Unauthorized Possession of a Firearm (s. 91) Charges in Canada: Offences, Defences, Punishments
Table of Contents
- Overview of the Offence
- Possession of a Firearm Defences
- Possession of a Firearm Punishment
- Frequently Asked Questions
- Published Decisions
Unauthorized possession of a firearm is laid out in section 91 of the Criminal Code.
Possessing an unauthorized firearm means that you hold dominion or control over a firearm for which you are unlicensed or unregistered to be in possession of.
There are three different classes of firearms:
- prohibited firearm;
- restricted firearm; and
- non-restricted firearm
Depending on the class of firearm, there may exist different legal requirements for being in possession. The Criminal Code under section 91(1)(a) requires a license for all three classifications of firearms and section 91(1)(b) requires a certificate of registration for both prohibited and restricted firearms.
For information about what class of firearm you may be in possession of visit the Royal Canadian Mounted Police website linked here.
Possession of an unauthorized firearm is a hybrid offence and can be prosecuted by indictment (more serious offence) or summarily (less serious offence). Whether you are charged with an indictable or summary offence is left up to the Crown.
Some examples of possession of an unauthorized firearm might include:
- Even though you’ve never used it, and never intend on using it, you are knowingly storing a fully automatic styled rifle (or another style of weapon classified as prohibited or restricted) without a license and a registration certificate.
- You are knowingly in possession of a non-restricted firearm without a license.
- You forget to re-register your firearm before the registration’s expiry date.
- You purchase a prohibited firearm without a “Possession and Acquisition License” (PAL).
A strong defence to a charge of unauthorized possession of a firearm will depend on the circumstances of one’s case. Some potential defences may include:
- Lack of ‘mens rea’
- Due diligence
- Statutory exception
- Nature of weapon defence
- Applicable Charter defences
As per section 91(3) of the Criminal Code, possession of an unauthorized firearm is a hybrid offence. This means that if you are charged under section 91 of the Criminal Code, the Crown can opt to proceed as an indictable charge (more serious) or a summary charge (less serious). How the Crown chooses to proceed largely depends on the facts of the case. The Crown will consider all of the evidence at bar, as well as the severity of the case at face-value before making an election.
If the Crown chooses to proceed by way of indictment, the maximum penalty is 5 years imprisonment. If the Crown chooses to proceed summarily, the maximum penalty is 2 years less a day imprisonment and/ or a $5000 fine.
There is no minimum penalty for an unauthorized possession offence.
Overview of the Offence
Possession of an unauthorized firearm is covered under sections 91(1)-(4) of the Criminal Code.
The sections read as follows:
Unauthorized possession of firearm
91 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of
(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
Unauthorized possession of prohibited weapon or restricted weapon
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.
In the Criminal Code, section 2 defines a “firearm” as:
a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm
In establishing the definition of “possession”, section 4(3) Criminal Code states that:
(a) a person has anything in possession when he has it in his personal possession or knowingly
i. has it in the actual possession or custody of another person, or
ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Unauthorized possession of a firearm is a strict-liability offence. Therefore, the offence is unique because the Crown does not need to prove the mens rea element of the offence (as is required in most criminal offences), but only the actus reus.
The Guilty Act (Actus Reus)
The actus reus or standard of action which must be proven to satisfy a finding of guilt in a claim for possession of an unauthorized firearm is fairly simple; the accused commits the offence under section 91(1) by possessing a firearm while not possessing the registration certificate or licence that makes possessing the firearm lawful (see: R v Létourneux, 1990 CanLII 3016 (QCCA)). For prohibited and restricted firearms, section 91 requires the defendant to possess both documents (the registration certificate and the license).
The burden of proof rests on the defendant to demonstrate that he or she holds the appropriate documentation which entitles them to possession of the firearm.
When charged with a section 91 offence, the Crown will rely on section 117.11 of the Criminal Code which states that:
Where, in any proceedings for an offence under any of sections 89, 90, 91, 93, 97, 101, 104 and 105, any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration
This means that the Crown is not required to prove that you didn’t have the proper licensing or registration but that alternatively, you must prove that you did.
The Guilty Mind (‘Mens Rea’)
As noted above, the Crown is not obligated to prove any mental element for an unauthorized possession of a firearm charge. Instead, the defence of “due diligence” is made available to the defendant. This defence is discussed below. Offences which eliminate the mens rea requirement are called “strict liability” offences. The question of requiring the Crown to prove the mens rea of this offence has been given consideration in the courts.
