What are the penalties for using a firearm when committing a crime?

March 15, 2024

What are the penalties for using a firearm when committing a crime?

Carrying a firearm while committing a criminal offence will be considered an aggravating factor when it comes to sentencing, even if no one was hurt. If you are given bail before the trial you will likely be prohibited from using or possessing any firearm, explosive substance or other weapon. You will also have to surrender any firearms licence and registration certificate.

Section 85(1) of the Criminal Code makes it a crime to use a firearm while committing an offence or when fleeing after the event. The maximum penalty is 14 years in prison, with the same penalties applying if you are carrying an imitation firearm.

If you fire a weapon and hit someone, you can be charged with discharging a firearm with intent. This charge is laid if it can be shown that you intended to injure someone during a crime or you were preventing your arrest. The maximum penalty is also 14 years in prison.

What if I just point a firearm at someone?

Pointing a weapon at someone “without lawful excuse” is illegal and it does not matter if it is unloaded or an imitation firearm. The maximum penalty is five years in prison.

Were mandatory minimum penalties involving firearms repealed?

To address “systemic racism in Canada’s criminal justice system,” the Department of Justice (DoJ) in late 2021 repealed mandatory minimum penalties (MMPs) for 14 offences, many of them involving firearms. But some firearms offences still carry MMPs, “to ensure courts can continue to impose tough sentences for violent and serious crimes.”
Firearm-related charges that saw MPPs repealed are:

• Using a firearm or imitation firearm in the commission of an offence.
• Possession of a firearm or weapon knowing its possession is unauthorized.
• Possession of a prohibited or restricted firearm with ammunition.
• Possession of a weapon obtained by the commission of an offence.
• Weapons trafficking.
• Possession for the purpose of weapons trafficking.
• Importing or exporting knowing it is unauthorized.
• Discharging a firearm with intent.
• Discharging a firearm — recklessness.
• Robbery with a firearm.
• Extortion with a firearm.

Some MMPs were maintained in the Criminal Code to address the trafficking of firearms in Canada and gang-related violence, the DoJ states. They are:

• Weapons trafficking, with an MMP of three years for a first offence or five years for subsequent offences.
• Possession for the purpose of weapons trafficking, with an MMP of three years for a first offence or five years for subsequent offences.
• Making a firearm automatic, with an MMP of one year.
• Importing or exporting a weapon knowing it is unauthorized, with a MMP of three years for a first offence or five years for subsequent offences.
• Causing death by criminal negligence and the use of a firearm, with an MMP of four years.
• Manslaughter by the use of a firearm, with an MMP of four years.

The following charges have MMPs of five years for a first offence and seven years for subsequent offences if the firearm is classified as restricted or prohibited or if it was used in an offence that is connected to a criminal organization. Many of the charges below carry a four-year MMP if the firearm is classified as non-restricted.

• Attempted murder by using a firearm.
• Discharging a firearm with intent.
• Recklessly discharging a firearm.
• Use of a firearm in a sexual assault.
• Aggravated sexual assault.
• Use of a firearm in a kidnapping.
• Use of a firearm in a hostage-taking.
• Robbery with a firearm.
• Extortion with a firearm.

How common are offences committed with firearms?

The rate of violent Criminal Code offences involving firearms is up for the eighth consecutive year, according to a 2023 Statistics Canada report. Violent crimes include discharging a firearm with intent, pointing a firearm or using a firearm in the commission of an indictable offence.

By comparison, the rate of non-violent offences involving firearms remained stable after increasing for seven years, StatsCan states. Non-violence offences include illegal possession and unsafe storage of a firearm.

In 2022, there were 9,198 victims of violent crime where a firearm was present during the commission of the offence, according to StatsCan, adding “this rate was 10 per cent higher compared with 2021. The rate of victims of firearm-related crime has generally been increasing since 2013.”

Specifically, four in 10 homicides were firearm-related in 2022. Of the 342 firearm-related homicides, 63 per cent were committed with a handgun, and 23 per cent were committed with a rifle or shotgun, the report states.

What are my defences to firearm offences?

The defences available to people facing firearms charges depend on the circumstances. In all cases, it is a good idea to speak to a criminal lawyer who can review the evidence against you and suggest your best options.

A lawyer may be able to negotiate with the Crown and have the charges reduced so you receive a lighter sentence. That may be an option if you are a first-time offender and if no one was physically harmed during the crime.

Some common defences are:

Your Charter rights were violated. A lawyer can examine how police conducted their investigation to see if your rights under the Canadian Charter of Rights and Freedoms were compromised. A key right is that you have the “right to be secure against unreasonable search or seizure.”

According to the Department of Justice, this right “protects people, not places, against unjustified intrusions on their privacy interests … the purpose of Section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place.”

You did not know a firearm was in your possession. This defence will only be viable in certain circumstances. Perhaps you were in someone’s car when an offence was committed. If police find a weapon under your seat you can argue you were unaware of its presence.

You were under duress. People are sometimes forced to join others during illegal activities. If your lawyer can show that your actions were involuntary, that could be a defence.

Call me for assistance

People being investigated for any firearms offence should consult a lawyer before speaking to authorities. If police show up at your residence they cannot enter without a warrant. If they ask about a weapon you legally own, show them your registration or Possession and Acquisition Licence but tell them you cannot answer other questions without the advice of legal counsel. You have the right to remain silent. Take advantage of that right.

You will also need a lawyer if police seize firearms from your residence. A hearing will be held to determine if they should be forfeited permanently. A lawyer can present reasons why your weapons should be returned.

Anyone in the Ottawa region can contact me for a free consultation, in either French or English.

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