Possession of a Weapon for a Dangerous Purpose (s. 88) Charges in Canada: Offences, Defences, Punishments

Introduction to Possession of a Weapon for a Dangerous Purpose

Possession of a weapon for a dangerous purpose is covered under s. 88 of the Criminal Code.

The definition of a weapon is very broad. However, generally, weapons offences, pertain to the illegal possession or use of prohibited or restricted firearms and other weapons. As such, it is not uncommon for weapon charges to be associated with other types of offences such as drug, break and enter, and assault charges.

Possession of a weapon for a dangerous purpose is a hybrid offence. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily.

Examples

Some examples of possession of a weapon for a dangerous purpose may include possessing the following:

• Handgun;
• Brass knuckles;
• Switchblade;
• Nunchakus;
• Ballistic knife;
• Machete; or

Defences

A strong defence to a possession of a weapon for a dangerous purpose charge will heavily depend on the individual circumstances of your case. However, some defences that may be applicable

• Lack of possession;
• Lack of intent;
• Self-defence; or
• Any applicable charter defences.

Punishments

Possession of a weapon for a dangerous purpose is a hybrid offence which means that the Crown may proceed by indictment or summarily, depending on the circumstances of your case.

The following penalties may be applicable if you are convicted of possession of a weapon for a dangerous purpose:

• Summary: up to two years less a day in jail and/or a $5,000.00 fine
• Indictment: up to ten years in jail.

Overview of the Offence

Under s. 88 of the Criminal Code:

As such, under s.88 of the Criminal Code in order for the Crown to secure a conviction of possession of a weapon for a dangerous purpose it must be proven, beyond a reasonable doubt, that:

• You were in possession of a weapon;
• That the purpose of your possession was dangerous to public peace; and
• You act was committed with the intent to achieve a particular result.

By proving these elements, the Crown will have satisfied both the actus reus and the mens rea for a conviction of possession of a weapon for a dangerous purpose.

Actus Reus

The actus reus the Crown needs to prove, beyond a reasonable doubt, is that you had:

• Possession of a weapon.

Under s.2 of the Criminal Code, a weapon is defined very broadly as “anything used, designed to be used or intended for use in causing death or injury to any person” or “for the purpose of threatening or intimidating any person.”

Similarly, under s.4(3) of the Criminal Code the definition of possession is quite broad as well as it indicates that:

Possession is found under s.4(3) of the Criminal Code. Under s.4(3) of the Criminal Code, this is not merely just a definition of possession, rather, it applies to all offences where possession is seen to be the material element of the offence.

There are three types of possession:

• Personal/actual;
• Constructive; or
• Joint

As indicated in the case R v Terrance, 1993 CanLII 51 (SCC), at common law possession requires that there be both knowledge and possession. The statutory requirements of s.4(3) of the Criminal Code further indicate that the totality of the evidence established a reasonable doubt that the accused did in fact have knowledge and control.

The Guilty Mind (Mens Rea)

The mens rea requirement that the Crown must prove, beyond a reasonable doubt, is that weapon that you possessed was:

• intended for a purpose that is dangerous to public peace.

Possession of a weapon for a dangerous purpose is a specific intent offence. This means that your actions must pose some danger to the public and there should be some connection between your actions and the weapon.

As indicated in the case of R. v. Kerr, 2004 SCC 44 (CanLII) the proper approach to intent for the purposes of s.88 of the Criminal Code involves the application of a hybrid subjective-objective test. First, the individual’s purpose is to be determined subjectively, and second, the dangerousness of the purpose is to be determined.

This means that the courts must first determine your purpose subjectively. The court must determine whether you knew what would result out of your possession whether you desired that outcome or not. Your subjective purpose must be one that is dangerous to the public peace which means you had the intention of doing harm to persons or property, showing reckless disregard for harm to persons or property.

Upon determining this, the courts must then determine whether the purpose was, objectively and in all circumstances, dangerous to public peace.

Additionally, it is important to note that intention needs to precede the use of the weapon for a dangerous purpose. This means that the dangerous act must be premeditated and not just a reaction to a situation that occurred. For example, if you possessed a knife for an innocent purpose, in order for the Crown o secure a conviction they need to prove that at the time of the incident your intention had changed to one of use for a dangerous purpose.

Defences

How to Beat a Possession of a Weapon for a Dangerous Purpose Charge

Given that each case is inherently different, a strong defence to a possession for a dangerous purpose charge will depend on the circumstances of your offence and the evidence against you.

However, some defences that may be applicable are as follows:

• Lack of possession;
• Lack of intent;
• Self-defence; or
• Any applicable charter defences.

Lack of Possession

Proving possession forms the actus reus of the offence of possession of a weapon for a dangerous purpose. As such, if you are able to showcase that did not in fact have possession of a weapon then the Crown is not able to satisfy the actus reus element and cannot secure a conviction against you. For example, if a knife was found in the trunk of a car that you were driving but that car was not yours, in this situation, you could argue that you had no knowledge of the weapon or no control over it.

