Offences and Penalties Contained in the Firearms Act
Subject and Effect
Section 85 of the Criminal Code of Canada creates an offence of using a
firearm while committing, attempting to commit, or during flight from, specified
underlying offences.
However, ten underlying offences are now specifically excluded from the
operation of s. 85(1). These are:
- criminal negligence causing death (s. 220)
- manslaughter (s. 236)
- attempted murder (s. 239)
- causing bodily harm with intent - firearm (s. 244)
- sexual assault with a weapon (s. 272)
- aggravated sexual assault (s. 273)
- kidnapping (s. 279)
- hostage-taking (s. 279.1)
- robbery (s. 344)
- extortion (s. 346)
For these ten offences, the Firearms Act includes directly within the
substantive offence provision, a mandatory minimum prison term of four years if
a firearm is used in the commission of the offence. This section went into
effect January 1, 1996. The portion of the sentence related to use of a firearm
is blended with the substantive offence and offenders need not be charged under
two separate offences.
Section 85 (2), now also in effect in law, creates a new offence of using an
imitation firearm while committing, attempting to commit or during flight from,
specified underlying offences. The Firearms Act also contains a definition of
"imitation" which has not yet been brought into effect. Until then,
the common dictionary meaning of the word should apply.
Anyone who commits an offence under subsections (1) or (2) is liable, in the
case of a first offence to a minimum prison term of one year, and in the case of
a subsequent offence, to a minimum prison term of three years. These prison
terms must be served consecutively to any other punishment imposed on the
offender for the underlying offence (subsections (3) & (4)).
In the previous law, Section 85 of the Code did not single out the ten
offences for the purpose of imposing special punishment, nor did it include
imitations.
Possession of Firearm Without Certificate
Subsections 91(1) and 92(1) of the new Part III of the Criminal Code create
offences for the possession of a firearm without being the holder of a licence
and registration certificate. Someone charged under subsection 91(1) could be
prosecuted summarily or on indictment. If the latter, the maximum penalty would
be imprisonment for a term not exceeding five years.
Section 92 is aimed at particularly serious fact situations such as
premeditated criminal activities, organized crime or possession of a large
number of unregistered guns, possibly for the purposes of underground trade in
firearms or criminal motorcycle gang wars.
A conviction under subsection 92(1) is punishable by up to ten years
imprisonment for a first offence, to a minimum term of imprisonment of one year
for a second offence, and to a minimum term of imprisonment of two years less a
day for a subsequent offence.
There is also a summary conviction offence under section 112 of the Firearms
Act in the case of a first-time offender who inadvertently fails to register a
long gun. The offence applies only where the accused is a first-time offender
and the firearm is a long gun. The offence is punishable by up to $2000 and/or 6
months in prison.
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