Careless Use or Storage of a Firearm Charges in Ontario, Canada (CC s. 86 (1))

Section 86 of the Criminal Code requires that all firearms in Canada be properly stored and used in accordance with the rules of the Firearms Act. Police will often get incident reports submitted that a person is storing a firearm improperly or come across improperly stored firearms when responding to domestic calls, vehicle traffic stops, property offences, and other requests for assistance.

Criminal improper storage of firearms offences in Canada are Crown elect hybrid indictable offences that are punishable by both a criminal record and a 2 year jail sentence upon a finding of guilt by the court for a first time offender. A criminal lawyer may be able to assist in helping an accused get the charges against them dropped/withdrawn or with receiving a lesser sentence such as an absolute or conditional discharge.

The Criminal Code leaves definition of improper or careless storage of a firearm somewhat open ended and subject to interpretation by the courts in Section 86 (1), which reads:

Careless use of firearm, etc.

Section 86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

Section 86 allows the courts to determine what is criminally “unsafe” storage, but have long recognized the requirements of the federal Firearms Act as the proper minimum protections required for gun safety. Those who possess PAL and RPAL licenses would have taken courses on gun safety and legal storage requirements.

Usually the courts will look to see if there were any violations of the Firearms Act and its associated Regulations to see if the accused is criminally guilty of storing a firearm in “careless manner or without reasonable precautions for the safety of other persons”.

While there are some differences with regards to non-restricted, restricted and prohibited firearms, the regulations generally require that firearms in Canada be stored:

1. Unloaded
2. Stored separately and away from ammunition
3. Rendered inoperable or incapable of firing via a secure locking device or removal of the bolt or bolt-carrier
4. Stored in a secure, locked place

There are slightly different requirements for non-restricted (long guns) vs. restricted firearms (hand guns) vs. prohibited firearms (assault style). The exact wording regarding proper storage is found in the Firearms Act regulation known as the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations (SOR/98-209), which is available to read here.

Getting charged with improperly storing, using or transporting a firearm

Charges originate from regular calls for police assistance or from unplanned interactions with police. Whether there was an accident, medical emergency, or call relating to a domestic violence allegation, the police may check to ensure firearms are properly stored. This can lead to problems in circumstances where the gun owner is surprised or does not think beforehand to put the firearm(s) away properly.

Improperly stored firearms may be left at home on a counter, shelf, bed, or table. They may be in a vehicle on or under the seats, glove box, or trunk. Sometimes they are improperly stored in a shed, basement, or other location used to store hunting gear. They may also be discovered by customs when attempting to cross the U.S. or Canadian border. In other cases, the weapon may have been waved at or shown to someone without ever being fired (perhaps to intimidate the other person).

Whatever the case may be, the police will see a PAL or RPAL license before arriving at the scene and normally will make inquiries about where the weapons are and how they are stored. In the heat of the moment a gun owner may forget about how their firearms are stored or think it will be okay in the circumstances especially if they were the ones who called 911.

Domestic violence calls leading to improper firearms storage charges

The person making the complaint may be someone who is alleging another offence was committed such as an assault (domestic or other), uttering threats, mischief, theft, etc. They will often “throw in” some extra information that the person is not properly storing their firearms. Complaints of this nature can be stated to 911, at the doorstep in response to a call, after an alleged violent incident itself, or through a non-emergency police report submitted online, in person at the police station, or over the phone.

It is usually someone who feels wronged in one way or another who makes the report of improper firearm storage. The resulting police search, with or without a warrant, is usually based on this one eye witness account alone, but sometimes the accused themselves will also make statements and admissions that give the police grounds to conduct a search.

Defending and getting charges for improper firearm storage dropped

Improper storage of firearms charges are more defendable than most people think. The police sometimes overstep their Charter permissions in conducting searches in trying to locate firearms and determine whether they have been stored legally or not. Cases can be fought, and sometimes won, on the basis that the accused’s s. 8 Charter rights against search and seizure have been violated and that any evidence discovered must be excluded under s. 24 (2).

