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.