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Firearm, Imitation Firearm, Gun and Weapons Offences Lawyer in Toronto

Mississauga, Brampton and Newmarket Firearm, Imitation Firearm, Gun and Weapons Offences Lawyer

Commonly Asked Questions

  1. What is the sentence for possession of a firearm?
  2. What is trafficking a firearm or conspiracy to traffic a firearm?
  3. What is the sentence for trafficking a firearm or conspiracy to traffic a firearm?
  4. What is "weapons dangerous" and "carry concealed weapon"?
  5. What is the sentence for "weapons dangerous" or "carry concealed weapon"?
  6. Are sentences higher if there has been a prior conviction?
  7. What are guns and gangs investigations or project cases?
  8. What are my Charter rights?
  9. Can the Charter help my defence?
  10. Can I get assistance from Legal Aid Ontario for my case?

Firearm charges can result in serious prison sentences. If you have been charged with possession of a firearm, you are facing the possibility of several years in prison. If you are facing charges such as robbery with a firearm or attempted murder with a firearm, you face the possibility of even higher minimum prison sentences.

If someone is killed during the commission of the robbery with a firearm, a first-degree murder charge is likely.

Fighting firearms and other weapons charges requires a highly skilled and experienced defence lawyer. As a senior criminal lawyer, I have the knowledge and the experience to fully understand the charges you are facing and to conduct a thorough review of the evidence against you. I will provide you with an honest and realistic assessment of your case and help you understand what to expect throughout the process.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your firearm, imitation firearm, gun or weapons charge. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in some cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or via e-mail.

What is a Firearm?

  • A firearm is defined as follows in Section 2 of the Criminal Code of Canada:
  • Firearm means
    • A barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

An air pistol may be found to be a firearm if the air pistol is able to fire a projectile at a high feet per second velocity, provided that the projectile is capable of causing serious bodily injury to or death of a person.

What is a Weapon?

A weapon is defined as follows in Section 2 of the Criminal Code of Canada:

  • Weapon means
    • Any thing used, designed to be used or intended for use
    • (a) in causing death or injury to any person, or
    • (b) for the purpose of threatening or intimidating any person
    • and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will.

What is a Prohibited Firearm?

A prohibited firearm is defined as follows in Section 84(1) of the Criminal Code of Canada:

  • Prohibited Firearm means
    • (a) a handgun that
      • (i) has a barrel equal to or less than 105 mm in length, or
      • (ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,
    • but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
    • (b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
      • (i) is less than 660 mm in length, or
      • (ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
    • (c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
    • (d) any firearm that is prescribed to be a prohibited firearm.

What is an Imitation Firearm?

  • An imitation firearm is defined as follows in Section 84(1) of the Criminal Code of Canada:
    • Imitation Firearm means
      • Any thing that imitates a firearm, and includes a replica firearm.

What is a Restricted Firearm?

A restricted firearm is defined as follows in Section 84(1) of the Criminal Code of Canada:

  • Restricted Firearm means
    • (a) a handgun that is not a prohibited firearm,
    • (b) a firearm that
      • (i) is not a prohibited firearm,
      • (ii) has a barrel less than 470 mm in length, and
      • (iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
    • (c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
    • (d) a firearm of any other kind that is prescribed to be a restricted firearm.

What is a Prohibited Weapon?

A prohibited weapon is defined as follows in Section 84(1) of the Criminal Code of Canada:

  • Prohibited weapon means
    • (a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or
    • (b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon.

What is a Handgun?

A handgun is defined as follows in Section 84(1) of the Criminal Code of Canada:

  • Handgun means
    • A firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands.

What are Guns and Gangs and Police Project Cases?

Within the police service there are special sections, such as the Guns and Gangs unit, that investigate major crime. These investigations include large, long-term cases, sometimes referred to as Project Cases, involving substantial investigation, including surveillance and undercover work. They may run from several days to several years. There are corresponding sections of the Crown's office dedicated to prosecuting these cases.

These investigations involve the most serious types of crimes ranging from possession of weapons and drug trafficking to organized crime. These cases frequently involve serious charges, including attempted murder, murder, conspiracy to commit murder and other violent offences. Serious cases of this nature require the skills of a knowledgeable and experienced Toronto complex and major violent crime defence lawyer.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

When you hire me as your lawyer, you can count on me to present the strongest possible defence in your case and to pursue every possible legal option in an effort to win your acquittal. I have been defending individuals accused of serious crimes since 1985. I am committed to protecting your rights and your freedom.

