Possession of firearm knowing its possession is unauthorized (s. 92(1) and (3)) Charges in Canada

Forcible entry and forcible detainer charges are covered under s. 92 of the Criminal Code found in Part II. Part III covers “Firearms and Other Weapons.”

A possession of an unauthorized firearm charge occurs when a person knowingly possesses a prohibited firearm, a restricted firearm, or a non-restricted firearm without being the holder of a valid license, and in the case of a restricted firearm, without possession a registration certificate for it.

Possession of an unauthorized firearm is an indictable offence, which means it is a more serious type of criminal charge in Canada, and upon conviction, the perpetrator may face severe consequences, including imprisonment for not more than 10 years.

Examples

Some examples of a possession of an unauthorized firearm charge may include the following:

• Possessing a handgun without a valid firearms license;
• Possessing a sawed-off shotgun; and
• Keeping a firearm after the expiration of a firearms license.

Defences

The defences available to a possession of an unauthorized firearm charge are entirely dependent on the facts of your case.

However, some defences to a possession of an unauthorized firearm charge may include:

• The accused was wrongly identified as the person who possessed an unauthorized firearm;
• The accused was authorized to possess the firearm; and
• The firearm was obtained through an unlawful search and seizure.

Punishment

A possession of an unauthorized firearm charge is an indictable offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 10 years.

In cases of a possession of an unauthorized firearm charge, it’s important to understand the potential consequences. The maximum punishment for this offence is a substantial term of imprisonment for no more than 10 years, which underscores the seriousness with which the legal system views possessing an unauthorized firearm. However, there are no mandatory minimum penalties for this offence which allows the courts some flexibility to consider the unique circumstances of each case. It is important to note that if convicted of an unauthorized firearm charge, the conviction can entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 92 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a possession of unauthorized firearm charge under s. 92 is established by proof, beyond a reasonable doubt, of the following:

• The accused at a specified date and time, in the correct jurisdiction, possesses an object;
• The object is a “firearm” as defined in s. 2 of the Criminal Code; and
• The accused was not a holder of a “license under which a person may possess” or the accused was not a holder of a registration certificate for the firearm in question.

Section 2 of the Criminal Code 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 or anything that can be adapted for use as a firearm.

The Guilty Mind (Mens Rea)

The mens rea for a possession of an unauthorized firearm charge under s. 92 include proving, beyond a reasonable doubt, that:  

• The accused knew or was wilfully blind to the fact that they were not a holder of a license or registration for the firearm they possessed.

Defences

How to Beat a Possession of an Unauthorized Firearm 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 possession of an unauthorized firearm charge:

Factual innocence

A strong defence against a possession of an unauthorized firearm charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you did not knowingly possess an unauthorized firearm, then you may have a defence that you were factually innocent.

Lack of Knowledge

If the accused genuinely did not know they were in possession of a prohibited firearm, they may argue that they lacked the necessary intent required for the offence.

Identity

Depending on the circumstances of your case, a possible defence to a possession of an unauthorized firearm charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who had the unauthorized firearm.

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 10 years for those convicted of possession of an unauthorized firearm.  

Persons found guilty of an unauthorized firearm are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Frequently Asked Questions  

Can you go to jail for possession of firearm knowing its possession is unauthorized?

Yes, possession of a firearm knowing its possession is unauthorized is a serious criminal offense that can result in imprisonment. Under Canadian law, specifically Section 92(3) of the Criminal Code, individuals convicted of this offence can be sentenced to imprisonment for a term of up to 10 years. The severity of the punishment underscores the gravity with which the legal system views unauthorized possession of firearms. Individuals need to understand and comply with firearm licensing and registration requirements to avoid facing such serious consequences.

What is the maximum penalty for possession of firearm knowing its possession is unauthorized?

The maximum penalty for possession of a firearm knowing its possession is unauthorized, as outlined in Section 92(3) of the Criminal Code, is imprisonment for a term of up to 10 years. This offence is considered serious under Canadian law, reflecting the significant consequences individuals may face for unlawfully possessing firearms without the proper authorization or licenses.

Is possession of firearm knowing its possession is unauthorized an indictable offence?

Yes, possession of a firearm knowing its possession is unauthorized is an indictable offence. An indictable offence is often considered a more serious offence due to the greater penalties and sentences associated with it.

Published Decisions  

R v Zhu, 2013 BCCA 416 (CanLII)

The appellant was charged with three counts relating to possession of firearms and imposed a sentence of seven years of each account. It was argued on appeal that the sentence was too harsh as the accused possessed the firearms for only one day, and there was no evidence they possessed it for longer than that, or that they used them in their involvement with drug crimes they were also charged with.

On appeal, the Justice did not find this argument compelling and found that the sentences were not demonstrably unfit.

You can read the full decision here.

R v Thavakularatnam, 2018 ONSC 2380 (CanLII)

In this case, the accused pleaded guilty to possession of a firearm knowing that they were not the holder of a licence or a registration certificate contrary to section 92 of the Criminal Code. At the time of the offence, the accused was a youthful offender with no criminal record. The accused received a 40-month prison sentence.

You can read the full decision here.

R v Chambers, 2013 ONCA 680 (CanLII)

At trial, the accused was charged with eight firearm-related offences including unauthorized possession of a firearm and was sentenced to eight years’ imprisonment. The accused in this case sought leave to appeal their sentence and, if leave is granted, appeals from their sentence.

Leave to appeal the sentence was granted and the court dismissed the sentence appeal.

You can read the full decision here.

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