Weapons Trafficking (s. 99, s. 100) Charges in Canada: Offences, Defences, Punishments

What is Weapons Trafficking?

Weapons Trafficking is covered under s. 99 of the Criminal Code.

Section s. 100 of the Criminal Code is another weapons trafficking charge but covers situations where the accused possesses a weapon for the purpose of trafficking.

Weapons Trafficking is a serious criminal offence known as a straight indictable offence, resulting in jail time upon conviction. A person can be subject to imprisonment for up to 10 years if convicted.

Examples

Some examples of weapons trafficking may include the following:

• Transferring a prohibited or restricted firearm to someone;
• Manufacturing a prohibited firearm;
• Manufacturing or transferring prohibited ammunition; and
• Possessing a prohibited or restricted weapon.

Defences

The defences available to a charge of weapons trafficking are entirely dependent on the facts of your case. There are strict laws surrounding weapons charges specifically related to firearms which limit the availability of a defence.

However, some defences to a charge of weapons trafficking may include:

• Your rights under the Canadian Charter of Rights and Freedoms were violated in the course of the investigation;
• The weapon you possessed is not actually restricted or prohibited; and
• You did not actually have possession of a restricted or prohibited weapon.

Punishment

Weapons Trafficking is a serious, straight indictable criminal offence, which entails a maximum punishment as follows: 

• Imprisonment for a term not exceeding 10 years.

Weapons trafficking and possession for the purpose of weapons trafficking carry a minimum punishment of imprisonment for a term of one year if the weapon is not a firearm. However, if the weapon is a firearm, the minimum sentence is 3 years. Punishments will also frequently involve restitution and subsequent probation.

Weapons trafficking convictions can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence

According to s. 99 of the Criminal Code:

According to s. 100 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for weapons trafficking under s. 99 is established by proof, beyond a reasonable doubt, of the following:

• The accused “manufactures or transfers” or “offers to” manufacture or transfer a thing to anyone;
• The thing was “a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition.”

The actus reus for possession of weapons for the purpose of trafficking under s. 100 is established by proof, beyond a reasonable doubt, of the following:

• The accused possesses a thing;
• The thing was “a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, an ammunition or any prohibited ammunition.”

To further understand the actus reus and what the Crown must prove, section 84(1) of the Criminal Code defines “transfer.” Under section 84(1), “transfer” means to “sell, provide, barter, give lend, rent, send, transport, ship, distribute or deliver.” Section 84(1) also defines “firearms” and also classifies what firearms and weapons are prohibited or restricted.

Under section 183 of the Criminal Code, weapons trafficking is an offence that is wiretap eligible. This means that the Crown can use evidence that was intercepted from private communications to prove the elements of the offence.

The Guilty Mind (Mens Rea)

The mens rea of weapons trafficking under s. 99 includes proving, beyond a reasonable doubt, that:

• The accused knew that they were not authorized to manufacture, transfer, or offer to manufacture or transfer a firearm or weapon under the Firearms Act or any other Federal Act or regulation;
• If there is an offer, the accused intended to make an offer that would be taken as a genuine offer by the recipient.

The mens rea of possession of weapons for the purpose of trafficking under s. 100 includes proving, beyond a reasonable doubt, that:

• The accused knew that possession of a weapon or firearm was “not authorized to transfer it under the Firearms Act or any other Act of Parliament or any regulations.”

The case of R v Burke, 2014 ONSC 3199 held that if the accused offers to traffic a weapon, then the offer alone is enough to make out the mens rea of the offence. This is regardless of if the accused held the actual intent to sell or give the weapon or firearm offered. This means that when there is an offer, the Crown only must prove beyond a reasonable doubt that the offer a genuine offer was made by the accused to the recipient.

Defences

How to Beat a Weapons Trafficking Charge

The availability and strength of any defence depend entirely on the specific facts of your case. However, the following are some common defences that may be used when fighting a weapons trafficking charge:

Factual innocence

A strong defence against weapons trafficking is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support you being present at the time of the offence, possessing any of the “things” prohibited or restricted by the offence, or other basic elements of the offence are not met, then the Crown will not be able to secure a conviction for weapons trafficking.

