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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 2 years less a day. 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.P. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in  the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. vs. K.Q. – Richmond Provincial Court

Charge: Mischief to Property.
Issue: After Mr. Gauthier was able to facilitate making restitution on our client's belf, whether it was in the public interest top proceed with the criminal prosecution.
Results: Crown counsel accepted Mr. Gauthier's representations and concluded the matter by entering a stay of proceedings. no criminal record.

R. vs. A.V. – Duncan Provincial Court

Charge: Assault.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel about our client's circumstances and the significant rehabilitation steps we were able to guide him through, whether it remained in the public interest to continue with the prosecution.
Result: Crown counsel accepted Mr. Johnston's representations and concluded the matter by entering a stay of proceedings. No criminal record.

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

R. vs. D.K. – Surrey Provincial Court

Charges: Assault; assault with a weapon; breach of undertaking (x2); attempting to take weapon from police.
Issue: Whether our client's personal circumstances and positive rehabilitative steps made him a good candidate for a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the common assault charge and to stay proceedings on the remaining four criminal 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. A.S. – North Vancouver Provincial Court

Charges: Fraud Over $5,000 (x4); Theft Over $5,000 (x4).
Issue: Given that full restitution was made and that our client had taken significant steps toward self-rehabilitation, whether jail was the appropriate sentence for this $240,000 employee fraud.
Result: Mr. Mines was able to facilitate the restitution payment and provided medical information to Crown counsel on our client's behalf. Ultimately Mr. Mines persuaded Crown to  jointly  recommend a non-custodial sentence. After hearing Mr. Mines' submissions, our client was granted a 2 year less a day conditional senntence.. No jail.

R. vs. R.B. – Vancouver Provincial Court

Charges: Assault Causing Bodily Harm (reduced to assault).
Issue: Whether the caselaw supported our client receiving a conditional discharge for this domestic assault case in which the coplainant sustained a significant injury.
Result: Mr. Gauthier was able to provide Crown counsel with information about our client and a number of case authorities which resulted in Crown agreeing to proceed on assault simpliciter  and to make a joint recommendation for a conditional discharge, which was accepted by the court.

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

Charges: Assault causing bodily harm.
Issue: Given the parallel civil claim and the issue of  self defence, whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Gauthier was able to provide information about our client's circumstances and the circumstances of the incident which caused Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. P.G. – Richmond Provincial Court

Charges: Assault; Assault by Choking.
Issue: Whether our client was acting in self defence and whether he used excessive force.
Result: Mr. Mines was able to guide our client through a course of self rehabilitation and to persuade Crown to proceed on the lesser charge of simple assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and declined to make the restitution order sought by the complainant. No criminal conviction.

R. vs. C.C. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $6,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter. No further liability. No criminal charges were forwarded.

R. vs. S.R. – Vancouver Provincial Court

Charges: Sexual assault; assault.
Issue: Whether the trial judge would allow Mr. Mines' application to cross examine the complainant on prior records (text messages) that impacted her credibility and reliability.
Result: The trial judge allowed our application in part, and ruled that the remaining issues could be renewed at at further point in the trial. Crown counsel entered a stay of proceedings after the conclusion of our application. No further prosection. No jail. no criminal record.
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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.

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