How this works in practice is the defendant’s lawyer will review the case disclosure and determine whether any deficiencies in the police’s conduct during their search and seizure exist. Often issues are “triable” meaning there is no clear cut, black or white, answer as to whether the police violated the Charter rights or not. The defence lawyer will then conduct a crown pre-trial (CPT) and try to convince the Crown that their case is weak.

If the Crown agrees that problems exist they may offer to drop the charges. Perhaps some counselling or other education on the part of the accused will be part of the deal in dropping the charges, but this depends on the strength of the Crown’s case. If a serious Charter breach is found the Crown may conclude there is no reasonable prospect of conviction (RPC) and withdraw all charges outright. If the alleged Charter breach is less certain to succeed the Crown may want some sort of upfront work (counselling, courses, maybe community service) as part of the deal. Of course the defendant does not have to agree to such a deal, they could always take the case to trial if they don’t want to resolve their matter.

If the Crown does not agree to drop the charges (diversion or otherwise), then the lawyer will proceed to conduct a Judicial Pre-Trial (JPT) to raise their Charter concerns with the Judge. At this point the judge may signal to the Crown that the possibility of a Charter breach is high (if they agree) and this may persuade the Crown to drop the charges or offer something non-criminal instead.

If the Crown continues to insist on proceeding with the charges, a pre-trial application will be made to the court that a Charter breach under s. 8 was committed and that the evidence collected should be excluded. If successful, the Crown’s case will often fall apart forcing the Crown to withdraw or stay the charges for no RPC. The Judge also has the power of a judicial stay of proceedings though normally the Crown will relent once most or all of their evidence is excluded. This is usually enough unless the Crown has other evidence to present apart from that related to the search conducted by the police (eye witnesses, video evidence, etc.).

Witness evidence in improper storage of a firearm cases

Often the search warrant for firearms is based on a witness's statement that they know or believe the accused is in possession of firearms that are improperly stored. This alone may not be enough to search the accused’s home under Section 8 of the Charter. In the case of R. v. Debot, 1989 CanLII 13 (SCC), it was determined that 3 factors must be present:

1. that the tip was compelling,
2. that the informer was credible; and,
3. that the information was corroborated by police investigation.

If the police did not take steps beyond just listening to what the complainant, who may have other grievances against the accused, is saying then this may be enough for the court to find a Charter breach and exclude the firearms evidence collected as per the Charter. The defence lawyer will want to closely examine the timeline, other investigative steps taken if any, and any issues that raise questions about the reliability of the Crown witness that the police may have ignored or not bothered to consider.

Legal gun owners may improperly store a firearm by accident, a mistake, or get charged after an unexpected encounter with the police.

Canada’s rules regarding firearm storage are strict and designed to prevent gun owners or anyone else from quickly and easily firing the stored weapons. This is good practice to protect children, the mentally ill, and other vulnerable people, however it takes away from a gun owner’s ability to defend themselves during a home invasion or otherwise use the weapons for their own personal protection.

If someone breaks into your home in the middle of the night, most people looking to protect themselves and their family would want a loaded weapon readily available. Obviously it would take valuable time to unlock, load and ready a weapon that is properly stored. During an active home invasion most people are pressed for time as they search for a place to hide and call the police.

Sometimes firearms are stored improperly because the gun owner does not realize or appreciate the seriousness of violating the storage rules. They may understand that it is illegal but not realize it is something they can get a criminal record or go to jail for alone. As such they may be reckless, lazy or not bother to properly put away and store the weapon thinking it is not a big deal or they won’t get caught.

A gun owner may not have the time, or may not think, to ensure their firearm(s) are properly stored before coming into contact with the police. If the police are responding to a domestic violence call, a dispute with a neighbour, road rage incident, etc. they will check all the known parties involved in the RCMP CPIC database for a PAL or RPAL licence before they arrive on scene. If a licenced gun owner is known to be involved securing any and all firearms will be a top priority when they arrive.

Improper gun storage and use charges are serious criminal offences in Canada even for first time offenders so if you have received a fingerprinting and court date give us a call immediately to discuss your best options moving forward.

---

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with criminal offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on criminal law protect you and your future from the stigma and consequences of a criminal record and conviction.

Are you a lawyer? If you are defending a criminal case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

---