False Statements Respecting Firearms (s. 107(2)) Charges in Canada: Offences, Defences, Punishments

False statements respecting firearms is covered under s. 107(2) of the Criminal Code found in Part III. Part III covers “Firearms and Other Weapons”.

A false statement respecting firearms charge occurs when an individual knowingly makes a false report regarding the loss, destruction or theft of a prohibited, restricted or non-restricted firearm, weapon, device, ammunition or licence, to a peace officer or firearms officer. S. 107(3) clarifies that “report” means an assertion of fact, knowledge, belief or opinion that may or may not be material and/or admissible evidence.

False statements respecting firearms is a hybrid offence with a Crown election on the type of proceedings. This means that, depending on the circumstances of your case, the Crown can elect to proceed either by indictment or summarily. If the Crown elects to proceed by indictment, there is a defence election of court under s. 536(2) of the Criminal Code, which means the accused can choose whether they would like to be tried by a judge alone or by a judge and jury.

Examples

Some examples of a false statements respecting firearms charge may include the following:

• The accused reported to the police that their prohibited firearm was lost when they had it in their possession;
• The accused reported that their firearm had already been taken in while the accused still had it in their possession;
• The accused owned prohibited ammunition and reported it lost when required to bring it in by firearms officers; and
• The accused made a false report, stating that their prohibited device was stolen, while the accused knew of its location.

Defences

The defences available to a false statements respecting firearms charge are entirely dependent on the facts of your case.

However, some defences to a false statements respecting firearms charge may include:

• The accused was truthful in their statement or report regarding firearms;
• The accused was wrongly identified as the person who made a false statement respecting firearms;
• The accused did not knowingly make a false statement to a peace officer regarding their firearm or other device; and
• The accused did not make a false statement to a peace officer regarding their firearm or other device.

Punishment

A False statement respecting firearms charge is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 5 years.

Punishments for false statements respecting firearms depend on if the Crown elects to pursue the charge summarily or as an indictable offence. As a hybrid offence, there are no mandatory minimum penalties for this offence. If the Crown proceeds by summary prosecution, the general maximum punishment would be two years less a day of imprisonment, a $5000 fine or both as noted under s. 787(1) of the Criminal Code. If prosecuted by indictment, the maximum punishment is a term of imprisonment not exceeding 5 years.

A false statements respecting firearms charge may also result in severe consequences for current and future employment opportunities, immigration status and more.

Overview of the Offence 

According to s. 107(1) and 107(2) of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a false statements respecting firearms charge under s. 107(2) is established by proof, beyond a reasonable doubt, of the following:

False statements respecting firearms 107(2)

• The accused made a statement before a peace or firearms officer regarding firearms; and
• The statement was false. 

The actus reus refers to the act or the omission itself that constitutes the physical elements of a crime. Thus, the physical aspect of a false statements respecting firearms charge would be constituted by any physical act that constitutes this charge. Thus, one example would be that the accused submitted a false report on a prohibited firearm, stating that it was stolen, when it was still in the possession of the accused.

The Guilty Mind (Mens Rea)

The mens rea for a false statements respecting firearms charge under s. 107(2) include proving, beyond a reasonable doubt, that:

• The accused knew that they had a requisite firearm in their possession; and
• The accused knowingly made a false report that their firearm was stolen, lost or destroyed to a peace officer. 

Mens rea is defined as the knowledge or intention of committing the crime. Thus, knowing that one is submitting a false statement respecting firearms, without any lawful excuse to do so, and fully aware of all of these facts, consists of the mens rea of the charge.

Defences

How to Beat a False Statements Respecting Firearms Charge 

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a false statements respecting firearms charge.

Factual innocence

Factual innocence is one possible defence against a false statements respecting firearms charge. If you can prove, using the facts and the evidence of your case, that you were not engaged in an act under s. 107(1), or that the evidence cannot place you as the perpetrator of a false statement respecting firearms act, then you may be able to defend yourself by stating that you were factually innocent. Therefore, if you can prove that you did not commit the crime or the you did not make a false statement, but rather an accurate and truthful, to your knowledge, statement, you may be able to use this fact as a defence.

Duress

Another possible defence to a false statements respecting firearms charge is duress. Duress is proven when the five criteria listed below are met.

• That there was a threat of present/future death or physical harm,
• That the accused reasonably believed the threat would be carried out,
• That the accused had no safe way to avoid the harm,
• That it is because of the threat that the accused did what they did, and
• That the harm that the accused caused was not disproportionate to the harm that was threatened against the accused.

All five of the elements of duress must be met for the defence of duress to apply.

Reasonable belief

For this to be a defence against a false statement respecting firearms charge, you must be able to show that you truthfully believed that you were not making a false statement to a peace officer regarding the state of your firearm or other device. To do this, you would have to show that, on a balance of probabilities, you could not have reasonably known that you would be making or intending to make a false report to peace officers.