For example, in the case R v MacDonald, the Supreme Court of Canada assigned no positive duty to the Crown to prove that a defendant understood his license and deliberately disobeyed it (see: R v MacDonald, 2014 SCC 3 (CanLII),  1 SCR 37).
The fact that an individual is in possession of a firearm inconsistent with the licensing (or no licensing at all) is enough evidence for a conviction unless the defendant can utilize a defence against such a claim (such as due diligence).
For example, if your license entitles you to hold a handgun in one province but you’re found holding it in another province for which the license does not allow, the Crown is not responsible for proving that you knew the license did not allow this. It is also important to note that a defendant’s intention not to use a prohibited weapon as a weapon provides no defence to a charge of possession of a prohibited weapon. This was established in the British Colombia Supreme Court in a case known as R v Strong (see R v Strong, 2012 BCCA 279 (CanLII)).
Possession of a Firearm Defences
The availability and strength of any defence depends entirely on the specific facts of one’s case. However, the following are some common defences that may be used when fighting an unauthorized possession charge:
Lack of ‘mens rea’
While there is no requirement that the Crown must prove the mens rea element of the offence (the mental element), it is still open to the defendant to disprove the mental component of the offence. For example, if you did not know you were in possession of a firearm (perhaps someone else stored it in your home without you knowing), you may be able to demonstrate this to a court by providing evidence to the point.
The defence of due diligence is only available in strict liability cases. Strict liability cases, as discussed earlier in this article, are crimes for which the Crown must only prove the actus reus (the act itself), but not the mens rea (the mental element of the crime). Because the burden of proof is notably diminished in strict liability cases, the court makes available the defence of due diligence so that the defendant is provided with an opportunity for explanation or rationalization.
Here, the defendant must prove that they did everything possible to prevent the act from happening. It is not enough that they took the normal standard of care – they must show that they took every reasonable precaution against preventing an act. In the context of an unauthorized possession of a firearm charge, this may be a tricky defence to apply, however, an example might be if you went to all lengths to renew your license before its expiration date but circumstances beyond your control prevented you from doing this promptly (note: this would be a VERY specific example and you should always make every attempt renew your firearms license on time).
Section 91(4) of the Criminal Code outlines two exceptions to a charge for unauthorized possession of a firearm.
1) A person in possession of any of the classified firearms “is under the direct and immediate supervision of a person who may lawfully possess it, for the purpose of using it in a manner in which the supervising person may lawfully use it; or”
2) A person who comes into possession of any of the classified firearms, “within a reasonable period after acquiring possession of it:
a. lawfully disposes of it, or
b. obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.”
Should one of these scenarios be the case for which you were charged with a possessions offence, the statutory exception should be brought to the Crown’s attention as soon as possible.
Nature of weapon defence
Ignorance of the characteristics that make an item a prohibited weapon establishes a good defence. For example, in R. v. Phillips, (see: R v Phillips, 1978 CarswellOnt 813, 44 CCC (2d) 548 (ONCA)) the police arrested the accused holding a knife which could — with practice — be opened with a flick of the wrist. The defendant testified that he did not know that the knife could be opened in this manner. This evidence established a defence because if it weren’t for it opening this way, the accused would have been entitled to possession. This could also fall under the “lack of ‘mens rea’” defence category.
Applicable Charter Defences
The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.
Possession of a Firearm Punishment
There is no minimum punishment for a charge of unauthorized possession of a firearm. This means that a prospective sentence could range anywhere from a full discharge (see: section 730 of the Criminal Code) to a maximum penalty of 5 years imprisonment (see: section 91(3) of the Criminal Code). Because unauthorized possession of a firearm is a hybrid offence, the Crown will elect to proceed with the charge as an indictable one (more serious) or a summary one (less serious).
- If the Crown chooses to proceed by way of indictment, the maximum penalty is 5 years imprisonment.
- If the Crown chooses to proceed summarily, the maximum penalty is 2 years less a day imprisonment and/ or a $5000 fine.
All potential dispositions are available to a sentencing judge for section 91 convictions. This means that any sentence or sentencing combination falling under the maximum penalties could be ordered. Some examples might include a conditional or absolute discharge, a suspended sentence, a stand-alone fine, custody, custody and probation, custody and a fine, a conditional sentence, etc.
