Weapons Offences

The Criminal Code contains separate offences for firearms and other weapons. These offences relate to either possession, use, or trafficking.

What is considered a weapon?

Anything can be considered a weapon by the courts where it is used, designed to be used, or intended to be used to cause death or injury or to threaten or intimidate.^[1] The focus is not usually on the nature of the object, but on whether it was used to cause bodily harm.^[2] As such, objects like knives, which have purposes outside of the above, are only considered weapons where they are used to intimidate or threaten.^[3] Conversely, everyday objects may be considered weapons if they are used to cause harm or intimidate. The courts have found beer bottles, heavy objects, and even dogs to be weapons under certain circumstances.^[4]

Beyond the use-based definition, it is an offence to own certain weapons that are expressly prohibited. This list includes brass knuckles, collapsible batons (“extendo’s”), stun guns, tasers, replica firearms, mace (and other sprays designed to incapacitate), and knives that can be opened automatically or with centrifugal force (e.g., butterfly knives or switchblades).^[5] Firearms are always considered weapons.^[6] Pellet guns and the like are considered firearms if they exceed a muzzle velocity of 246 fps, which is enough to cause serious bodily harm.^[7]

Possession Offences

It is an offence in Canada to carry or possess weapons and firearms under certain circumstances. The primary possession offences are Possession of a Weapon for a Dangerous Purpose, Carrying a Concealed Weapon, and Trafficking Offences. There are also numerous firearm possession offences and offences for possessing prohibited or restricted weapons without proper authorization.

There are three types of possession: actual, constructive, or joint. Actual possession requires that the defendant has both physical control of the weapon and knowledge of what it is and that it is in their control.^[8] Actual possession is commonly found when the defendant has the weapon on their person.

Constructive possession applies where the defendant has knowledge of the weapon and knowingly puts it in a particular place for their use or benefit (or the benefit or use of another person).^[9] The defendant needs some degree of control over the weapon or its location, but it does not need to be physical or exclusive.^[10] For example, a defendant storing a weapon somewhere off their property or leaving it with a friend to hold may still constructively possess it.^[11]

Joint possession allows multiple people to be in possession of the same object. A defendant may jointly possess a weapon in the control of another party where they have knowledge of the weapon, consent to it being controlled by another party, and still maintain some degree of control over it.^[12] For example, someone that does not object to weapons being stored in a shared residence or report it may be liable as they are considered to have a degree of control over the premises.^[13]

Possession of a Weapon for a Dangerous Purpose. Under s.88(1) of the Criminal Code it is an offence to carry or possess a weapon, imitation, prohibited device, or ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.^[14] The defendant must subjectively have the purpose in mind at the point that they possess the weapon.^[15]

Although an unlawful purpose can be inferred from the circumstances in which the weapon is used, it is insufficient that the defendant did something dangerous with the weapon. When a weapon is already being carried for a lawful purpose, the intent to use it for a prohibited purpose must be shown before the weapon was used.^[16] There must be a gap in which the purpose for carrying the weapon could shift from the previous lawful purpose to an unlawful one.^[17] For example, waving around a knife that was already in hand for a legitimate purpose out of sudden annoyance or rage may be insufficient to show that a person intended to do something dangerous to the public or commit a crime.^[18]

Carrying a Concealed Weapon. Under s.90(1) of the Criminal Code, it is an offence to knowingly carry a weapon, prohibited device, or prohibited ammunition in such a way as to conceal it.^[19] “Carrying” has been defined broadly to include “situations where movement of an object is taking place or might take place,” or situations where a concealed weapon is readily handy.^[20] This includes having the object on one’s person, but may also encompass having a weapon within reach in a vehicle in the defendant’s care and control.^[21] Concealment requires that the defendant hid the weapon with the intent that it would not be observed or come to the notice of others.^[22] Exceptions exist for wrapping firearms for travel (e.g., in a blanket), placing firearms in a gun case, and storing firearms in the trunk of a vehicle in order to coincide with firearms regulations.^[23]

Assault With a Weapon. Assault with a weapon under s.267 of the Criminal Code imposes higher penalties on assault where the defendant carries, uses, or threatens to use a weapon or imitation weapon.^[24]

Firearms Offences

Use While Committing an Offence. Under s.85 of the Criminal Code, it is an offence to use a firearm or imitation firearm while committing another indictable offence such as aggravated assault or breaking and entering.^[25] The Code also implements additional penalties for using a firearm in the course of sexual assault, kidnapping, hostage-taking, robbery, extortion, manslaughter, and attempted murder.

