Toronto Guns, Gangs & Weapons Lawyer
In light of recent high profile gun and gang prosecutions in Toronto, Prosecutors and Courts are taking a hard line in weapons offence cases. This is especially true where there is an allegation of the possession or use of a handgun. Brian Weingarten is a Toronto criminal lawyer with experience in the areas of gun and other weapons offences, as well as firearm and handgun bail hearings.
What Types of Firearm and Weapons Offences are Contained in the Criminal Code?
Guns and other weapons offences are prescribed in both the Criminal Code, as well as the Firearms Act. Some of the most common types of gun and weapons charges include:
- Unauthorized Possession of a Firearm (s. 91)
- Possession of a Firearm Knowing Its Possession is Unauthorized (s.92)
- Carless Storage Use or Storage of a Firearm or Ammunition (s. 86)
- Possession of a Weapon for a Dangerous Purpose (s. 88)
- Tampering with a Serial Number (s. 108)
- Assault with a Weapon (s. 267)
- Sexual Assault with a Weapon (272)
What is a Weapon?
The term “weapon” is defined in section 2 of the Criminal Code as follows:
“weapon” means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing, includes a firearm;
Whether or not an object is considered to be a weapon is dependant upon the design, or intended use of the object. Weapons might include: knives, baseball bats, and broken beer bottles. The Courts have also found unloaded BB guns to be weapons in certain circumstances. Because it is necessary to examine the intended use of an object, things that would not ordinary be considered a weapon, such as a chair, might become one if it is used to injure someone.
What are the Applicable Penalties Under the Firearm and Weapons Sections of the Criminal Code?
Depending upon the specific section of the Code, firearm and gun convictions can lead to very severe penalties.
A conviction for the unauthorized possession of a firearm carries a maximum penalty of 5 years in prison. Where one is convicted of the possession of a weapon known that it’s possession is unauthorized, the maximum penalties are 10 years for a first offence; 10 years and a minimum of 1 year for a second offence; and 10 years and a minimum of two years for a each third and subsequent offence.
If one is convicted of the possession of a loaded restricted or prohibited weapon, (loaded handgun) or an unloaded prohibited or restricted firearm together with readily accessible ammunition, there is a minimum prison term of three years for a first offence.
What are Prohibited or Restricted Firearms and Weapons?
The Criminal Code uses different language address both weapons and firearms. The Criminal Code addresses:
- Prohibited Firearms
- Restricted Firearms
- Prohibited Weapons
- Restricted Weapons
Prohibited firearms consist of handguns of certain barrel lengths, as well as those that are prescribed as prohibited firearms in the regulations. The regulations under the Criminal Code list various types of handguns and automatic weapons.
Restricted firearms include all handguns that are not overtly prohibited (usually used at legitimate sport shooting competitions and clubs), certain guns with specified barrel lengths, as well as a list of guns prescribed as restricted firearms in the regulations.
Under the Criminal Code, weapons are to be distinguished from firearms. Restricted weapons consist of any weapon, other than a firearm that is prescribed as such. Prohibited weapons include knives that have blades that open automatically, by way of a spring etc. (switch blades), as well as any weapons that are specifically prescribed as being a prohibited weapon.
What are Some Possible Defences to Firearm and Weapons Charges?
Many gun and weapons charges arise as a result of community policing and the questioning of pedestrians in high crime areas, traffic stops, and the execution of search warrants in “gun and gang” or drug investigations. In some circumstances it may be possible to challenge the legality of a search warrant, police stop or detention, or police questioning, and seek the exclusion of the firearm or weapon from evidence at trial.
Defence counsel can attempt to have the evidence excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, if there has been a breach of the Charter rights of the accused. Some Charter rights that come into play during an arrest, detention, or the execution of a search warrant include:
- Section 7: the right to life, liberty and security of the person
- Section 8: the right to be secure against unreasonable search or seizure
- Section 9: the right against arbitrary arrest or detention
- Section 10(a): the right to be promptly informed of the reason for arrest or detention
- Section 10(b): the right to counsel without delay