Unauthorized Possession of a Firearm

Section 91 of the Criminal Code of Canada provides, in part, as follows:

  • 91(1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of
    • (a) a licence under which the person may possess it; and
    • (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

Unauthorized Possession of Prohibited Weapon or a Restricted Weapon

  • (2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.

Punishment

  • (3) Every person who commits an offence under subsection (1) or (2)
    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
    • (b) is guilty of an offence punishable on summary conviction.

Unauthorized Possession of a Firearm in a Motor Vehicle

Section 94 of the Criminal Code of Canada provides, in part, as follows:

  • 94 (1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless
    • (a) in the case of a prohibited firearm, a restricted firearm or a non-restricted firearm,
      • (i) the person or any other occupant of the motor vehicle is the holder of
        • (A) a licence under which the person or other occupant may possess the firearm, and
        • (B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,
      • (ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of
        • (A) a licence under which that other occupant may possess the firearm, and
        • (B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, or
      • (iii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament; and
    • (b) in the case of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition,
      • (i) the person or any other occupant of the motor vehicle is the holder of an authorization or a licence under which the person or other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
      • (ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was
        • (A) the holder of an authorization or a licence under which the other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or
        • (B) a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament.
  • (2) Every person who commits an offence under subsection (1)
    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
    • (b) is guilty of an offence punishable on summary conviction.
  • (3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, weapon, device or ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle.

Possession of a Prohibited or a Restricted Firearm with Ammunition

95 (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

  • (a) an authorization or a licence under which the person may possess the firearm in that place; and
  • (b) the registration certificate for the firearm.

(2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
    • (i) in the case of a first offence, three years, and
    • (ii) in the case of a second or subsequent offence, five years; or
  • (b) is guilty of an offence punishable on summary conviction.

Is there a Mandatory Minimum Sentence That Applies?

Until recently, the offence of possession of a loaded prohibited or restricted firearm or a prohibited or restricted firearm with readily accessible ammunition, was punishable by a mandatory minimum sentence of 3 years in jail. The Supreme Court of Canada found that this mandatory minimum sentence violated the Charter and, as a result, the mandatory minimum sentence of 3 years in jail is no longer applicable. This does not mean, however, that an accused will necessarily be sentenced to a period of less than 3 years in jail if convicted of possession of a firearm. The sentence will depend on all of the circumstances. If the firearm was loaded and pointed at someone, or there are other aggravating circumstances, a court may find that a sentence of 3 years or more is appropriate.

Using a Firearm in Commission of an Offence

The Criminal Code of Canada provides that an accused convicted of certain offences while using a firearm must serve an additional mandatory sentence consecutive to the sentence imposed for the primary offence. The additional mandatory sentence ranges from a mandatory minimum of one year in jail up to a maximum of 14 years in jail.

Section 85 of the Criminal Code of Canada provides as follows:

  • 85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,
    • (a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm - recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
    • (b) while attempting to commit an indictable offence; or
    • (c) during flight after committing or attempting to commit an indictable offence
  • (2) Every person commits an offence who uses an imitation firearm
    • (a) while committing an indictable offence,
    • (b) while attempting to commit an indictable offence, or
    • (c) during flight after committing or attempting to commit an indictable offence,
  • whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.
  • (3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
    • (a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
    • (b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
    • (c) [Repealed, 2008, c. 6, s. 3]
  • (4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).

What is "Weapons Dangerous"?

The phrase "weapons dangerous" simply refers to the offence of carrying a weapon for a purpose dangerous to the public peace.

Section 88 of the Criminal Code of Canada provides as follows:

  • 88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.
    • (2) Every person who commits an offence under subsection (1)
      • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
      • (b) is guilty of an offence punishable on summary conviction.

What is "Carry Concealed Weapon"?

The phrase "carry concealed weapon" simply refers to the offence of carrying a weapon while the weapon is concealed, such as on the accused's person or in the accused's belongings.

Section 90 of the Criminal Code of Canada provides as follows:

  • 90 (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.
    • (2) Every person who commits an offence under subsection (1)
      • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
      • (b) is guilty of an offence punishable on summary conviction.

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts' preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your firearm, imitation firearm, gun and weapons charges. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in some cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or via e-mail.

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