Type of document: Prosecution Directive
Effective date: November 14, 2017

The illegal possession and use of firearms is a matter of grave public concern because of the potential for violence and serious physical harm including death. The protection of the public is the paramount consideration at all stages from judicial release to sentencing, in any prosecution involving firearms.

The term “firearm” refers to any barreled weapon from which a shot, bullet or other projectile can be discharged and that is capable of causing serious bodily harm and may include a pellet gun or air gun.

Judicial interim release (bail)

In all cases involving firearms, the Prosecutor must seek a detention order, absent exceptional circumstances, to ensure the safety and security of the public. If exceptional circumstances exist, the Prosecutor must obtain prior approval of the Crown Attorney or designate before recommending or consenting to any form of judicial interim release. This decision should be made at the earliest reasonable opportunity having regard to the requirements of the Criminal Code.

The Prosecutor must advise the Crown Attorney or designate, when an accused charged with an offence involving firearms is granted judicial interim release. In these circumstances, the Crown Attorney or designate should consider whether a bail review is warranted.

Reference should be made to the Judicial Interim Release (Bail) Directive.

Charge screening

There are certain firearms offences that are so serious and inherently dangerous as to warrant proceeding by indictment.

The Prosecutor must elect to proceed by indictment, absent exceptional circumstances, where an accused is charged with one of the following hybrid offences:

  • possession of restricted or prohibited firearm with ammunition
  • possession of firearm obtained by crime
  • making automatic firearm
  • carrying a concealed firearm
  • possession of a firearm for purpose dangerous to the public
  • unauthorized possession of a firearm
  • possession of firearm at unauthorized place
  • possession of firearm in motor vehicle
  • transfer a firearm without proper authority
  • unauthorized importing or exporting of firearms
  • possession of a firearm contrary to a court order.

If exceptional circumstances exist, the Prosecutor must seek prior approval from her Crown Attorney or designate before electing to proceed summarily.

Regarding all other hybrid firearms offences, the Prosecutor should consider the circumstances of the offender and the circumstances surrounding the offence in determining whether to proceed summarily or by indictment, including the following:

  • whether the accused has prior convictions or outstanding charges for weapons or violent offences
  • whether the conduct of the accused posed a danger to the public
  • whether the accused associates with or is a member of a criminal organization
  • whether the accused engaged in other criminal conduct
  • whether the offence is of a regulatory nature
  • whether the firearms, weapons or ammunition have been seized and will be forfeited
  • whether the accused is violating a prohibition order
  • whether the sentence if prosecuted summarily would adequately reflect the gravity of the alleged offence.

Resolution discussions and sentence

The resolution of firearms offences should be premised on providing the greatest possible protection of the public.

Absent exceptional circumstances and then only with the prior approval of the Crown Attorney or designate, the Prosecutor must not:

  • reduce or withdraw a charge involving a firearm to avoid a mandatory minimum term of imprisonment
  • reduce or withdraw a charge of break and enter to steal a firearm, robbery to steal a firearm, possession of restricted or prohibited firearm with ammunition, any firearms trafficking offence, any importing or exporting firearms offence
  • reduce or withdraw a charge of possession of firearm contrary to a court order.

Prosecutors should be aware that the Chief Firearms Officer has independent statutory authority and discretion under the Firearms Act and may seek a different regulatory remedy outside that agreed to by the Prosecutor.

Notice of Intention to Seek Increased Penalty

Notice of Intention to Seek Increased Penalty will be provided to an accused, where the Prosecutor seeks a higher range of sentence by reason of the accused’s previous criminal record.

Absent exceptional circumstances, the Prosecutor must file a Notice of Intention to Seek Increased Penalty in all qualifying cases where the accused has a previous conviction for a firearms offence.

In exceptional circumstances where the Prosecutor is satisfied that the accused poses no future threat to public safety, the public interest may be served without filing the Notice of Intention to Seek Increased Penalty. In these circumstances, the Prosecutor must obtain the prior approval of the Crown Attorney or designate not to seek an increased penalty.