Firearms Prosecution

Question 1

What is the paramount consideration in firearm prosecutions?

Answer 1

The safety of the public

Question 2

What is a “firearm”?

Answer 2

A barreled weapon from which a shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm

Question 3

Automatic position on firearm bail

Answer 3

Detention order

Question 4

What is required to consent to a firearms bail?

Answer 4

Exceptional circumstances and the consent of the CA

Question 5

What hybrid offences require the Cr. to elect by indictment?

Answer 5

• possession of restricted or prohibited firearm with ammunition
• possession of firearm obtained by crime
• making automatic firearm
• carrying a concealed firearm
• possession of a firearm for purpose dangerous to the public
• unauthorized possession of a firearm
• possession of firearm at unauthorized place
• possession of firearm in motor vehicle
• transfer a firearm without proper authority
• unauthorized importing or exporting of firearms
• possession of a firearm contrary to a court order.

Question 6

What must be considered when assessing whether to proceed by indictment or summarily in none itemized hybrid offences?

Answer 6

• Circumstances of offender
• Circumstances surrounding offence
• Prior convictions
• Conduct of accused
• Criminal organizations
• Other criminal conduct
• Whether firearms etc will be forfeited
• Prior prohibition order
• Whether the sentence if prosecuted summarily would reflect the gravity of the offence

Question 7

What is the goal of resolution discussions in FA offences?

Answer 7

Providing the greatest protection possible of the public

Question 8

The prosecutor must not in FA resolution discussions

Answer 8

• reduce or withdraw a charge involving a firearm to avoid a mandatory minimum
  term of imprisonment
• reduce or withdraw a charge of break and enter to steal a firearm, robbery to
  steal a firearm, possession of restricted or prohibited firearm with ammunition,
  any firearms trafficking offence, any importing or exporting firearms offence
• reduce or withdraw a charge of possession of firearm contrary to a court order.

Question 9

When does the CR have to file notice in a FA prosecution?

Answer 9

When the Cr is seeking a higher range of sentence by reason of the accused’s previous criminal record

Question 10

What are the common groups fire arm offences are put in to?

Answer 10

• Use offences
• Possession Offences
• Trafficking, exporting and importing offences

Question 11

What is a “weapon”

Answer 11

Anything designed to be used or intended for use in causing death or injury to any person or for the purpose of threatening or intimidating any person

Question 12

What is an “imitation firearm”

Answer 12

S. 84(1)

Anything that imitates a firearm, and includes a replica firearm

Question 13

What is a “replica firearm”

Answer 13

S. 84(1)
Any device that is designed to exactly resemble, or resemble with near precision, a firearm - does not include antique firearms

Question 14

What are offences related to imitation firearms

Answer 14

Only one - the use of an imitation firearm in the commission of an indictable offence

No criminal offence relating to the possession of an imitation firearm

Question 15

What is the definition of “use” in the context of firearms?

Answer 15

Includes discharging, pointing, displaying for the purpose of intimidation or alarm.

Test not met by metre possession, idle threats, or evidence that firearm was proximate for future use

Question 16

What type of intent must be present to be convicted of a s. 85(1)(a) offence

Answer 16

General intent - relates only to the conduct which constitutes the act and not an ulterior motive of purpose

Question 17

What items are excluded by s. 84(3) in possession offences?

Answer 17

Antique guns, flare guns, nail guns, guns used exclusively to slaughter animals etc.

Question 18

What are the types of possession?

Answer 18

Actual, Constructive and Joint

Question 19

What must be established to prove posession?

Answer 19

Knowledge and control

Question 20

What are considered the most dangerous firearms?

Answer 20

Prohibited firearms due to their ease of concealment or overall lethality

Question 21

What is defined as a prohibited firearm?

Answer 21

• handguns with a barrel length of 105 mm or less, as well as .25 and .32 calibre
  handguns;
• adapted (e.g. sawed-off) rifles and shotguns less than 660 mm in length or, if
  longer than 660 mm in length, with a barrel length of less than 457 mm;
• automatic firearms, whether or not they have been modified to fire otherwise; and,

Question 22

What is defined as a “restricted” firearm?

Answer 22

• all handguns not otherwise prohibited;
• semi-automatic handguns not already prohibited which have barrel lengths less
  than 470 mm and which are capable of discharging center fire ammunition in a
  semi-automatic manner;
• telescoping or folding firearms designed to be fired when reduced to a length of
  under 660 mm

Question 23

What is a non-restricted firearm?