The weapon you possessed was not actually restricted or prohibited

If the weapon you possessed does not fall under the restricted or prohibited weapons under section 84(1) of the Criminal Code, then the Crown will not be able to prove the actus reus of possession of weapons for the purpose of trafficking.

Identity

Depending on the circumstances of your case, a possible defence to criminal negligence causing death may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator if the conduct in question was captured on a poor-quality video or wiretap. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who was found to be trafficking weapons. This can be done by corroborating evidence, such as an alibi, to remove yourself from the offence.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights 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.

Punishments 

The Criminal Code provides for a possible maximum term of imprisonment of 10 years for those convicted of a weapons trafficking charge.

Consequently, persons found guilty of weapons trafficking are not eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, or conditional sentence order. Weapons trafficking charges carry mandatory minimum incarceration sentences and will always result in a person charged being incarcerated.

Specifically, in criminal negligence causing death cases, courts have also paid attention to the following non-exhaustive factors for sentencing:

1. Previous weapons charges;
2. The type of weapon or firearm possessed);
3. Past criminal record;
4. Age of the offender;
5. The reason the offender possessed the weapon or firearm; and
6. How the weapon or firearm was stored.

Frequently Asked Questions

What is the penalty for smuggling guns into Canada?

Smuggling guns into Canada is a weapons trafficking offence captured under sections 99 and 100 of the Criminal Code. Weapons trafficking offences carry a sentence of 3 to 10 years in prison depending on if it is a first-time or subsequent offence.

What type of offence is concealing a weapon?

Offences relating to carrying a concealed weapon are captured under sections 89 and 90 of the Criminal Code. Concealing a weapon occurs when the accused is not authorized to carry a weapon concealed under the Firearms Act. These offences are known as hybrid offences where the Crown can elect to pursue the offence as either summary or indictable. If the charge for concealing a weapon is pursued as a summary offence, it will carry a maximum of 2 years less a day of incarceration. If the charge is pursued as indictable, it will carry a maximum of 5 years of incarceration.

Can you go to jail for smuggling guns in Canada?

Yes, you can go to jail for smuggling guns in Canada. Smuggling guns into Canada is a weapons trafficking offence captured under sections 99 and 100 of the Criminal Code. Weapons trafficking offences carry a sentence of 3 to 10 years in prison depending on if it is a first-time or subsequent offence.

Published Decisions

R v Grant, 2009 SCC 32 (CanLII)

The accused was charged with weapons trafficking and alleged that his rights under ss. 8, 9, and 10(b) of the Charter were violated. The SCC held that the accused was unlawfully detained within the meaning of ss. 9 and 10(b) of the Charter, before being asked questions that led to the disclosure of his possession of a firearm. An acquittal was entered for the weapons trafficking charge.

You can read the full decision here.

R v Bienvenue, 2016 ONCA 865 (CanLII)

The accused was convicted of five offences in relation to his possession and intent to sell a single handgun. The accused argued that the trial judge erred in law in relation to his weapons trafficking charge because he agreed to purchase a gun. The Court found that s. 84(1) of the Criminal Code does not include an “offer to purchase” a firearm in its definition of an unauthorized transfer. Therefore, an acquittal was entered and the accused’s sentence was reduced by three years.

You can read the full decision here.

R v Sinclair, 2006 ABQB 438 (CanLII)

The sale of an unoperational gun can constitute the offence of trafficking a firearm pursuant to section 99 of the Criminal Code. In the course of an undercover operation, a constable purchased four deactivated handguns from the accused who was a gun shop employee. Firing pins were needed to make the guns operational. On each of the weapons trafficking charges, it was held that the Crown failed to prove beyond a reasonable doubt the mens rea of a weapons trafficking charge.

You can read the full decision here.