Firearms Prosecution Flashcards
What is the paramount consideration in firearm prosecutions?
The safety of the public
What is a “firearm”?
A barreled weapon from which a shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm
Automatic position on firearm bail
Detention order
What is required to consent to a firearms bail?
Exceptional circumstances and the consent of the CA
What hybrid offences require the Cr. to elect by indictment?
- 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.
What must be considered when assessing whether to proceed by indictment or summarily in none itemized hybrid offences?
- 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
What is the goal of resolution discussions in FA offences?
Providing the greatest protection possible of the public
The prosecutor must not in FA resolution discussions
- 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.
When does the CR have to file notice in a FA prosecution?
When the Cr is seeking a higher range of sentence by reason of the accused’s previous criminal record
What are the common groups fire arm offences are put in to?
- Use offences
- Possession Offences
- Trafficking, exporting and importing offences
What is a “weapon”
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
What is an “imitation firearm”
S. 84(1)
Anything that imitates a firearm, and includes a replica firearm
What is a “replica firearm”
S. 84(1)
Any device that is designed to exactly resemble, or resemble with near precision, a firearm - does not include antique firearms
What are offences related to imitation firearms
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
What is the definition of “use” in the context of firearms?
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
What type of intent must be present to be convicted of a s. 85(1)(a) offence
General intent - relates only to the conduct which constitutes the act and not an ulterior motive of purpose
What items are excluded by s. 84(3) in possession offences?
Antique guns, flare guns, nail guns, guns used exclusively to slaughter animals etc.
What are the types of possession?
Actual, Constructive and Joint
What must be established to prove posession?
Knowledge and control
What are considered the most dangerous firearms?
Prohibited firearms due to their ease of concealment or overall lethality
What is defined as a prohibited firearm?
- 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,
What is defined as a “restricted” firearm?
- 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
What is a non-restricted firearm?
- 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
How could one legally possess a prohibited firearm?
- 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
How could one legally possess a restricted firearm or a non-restricted firearm?
- They must have a valid licence and registration
How could one legally possess a restricted firearm or a non-restricted firearm?
- These are firearms
- Need a license and registration
What items do you not require a license to possess?
- Low and medium velocity pellet guns
- Antique firearms
- Nail guns, rivet guns, flare guns
What exception exists for the ownership of nail guns, rivet guns and flare guns?
- They must be possessed exclusively for their intended purpose
Who has the onus in proving that an accused does not have a valid license?
- 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
How may a prosecutor prove that the accused does not have a license?
An affidavit from the chief firearms officer and the Canadian Firearm Registry
What must be considered when a person is found guilty of both a s. 91 and s. 92 offence?
- 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.
What standard is used to determine if a pellet gun or low velocity weapon is capable of causing serious bodily injury or death?
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.”
S. 85 - Use of Firearm or Imitation Firearm in the commission of indictable offence - Minimum sentence
1st offence - 1 year
2nd offence - 3 years
**Imitation firearm is only ever 1 year
S. 86 - Careless use/storage of a fire arm
- No mandatory minimum
s. 87 - Pointing a Firearm
- No mandatory minimum
What other offences attract a mandatory minimum sentence when committed with a firearm?
- 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)
If an offence is committed with a firearm what is the mandatory minimum sentence?
4 years
What attracts a 5 year or 7 year mandatory minimum sentence?
- 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
S. 92 - Possession of a firearm knowing its possession is unauthorized - MM?
- yes
- 2nd offence - 1 year
- 3rd or subsequent - 2 years less a day
S. 95 Possession of a loaded firearm or possession of a firearm with readily accessible ammunition - MM?
- no
- Struck down by R v Nur in 2015
S. 96 - Possession of a weapon obtained by crime - MM?
Yes, 1 year if Cr proceeds by indictment
S. 99 - Weapons trafficking - MM?
1st offence: 3 years jail
2nd or subsequent offence: 5 years jail
