Pointing a Firearm and Using a Firearm in an Offence

The short answer

Pointing a firearm at someone without a lawful excuse is a crime under s. 87 of the Criminal Code, whether or not the firearm is loaded. Using a real or imitation firearm while committing an indictable offence is a separate and more serious crime under s. 85, and its sentence must be served on top of any other sentence. These charges often arise from tense, fast-moving situations, so the details of exactly what happened matter a great deal. This guide explains both offences and how they are defended. See our firearms charges page for an overview.

Pointing a firearm (s. 87)

To convict you under s. 87, the Crown must prove:

1. Pointing: You pointed a firearm at another person.
2. No lawful excuse: You had no lawful excuse for doing so.

It does not matter whether the firearm was loaded. The offence carries up to 5 years by indictment, or it can be prosecuted by summary conviction.

Using a firearm or imitation firearm (s. 85)

Section 85 applies when you use a real or imitation firearm while committing, attempting or fleeing after an indictable offence.

• Prosecution: It can only be prosecuted by indictment.
• Maximum: The maximum is 14 years.
• Minimum: There is no mandatory minimum.
• Consecutive sentence: The sentence must be served consecutively, which means on top of the sentence for the other offence (s. 85(4)).

For real firearms, some offences that already carry their own firearm penalties, such as robbery, are excluded. No such exclusion applies to imitation firearms.

What counts as an imitation firearm?

Imitation firearms include replicas and some BB or airsoft guns. Some air guns are powerful enough to count as real firearms in law. See threats with a weapon or imitation weapon.

Situations that lead to pointing charges

• A dispute with a neighbour where a firearm is displayed.
• A road rage incident where a firearm or replica is shown.
• Handling a firearm carelessly in a way that points it at someone.
• Using a replica during an argument or a robbery.

The evidence in a typical case

The Crown often relies on witness descriptions of what was pointed and how, video from phones or security cameras, 911 calls, and the firearm or replica if it was found. Witnesses under stress can be mistaken about what they saw, such as whether an object was a firearm or whether it was aimed at them. Testing those accounts carefully is often central to the defence.

What happens after you are charged

1. Bail: If the pointing happened during another offence, or a firearm was used, you may face a reverse onus.
2. Disclosure: The Crown provides witness statements, video, 911 recordings and reports on the firearm or replica.
3. Resolution or trial: Your lawyer reviews whether the evidence supports pointing or s. 85, and discusses options with the Crown.

Possible defences

• No pointing: The firearm was held or displayed, but not aimed at anyone.
• Lawful excuse: This can include self-defence that meets the test in s. 34.
• Not a firearm: The object was not a firearm, or not an imitation firearm.
• Identity and Charter issues: The evidence does not show who was involved, or police breached your rights.

Related consequences

• Section 85: A weapons prohibition is mandatory on conviction under s. 109.
• Section 87: The court must consider a weapons prohibition under s. 110.
• Bail: Firearm charges often carry a reverse onus. See firearms charges and bail.

Possible outcomes

Effects beyond the sentence

Because s. 85 carries a maximum of 14 years, a conviction can make a permanent resident inadmissible for serious criminality. For s. 87, a sentence of more than 6 months can have the same effect. A conviction can also lead to the loss of any firearms licence.

The difference between pointing and displaying

The law draws an important distinction between pointing a firearm at someone and simply displaying or holding it. A person who lifts a firearm while moving it, or who carries it openly without aiming it at anyone, has not necessarily pointed it within the meaning of s. 87. However, displaying a firearm in a threatening way can still lead to other charges, such as uttering threats or assault. The exact position of the firearm, the direction it faced and the words that were used all matter.

Imitation firearms and police response

Using a replica or BB gun in public often leads to a significant police response, because officers cannot tell whether it is real. Even when the object turns out to be an imitation, charges under s. 85 or other weapons offences may still follow. Carrying a realistic replica in public without a good reason can create serious risks for everyone involved.

Self-defence and firearms

Self-defence under s. 34 of the Criminal Code can apply to firearm cases, but the response must be reasonable in the circumstances. The court looks at the nature of the threat, whether there were other ways to respond, whether a weapon was used or threatened by the other person, and the size, age and abilities of the people involved. Pointing a firearm in response to a minor threat is unlikely to be considered reasonable.

How we can help

We can review exactly what happened with the firearm and whether a s. 85 charge can be avoided. Call (647) 223-1980 for a free consultation.

Frequently asked questions