Possession of a Restricted or Prohibited Firearm (s. 95) Laws in Canada

What is a possession of a restricted or prohibited firearms charge?

The offence of a restricted or prohibited firearm is found under s.95 of the Criminal Code.

Offences relating to possession of a restricted or prohibited firearm are found in Part III of the Criminal Code relating to “Firearms and Other Weapons”.

Offences under s.95 of the Criminal Code are hybrid offences which means that depending on the circumstances of your case, the Crown can elect to proceed either by indictment or summarily.

Examples

Some common examples of a restricted or prohibited firearms offence may include the following:

• A firearm that has a barrel less than 470mm in length
• Handguns with a barrel equal to or less than 105 mm in length
• Handgun designed or adapted to discharge a 25 or 32-calibre cartridge

Defences

• Identity;
• Essential elements of the offence are not met;
• No possession;
• 95(3) defence; and
• Any applicable Charter

Punishments

If you have been convicted of possession of restricted or prohibited weapons offence under s.95 of the Criminal Code you may be subject to the following penalties:

• Indictable: up to 10 years in jail.
• Summary: up to 12 months in jail.

However, you may have other dispositions available to you as well.

Overview of the Offence 

Under s.95 of the Criminal Code:

The Guilty Act (Actus Reus)

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

• A loaded or unloaded prohibited or restricted firearm; and
• You were not the holder of an authorization or a licence to possess that firearm; or
• You were not the holder of the registration certificate for the firearm.

The Crown must first prove that you had possession of the restricted or prohibited firearm in question.

Possession is defined in s.4(3) of the Criminal Code and states the following:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

The term “loaded” is not defined in the Criminal Code. However, the term “unloaded” is defined in the regulations to the Firearms Act, SC 1995, c. 39 as follows:

“unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.

The case of R v Wong, 2012 ONCA 432, indicated that this definition equally applies to s. 95 of the Criminal Code.

The Guilty Mind (Mens Rea)

The mens rea that the Crown has to prove, beyond a reasonable doubt, is that:

• that you intended to possess the weapon

This means that the mens rea is satisfied where the Crown can prove that you knew that you were in possession of a loaded firearm. Specifically, you must be subjectively aware of the character of the weapon, and that the weapon is loaded. As the mens rea for this offence is a subjective standard, this means that the mens rea can either be proven by actual knowledge or wilful blindness, but not recklessness.

Additionally, it is important to note that whether the firearm is prohibited or restricted does not matter and whether you knew it was prohibited or restricted is not a necessary element to prove the mens rea requirement for this offence. For example, this would mean that it is irrelevant whether you knew of the length and diameter of the barrel.

Defences

A strong defence depends entirely on the individual circumstances of your case. However, the following defences may be applicable:

Identity

The Crown needs to prove identity beyond a reasonable doubt. This means that the Crown must prove that it was you who committed the offence. This can often be difficult if there are no witnesses, if there were conditions present that prevented a witness from identifying you, or the offence was captured by poor quality surveillance footage. Sometimes mistakes do happen, the authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. Your defence lawyer may be able to argue that the Crown cannot definitively prove that it was you who committed the offence, resulting in an acquittal.

Essential Elements of The Offence Are Not Met

In order for the Crown to convict you of an offence, the actus reus and the mens reas of the offence need to be proven beyond a reasonable doubt. If the Crown is unable to do so, the essential elements of the offence are not satisfied and you cannot be convicted of the offence.

Lack Of Possession

Along with the actus reus and the mens rea for the offence of pointing a firearm, the Crown also needs to prove that you did in fact possess the firearm. As such, if you are able to showcase that you did not have a firearm in your possession, the Crown will not be able to convict you of an offence of possession of unauthorized firearm.

s.95(3) of the Criminal Code

Under s.95(3) of the Criminal Code you cannot be convicted of an offence under s.95 of the Criminal Code you are using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it. As such, if this is the case you cannot be convicted of an offence under s.95 of the Criminal Code.

