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Defend Weapons charges

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Our Experience

Those charged with weapons offences in Canada face very strict penalties upon conviction. Depending on the nature of the charge, those convicted of a weapons offence could face a significant period of time in custody as a result. Those convicted will also face lengthy weapons prohibitions and may face difficulty attaining and maintaining gainful employment or traveling to certain countries. The United States in particular is strict about letting in those convicted of criminal offences, despite their lax gun laws. Donich Law has experience defending individuals charged with weapons offences in Newmarket and across Ontario. We combine risk management and litigation strategies to achieve positive results for our clients.

In 2018, the Firm represented an individual charged with various weapons offences including possession of prohibited weapons, careless storage of firearms and ammunition, and importing firearms in R. v. L.K. [2018]. Police executed a search warrant on the accused’s home after getting information that he had been importing 80% gun kits into Canada from the United States. A gun kit is a kit that contains most of the parts necessary to make a gun and are illegal in Canada. The accused faced three years in prison as a result of the charges against him. The Firm secured a withdrawal of all three charges after successfully challenging the search warrant and the way it was executed.

In 2019, the Firm represented a gun collector 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 broken into and he called police to report the crime. Upon attending his residence, officers observed several guns improperly stored throughout the house including a hunting rifle laid out on a bed and several other long guns hung above the fireplace and throughout the house. Thousands of rounds of ammunition were also discovered on the property. Despite all the guns being legally owned, charges were laid for careless storage. The Firm engaged in a significant amount of up-front work and negotiations with the Crown before running a contested guilty plea. The Firm secured a conditional discharge, resolving the matter without a criminal record for the accused.

Frequently Asked Questions

What is a Prohibited Device?

Section 84(1) of the Criminal Code provides a definition of a prohibited device. A prohibited device may mean several things. They may be (a) any component or part of a weapon, or any accessory for use with a weapon, that is defined as a prohibited device, (b) handgun barrels that is less than or equal to 105 mm, with exceptions made for sporting events; (c) silencers or mufflers; (d) cartridge magazines that is defined as a prohibited device; and a replica firearm.

In addition, Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, defines more specifically what prohibited devices are in conjunction with the Criminal Code.

What is a Prohibited Firearm?

Section 2 of the Criminal Code helps define prohibited firearm. Firearms are categorized under “weapons,” and there are four categories of firearms: restricted, non-restricted, prohibited, and exempted firearms (s. 84(3)).

Section 84(1) of the Criminal Code defines a prohibited firearm as either (a) a handgun that has a barrel equal to or less than 10.5 cm in length or that is designed or adapted to discharge a 25 or 32 calibre cartage, but does not include any handguns that is for the use in international sporting competitions. An adapted rifle that is less than 660 mm in length or is 660 mm or greater in length and has a barrel less than 457 mm in length. Prohibited firearms also include any automatic firearms, regardless of whether it has been adapted to only fire one projectile with one press of the trigger. In addition, this definition also includes any firearm that is prescribed by law to be a prohibited firearm.

How Criminal Charges can be Resolved in Canada

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What are Lost, Damaged, or Destroyed Weapons Offences in Newmarket?

Keeping track of guns and weapons is very important in Canada, including Newmarket. This is how the police track down suspects and charge persons with firearms offences. Section 105(1) makes it so that if a person loses or has a firearm, prohibited weapon, restricted weapon, a prohibited device, any prohibited ammunition, an authorization, a license or a registration certificate stolen from them, they must report the missing item to a police officer within a reasonable amount of time.

If a person finds a firearm, a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition in Newmarket, that the person believes is lost or abandoned, they must report and deliver the weapon to a government agent. If a person does not report the missing weapon or deliver it to the police, they may be charged under section 105 of the Code. Section 106(1) indicates that the destruction of any prohibited firearm, restricted firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition must be reported to the police. Section 107(1) makes it an offence to falsely report the loss of a weapon, and section 108(1) enumerates the offence of defacing the serial number on a firearm.

What is the Firearms Act?

The Firearms Act governs the lawful possession of firearms. It is a statute that regulates gun possession which complements the Criminal Code and is used in conjunction with it. The Firearms Act gives authority to the Canadian Firearms Program (CFP) to oversee firearm license and registration, maintain national firearm safety training standards, and assist law enforcement to enhance public safety.

The Firearms Act also governs the sale, barter, exchange, importation, and exportation of firearms, prohibited weapons, restricted weapons, prohibited devices, prohibited ammunition and components and parts of assembly of a prohibited weapon. There are some offences that a person can be charged with under the Firearms Act, but most criminal weapons offences are charged pursuant the Canadian Criminal Code.

Consequences of a Criminal Record

What are Possession Offences?