In a finding of unauthorized possession of a firearm, the court may also order if it deems necessary:
- If prosecuted as an indictable offence, a prohibition order against possession of a firearm in the future (see: sections 730, 731, 109 and 110 of the Criminal Code).
- Forfeiture of the firearm (see: section 491 of the Criminal Code).
- If prosecuted as an indictable offence, a DNA order (see: section 487.051(3) of the Criminal Code).
- If prosecuted as an indictable offence, the individual found guilty be ineligible for parole until at least half of his or her sentence is served where the term of imprisonment is set at 2 years or more in custody (see: section 743.6 of the Criminal Code).
Sentences can range quite drastically for this type of offence. Lone charges for just one finding of possession of an unauthorized firearm will be unlikely to carry a weighty sentence. Sentences intuitively increase or become more serious when charges are compounded with other weapons offences (such as careless storage [see: section 86 of the Criminal Code], possession for a dangerous purpose [see: section 88 of the Criminal Code], etc.).
Frequently Asked Questions
Is possession of a weapon an indictable offence?
Unauthorized possession of a weapon is a hybrid offence. This means that if the Crown wishes, they may elect to proceed by way of indictment. However, they can also elect to proceed as a summary offence which is less serious. The Crown’s election depends largely on the facts of each individual case as well as the severity of the case at face value.
Custody is available to a sentencing judge as an option for an unauthorized possession of a firearm offence. The maximum penalty for an unauthorized possession charge is 5 years imprisonment if you have been charged with an indictable offence. The likelihood of receiving a custodial sentence increases where you have a previous criminal record or your unauthorized possession charge is compounded with other criminal charges.
How much jail time do you get for a gun charge in Canada?
The answer to this is very fact-dependent. If an individual were charged with only one count of unauthorized possession of a firearm, had no criminal record and no other criminal charges for which they were facing, a term of imprisonment would be unlikely. In the past, custodial sentences for weapons charges in Canada have ranged anywhere from 60 days imprisonment (see: R v Armstrong, 2016 BCPC 94 (CanLII)) to the maximum of 5 years imprisonment (see: R c Aurelus-Marmontel, 2019 QCCQ 4613 (CanLII)).
R v Steed, 2021 NSSC 71 (CanLII)
Mr. Steed pled guilty to numerous weapons charges including two counts of unauthorized possession of a firearm as criminalized under section 91 of the Criminal Code. Some of the other charges included possession of a loaded restricted firearm contrary to section 95 of the Criminal Code, possession of a firearm while prohibited from doing so contrary to section 117.01(1) of the Criminal Code and an array of other weapons/firearms offences. Mr. Steed carried with him a lengthy criminal record related to firearms offences. The Nova Scotia Supreme Court considered a great deal of past precedent in reaching its sentencing disposition. After considering both the Crown and the defence’s recommendations for sentencing, the Court settled on 2 years imprisonment to be served concurrently for each of Mr. Steed’s section 91 charges totalling 4 years (this was amongst several other sentences for his other criminal charges).
You can read the full case here.
R. v. Wright, 2018 ONSC 4209 (CanLII)
The accused was charged with four different offences including unauthorized possession of a firearm contrary to section 91 of the Criminal Code amongst several other charges including possession of a loaded prohibited firearm contrary to section 95 of the Criminal Code and carrying concealed a prohibited device contrary to section 90 of the Criminal Code. The judge stayed the charge for the section 91 offence because the offence of possession of a loaded prohibited firearm, contrary to s. 95(1), was the more serious offence. It arose from the same transaction and had the same elements as the section 91 offence. Therefore, the judge only made findings of guilt for the section 95(1) charge, however, for this count, the defendant was sentenced to 22 months of custodial time.
You can read the full case here.
R v Kennedy, 2016 MBCA 5 (CanLII)
The judge for the Manitoba trial division acquitted Mr. Kennedy of his two section 91 charges. On appeal, the Crown requested that these acquittals be overturned. The Manitoba Court of Appeal agreed with the Crown and overturned the acquittals. On two counts of section 91 charges, the court sentenced Mr. Kennedy to 9 months imprisonment. However, Mr. Kennedy received more jail time for other weapons charges he was facing in the same indictment.
You can read the full case here.
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