Possession of a Weapon Contrary to an Order (s. 117.01) Charges in Canada: Offences, Defences, Punishments

What is possession of a weapon contrary to an order?

The offence of possession of a weapon contrary to an order is found under s.117.01 of the Criminal Code.

Offences relating to possession of a weapon contrary to an order are found in Part III of the Criminal Code relating to “Firearms and Other Weapons”.

The offence of possession of a weapon contrary to an order is a hybrid offence which means that depending on the circumstances of your case the Crown may elect to proceed either by indictment or summarily.

Examples

Some common examples of possession of a weapon contrary to an order may include situations where you are on a weapons prohibition order but at the time of the offence you had in possession any of the following:

• Crossbow
• Firearm
• Any prohibited weapon
• Any restricted weapon
• Any ammunition

Punishments

If you have been convicted of possession of a weapon contrary to an order you may be subject to the following penalties:

• Indictable: up to 10 years in jail.
• Summary: up to two years less a day in jail and/or a $5000 fine.

However, you may have other dispositions available to you as well.

Defences

Some common defences to a possession of a weapon contrary to an order charge may include the following:

• Identity;
• Essential elements of the offence are not met;
• No possession;
• Any applicable Charter

Overview of the Offence 

Under s. 117.01 of the Criminal Code:

This section creates and punishes two offences. The first involves possession of a firearm or other regulated item in contravention of a prohibition order and the second a failure to surrender documentation when required to do so. Each, in other words, relates to a breach of a court order.

Actus Reus (The Guilty Act)

The actus reus that the Crown must prove, beyond a reasonable doubt, for the purposes of s.117.01(1) is that you:

• Possessed a firearm or other regulated item; and
• You were bound by a Code or other federal statute prohibition.

The actus reus that the Crown must prove, beyond a reasonable doubt, for the purposes of s.117.01(1) is that you:

• were the holder an authorization, license or registration certificate at the relevant time;
• there was an order that you surrender the document to the relevant authority;
• that order was made under the Code or federal statute; and
• you failed to surrender the document as required.

Mens Rea (The Guilty Mind)

The mens that the Crown must prove, beyond a reasonable doubt, for the purposes of s.117.01(1) is that you:

• You had knowledge; or
• Recklessness towards the applicable prohibition.

The mens rea that the Crown must prove, beyond a reasonable doubt, for the purposes of s.117.01(2) is that you:

• You were aware of the requirement to surrender the relevant document; and
• That you deliberately failed to comply with it.

Defences

A strong defence depends entirely on the individual circumstances of your case. However, the following defences may be applicable:

Identity

The Crown needs to prove identity beyond a reasonable doubt. This means that the Crown must prove that it was you who committed the offence. This can often be difficult if there are no witnesses if there were conditions present that prevented a witness from identifying you, or the offence was captured by poor quality surveillance footage. Sometimes mistakes do happen, the authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. Your defence lawyer may be able to argue that the Crown cannot definitively prove that it was you who committed the offence, resulting in an acquittal.

Essential Elements of The Offence Are Not Met

In order for the Crown to convict you of an offence, the actus reus and the mens reas of the offence need to be proven beyond a reasonable doubt. If the Crown is unable to do so, the essential elements of the offence are not satisfied and you cannot be convicted of the offence.

Lack Of Possession

Along with the actus reus and the mens rea for the offence of possession of weapon contrary to an order, the Crown also needs to prove that you did in fact possess the weapon. As such, if you are able to showcase that you did not have a weapon in your possession, the Crown will not be able to convict you.

s. 117.01(4) of the Criminal Code

Under s.117.01(4) of the Criminal Code you cannot be convicted of an offence under s.117.01 of the Criminal Code if you possessed a firearm in accordance with an authorization or licence issued to the person as the result of an order made under subsection 113(1) of the Criminal Code. This means that you will have to establish to the satisfaction of a competent authority that you (a) need a firearm or restricted weapon to hunt or trap in order to sustain yourself or your family, or (b) a prohibition order against you would constitute a virtual prohibition against employment in the only vocation open to you.

Applicable Charter defences

The Charter sets out you rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

• Section 8 – Right to be secure from search and seizure;
• Section 9 – Right not to be arbitrarily detained;
• Section 10 – Right to be informed of reasons for detention or arrest:
• Section 11 – General: legal rights apply to those “charged with an offence”
• Section 12 – Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

Punishments

Offences under s.117.01 of the Criminal Code are hybrid offences. This means depending on the circumstances of your case the Crown may elect to proceed by indictment or summarily. The following penalties and dispositions may be applicable to you:

s.117.01 – Summary

If you have been convicted of an offence under s.117.01 and the Crown elected to proceed summarily you can receive up to two years less a day in jail and/or a $5000 fine.

You also may have the following dispositions available to you as well:

• Discharge;
• Suspended sentence;
• Stand-alone fine;
• Custody and probation;
• Custody and fine; and
• Conditional sentence order.

s.117.01 – Indictable

If you have been convicted of an offence under s.117.01 and the Crown elected to proceed by indictment you can receive up to up to up to 10 years in jail.

You also may have the following dispositions available to you as well:

• Discharge;
• Suspended sentence;
• Stand-alone fine;
• Custody and probation; and
• Custody and fine

Frequently Asked Questions

Can you go to jail for Possession of a Weapon Contrary to an Order?

Yes, you can go to jail for possession of a weapon contrary to an order. If the Crown elects to proceed by indictment you may face up to 10 years in jail.

What is the sentence for Possession of a Weapon Contrary to an Order?

If you have been convicted of possession of a weapon contrary to an order you may be subject to the following penalties:

• Indictable: up to 10 years in jail.
• Summary: up to two years less a day in jail and/or a $5000 fine.

However, you may have other dispositions available to you as well.

Is Possession of a Weapon Contrary to an Order a serious offence?

Yes, possession of a weapon contrary to an order is a serious offence prosecuted harshly. You may receive up to 10 years in jail if convicted of this offence.

Published Decisions

R v Chol, 2022 ABPC 41

In this case, after trial, the accused was convicted of intentionally discharging a firearm into 4 houses located in the Tarrington neighbourhood in northeast Calgary, multiple other firearms offences, dangerous driving, and flight while being pursued by police. As well, on new Information, the accused entered guilty pleas to a charge of possession of a firearm while prohibited by Court order, and two charges of breach of a release order. The accused was ultimately sentenced to a global sentence of 7 years imprisonment.

You can read the full decision here.

R v Anny, 2021 ABCA 394

In this case, the accused appealed his convictions for possession of a prohibited or restricted firearm contrary to s. 91(1)(b) of the Criminal Code, (count 4); possession of a loaded prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code (count 6); and, possession of a firearm while prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code contrary to s. 117.01(1) of the Criminal Code (counts 9 & 10). The appeal in relation to the possession of a weapon contrary to an order charge was dismissed.

You can read the full decision here.

R v Powderface, 2021 ABPC 34

In this case, the accused pleaded guilty to several charges including possession of a weapon contrary to an order. The accused testified and denied the allegations. Specifically, the defence argued that the victim’s identification of the accused was not true or reliable; the accused was at home at the Material Time; he had not driven his car that day; the gunshot residue was due to secondary transfer; and had that the accused had no motive to shoot the victim. Ultimately, the accused was acquitted of all the charges.

You can read the full decision here.