No false statements respecting firearms

If you can show that you never made false statements respecting firearms, then this can be a defence for a false statements respecting firearms charge. For you to be making false statements respecting firearms, you must make a false report regarding the loss, destruction or theft of a firearm or other device listed and you must know that you were falsely reporting to the peace officer. The Crown must prove the elements of the charge. Therefore, if the elements of s. 107(1) never happened or cannot be proven on a balance of probabilities, it may be the case that you never factually made false statements respecting firearms.

Identity

A defence based on the identity of the perpetrator may be a defence to a false statements respecting firearms charge. In order for this defence to be raised successfully in court, you would have to prove that you did not commit this act. This is a defence that states that the accused was wrongfully convicted. Evidence that can be submitted to create a solid identification defence is eyewitness identification, DNA evidence, media and fingerprints.

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 no more than 5 years for those convicted of a false statements respecting firearms charge.

Persons found guilty of false statements respecting firearms are charged with a hybrid offence. This means that, dependent on the Crown’s election, they will be prosecuted summarily or by indictment. If they are prosecuted summarily, the maximum punishment is a $5000 fine and two years less a day in jail, however it is up to the judge to decide on the facts what the punishment should be within that range. If prosecuted by indictment, the maximum jail time is a term of imprisonment of no more than 5 years.

Beyond any immediate jail and/or probation sentence you receive, there is also a discretionary DNA Order, authorized under s. 487.04(a) where the offence is listed as a secondary offence.

Frequently Asked Questions  

Can you go to jail for False statements respecting firearms?

Yes, if you make false statements respecting firearms under s. 107, you can go to jail. If the Crown proceeds by indictment, an escape from lawful custody charge carries a maximum sentence of no more than five years in jail. If the Crown proceeds summarily, there is also a possibility of serving time in jail. Therefore, there is a possibility that you can go to jail for making false statements respecting firearms.

What is the maximum penalty for False statements respecting firearms? 

The maximum penalty for false statements respecting firearms is no more than 5 years in jail. This is if the charge is prosecuted by indictment and you are found guilty. If prosecuted summarily and you are found guilty, the maximum penalty would be a $5000 fine and 2 years less a day in jail. It is up to the Crown, who will look at the facts of your case,  whether the charge will be prosecuted summarily or by indictment.

Is False statements respecting firearms an indictable offence?

False statements respecting firearms is a hybrid offence. This means that the Crown can choose whether the charge will prosecuted summarily or by indictment. If the Crown chooses to prosecute an accused by indictment, then, if the accused is found guilty, they will be charged with an indictable offence.

Published Decisions  

R v Clark, 2005 ABPC 40 (CanLII)

The accused attempted to defraud a CIBC branch in Calgary, by using a fraudulent social insurance card, driver’s licence and letter of employment to open up a couple of accounts for himself. These two accounts were respectively a line of credit for $75,000 and overdraft protection for $20,000. He was caught in his attempt when the bank found that his original account had been flagged for large withdrawals right before his arrival and request at the bank. He was charged with a s. 463 offence for having attempted to defraud the bank, as well as two other offences; a forged driver’s licence and a forged SIN contrary to s. 368(1)(a) of the Criminal Code.

The court examined the sentence afforded to the accused, and concludes that a fit sentence for this matter would 33 months in a Federal Penitentiary, two thirds of which should be served before he may be released, for the combination of all three charges.

You can read the full case here.

R v Creary #4, 2021 ONSC 4938 (CanLII)

The accused was charged with three offences, one of which was attempted murder. He was arrested an hour after the shooting. Examining a witness testimony, the victim’s statement, and formal statements, the court found that Creary certainly had a connection to the shooting, as he had attempted to hide, possessed the gun of the shooting and otherwise acted suspiciously in the circumstances. He also possessed bullets that were of the same type as those of the gun in question.

The court concluded that Creary was an accessory after the fact to the offence. He was most likely at the scene of the crime, and knew he had a gun that had been used for a shooting.

The court concludes that there is no prejudice if the court does change the offence from a discharge of a firearm with intent to wound, to being an accessory after the fact to an offence, which in the court’s view, was more fitting.

You can read the full case here.

R v Spilchen, 2021 NSSC 252 (CanLII)

The accused attempted to rob a credit union, however was thwarted as the credit union was already closed. When he attempted to escape, he left a clear trail. He was found guilty of attempted robbery, rather than robbery, due to his ill-planning. He had however, not merely planned out and abandoned the plan, but he attempted to bring it to fruition. Attempted robbery falls under section 463 when dealing out a punishment. As robbery has a maximum penalty of life, the court finds that for attempted robbery, the accused would be looking at approximately 14 years of imprisonment. The court also examined aggravating factors such as Mr. Spilchen’s criminal history, consisting in part of multiple robbery charges, and his use of an imitation handgun during the incident, as well as mitigating factors, like his generally rough life and upbringing.

Taking all of this in account, the court concluded that the appropriate sentence length was to be 7 years.

You can read the full article here.

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