Answer 23

• The most common lawfully possessed firearm
• a firearm that is neither a prohibited firearm nor a restricted firearm, or
• a firearm that is prescribed to be a non-restricted firearm

Question 24

How could one legally possess a prohibited firearm?

Answer 24

• They must have a valid license that had been gradfathered in from the Chief Firearms Officer
• No new licenses are issued
• And it must be registered

Question 25

How could one legally possess a restricted firearm or a non-restricted firearm?

Answer 25

- They must have a valid licence and registration

Question 26

How could one legally possess a restricted firearm or a non-restricted firearm?

Answer 26

- These are firearms | - Need a license and registration

Question 27

What items do you not require a license to possess?

Answer 27

- Low and medium velocity pellet guns - Antique firearms - Nail guns, rivet guns, flare guns

Question 28

What exception exists for the ownership of nail guns, rivet guns and flare guns?

Answer 28

- They must be possessed exclusively for their intended purpose

Question 29

Who has the onus in proving that an accused does not have a valid license?

Answer 29

- The Prosecutor except - s. 117 - Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105

Question 30

How may a prosecutor prove that the accused does not have a license?

Answer 30

An affidavit from the chief firearms officer and the Canadian Firearm Registry

Question 31

What must be considered when a person is found guilty of both a s. 91 and s. 92 offence?

Answer 31

- Kienapple - When deciding which charge to stay: a) Section 91(1) is one of the offences that does not require the Prosecutor to prove the lack of lawful possession by the individual (see section 117.11 Criminal Code). This offence can be useful if there are problems with the documents. b) Section 92 carries with it a mandatory minimum penalty for a second conviction. Only a prior conviction for a section 92 offence will trigger this mandatory minimum. The Prosecutor should consider whether it is appropriate to seek a conviction for this offence in the event of a subsequent unlawful possession.

Question 32

What standard is used to determine if a pellet gun or low velocity weapon is capable of causing serious bodily injury or death?

Answer 32

The Pig's Eye test A barreled weapon is capable of causing bodily injury or death to a person if it fires a projectile at more than 246 feet per second. 246 feet per second is the speed at which a projectile would penetrate an eye more than 50 percent of the time. Where a barreled object fires at such velocity it meets the “V50 standard.”

Question 33

S. 85 - Use of Firearm or Imitation Firearm in the commission of indictable offence - Minimum sentence

Answer 33

1st offence - 1 year 2nd offence - 3 years **Imitation firearm is only ever 1 year

Question 34

S. 86 - Careless use/storage of a fire arm

Answer 34

- No mandatory minimum

Question 35

s. 87 - Pointing a Firearm

Answer 35

- No mandatory minimum

Question 36

What other offences attract a mandatory minimum sentence when committed with a firearm?

Answer 36

- Criminal negligence causing death (s. 220) - Manslaughter (s. 236) - Attempted murder (s. 239) - Discharge firearm with intent (s. 244) - Reckless discharge of a firearm (s. 244.2)* - Sexual assault with a weapon (s. 272) - Aggravated sexual assault (s. 273) - Kidnapping (s. 279(1)) - Hostage-taking (s. 279.1) - Robbery (s. 344)* - Extortion (s. 346)

Question 37

If an offence is committed with a firearm what is the mandatory minimum sentence?

Answer 37

4 years

Question 38

What attracts a 5 year or 7 year mandatory minimum sentence?

Answer 38

- A firearm used in the commission of an indictable offence - With a prohibited or restricted firearm - or, for the benefit of a criminal organization - 1st and 2nd offence

Question 39

S. 92 - Possession of a firearm knowing its possession is unauthorized - MM?

Answer 39

- yes - 2nd offence - 1 year - 3rd or subsequent - 2 years less a day

Question 40

S. 95 Possession of a loaded firearm or possession of a firearm with readily accessible ammunition - MM?

Answer 40

- no | - Struck down by R v Nur in 2015

Question 41

S. 96 - Possession of a weapon obtained by crime - MM?

Answer 41

Yes, 1 year if Cr proceeds by indictment

Question 42

S. 99 - Weapons trafficking - MM?

Answer 42

1st offence: 3 years jail | 2nd or subsequent offence: 5 years jail