How do I get a firearms charge dropped?
Crime involving guns is a serious offence in Canada. If you are accused of a firearms-related offence it might not be possible to get that charge dropped. However, there are ways to have the punishment reduced so you can avoid jail time and perhaps a criminal record. Everything depends on the circumstances and what type of offence was committed.
With every client I represent, one of the fundamental steps I take is to find weaknesses in the Crown’s case. This involves a close examination of all evidence, such as timelines, location/control over the gun(s) in question and whether any search and seizure of weapons was done correctly.
The Crown needs to show the court that the evidence against you was collected according to the law. The prosecution also needs to prove beyond a reasonable doubt that you are guilty of the charges you face.
Were your Charter rights violated?
Section 8 of the Canadian Charter of Rights and Freedoms states “Everyone has the right to be secure against unreasonable search or seizure.”
That is an essential right for firearm owners, as it protects them from undue intrusion. According to a Department of Justice (DoJ) document, “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 values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy.”
It adds that s. 8 protection does not cover all police searches.
“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,” it states.
Can police search my home without a warrant?
There are a number of reasons why the police could 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 police took the time to get a search warrant, they could come knocking on your door unannounced.
Investigators can enter a home to prevent someone inside from being seriously injured or killed, especially if they have received a 911 call from someone in the home.
Police may also enter a residence without a warrant if they are pursuing a fleeing suspect. An example of this would be if someone suspected of impaired driving pulls into your driveway and runs into the house.
What powers does a search warrant grant?
Police can obtain a search warrant if they can convince a judge that they have probable cause to believe criminal activity is occurring or if evidence of this activity might be found in a search. They can only search for evidence listed in their warrant and can look only in places where they might find it. For example, if the search warrant states they are looking for a rifle or shotgun, they cannot go through drawers that could not possibly accommodate a large weapon.
However, if police are legitimately searching for evidence listed in the warrant and they discover something related to criminal activity, such as drugs or contraband, they can take it and use it as evidence against you.
If police overstep the boundaries of a search warrant, as your defence lawyer I can point that out to a judge and request that any evidence gathered be excluded from consideration.
What is informed consent when it comes to searches?
Police can search your home without a warrant if you or another adult living there give them permission – this is known as "informed consent.”
This consent has to be fully informed and voluntary, meaning it cannot be the result of oppressive or coercive conduct by the police. When asking for consent, the police must make the person aware of what they are looking for and the reasons for the search. Consent must be delivered with a signature, on a form that advises a person of their rights, including the right to contact a lawyer and the right to refuse the search.
Uzi excluded from evidence due to lack of informed consent
A 2020 Ontario Superior Court of Justice case demonstrates the importance of informed consent. Court documents state that two police officers were told a man had an Uzi submachine gun in a gym bag beside his bed, with that information coming from the man’s girlfriend. The officers were skeptical and decided the circumstances wouldn’t amount to grounds for a judicial search warrant, but also they didn’t want to ignore a gun report. They went to his house without a warrant or an informed consent form.
The officers spoke to the man about the alleged firearm on his porch, and he “agreed that the officers could search” his bedroom for the guns, court documents state, adding: “The officers did not tell [the man] that he could refuse the search. Nor did they tell him he could speak to a lawyer, or the potential jeopardy he might be facing.”
The judgment finds it is clear the man did not give informed consent, stating: “In assessing whether a true consent was given, it is important to look at the actual words and conduct that are said to amount to a consent … there is a distinction between a true consent and mere acquiescence or compliance. Thus, care must be taken to ensure that any alleged consent does not become a ‘euphemism for failure to object or resist.’”
The judge ruled that evidence about the Uzi, that was found, must be excluded, noting the officers “took a shortcut with [the man’s] constitutional rights … the admission of the evidence in these circumstances would bring the administration of justice into disrepute.”
Can I ask for a discharge?
“Discharges were enacted in 1972 in order to give the courts the power to relieve against both the fact and the stigma of a criminal conviction,” it states. “A discharge is not a conviction, but, rather, the offence is discharged and in the case of conditional discharge, with a probationary term.”
With this strategy, the accused would plead guilty to the firearms offence then apply to the court for a conditional discharge. If the conditional discharge is granted, they would be required to comply with certain conditions over a specific time period, after which they will be discharged from the offence and avoid a lifelong criminal record.
This defence strategy works best with first-time offenders of less-serious firearms charges. It also helps if the accused can demonstrate that they take responsibility for their actions and are addressing the issues that led to the criminal behaviour, perhaps by enrolling in addiction or anger-management programs. It always benefits the accused to show that they are a law-abiding citizen with a good reputation and employment background.
In some cases, an absolute discharge can be granted by the court, immediately discharging the accused from the offence. There are no conditions placed on the accused and the absolute discharge stays on their record for one year.
What is the alternative Measures Program?
According to s. 4 of the Youth Criminal Justice Act, youth from 12 to 17 years of age can be diverted from formal court proceedings at either the pre- or post-charge stage if they agree to enrol in an alternative measures program. As a StatsCan document explains, the intent of these programs is to “divert persons accused of less serious offences out of the formal justice system … providing the opportunity to avoid the consequences of having a criminal record, while holding them accountable in a manner which is visible to the community.”
It adds that alternative measures are “considered appropriate for less serious offences and first offenders,” and they usually include community service, an apology, social skills improvement and restitution.
Youths accused of serious firearms offences would not be eligible for this program.
Can I argue I have a right to bear arms?
No. That right is enshrined in the American Constitution, though it can be argued it was meant to address civilian militias. On this side of the border, the Supreme Court of Canada answered this question in a 1993 decision when upholding a lower court’s decision to allow the seizure of a mini-Uzi submachine gun. In part, that decision states: “Canadians, unlike Americans, do not have a constitutional right to bear arms. Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.”
Experienced counsel makes a difference
Firearms laws are constantly changing, meaning that legal arguments that worked in the past may no longer be effective today. If you are facing a firearms-related charge, call me for a free consultation, in French or English, so we can start crafting the best defence for your situation.