Applicable Charter Defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

• Section 8- Right to be secure from search and seizure;
• 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

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

Punishments

Offences under s.95 of the Criminal Code are hybrid offences. This means depending on the circumstances of your case the Crown may elect proceed by indictment or summarily.

The following penalties and dispositions may be applicable to you:

s.95 – Summary

If you have been convicted of an offence and the Crown elected to proceed summarily you can receive up to 12 months in jail.

You also may have the following dispositions available to you as well:

• Discharge;
• Suspended sentence;
• Stand-alone fine;
• Custody and probation;
• Custody and fine; or
• Conditional sentence order.

s.95 – Indictable

If you have been convicted of an offence and the Crown elected to proceed by indictment you can receive up to 10 years in jail.

Frequently Asked Questions

What is the difference between prohibited and restricted firearms?

Prohibited firearms generally refer to small guns that can easily be concealed.

A restricted Firearm is any handgun that is not prohibited.

The following would be included in the class or restricted firearms:

• Firearms that are not prohibited firearms;
• Have a barrel less than 470mm in length; and
• Are capable of discharging centre-fire ammunition in a semi-automatic manner;
• A firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise; and
• Any other firearm prescribed to be a restricted firearm in the Regulations.

What is the sentence for possession of a restricted firearm in Canada?

If you have been convicted of possession of restricted or prohibited weapons offence under s.95 of the Criminal Code you may be subject to the following penalties:

• Indictable: up to 10 years in jail.
• Summary: up to 12 months in jail.

What does a prohibited firearm mean in Canada?

Prohibited firearms generally refer to small guns that can easily be concealed.

The following would be included in the category of prohibited firearms:

• Handguns with:
  • barrels equal to or less than 105 mm in length
  • designed or adapted to discharge a 25 or 32-calibre cartridge
• Firearms adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration and that, as so adapted are:
  • less than 660 mm in length
  • 660 mm or greater in length and has a barrel less than 457 mm in length
• Automatic firearms, whether or not altered to discharge only one projectile with one pressure of the trigger
• Any firearms prescribed to be prohibited firearms in the Regulations

Published Decisions

R v Morris, 2023 BCSC 106

In this case, the accused was charged by way of indictment. The accused possessed a loaded prohibited firearm without being the holder of an authorization or a licence and registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code. She was also charged with three counts of possessing controlled substances contrary to s. 4(1) of the Controlled Drugs and Substances Act. At the commencement of the trial, the accused pled guilty, to the three counts of possessing controlled substances. The trial proceeded on the first count of possessing a loaded prohibited firearm. Based on the totality of the circumstances the accused was found guilty of possession of a prohibited weapon.

You can read the full decision here.

 R v West, 2022 BCSC 2348

This case concerned the sentencing of the offender.  The offender, along with a Bradley Ouelette and Kenneth Munroe, participated in a planned drive-by shooting at a residence in British Columbia. The target of the drive-by shooting was a Thomas Toman. The offender drove a four-door Chevy Malibu vehicle, while Mr. Munroe and Mr. Ouelette were passengers in that vehicle. Mr. Ouelette was armed with a non-restricted Weatherby shotgun and Mr. Munroe was armed with a prohibited firearm. The offender was sentenced to a jail sentence.

You can read the full decision here.

R v Monaghan, 2022 ABPC 105

In this case, there was an application made by Monaghan for the exclusion of evidence from search pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms. Monaghan was charged with seven offences including, careless storage of a firearm, carrying a concealed weapon, possession of a firearm knowing its possession was unauthorized, unauthorized possession of a firearm in a motor vehicle, possession of a loaded firearm, possession of cocaine and possession of methamphetamine. The defence submitted that Monaghan was arbitrarily detained and that the search of his motor vehicle was not authorized by law. The application was ultimately dismissed.

You can read the full decision here.