The Criminal Code enumerates a few offences related to the illegal possession of firearms and weapons. When someone possesses something in the Criminal Code, they either have it on their person or have knowingly stored the property somewhere else, but still have a degree of control over it. Section 86(1) describes the unsafe storage and handling of a firearm. Section 86(2) describes the contravention of firearm storage regulations. Section 90 enumerates the carrying of a concealed weapon as a crime. The unauthorized possession of a firearm and the possession of an unauthorized firearm are enumerated from section 91-92. If a firearm is not authorized to be possessed in a motor vehicle, pursuant to section 94, it can be an offence.

Any possession of a restricted or prohibited firearm is an offence under section 95. If a person obtains a weapon by committing an offence, the possession of that weapon is criminalized under section 96. Section 99-100 of the Criminal Code makes it illegal to traffic weapons. An unauthorized transfer of a firearm is enumerated under section 101. The making of an automatic firearm, as well as the possession of parts to make an automatic firearm, is criminalized under section 102. The export and import of firearms is criminalized under section 103-104 of the Code. A failure to report a lost or stolen restricted/prohibited firearm or giving a false statement thereof is criminalized under section 105 and section 107. Any destruction or tampering with a restricted/prohibited firearm is an offence under sections 106 and 108. Finally, section 117.01 criminalizes the possession of a weapon contrary to a court order. When someone possesses a firearm despite having a weapons prohibition order under section 109, they commit the offence under section 117.01.

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Recent Cases

R. v. Dubajic, 2022 ONSC 6972 

In the Ontario Superior Court of Justice case of R. v. Dubajic, the accused was charged with possession of controlled substances as well as possession of several prohibited firearms and prohibited devices. In total, 106 kilograms of cocaine, five kilograms of fentanyl, 30 kilograms of crystal meth, four kilograms of MDMA, 57 handguns, eight long guns, and 15,000 rounds of ammunition were found in the accused’s apartment. The accused denies knowledge of any of the guns or ammunition and most of the drugs, albeit with some admission that he knew about some of the cocaine.

In order to prove possession, the Crown must prove beyond a reasonable doubt that the accused had knowledge of the items and was storing them. The apartment was a two-bedroom apartment, one bedroom was fully furnished while the other had an armoire. Several bags and reusable shopping bags were found on the floor of the second bedroom, containing 56 prohibited weapons and 1 restricted weapon, as well as six long guns that were neither restricted nor prohibited.

To prove constructive possession, the Crown must prove beyond a reasonable doubt that the accused (1) has knowledge of the item or character of the item; (2) knowingly put an item in a certain place; and (3) intends for the item to be used for his or the benefit of others. The accused’s testimony was not accepted, nor did it leave the judge with any reasonable doubt. The accused was found guilty on 73 counts.

R. v. Husband, 2022 ONSC 3365 

In the Ontario Superior Court of Justice case of R. v. Husband, the accused was charged with possessing a loaded restricted firearm contrary to s. 95(1) of the Criminal Code, the intentional discharge of discharging restricted firearm, and two counts of possession of firearm while prohibited. The police seized a Walter Creed, semi-automatic 9 mm pistol from a car with an Ontario licence plate. The firearm is a restricted firearm, as defined under section 84 of the Criminal Code. The seized firearm and the magazine and ammunition waere all functioning properly.

The accused was not authorized to possess the gun, nor did he have a license. A complainant testified that the windows to her car was broken, and there was a bullet hole in the driver’s door of the car. The accused testified at trial, citing that he was afraid of getting robbed by people he was staying at a motel with. He grabbed a gun out of a bag in the motel and admitted to having the gun in his statement. The accused had two weapons prohibition orders against him, pursuant to section 109 of the Criminal Code. The accused’s testimony was inconsistent and improbable, and his defence of automatism due to cocaine use did not have an air of reality to it. The Crown proved the offence beyond a reasonable doubt. The accused was convicted of three counts, while the fourth count (possession contrary to weapons prohibition order) was stayed as per the Kienapple principle.

R. v. Ogilvie, 2022 ONCJ 200 

In the Ontario Court of Justice case of R. v. Ogilvie, the accused was charged with nine firearms-related charges. The police had received a safety alert about a car matching the one the accused was in, where an individual might possess a firearm. The vehicle was followed by the officer until the officer had grounds to pull it over for speeding. The car contained several liquor bottles in plain view, and police found loaded firearms.

The search was conducted under the authority of s. 32(5) of the Liquor License Act. The defence argued that the search was unlawful, as it violated the accused’s section 8 right to be secure against unreasonable search and seizure. Videos were seized from the accused’s cellphone, showing that the accused had earlier possessed the handgun discovered in the car. Though the accused did have a reasonable expectation of privacy, there was no s. 8 Charter breach as the officer had both subjective and objective grounds to believe an offence had been committed to be able to conduct the search. The accused was found guilty on all counts of the firearm-related charges.

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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.