The Government of Canada remains committed to keeping streets and communities safe for Canadians and their families. To this end, the Government is taking steps to restore mandatory minimum penalties (MMPs) to section 95 of the Criminal Code for people convicted of illegally possessing loaded restricted or prohibited firearms, to ensure the safety of Canadians while protecting law-abiding Canadian gun owners.
The Bill, titled the Penalties for the Criminal Possession of Firearms Act, would re-enact MMPs of three years' imprisonment for a first offence of possession of a loaded, or easily loaded, restricted or prohibited firearm, and five years' imprisonment for repeat offenders when convicted on indictment. The MMP would only apply where one of the following aggravating circumstances is proven beyond a reasonable doubt:
- the firearm was possessed for the purpose of committing an indictable offence under the Criminal Code or the Controlled Drugs and Substances Act; or
- the possession created a real risk of harm to others.
If neither of these two circumstances is proven, no MMP would apply. The offence would still be punishable by the existing maximum penalty of 10 years imprisonment.
The proposed measures include a provision that would require courts, in the absence of evidence to the contrary, to find that a real risk of harm to others exists if the offence was committed in or next to a school or other public place usually frequented by children or in any place where another person is in fact present.
The legislation would also clarify the scope of the section 95 offence. Three scenarios would be specifically exempted from the application of the offence:
- Law-abiding firearms owners would be exempt from the offence if they fully comply with the requirements of the Firearms Act including being licensed and having a registration certificate and where they safely store their firearm and only load it in a place in which they are legally entitled to discharge it.
- A person who uses a loaded firearm under the direct and immediate supervision of a person who is legally entitled to possess it, and is using it in a legal manner, would be exempt from the offence.
- A person who comes into possession of a firearm by operation of law (e.g. they inherit it) would be exempt from the offence if they take steps, within a reasonable period of time, to lawfully dispose of the firearm or come into compliance with the requirements of the Firearms Act.
Furthermore, the proposed measures make explicit that the common law rule of innocent possession applies in respect of section 95.
The proposed legislation responds to the Supreme Court of Canada's decision in R. v. Nur, released on April 14, 2015. The Court found the previous MMPs of three years' imprisonment for first offenders and five years' imprisonment for repeat offenders unconstitutional because they could apply to offenders with minimal blameworthiness and in the absence of any harm or real risk of harm. The effect of this decision is that MMPs are no longer available, though an offender could still face up to 10 years in prison. However, the Court also recognized that firearms-related offences are serious crimes and that it is appropriate for the criminal law to impose consequences that target such inherently serious behaviour. The proposed legislation aligns the MMPs with inherently serious behaviour, such as the possession of a loaded handgun in the hands of organized crime as a tool to perpetuate a criminal enterprise.
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June 2015
Department of Justice Canada
