The use of a firearm in the commission of a criminal offence such as robbery or sexual assault is considered to be an aggravating factor (or merit a much more serious criminal penalty). However, using a firearm during the commission of an offence is a standalone charge and is codified within the Criminal Code under section 85. Section 85 applies to any person that uses a firearm, whether or not it results in bodily harm (or is intended to cause bodily harm), while committing an indictable offence (Criminal Code, s. 85(1)).
Using a firearm in commission of an offence can also be attached to someone who uses a firearm in attempting to commit an indictable offence or “during flight after committing or attempting to commit an indictable offence” (Criminal Code, s. 85(1)). Section 85 also includes the use of an imitation firearm, which is defined within the Criminal Code as anything that imitates a firearm, including replica firearms. It should be noted that the punishment for using a firearm or an imitation firearm in the commission of an offence fall within the same framework with a maximum of fourteen years imprisonment with a mandatory minimum sentence. There are exceptions to where section 85 may not apply, such as armed robbery, where the accused is already being charged as a result of the firearm being used.
The use of firearms is an extremely regulated activity because of the need to protect the safety of the public, and thus there are consequences to those who do not obey laws governing the use or even possession of a legally owned firearm. Section 86 of the Criminal Code requires that everyone exercise care and take all reasonable precautions for the safety of others when they use, handle, ship, transport or store their firearms and ammunition.
Anyone who does not follow regulations found under the Firearms Act regarding firearm possession and use is guilty of either an indictable or summary offence and is liable to a maximum of two years imprisonment (Criminal Code, s. 86(3)). Other more common illegal use of firearm offence include: pointing a firearm (Criminal Code, s. 87), possession of weapon for dangerous purpose (s. 88) and carrying a concealed weapon (s. 90). It should be noted that each of the aforementioned offences are hybrid in nature and the disposition will be determined by the perceived risk to the public or whether the accused’s actions posed a potential threat to another person.
Illegal firearms possession is the most common firearms related criminal charge, and is categorized as a hybrid offence with the potential to be pursued either as an indictable offence or summarily. Under section 91(1) of the Criminal Code of Canada, it is illegal to possess a firearm without having a license, and if the firearm is considered to be restricted, the license must be accompanied by a registration certificate. An exception to unauthorized possession exists where a person possesses a firearm under the direct supervision of the lawful owner and operator of the firearm. However, it is an indictable offence to possess a firearm knowing that the person is not a holder of a license for the firearm and a registration certification where it is necessary (Criminal Code, s. 92). A summary disposition for unauthorized possession can range anywhere from a suspended sentence, a fine or probation to a maximum of six months in prison. The maximum penalty for the indictable variation of unauthorized possession is five years imprisonment.
As a result of the public safety risk associated with firearms, and the heavy regulations outlining proper storage, possession and travelling procedures for example, it is of no surprise that illegally trafficking firearms is a serious criminal offence. Anyone who transfers possession of a firearm, any sort of weapon or ammunition to someone who is not authorized to do so under the Firearms Act (or any other facet of law) is guilty of an indictable offence and is liable to a maximum of ten years imprisonment with a mandatory minimum of three years for the first offence (Criminal Code, s. 99, ss. 1-2). It is irrelevant whether or not any money or other consideration was exchanged between the parties, rather it is the act of illegally trafficking the weapon or ammunition that induces criminal liability.