Canadian Criminal Law/Offences/Careless Use or Storage of a Firearm
| Careless Use or Storage of a Firearm | |
|---|---|
| s. 86 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid |
| Jurisdiction | Prov. Court SC Judge + PI (I) SC Jury + PI (I) (536(2)) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Maximum | 6 months jail or $5,000 fine |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Maximum | 2 years (first) 5 years (second or more) |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
Legislation
[edit | edit source]Careless use of firearm, etc.
86. (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.
Contravention of storage regulations, etc.
(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
...
– CCC
Proof of Offence
[edit | edit source]Elements of Proof
[edit | edit source]- ♰ identity of accused
- ♰ date and time of incident
- ♰ jurisdiction (incl. region and province)
- ♰ accused carried, handled, shipped, transported or stored an item
- ♰ the item is a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition
(see Firearms: barrelled weapon, capable of causing serious bodily injury or death) - ♰ the item was stored in an unsafe or careless manner and no reasonable precautions taken for the safety of others(e.g. no trigger locks, out of case, loaded)
- ♰ a marked departure from the standard of care of a reasonably prudent person in the circumstances
Tending Exhibits
[edit | edit source]- the firearm, device or ammunition
- any other related objects such as cases or trigger locks, etc.
Interpretation
[edit | edit source]“Storage” does not require an intention for the weapon’s placement to be “long-term or permanent storage”. It can include temporary hiding of a firearm.[1]
A breach of regulations under the Firearms Act does not necessarily result in a conviction under s. 86(1).[2]
- ↑ R v Carlos 2002 SCC 35
R. v. Critch, 2012 CanLII 17795 (NL PC) -- stored weapon under bed for 1 hour - ↑ R v Gorr [2003] OJ No. 3252 (Ont. CJ)
Duty of Care
[edit | edit source]Section 86(1) imposes a “a specific and rigorous duty of care” upon the accused to store firearms and ammunition. [1]
The Crown must prove that the accused’s conduct “constitutes a marked departure from the standard of care of a reasonably prudent person”.[2]
However, even where there is a marked departure from the standard of care, where “reasonable precautions were taken” or there is otherwise doubt, then the court must acquit. [3] The court must also be satisfied beyond a reasonable doubt that there were not enough "precautions taken by the accused to avoid the creation of risk" and the accused had the "capacity ...to meet the standard of care of a reasonably prudent person in the circumstances” but failed to do so.[4]
The standard of care is assessed objectively while taking into account the accused’s capacities in the circumstances and the “accused’s ability to control or compensate for his … incapacities”.[5]
Unlike offences that require standard of care, there is no defence of due diligence if the offence is otherwise made out.
Offences of breach of duty of care do not require a purely subjective intention.[6] They only require "proof of intention or actual foresight of a prohibited consequence.[7]
- ↑ R v Finlay 1993 CanLII 63 (SCC), (1993) 83 CCC (3d) 513 (“Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care.”)
- ↑ Optimum Insurance Co. v. Donovan 2009 NBCA 6 at 40
- ↑ R v Finlay, 1993 CanLII 63 (SCC) citing R. v. Gosset 1993 CanLII 62 (SCC), (1993), 83 C.C.C. (3d) 494 (S.C.C.)
- ↑ R v Finlay, supra, ("“the existence of a reasonable doubt as to either the sufficiency of the precautions taken by the accused to avoid the creation of risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person in the circumstances.")
- ↑ R v Finlay, supra
- ↑ R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 at 33
- ↑ R v J.F. 2008 SCC 60 at 7
Traditional Defences
[edit | edit source]- Possession - where the weapon was not found in actual possession of the accused, it can often be argued that the accused was not aware of the weapon and so did not have joint or constructive possession.
Typical Motions and Orders
[edit | edit source]- s.486.2(2) or 486.2(4) order for private testimony
- s. 486.3(2) Order prohibiting cross examination
- s. 486.5(1) or (2) publication ban
- Video-recorded evidence by disabled person (s.715.2) or person under age 18 (s.715.1)