arrival officers noticed rifles displayed throughout the home. The accused was a gun collector with over 50 legally owned weapons in his home as a well as a large amount of ammunition. Officers laid the charges because guns must be kept locked away and cannot be displayed in the manner the accused was displaying them. The Firm engaged in lengthy pre-trial negotiations with the Crown, ultimately securing a conditional discharge and resolving the matter without a criminal record for the accused.

Frequently Asked Questions

Can the Police take Someone’s Guns for Mental Illness?

If you or someone you know with a mental illness may pose a risk towards themselves or others, contact the local authorities immediately.

Effective October 21, 2022, the Government of Canada introduced Bill C-21. To address the alarming role of guns in gender-based violence, Bill C-21 introduced red and yellow flag laws, which may prescribe prohibition orders. Some of these are specifically related to mental health. These are called “red flag” law, “yellow flag” law and expanded licence revocations. “Red flag” law enables anyone to apply to the court for an emergency weapons prohibition order, known as a “red flag,” immediately removing firearms for up to 30 days from a gun owner. If a gun owner may pose a danger to themselves or others, or may provide a firearm to another person with a weapons prohibition order, a concerned citizen may make the application.

Subject to a red flag, the gun owner would have to surrender or forfeit their firearm(s) to government agents or have the firearm(s) seized temporarily by a seizure order of the court. “Red flag” applicants are also guaranteed safety by the law. The judge would have the option to close a “red flag” hearing’s proceeding to the public and media, seal court documents for 30 days, or enforce a publication ban.

What Does the Firearms Act Regulate?

The Firearms Act works in conjunction with the Criminal Code to regulate the firearms in Canada. These regulations govern the labelling of guns, authorization of licenses, authorization of import and/or export, the sale of a weapon, storage regulations, transport regulations, and many more.

The Storage, Display, Trasnportation and Handling of Firearms by Individuals Regulations SOR/98-209 further specifies how exactly to deal with firearms. Generally, firearms should be stored unloaded, rendered inoperable, and not readily accessible to ammunition. This is to prevent any accidents from occurring.

How Criminal Charges can be Resolved in Canada

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Can the Police Take My Guns Without a Warrant?

Yes, the police may take guns without a warrant. They may seize firearms through general warrantless seizure powers under section 489 of the Criminal Code. Under section 487 exists warrant seizure powers. If a firearm is believed to be involved in an offence under s. 117.02, government agents have exigent seizure powers to seize the weapon. If the person does not have documentation, the police may seize the guns under s. 117.03. And if there is a belief that the person may be dangerous to themselves or the public, the police may seize without a warrant, firearms under s. 117.04.

If the person wilfully fails to surrender their firearms to an officer or fails to surrender their authorization papers, they may be guilty of an indictable offence under s. 117.01(1) or (2). Under section 117.04(2), a peace officer may search for and seize weapons without a warrant if they believe it is in the safety of the weapons owner and others.

What Should I Do If Someone Stole My Gun?

If your firearm is stolen or lost, report to the local authorities immediately. Lost or stolen firearms may become involved in criminal investigations, and it is important for the authorities of Canada to know where firearms are at all times. Section 105(1) of the Criminal Code makes it an offence if the person does not report a lost, stolen, or found firearm to a government agent within a reasonable time. A failure to report the firearm may result in charges being laid under this section. If the person is particularly negligent, the Crown may proceed by indictment, with a maximum prison term of five years. The lost items that need to be reported includes both the firearm and any registration, license, authorization, or certificate related to a firearm.

Section 107(1) makes it an offence to falsely state or report the loss, theft, or destruction of a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any prohibited ammunition, an authorization, a licence or a registration certificate. If the statement was found to be false, the offender would be found guilty of either an indictable offence or a summary conviction offence, depending on how the Crown elects to proceed. The maximum possible penalty for false statements is five years imprisonment.

Consequences of a Criminal Record

What is a “Non-Restricted Firearm”?

Section 84(1) outlines firearm-related terminology in the Criminal Code. Firearms in Canadian law generally fall into one of three categories: non-restricted, restricted, and prohibited. Non-restricted firearms include rifles or shotguns that are neither restricted nor prohibited. These are typically hunting rifles or shotguns and may be brought into Canada with the appropriate licenses for commercial purposes, shooting competitions, and hunting.

Non-restricted firearms are treated differently than restricted and prohibited firearms. For example, non-restricted firearms do not need to be registered, and therefore does not require a registration certificate; but the seller must validate and verify the buyer’s firearms license. After a reference number is generated (valid for 90 days), the transferor may then deliver the firearm to the transferee.

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Recent Cases

R. v. Tabnor, 2021 ONSC 8548

In the Ontario Superior Court of Justice case of R. v. Tabnor, the accused was convicted of possession of a prohibited firearm and possession of a prohibited device (a high-capacity cartridge magazine.) The accused was a drug dealer and his firearm, a Smith & Wesson semi-automatic handgun, was used in his drug dealing. Sometimes he kept the weapon in his car, concealed behind the driver’s side door panel. Sometimes he brought it with him to social settings. The gun had thirteen cartridges with one in the chamber and twelve in its oversized magazine when it was discovered.

Forensic evidence shows a tight circumstantial link between the accused and a public shooting in Toronto in 2019. The Court concluded beyond a reasonable doubt that the accused was involved in the shooting. The accused had been the driver and had transferred the weapon to another shooter. The Court also found that it was particularly aggravating for the accused to be carrying a gun with an oversized magazine in public. The shooting incident only further proved that the accused was not a responsible gun owner. The offender was sentenced to a global sentence of five years, reduced to two years and four months due to a time held in pre-sentence custody. He was also made subject to a s. 109 weapons prohibition order and a no contact order for any of the witnesses of the case.

R. v. Stevenson, 2022 ONCJ 24

In the Ontario Court of Justice case of R. v. Stevenson, the Crown submitted to have the weapons of the accused disposed and for a weapons prohibition order. Under section 117.04(2) of the Criminal Code, an officer may prohibit a person to possess firearms, weapons, or ammunition if they believe it is not in the interests of public safety. The accused had faced a mental health crisis that concerned his family. After an all-nighter, the accused got into an argument with his mother about going to work. The mother found out that the accused was involved in methamphetamine use.  The accused was taken to the Centre for Addiction and Mental Health [CAMH].

CAMH held the accused for a night but was concerned about the guns in the home that the accused owned. Under s. 117.04(2) of the Criminal Code and without a warrant, an officer seized the accused’s firearms license, ammunition and arrows, several rifles, and a crossbow. The accused was reported to be a very responsible and careful gunowner, who cleaned his weapons regularly and used them for duck and deer hunting. The application was dismissed, and the accused was allowed to keep his guns.

R. v. McDonald-Cole, 2021 ONCJ 376

In the Ontario Court of Justice case of R. v. McDonald-Cole, the accused was charged with possession of an imitation firearm while committing an indictable offence and of possession of ammunition, contrary to a s. 109 weapons prohibition order. The witness had a basement apartment which he would invite people over to from time to time. The defendant was one such person, and despite the witness’ requests, would not leave. The defendant also carried around a silver gun. A complication regarding cocaine use was involved, and the witness called the police for fear of his life.

The gun was a “modified non-functioning blank pistol,” designed to look like a Beretta. There had been attempts to modify it to fire a projectile, but they were unsuccessful. The trigger mechanism did not work, and there were several unusual holes in the gun. Forensic evidence reports that this gun was not a firearm as defined in the Criminal Code. The accused was acquitted of the charge of possession of an imitation firearm while committing an indictable offence but convicted of the possession of ammunition.

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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.