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Unauthorized Transfer of a Firearm: Section 99(1)

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  • The meaning of “transfer”  in s. 84(1) does not include “offer to purchase” a firearm: R v Bienvenue, 2016 ONCA 865 at para 5

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Using Firearm in Commission of Offence: Section 85

 

  • In order to sustain a conviction under section 85(2), the Crown must prove beyond a reasonable doubt that the firearm was actually used to facilitate the commission of the predicate offence; mere possession of a firearm is insufficient: R v Andrade, 2015 ONCA 499 at paras 30, 33-37

    • As a precondition, the Crown must prove that the accused committed the predicate offence: Andrade at para 29

 

 

Weapons Dangerous, Section 88(1)

 

  • Actus Reus

    • the actus reus is made out upon establishing that the accused possessed the weapon: R v Andrade, 2015 ONCA 499 at para 36

  • Mens Rea

    • s. 88(1) is a “specific intent” offence requiring proof that the appellant’s subjective purpose in possessing the weapon was objectively dangerous to the public peace: R v Andrade, 2015 ONCA 499 at paras 15, 35

    • The trier of fact must find that the appellant possessed the weapon for a purpose dangerous to the public peace – not just for a dangerous purpose. The purpose must be determined at the instant of time which preceded the use of the weapon: R v Budhoo, 2015 ONCA 912 at paras 72-73

  • General

    • The fact that a weapon was used in a manner dangerous to the public peace does itself constitute the offence - but the formation of the unlawful purpose may be inferred from the circumstances in which the weapon was used: R v Budhoo, 2015 ONCA 912 at para 73

 

 

Possession of a Weapon or Firearm Obtained by Commission of Offence: S. 96(2)

 

  • Elements of the offence:

  1. The accused was in possession of a firearm 

  2. The firearm was obtained by crime; and

  3. The accused knew or was wilfully blind as to whether that the firearm had been obtained by crime: R v Jean, 2016 ONCA 137 at paras 10-11

 

  • The knowledge that the weapon was obtained by crime requires more than that the accused knows that his possesion is illegal (e.g., because he does not have a valid licence. The accused must:

    • know that the firearm was "obtained" by the commission of an offence that he committed (e.g., theft); OR

    • he must know that he is obtaining from another who obtained the firearm by the commission of an offence (e.g., knowing purchasing from someone he knows stole the firearm: R v Jean, 2016 ONCA 137 at para 14

 

 

Weapons Prohibition Order: Section 109

 

  • Despite a weapons prohibition order being mandatory under s.109(1)(c), if no judicial order is made, no order shall issue: R v. Shia, 2015 ONCA 190 at paras 34-38

 

 

Use of Weapon During Manslaughter: Section 236(a)

 

  • The use of a firearm by itself cannot be an aggravating consideration in sentencing under s. 236(a), because this provision already takes into account that a firearm was used in the commission of a manslaughter: R v Araya, 2015 ONCA 854

    • However, the circumstances surrounding the use of the firearm can constitute an aggravating factor