• Vancouver at night

Possession of Prohibited or Restricted Firearms

The Charge

Under s. 95 of the Criminal Code, it is an offence to possess a prohibited or restricted firearm that is either loaded or that has ammunition that is readily accessible, unless the person holds an authorization or licence. A “prohibited” firearm includes any handgun that has a barrel equal to or less than 105mm in length and any firearm that is adapted from a rifle or shotgun by cutting the barrel length to less than 660mm. Prohibited firearms also include automatic firearms. A “restricted” firearm includes any handgun that is not a prohibited firearm, that has a barrel length of less than 470mm and is capable of discharging centre-fire ammunition in a semi-automatic manner. An authorization under the Firearms Act is required for a person to possess any prohibited or restricted firearm, anywhere in Canada.

The Crown may proceed by indictment and seek a sentence of up to 10 years in jail upon conviction. Alternatively, Crown may elect to proceed summarily, in which case the maximum sentence is up to one year in jail. Although there is no longer a mandatory minimum jail sentence for this offence, when the Crown views the offence as having a true “criminal purpose” associated to possessing the prohibited or restricted weapon, Crown will proceed by indictment and will generally seek sentences in the range of 3 years in jail.

The Investigation

A significant number of cases start off at the United States/Canada border with an American visitor who does not understand how seriously different Canadian firearms law is compared to United States laws. While an American may have the right to possess a handgun in the U.S.A., that right becomes a crime with serious consequences in Canada. There are other situations in which the authorities may find a person in possession of illegal firearms. These include situations where vehicles, residences or other places are searched, either with or without a search warrant.

As experienced lawyers defending weapons charges, we understand that in order to prove the offence, customs officials and police have to prove that our client had knowledge and control over the illegal firearm. In the context of a firearm investigation, it is important for a suspect to know that they have the right to remain silent upon arrest. This right is guaranteed by the Charter of Rights and Freedoms. A person suspected of possessing an illegal firearm has no obligation to acknowledge that they have knowledge of the weapon or control over it.

Recent Successes

R. vs. M.S. – Burnaby RCMP Investigation

Charges: Assault, mischief under $5000.
Issue: Whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade the investigating  RCMP officer to allow our client tp apologize to the complainant through Restorative Justice. Police did not seek to have any criminal charges approved. No criminal record.

R. vs. I.K. – Vancouver Provincial Court

Charge: Fraud Over $5000.
Issue: Whether our client would be sentenced to a jail for this $10,000 fraud from his employer.
Result: Notwithstanding that our client had a previous criminal conviction for a similar breach of trust offence, Mr. Gauthier was able to persuade Crown counsel to not seek a jail sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a term of house arrest. No jail.

R. vs. K.Y. – Vancouver Provincial Court

Charges: Assault by choking (x2); assault (x2); mischief under $5000.
Issue: Whether it was in the public interest for the Court to enter a conviction against our client.
Result: Mr. Mines was able to persuade Crown counsel to proceed on only one count of common assault and to stay all remaining charges. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and placed him on probation for 12 months.No criminal conviction.

R. vs. T.F. – Vancouver Provincial Court

Charges: Theft Under $5,000, Obstructing a Peace Officer, Uttering Threats.

Issue: Whether a jail sentence was appropriate in all the circumstances.

Result: Mr. Johnston was able to direct our client to the appropriate community supports with respect to his rehabilitation. Given the positive change in our client's circumstances, the sentencing judge accepted Mr. Johnston's submission that a community based sentence was appropriate rather than the 60 jail sentence sought by the Crown. No jail.

R. vs. B.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest for our client to be granted a conditional discharge.
Result: Mr. Gauthier was able to persuade Crown counsel to make a joint submission without the necessity of our client being required to complete counselling. After hearing Mr. Gauthier's submissions the court granted our client the discharge. No criminal conviction.

R. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

The Defence

Unreasonable Search

Section 8 of the Charter guarantees that people must be free from unreasonable search and seizure. The role of defence counsel in any search case is to analyze the actions of the investigating police officers to test whether their search was, in fact, lawful and authorized by the Charter. In some situations, police must obtain pre-authorization from a justice or judge in the form of a search warrant. Where police overreach their authority, and conduct a search based on mere suspicion, rather than probable grounds, we will apply to the court under s.24(2) of the Charter to have the “fruits of the search” excluded from the trial. Without the admission of the firearm into the trial, the court will find insufficient evidence to convict.

Lack of Possession

In many situations, people are arrested on firearms charges with the firearm not directly in their possession. For example, a handgun might be in the glovebox or trunk of the car. It might be that the accused is not driving their own car but, rather, the car of a friend or relative. In these situations, absent any incriminating confession, it may be possible to argue that the accused had no knowledge of the firearm or that they had no control over it. As experienced defence lawyers, we understand the high standard that the law requires when prosecuting weapons offences. We are dedicated to protecting our client’s rights.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.