Legally, the use of a firearm requires more than simple possession. It must be actively employed in some way such that the defendant reveals “by words or conduct the actual presence or immediate availability of a firearm,” that is in their physical possession or readily at hand for use.^[26] Just threatening to use a firearm (e.g., “I’ll shoot you”) does not necessarily indicate that a gun is present and therefore does not qualify as use, but threats that indicate that the defendant actually has a gun on them (e.g., “I’m packing right now”) would qualify.^[27] The courts have also found use to include brandishing a firearm, pointing it at a person, or striking someone with it.^[28]

Pointing or Discharging a Firearm. It is an offence under s.244 of the Criminal Code to shoot a firearm with either intent to injure another person, intent to prevent arrest or detention of any person, or while being reckless to the presence and safety of other people where it is being shot, even if no one is harmed in the process.^[29] Similarly, just pointing a firearm at another person is an offence under s.87. Where another party is harmed, the defendant may also be charged with assault with a weapon, manslaughter, or murder.

Trafficking Offences

Under s.99(1) of the Criminal Code, it is an offence to manufacture or transfer, or offer to manufacture or transfer, firearms, prohibited or restricted weapons, prohibited devices, or ammunition without authorization. There are also offences for possessing one of the above items for the purpose of trafficking; knowingly importing or exporting firearms or automatic firearm parts without authorization; and making an automatic firearm or modifying an existing firearm to become automatic.

The Criminal Code defines “transfer” widely to include selling, providing, bartering, giving, lending, renting, sending, transporting, shipping, distributing, or delivering.^[30] Where the charge is trafficking by offer, it is only necessary that the offer was intended to be taken as genuine by the recipient.^[31] Whether the defendant actually intended to fulfil the offer or even had access to a weapon to sell is not releveant.^[32]

^[1] R v Califoux, 1973 CanLII 1355 (BC CA), 14 CCC (2d) 526 (BCCA), at para 13.

^[2] R v McLeod, 1993 CanLII 14674 (YK CA), 84 CCC (3d) 336 [McLeod].

^[3] R v MacDonald, 2002 CanLII 14251 (ON CA), 170 CCC (3d) 46 at para 28.

^[4] R v Hannen-Brown, 2011 ABCA 180; McLeod, supra note 2; R v Richards, 1992 CanLII 2601; R v Vandergraf, 1994 CanLII 16617 (MB CA), 93 CCC (3d) 286.

^[5] 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.

^[6] R v Felawka [1993] 4 SCR 199 (SCC) [Felawka].

^[7] R v Crawford, 2015 ABCA 175 (CanLII), 322 CCC (3d) 528.

^[8] R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253 at para 15-16.

^[9] Ibid at para 17.

^[10] R v Kocsis, 2001 CanLII 3593 (ON CA), 157 CCC (3d) 564.

^[11] Criminal Code, RSC 1985 c C-46, s 4(3) [Criminal Code].

^[12] R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357.

^[13] R v Mihalkov, 2009 ONCA 154 (CanLII), 243 CCC (3d) 173.

^[14] Criminal Code, supra note 11 s 88(1).

^[15] R v McCullough, 2012 ONCJ 17.

^[16] R v Cassidy, 1989 CarswellOnt 103, 1989 CarswellOnt 964, [1989] 2 SCR 345, [1989] SCJ No 87, 100 NR 321, 36 OAC 1, 42 CRR 193, 50 CCC (3d) 193, 61 DLR (4th) 480, 71 CR (3d) 350, 8 WCB (2d) 469, JE 89-1297, EYB 1989-67466; R v Kerr, 2003 ABCA 92 (CanLII), 12 CR (6th) 308, at para 27.

^[17] R. v. Ernst 1982 CarswellBC 710, [1983] B.C.W.L.D. 30, 1 C.C.C. (3d) 454, 8 W.C.B. 492;

^[18] R v Flack, 1968 CarswellBC 106, [1969] 1 CCC 55, 4 CRNS 120, 65 WWR 35.

^[19] Criminal Code, supra note 11 s 90(1); Felawka, supra note 6.

^[20] R v Myroon, 2011 ABPC 36 at para 51-60.

^[21] Ibid; see also R v Oickle, 2015 NSCA 87.

^[22] Felawka, supra note 6.

^[23] Ibid.

^[24] Criminal Code, supra note 11 s 267.

^[25] Ibid, s 85.

^[26] R v Steele, 2007 SCC 36 (CanLII), [2007] 3 SCR 3 at para 32.

^[27] Ibid at para 35.

^[28] Ibid; R v Cheetham, 1980 CanLII 2978 (ON CA), 53 CCC (2d) 109 (ONCA); R v Langevin, 1979 CanLII 2999 (ON CA), (No.1) (1979), 47 CCC (2d) 138 (ONCA); R v Stewart, 2010 BCCA 153 (CanLII), 285 BCAC 144.

^[29] Criminal Code, supra note 11 s 244, s 244.2.

^[30] Criminal Code, supra note 11 s 84(1).

^[31] R v Murdock, 2003 CanLII 4306 (ON CA) at para 14 [Murdock]; R v Ralph, 2011 ONSC 3558 (CanLII), [2011] OJ No 3156 (SCJ), aff’d on other grounds 2014 ONCA 3 (CanLII), [2014] OJ No 13 (CA).

^[32] Murdock, ibid.