Unauthorized Possession of a Firearm (Section 91)

The short answer

Section 91 of the Criminal Code makes it an offence to possess a firearm without a licence that allows you to have it. For restricted and prohibited firearms, you also need a registration certificate. Many s. 91 charges come from paperwork problems, such as an expired licence or an inherited firearm, rather than from anything dangerous. Because of that, these cases can often be resolved in ways that protect your record, especially when the issue is addressed early.

What possession means

Possession is broader than having something in your hands. The law recognizes three kinds:

• Personal possession: The firearm is on your body or in your hands.
• Constructive possession: You know about the firearm and have control over it somewhere else, such as your home or car.
• Joint possession: Someone else has the firearm with your knowledge and consent.

The Crown must prove that you knew about the firearm and had some control over it. Simply being near it is not enough.

Common situations

• A licence expired and was not renewed in time.
• A firearm was inherited from a relative and kept without a licence.
• A firearm belonging to someone else was found in your home.
• A firearm was moved or stored by someone who did not have the right class of licence.

Exceptions

Section 91(4) sets out two exceptions:

• Supervised use: You were using the firearm under the direct and immediate supervision of someone who could lawfully possess it.
• By operation of law: You came to have the firearm through an estate or a similar situation, and within a reasonable time you either disposed of it lawfully or obtained the right licence.

For example, someone who inherits a parent's rifle has a reasonable time to get a licence or transfer it. Keeping it for years without doing either is where problems start.

What happens after you are charged

1. Seizure: Police usually seize the firearm and any others found, along with ammunition.
2. Release: Most people charged only under s. 91 are released, often with a condition not to possess weapons.
3. Disclosure: The Crown provides police notes, photographs, licence records and any search warrant.
4. Resolution or trial: Your lawyer reviews the licence history and discusses options with the Crown.

Section 91 is not one of the reverse onus offences at bail, so the Crown generally has to justify any detention.

The evidence in a typical case

The Crown usually relies on records from the Canadian Firearms Program showing your licence status, the firearm itself, photographs of where it was found, and anything you said to police. If several people lived in the home or used the car, the Crown also needs evidence connecting the firearm to you.

Penalties

• By indictment: The maximum is 5 years in jail.
• By summary conviction: The maximum is 2 years less a day, a fine of up to $5,000, or both.
• Minimum: There is no minimum sentence.

A conviction can lead to a discretionary weapons prohibition under s. 110, and the firearm can be forfeited. Section 92, which covers knowingly possessing a firearm without authorization, carries higher penalties.

Defences

• No knowledge or control: You did not know the firearm was there, or you had no control over it.
• An exception applies: Supervision or possession by operation of law covers your situation.
• Charter issues: Police searched your home or car without lawful authority.
• Classification: The item was not legally a firearm, or was not in the class alleged.

Possible outcomes

Licence and immigration consequences

A charge can lead the Chief Firearms Officer to review or revoke your licence. For permanent residents, a sentence of more than 6 months for this offence can lead to inadmissibility for serious criminality. Get advice before you resolve the case.

What to do now

• Do not move or transfer any firearm until you get legal advice.
• Gather proof of your licence history, any renewal application and any estate documents.
• Do not give a statement to police about who owns the firearm before speaking to a lawyer.

Why licensing cases are often resolved differently

Courts and Crowns generally recognize a difference between a person who let a licence lapse and a person who carries an illegal firearm in public. When there is no evidence of danger, no criminal record and no other charges, the Crown may be open to a resolution that avoids a conviction, especially if the person has since renewed the licence or lawfully disposed of the firearm. Taking those steps early, with legal advice, can strongly support that kind of outcome.

Section 91 compared with section 92

Section 91 covers possessing a firearm without the required licence or registration. Section 92 covers possessing a firearm while knowing that you are not authorized to have it, which is treated as more serious and carries higher penalties. The difference often depends on what you knew about your licence status, so records showing that you believed your licence was valid can be important.

Fixing the licence problem

If your charge comes from an expired or missing licence, there are usually lawful ways to fix the underlying problem. You may be able to apply for a new licence, transfer the firearm to a licensed person or business, or surrender it to police for disposal. Each option has consequences for the criminal case, so speak to a lawyer before taking any step.

How we can help

We can review how the firearm came to be in your possession, and look for a resolution that avoids a conviction, especially where the issue was paperwork. Call (647) 223-1980 for a free consultation.

Frequently asked questions