Weapons offences are very serious and aggressively prosecuted. Even more serious than a charge for possession of a firearm, is a charge for trafficking firearms. A conviction carries hefty mandatory minimum sentences. If you are being charged with the trafficking of a firearm, then you should consider contacting a lawyer as soon as possible to protect your rights.
What is trafficking of a firearm?
Under the Criminal Code of Canada, it is a criminal offence to transfer weapons, including firearms. The Criminal Code includes a number of different offences, any of which can constitute a weapons trafficking charge:
- Weapons trafficking
- Under section 99(1) of the Criminal Code, it is a criminal offence for a person to:
- Manufacture or transfer, whether or not for consideration, a prohibited weapon/firearm, a restricted weapon/firearm, a non-restricted weapon/firearm, or any ammunition knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament; or
- Offer to do anything in respect of a prohibited weapon/firearm, a restricted weapon/firearm, a non-restricted weapon/firearm, or any ammunition knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament.
- Possession for the purpose of weapons trafficking
- Under section 100(1) of the Criminal Code, it is a criminal offence for a person to possess a prohibited weapon/firearm, a restricted weapon/firearm, a non-restricted weapon/firearm, or any ammunition for the purpose of:
- Transferring it, whether or not for consideration, knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament; or
- Offering to transfer it knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament.
- Transfer without authority
- Under section 101(1) of the Criminal Code, it is a criminal offence for a person to transfer a prohibited weapon/firearm, a restricted weapon/firearm, a non-restricted weapon/firearm, or any ammunition to any person otherwise than under the authority of the Firearms Act or any regulations made under any Act of Parliament.
- Importing and exporting
- Under section 103(1), it is a criminal offence for a person to import or export:
- A prohibited firearm/weapon, a restricted firearm/weapon, a non-restricted firearm, a prohibited device, or any prohibited ammunition, knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament; or
- Any component or part designed exclusively for use in the manufacture of or assembly into an automatic firearm, knowing that the person is not authorized to do so under the Firearms Act or any regulations made under any Act of Parliament.
It is important to note that for a charge for trafficking and/or transferring of a firearm to be made out, it is not necessary that you were paid or provided any benefit for it.
Arrest and bail:
When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.
Due to the seriousness of these offences, you will likely be held for bail. You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.
Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”
While it is usually the Crown’s responsibility to show why you should be detained, there are some offences, like weapons trafficking offences (specifically sections 99, 100, and 103 of the Criminal Code), that require you to demonstrate why your detention is not justified. It is important to note that transferring without authority (section 101) does not trigger a reverse onus situation, and it is still the Crown’s burden to demonstrate why detaining you is justified.
There are three grounds of detention upon which you can be denied bail. They consider:
- Whether you are a flight risk (primary ground);
- Whether you pose a threat to the public (secondary ground); and
- Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).
You will need to demonstrate that these grounds are not a concern. The court will look at factors, such as your ties to the community, your personal circumstances, the presence of a criminal record, the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.
As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. In reverse onus situations, you will need to counter the concerns surrounding the seriousness of the offence and your release, so you will likely need to propose stringent conditions, such as:
- Supervision through sureties;
- Curfews or house arrest, including ankle monitoring;
- No contact with the certain individuals; and/or
- Restrictions on where you can travel.
If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court.
Obtaining bail can be an uphill battle, especially when it comes to weapons offences. Furthermore, being responsible for showing why you should be released can be overly onerous. A lawyer knows what conditions to propose according to the circumstances, and they are in the best position to run a successful bail hearing. As such, hiring a lawyer maximizes your chances of being released.
It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.
Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.
A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence which can be extremely time-consuming.
In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.
A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.
If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.
There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.
If you have been charged with an indictable trafficking offence, or if you have been charged with transferring without authority and the Crown chooses to proceed by indictment, then there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, by a judge alone in the Superior Court, or by a judge and jury in the Superior Court. Making your election is a strategic decision. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.
Consequences if found guilty:
Due to the dangerous nature of firearms, weapons trafficking offences are prosecuted vigorously and, in many cases, carry mandatory incarceration sentences. You could also face a maximum sentence of ten years for most of the trafficking offences. Only transferring without authority is a hybrid offence that carries a maximum sentence of five years in prison if proceeding by indictment and a maximum sentence of two years less a day and/or a fine of up to $5,000 if proceeding summarily. A lawyer can help you understand the consequences of these offences and work to secure the best possible outcome in the circumstances.
It’s vital to hire a lawyer
Being charged with a criminal offence, such as weapons trafficking, is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning.
A lawyer can also do much more. They can:
- Work to secure your release with the most favourable conditions;
- Help you navigate the criminal justice system;
- Ensure that the Crown meets its disclosure obligations;
- Identify systematic or administrative errors in the criminal process, including Charter rights violations;
- Speak to the Crown on your behalf, negotiate, and advise you of your options;
- Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
- Gather further evidence to support your version of the events;
- Obtain a more lenient sentence in the event a guilty plea or conviction is entered.
All criminal cases are complex and fact specific. We have provided general information about how weapons trafficking offences are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.