FAQ

Defences for those charged with firearm offences

The vast majority of firearms in Canada are owned by law-abiding citizens. But in the wrong hands, these weapons can cause serious injury and result in death. That is why the Criminal Code of Canada contains numerous provisions that criminalize illegal use and possession of firearms, with jail time a real possibility upon conviction.

If you are in that situation, be sure to consult an experienced defence lawyer who can help you navigate the legal process. Here are some key points to keep in mind about building a defence against firearms charges.

Remain silent until speaking to a lawyer

If the police knock on your door and ask to speak to you about a firearm-related issue, don’t be lured into talking freely about it, thinking that will clear up any suspicions they have. If they ask about a weapon you own, show them your registration or Possession and Acquisition Licence then tell them that is all you can say until you speak to legal counsel. You have the right to remain silent and should take advantage of it in this situation.

If you are charged with a firearm offence, be sure to follow all the conditions imposed by the court. That will usually include an order not to handle or be in possession of a firearm until the case is tried. You will be asked to provide fingerprints and may be requested to appear in court at a particular time and date. It is essential that you attend when requested and that you do not breach the condition about handling guns, as that could result in further charges.

If police seize firearms from your residence, contact a lawyer immediately. If they were seized for security purposes, based on the fear they could be used to harm yourself or others, there will be a hearing held to determine if they should be forfeited permanently. A lawyer can help you present your best arguments in this hearing as you strive to get your weapon back.

Police need a warrant to enter your home

Do not let police enter your home without a warrant. If they don’t have this important document issued by a judge and they find weapons in your possession, your lawyer can ask the court to exclude that illegally obtained evidence if the case makes it to trial.

If the police show up with a warrant, allow them in but keep track of their actions. There is a chance they are overstepping the scope of the warrant. If we can show that is the case, we can again argue for the exclusion of the evidence.

Police cannot violate your Charter rights

Thanks to s. 8 of Canadian Charter of Rights and Freedoms, Canadians have the “right to be secure against unreasonable search or seizure.”

A Department of Justice factsheet delves into this right further, noting: “the Canadian Bill of Rights contains no specific rights to privacy or to be secure against unreasonable search and seizure; but section 1(a) protects a limited right not to be deprived of the enjoyment of property without due process.

“Section 8 protects people, not places, against unjustified intrusions on their privacy interests … the purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place,” the factsheet continues. “The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy … the protection section 8 provides for privacy – personal, territorial and informational – is essential not only to human dignity, but also to the functioning of our democratic society. At the same time, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere.”

Your use of the weapon met the standard of care expected

The best defence to any firearms charge depends on the circumstances of the case. If you can demonstrate that you took all the reasonable precautions necessary to ensure the safety of people nearby when using your firearm, that could be a defence. Or perhaps it could be argued that on the basis of all the information available to you at the time of the alleged offence, you could not have possibly known that the use of your firearm caused danger to the safety of people nearby.

You did not know a firearm was in your possession.

Police can charge individuals for illegally possessing a firearm. This charge can be met with the defence that you were unaware of the weapon’s presence.

I had a client who was driving in a car with four passengers. When police pulled the vehicle over, they found a firearm in a bag belonging to my client. When the case goes to trial, we will argue that someone else in the car must have hidden it there. We will also ask that the evidence about the handgun be excluded since police did not have a warrant to search the vehicle.

The defence of being unaware of the weapon will fail if the Crown can demonstrate you were “willfully blind” to its presence in your possession.

Court upholds right to be free of unreasonable searches

In 2010, the Ontario Superior Court of Justice ruled that a man’s Charter rights to be free from unreasonable searches and unreasonable seizures had been violated after numerous weapons were found in his car. According to the judgment, police received a tip about an impending gun-for-drugs deal. When they arrived at the location mentioned in the tip, they searched a car and found numerous weapons in the trunk. The driver was charged with possession of a restricted firearm with readily accessible ammunition, possession of a loaded restricted firearm, possession of a restricted firearm with readily accessible ammunition, possession of a loaded restricted firearm and possession of a restricted firearm for the purpose of transferring them.

At trial, the man’s lawyer argued a Charter breach had occurred and asked that evidence about the firearms be excluded. The basis for this Charter challenge was that the police did not have reasonable and probable grounds for the man’s arrest and, as such, the arrest and subsequent search of the vehicle incident to the arrest were invalid.

The court agreed, noting that “there was no warrant obtained … the fact that the officer may have believed firearms were in the vehicle and the subsequent discovery of the firearms in the vehicle is not a relevant factor to be considered. Simply because the hunch may have turned out to be justified does not legitimize the actions of the police at the time they make an arrest.”

The judgment also offers these thoughts on balancing Charter rights against the actions of the police to clamp down on gun crime:

“While there is no doubt a reasonable person’s initial reaction may be surprise that firearms could be excluded, especially given the notoriety and problems caused by guns in our society, most Canadians very strongly cherish their Charter rights and would be shocked that police would or should be entitled to breach those rights in the manner done in this case based on a hunch or mere suspicion and then be rewarded at trial for their conduct,” the judgment reads.

Knowing your rights makes a difference

A member of the Canadian Coalition for Firearm Rights shared this story about his encounter with the police. A routine traffic stop due to a bent license plate led to an officer requesting identification, the story states, with the man handing him his driver’s licence. He was asked for more ID, so he handed the officer his Possession and Acquisition Licence for his guns. The officer asked if he currently had any firearms or ammunition in the vehicle, according to the account, and was told there were boxes of shotgun shells in the pocket of the driver’s door, but no guns.

“The officer began suggesting that [he] required a permit to transport ammo and that it needed to be locked up,” the story notes. “[The man], being versed in the regs knew neither of these things were accurate, was left on the side of the road while the officer returned to his cruiser, documents in hand.”

Ten minutes later, a second officer informed him that his vehicle would be searched, the account continues. “Shocked, [the man] asked if he was under arrest at this time and the officer replied he was not. Knowing his rights, [he] informed the officers he was not consenting to a search of his vehicle and asked for a supervisor to be summoned to the scene. The search took place in the meantime and nothing of interest was found.”

Shortly after the unlawful search was completed, “a Sergeant attended the scene … and informed [the man] he was being detained for ‘careless storage of ammunition’ and was not free to go … he returned 20 minutes later saying he had spoken to the RCMP ‘Range Officer’ and that [the man] was now free to go.”

The man later launched legal action against the police force and the three officers involved, according to the story, adding “after back and forth negotiations, a settlement was reached, and [he] was awarded the sum of $3,500 for the incident.”

Experienced legal counsel makes the difference

The laws regulating firearms in Canada are complex and confusing. If you are facing a charge related to a gun crime, allow me to work on your behalf. I will analyze the evidence against you for all triable issues and suggest the best way forward. My comprehensive knowledge of firearms legislation in Canada is fundamental to your strongest defence. Call me first for a free consultation.

Filed Under
Firearms