Lack of Intent

The Crown needs to prove the mens rea element for the offence it is important to note that intention needs to precede the use of the weapon for the dangerous purpose. This means that the dangerous act must be premeditated and not just a reaction to a situation that occurred. For example, if you possessed a knife for an innocent purpose, in order for the Crown o secure a conviction they need to prove that at the time of the incident your intention had changed to one of use for a dangerous purpose.

Self-defence

It is acceptable to use force to respond to force, or a threat of force, so long as that force is reasonable. In these situations, you are said to have acted in self-defence. To successfully argue self-defence, it must be proven, on a balance of probabilities, that there is an “air of reality” to your claim, that you subjectively believed on reasonable grounds that force, or a force of threat, was being used against you, your conduct had a defensive purpose, and your conduct was objectively reasonable in the circumstances. If you successfully raise a defence of self-defence it will serve as a justification for your conduct, and you will be acquitted

Applicable Charter defences

The Charter sets out your rights and freedoms. One such right contained within the charter is under s.8, the right to be free from unreasonable search and seizure. Often, the evidence in possession of a weapon for a dangerous purpose will result from a weapon taken from you by the police. If while obtaining this weapon the police have either deliberately or inadvertently violated your s.8 Charter rights, for example obtained the weapon without a warrant or without adequate grounds for a warrant, your defence lawyer can make a Charter motion to exclude any evidence gathered by virtue of the illegal search under s.24(2) of the Charter. If the motion is successful, it is likely that evidence that would be needed to convict you for a fraud charge would be excluded. This means that the Crown would not be able to rely on that evidence to prove that you are guilty.

Other common Charter breaches include:

• 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

Punishments

Possession of a weapon for a dangerous purpose is a hybrid offence which means that the Crown may proceed by indictment or summarily, depending on the circumstances of your case. The following penalties may be applicable:

s. 88 – Summary

If you are convicted of possession of a weapon for a dangerous purpose and the Crown elected to proceed summarily, you can face up to two years less a day in jail and/ or a $5,000.00 fine.

You will also have available to you a discharge, suspended sentence, stand-alone fine, custody and probation and custody and fine. Note you will not have available to you a conditional sentence.

s. 88 – Indictment

If you are convicted of possession of a weapon for a dangerous purpose and the Crown elected to proceed by indictment, you can face up to 10 years in jail.

You will also have available to you a discharge, suspended sentence, stand-alone fine, custody and probation and custody and fine. Note you will not have available to you a conditional sentence.

Frequently Asked Questions

Is possession of a weapon an indictable offence?

Possession of a weapon for a dangerous purpose is a hybrid offence. This means that depending on the circumstances of your case the Crown may elect to proceed summarily, or by indictment, if the case is more serious.

What is considered a dangerous weapon in Canada?

Under s.2 of the Criminal Code a weapon includes anything used, designed to be used or intended for use in causing death or injury to any person” or “for the purpose of threatening or intimidating any person.”

Some common examples of dangerous weapons may include:

• handgun;
• switch-blade knife; or
• brass knuckles

However, when determining what is considered a weapon the question that needs to be asked is whether the object in question was designed to be used or intended to cause any injury or death to another individual.

How much time do you get for a gun charge in Canada?

If you are convicted of an offence and you used a firearm there is a strong possibility that you will receive jail time as a sentence. The penalties for these offences include up to 2 years in jail for “careless use of a firearm” and anywhere from 1 to 14 years in prison for a first offence if convicted as an indictable offence.

Additionally, you will be subject to the following mandatory minimums:

• first offence: one-year mandatory minimum jail sentence.
• second or subsequent offence: three years mandatory minimum jail sentence.

Published Decisions

R. v. Huete, 2008 BCSC 1694 (CanLII)

In this case, the accused was charged with possession of a weapon for a dangerous purpose when he was stopped near the scene of an assault. The police officers observed a large object protruding from his sweatshirt, which was later identified as a machete. The accused was convicted, and the trial judge indicated that something the size of a machete is not intended for peaceful purposes and would clearly intimidate and scare members of the public.

You can read the full decision here.

R. v. D.A.C., 2007 ABPC 171 (CanLII)

In this case, a young man was convicted of possession of a weapon for a dangerous purpose and carrying a concealed weapon after a bus driver observed a knife protruding from his front pocket which was an ornate Japanese-style dagger. The accused indicated that he was merely transporting the weapon to his uncle’s house because his father did not want it stored in his home. The accused was found not guilty of carrying a weapon for a dangerous purpose; however, he was found guilty of carrying a concealed weapon.

You can read the full decision here.

R. v. Cassidy, 1989 CanLII 25 (SCC)

In this case, two police officers attended the home of the accused’s mother to investigate the recovery of her missing car in a damaged condition.  The accused was drunk and belligerent during questioning by police and eventually forced the officers from the house with a shotgun.  The accused was arrested was charged with possession of a weapon for a purpose dangerous to the public peace. However, the trial judge found that the elements of the offence had not been met.

You can read the full decision here.