Tampering With Firearm Serial Number (s. 108) Charges in Canada: Offences, Defences, Punishments

What is a tampering with firearm serial number charge?

A tampering with firearm serial number charge is covered under s. 108 of the Criminal Code found in Part III. Part III covers “Firearms and Other Weapons”.

A tampering with firearm serial number charge can occur in two ways. Firstly, it can occur when a person either alters, defaces or removes a serial number from a firearm. Secondly, it can occur when a person possesses a firearm knowing the serial number has been altered, defaced or removed.

Tampering with firearm serial number is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2) of the Criminal Code.

Examples

Some examples of a tampering with firearm serial number charge may include the following:

• An accused commits a crime with a firearm, and scratches off the serial number of the weapon in an attempt to make it untraceable;
• An accused purchases a firearm from an affiliate which has had its serial number removed; and
• An accused possesses a firearm belonging to their friend, whom they know has tampered with the serial number.

Defences

The defences available to a tampering with firearm serial number charge are entirely dependent on the facts of your case.

Some defences to a tampering with a firearm serial number charge may include:

• The accused had a lawful excuse to possess a firearm which has had the serial number altered or removed;
• The accused was wrongly identified as the person who possessed a firearm with a tampered serial number; and
• The accused possessed a firearm having no knowledge that it’s serial number had been tampered with.

Punishment

A tampering with firearm serial number charge is a hybrid offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 5 years.

There is no mandatory minimum penalty for this offence. The maximum is no more than 5 years of incarceration.

Punishments for tampering with firearm serial number charge under s. 108  of the Criminal Code depend on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 5 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 2 years less a day of incarceration and a potential fine of up to $5,000.

A tampering with firearm serial number charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 108 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a tampering with firearm serial number conviction under s. 108  of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:

• The deliberate act of altering, defacing or removing a serial number on a firearm; or
• The accused has possession of a firearm which has had its serial number altered, defaced or removed.

The Guilty Mind (Mens Rea)

The mens rea for a tampering with firearm serial number conviction under s. 108 of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:

• The accused altered, defaced or removed a serial number on the firearm with an intent to remove the weapon’s association with its serial number; or
• The accused has knowledge of possession and some degree of control over a firearm which has had its serial number altered, defaced or removed.

Defences

How to Beat a Tampering with a Firearm Serial Number Charge

Every case is different. The availability and strength of any defence depends 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 possible defences that may be used when fighting a tampering with firearm serial number defence:

Factual Innocence

The strongest defence against a tampering with firearm serial number offence under s. 108 of the Criminal Code is that the accused did not tamper with or possess a firearm with a tampered serial number. If you can show that the facts and the evidence do not support that you intended to tamper with a firearm serial number or possess a firearm with a tampered serial number, then you may have a defence that you were factually innocent.

Lawful Excuse  

Subsections (3) and (4) of s. 108 of the Criminal Code outline two potential exceptions against a tampering with firearm serial number conviction. Firstly, no person is guilty of this crime if they possess a firearm with an altered serial number if that serial number has been replaced with a new one, legally. This would involve having a proper registration certificate for the new serial number. Secondly, an accused could potentially argue against conviction on the basis that the serial number had been wholly or partially obliterated through normal use over time.

Identity

Depending on the circumstances of your case, a possible defence to a tampering with firearm serial number 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 tampered with the firearm’s serial number, or not the person identified to have been in possession of a firearm knowing its serial number was tampered with.

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 tampering with firearm serial number charge.

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

Beyond any immediate jail and/or probation sentence you receive, there are also discretionary DNA Orders and Weapons Prohibition Orders.

This is authorized as a secondary offence listed under s. 487.04 (c), (d) or (e), and the DNA order can be authorized regardless of if the Crown proceeds summarily or by indictment.

Frequently Asked Questions  

Can you go to jail for tampering with a firearm serial number?

If you are convicted for tampering with firearm serial number under s. 108  of the Criminal Code, you can go to jail. If the Crown proceeds by indictment, a tampering with firearm serial number charge carries a maximum sentence of no more than five years in jail. If the Crown proceeds summarily, the maximum jail sentence is two years less a day, and you could be subject to a fine of up to $5,000. Therefore, there is a possibility that you can go to jail for a tampering with firearm serial number charge.

What is the maximum penalty for tampering with firearm serial number?

The maximum penalty for tampering with firearm serial number is 5 years if the Crown chooses to prosecute an accused by indictment. If the Crown chooses to proceed summarily, the maximum jail sentence is two years less a day, and a potential fine of up to $5,000.

Is tampering with firearm serial number an indictable offence?

Tampering with firearm serial number is a hybrid offence. This means that the Crown prosecutor can choose to prosecute someone charged with tampering with firearm serial number either 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. Nascimento 2014 ONSC 6730

In this case, police conducted a search of the accused’s home and found a pistol wrapped in a towel under the bed in the master bedroom. On examination of the pistol, police found that the serial number had been obliterated, which rendered the weapon untraceable.

The accused was found guilty of a tampering with firearm serial number offence. Police evidence of the weapon led the Court to conclude that it was plain and obvious that the serial number had been tampered with, and that the accused had knowledge of such.

You can read the full decision here.

R v. Charles 2014 SKPC 76

The accused was charged with three firearm offences, including tampering with a firearm serial number. While the Crown submitted evidence that the serial number had been “grounded down”, the Court found that this was not obvious purely by looking at the weapon. The presiding judge commented that they had examined the weapon themselves and could not say that it was “readily apparent that the serial number had been removed”.

The Court found the accused not guilty, on the basis that it could not be said beyond a reasonable doubt that the accused knew the serial number on the firearm had been tampered with.

You can read the full decision here.

R v. Lazarowich 2014 BCPC 258

The accused was charged with tampering with a firearm serial number after police investigated a gun that was found in a duffle bag of the car the accused was driving. The accused testified that he had very little knowledge of guns and did not know the serial number had been tampered with until he saw the charges against him.

The accused was found not guilty of the offence, as the Court could not conclude that he owned the firearm in question. There was enough evidence for the Court to rule that the accused may have not owned the duffle bag in the car, and so he could not be found to have possessed the firearm with the tampered serial number.

You can read the full decision here.

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