Canada has some of the strictest firearm laws in the world, with regulations in place to ensure public safety and reduce the risk of violence. Not only can an individual receive a prohibition from possessing, using or owning firearms when they are convicted of a criminal offence, but they can also receive a firearms prohibition from the court when the court believes it is in the interests of public safety to do so.
Section 117.05 of the Criminal Code and Public Safety
Section 117.05 allows a justice to make both a seizure and a prohibition order upon the application of a police officer or other individual if they can demonstrate that it is undesirable for that person to own, possess or use firearms for public safety concerns.
Unfortunately, this is a common disposition when there are mental health concerns and no criminal charges. It can happen in cases where someone is having a mental health crisis and either threatens the use of violence with firearms against themselves or others, or the police have a safety concern for that individual or others and determine that that person possesses firearms which need to be seized for public safety concerns.
Fighting a S. 117.05 Firearms Prohibition
A police officer may serve an individual a Notice of Application under s. 117.05 of the Criminal Code requiring their attendance in court. The individual subject to that application will need to appear in court and advise the court of their intentions. Do they want to fight the Application, or do they agree to the prohibition?
Prohibitions under s. 117.05 are for any period not to exceed five years. This means that you are giving up your right to possess, own or hold licenses for any weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance, or of any such thing for that period. If you are a license holder, this can also have negative implications on your ability to apply for or maintain a Possession and Acquisition License in the future.
If you are served an application for a s. 117.05 Prohibition, you have the choice to accept the prohibition or to fight the Application in court.
Understanding the Consequences and Making an Informed Decision
The test to be applied is best set out in two decisions: R. v. Britt, 2016 BCPC 329 and R. v. Marsden, 2018 BCPC 218, as follows:
a) The burden is on the Crown to satisfy a judge on a balance of probabilities that it is not desirable in the interests of safety for the individual to possess firearms.
b) In a hearing under s.117.05, a judge may receive all relevant evidence, even hearsay evidence, but it must still be credible and trustworthy.
c) A prohibition may be granted even if there is no evidence of criminal behavior, mental illness or a violent past.
d) The desirability issue is related to the individual at the time of the hearing and not at the time of the seizure.
Evidence or admissions that may be taken into consideration are mental health concerns or status, the storage of the firearms, and any drug or alcohol use/abuse. The court essentially in undertaking a risk assessment of the individual subject to the application.
How the Court Assesses Risk and Reaches a Decision
While it is on the Crown to prove that there is a risk to public safety, the individual subject to the application may need to consider whether they can offer any information to the court on why they are not a risk to public safety. The important thing to note is that the decision is based on the individual assessment at the time of the hearing, not at the time of the incident that led the application to be filed. Circumstances may change and it may be on the individual to prove that is the case.
At the end of the hearing, the Judge will determine if the Crown has meant their burden on a balance of probabilities. If they Judge determines they have met their burden, they will then decide how long the period of the prohibition will be. They will also deal with any forfeiture or seizure orders.
If the judge does not find that the Crown has met their burden on a balance of probabilities, then the application will be dismissed and any items seized, including licenses, firearms and ammunition, will be ordered returned to the individual.
If you find yourself facing a prohibition under s. 117.05 of the Criminal Code, call us at 604-370-3050 for a free consultation.