Can I get my firearm back from the police?
Your ability to reacquire firearms confiscated by police will depend on the circumstances that led to them being seized. If the weapon was used in the commission of an offence and you were found guilty, it will be forfeited to the Crown with no way for you to get it back.
Sometimes firearms are taken by the police for safety purposes. That happens if they receive a report indicating the firearm owner poses a risk to themselves or others. Once it is seized, police must apply to the court within 30 days to have the firearm permanently forfeited. The firearm owner and their counsel will be given the opportunity at a court hearing to demonstrate why there is no safety issue.
If the court decides the weapon should be forfeited to the Crown, an order can also be issued prohibiting the person in question from possessing firearms or other weapons for up to five years.
In all cases, owners must show the court that they have the proper documentation and licences for the weapons they have, as well as approved storage units.
Pandemic stress leads to charge
I handled a case where a man had his firearms seized from his home even though he was not charged with an offence. He told me he had gone out to target shoot, but then he failed to secure his guns properly when he arrived home. Family members discovered that the weapons were left sitting out in plain sight, so they contacted the police who seized the weapons.
The man claimed he was not guilty of anything except carelessness, and he attributed that in part to the stress he was experiencing due to isolation brought on by the COVID-19 lockdown. He was assessed at a local hospital and was deemed not to pose a risk to anyone, under the criteria in the Mental Health Act.
When the hearing is held on whether his weapons should be forfeited, I will argue they should be returned. At the very least, he should be given the firearms back so he can sell them. If he has to get rid of the weapons, I will advise him to abide by the terms of the Canadian Firearms Program, which allows Canadians to resell non-restricted firearms under strict conditions.
What are your Charter rights?
The ability of police to search your home and seize firearms is regulated by the Criminal Code in tandem with the The Canadian Charter of Rights and Freedoms. Keep in mind that s. 8 of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.”
Police can still search your home without a warrant if they have reasonable grounds to believe that there may be illegal weapons or evidence in your home that might disappear if they took the time to get a search warrant, or if they fear someone inside is in danger.
Police have to meet a relatively low bar to justify seizing weapons. According to s.117.04(1) of the Code, these seizures can happen “if is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon.”
The rules dealing with weapons after they are seized are found in s. 491, which states that if a weapon, or any prohibited device was used in the commission of a crime it should be “forfeited to Her Majesty and shall be disposed of as the Attorney General directs.”
There is one exception to that rule. A marginal note contained in the same part of the Code states: “If the court … is satisfied that the lawful owner of anything that is or may be forfeited to Her Majesty … was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.”
Court orders five-year ban on gun ownership
In 2018 the Ontario Court of Justice ordered a five-year ban on firearm ownership to a man who had several items seized in his home by police in 2005. According to the judgment, they included a shotgun, several pellet pistols that appeared to be “real revolver-style guns,” a small amount of gun powder, hundreds of rounds of various calibre ammunition and two Tasers.
Court documents show the municipality seized the man’s house due to a non-payment of taxes and related utilities, but that he refused to leave. When police arrived, he fired a “slug round” from a shotgun, narrowly missed one officer and hitting another in the upper arm. He was charged with a variety of weapon offences including discharging a firearm with intent to wound or maim, but was later found not criminally responsible due to a mental disorder.
The Crown asked that he banned from owning any weapons for five years, and the court agreed, noting, “Section 111 of the Criminal Code requires that the Crown establish, on the balance of probabilities, that it is “not desirable” that a respondent possess firearms … he has no insight into his illness and has told his treatment team that if it were up to him, he would stop taking his prescribed medication. It is not possible to predict with any certainty who would be endangered if he had access to guns and his medication regime were to fail in some way, but it seems likely that it could be anyone whose actions do not align with [his] views about how he should be able to conduct himself in the world.”
Weapons returned to man after treatment
A British Columbia judge ordered that a shotgun and rifle seized from a man should be returned to him, according to a 2020 news report.
It states that the man’s partner had reported he was suicidal and wanted “to blow his head off.” When police located the man, “he appeared very distraught, had bloodshot eyes, appeared to have consumed alcohol, and was having difficulty formulating more than one-word responses.”
The man had a licence for non-restricted guns that were stored properly, the story states, adding that officers “did not lay any charges against the man, who had no prior criminal record, but they filed an application for a court order banning him from possessing firearms for up to five years.”
A provincial court judge noted that the man, an army veteran who had served in Afghanistan, suffered from anxiety, depression and suicidal thoughts. He noted as well that he was an Indigenous hunter who was well-regarded by his community, had taken steps to address his mental health issues.
“I am of the opinion that [he] currently does not pose a danger to the safety of any other persons. Finally, there is nothing in the evidence before me to suggest that [he] will be a danger to the safety of other persons in the future,” the judge wrote, in turning down the application for the five-year ban on gun ownership.
Experienced counsel makes the difference
Firearms can be very expensive and may even be considered an investment by their owners. If police seize your weapons there are arguments that can be made to get them back, depending on the circumstances. Contact me for a free consultation so we can start working on a plan that suits your case.