When can the police seize my gun?

When can the police seize my gun?

Firearm ownership in Canada is a fragile privilege, as police can seize lawfully registered firearms for a variety of reasons.

If officers feel there are reasonable or probable grounds that someone has committed an offence with a firearm, they can ask the court for a seizure warrant. If granted, the police have the right to search your home and take away that weapon and any others they find.

If a person is found guilty of committing a criminal offence with a firearm, that weapon will be forfeited to the Crown and destroyed.

Authorities can also seize weapons without a warrant if there are exigent or pressing circumstances. Perhaps police received information that the weapon was going to be used in an attack and did not feel they had the time to go to court to get a warrant.

Another reason for seizing weapons arises when people are having emotional or mental turmoil, when the firearms could pose a danger to that person and those around them.

Firearms can also be seized if the owner does not have a Possession and Acquisition Licence (PAL) or authorization for that class of weapon, or if they fail to produce those documents upon request by a police officer.

Domestic violence can lead to Red Flag weapon seizure

Police have limited authority to seize firearms after someone has been accused of domestic violence. Their powers in this area could be strengthened if Bill C-21 becomes law. Introduced in February 2021, this legislation would create Yellow Flag and Red Flag laws to combat “Intimate-partner and gender-based violence, and self-harm involving firearms,” according to a Public Safety Canada announcement.

The Red Flag law would allow anyone to make an application to a court for an order to immediately remove firearms for 30 days from those “who may pose a danger to themselves or others; or a third party who may be at risk of providing access to firearms to an individual who is already subject to a prohibition order,” according to the announcement.

It explains that individuals who are subject to a weapons prohibition order “may be required to immediately surrender their firearm(s) to law enforcement. The court may also make a seizure order to temporarily remove the firearm(s) on an urgent basis.”

A prohibition on firearm ownership for up to five years could also be granted, the bill states, if there is “reasonable grounds to believe that the individual poses a public safety risk.”

Yellow Flag licence suspension could be coming

Under the powers proposed in the “yellow flag” law, Chief Firearms Officers would have the ability to suspend an individual's PAL for up to 30 days if “there are reasonable grounds to suspect that the individual is no longer eligible to hold a firearms licence, and to investigate whether that individual continues to be eligible to hold a firearms licence,” according to the announcement.

While the surrender of firearms would not be required, “the individual could not use their firearms or acquire or import additional firearms during the suspension period,” it states, adding “if the investigation determines that the individual is eligible to hold a firearms licence, use and acquisition privileges would be immediately reinstated.”

Gun buyback program labelled a ‘gun confiscation’

Bill C-21 includes provisions for the government to “buy back” any of the 1,500 makes and models of firearms now banned in Canada. According to a report, the “buy-back program is voluntary; those in possession of weapons eligible for buy-back will be able to keep them past the amnesty period but they won’t be able to fire, transport, or pass them on to a new owner.”

This program has been harshly criticized by firearm enthusiasts. According to a report on the website of the U.S-based National Shooting Sports Foundation, this program is an “outright confiscation of firearms by the government … using Canadian taxpayer funds for the government to buy back something it never owned in the first place.

The program has also drawn fire from anti-gun groups in Canada, such as family members of women killed in the 1989 École Polytechnique shooting in Montreal. According to a news report, they believe the “buyback must be mandatory” to get the weapons out of the hands of owners before another party takes powers and reverses the program.

The power to seize weapons is entrenched in the Criminal Code

Section 117 (2) of the Criminal Code gives police power to seize weapons “where a peace officer believes on reasonable grounds:

• that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or
• that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance.”

The section adds that if an officer believes it is practicable to obtain a warrant, they have the power to search “without warrant, the person, vehicle, place or premises, and seize anything by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.”

Wrongful search leads to firearms being given back

A news report notes that a Saskatchewan man was acquitted on numerous weapons charges after a judge ruled the RCMP wrongfully searched his home, “violating his rights under s. 8 of the Canadian Charter of Rights and Freedoms, which states everyone has the right to be secure against unreasonable search or seizure.”

The story states a woman called police after she heard shooting at her neighbour’s home, which belonged to a hunter and who had a PAL. When officers arrived, they were told by the woman that the neighbour had fired his weapon into the air.

The man had left when police arrived, so they searched his home and “found a 270 Winchester in plain view in an open closet,” according to the story. “In the living room police found three firearms in soft cases laying on a pool table, an unlocked gun safe, and a firearm leaning against that gun safe.”

The officers made a decision to seize the firearms without a warrant,” the report states, adding “the RCMP said they seized the guns because the accused had shown that his manner of storing guns created safety concerns for the public and for occupants of his residence.”

The police left with 31 firearms, the story adds, and that none “had activated safeties, trigger locks or cable locks.”

In ruling that the weapons should be returned to the man, the judge noted, “This is a case of an irresponsible gun owner, as opposed to being a case of an individual who possesses a firearm for violent purposes … I find that officers breached [the man’s] section 8 rights when they entered his residence as the circumstances did not establish a necessity, reasonably and objectively considered, to address an imminent threat to the safety of the public or police.”

Guns returned after being catalogued

According to a news report, Ottawa police seized approximately 850 legally owned guns from a local collector – but plan to return them after they are catalogued.

The report states police say they were called to the home for undisclosed reasons and took the firearms – "rifles, handguns, machine guns, ammunition and various weapons” – to ensure all were legal and none had been used in a crime.

It took five cargo vans to carry all the weapons, with the owner cooperating with investigators as they double-checked the guns’ legitimacy, according to the report.

The story adds the Criminal Code “doesn't put a limit on how many guns a private citizen can legally own … it's common for police to find collectors who have 200 to 300 guns, but 850 is highly unusual.”

Contact me for assistance

The laws surrounding firearms and the rights the police have to search your home and seize weapons are complex. If your firearms are taken away, you may have a limited period of time to act. If criminal charges have been laid, it is unlikely the Crown will seek forfeiture of your firearms until the case against you has been heard. If you have not been charged, the Crown can still seek to dispose of your weapons, if they can show it is “not desirable in the interests of safety for the firearms to be returned.” No matter what the situation it is important to note that any authorization you have relating to the firearms, such as a PAL, is also deemed to be revoked.

If you are in that situation, contact me for a free consultation, in French or English. The police have rights, but so do you.