What Can I Do If The Police Seize My Firearms?
The possession of firearms is strictly regulated in Canada. Our laws require gun owners to be licensed and certain guns must be registered.
The police authority to seize a firearm in possession of an unlicensed individual is straightforward: evidence to support the charge of unlawful possession.
However, when certain conditions are met, police officers also have the power to seize licensed firearms.
Police Power to Seize Firearms
The Criminal Code permits the police to apply for a warrant to seize a firearm where reasonable grounds exist that its possession is “not desirable in the interest of safety”: s.117.04(1).
A police officer may also seize a firearm without a warrant where reasonable grounds exist that “it is not desirable in the interest of the safety” and it was not practicable to obtain a warrant: s.117.04(2)
Importantly, it is not just the interest of the safety of the licensee (the person who owns the firearm) that may be considered, but, in addition, the safety of “any other person”.
Possession and Acquisition License (PAL) is Revoked
Of vital importance, if a firearm is seized under this section, every authorization, license, and registration certificate held by the person from whom the firearm was seized is automatically revoked: s.117.04(4). The practical consequence of the revocation is the licensee is no longer authorized to own or possess any firearm.
The Firearm Forfeiture Hearing
Police have 30 days from the date of seizure to bring an application for an order that the firearm(s) be forfeited to the Crown: s.117.05(4)(a).
In addition to the forfeiture, the justice has the authority to prohibit you from possessing firearms for up to five years: s. 117.05(4)(b).
At the hearing, the judge shall hear all relevant evidence: s. 117.05(3). The Crown can rely on hearsay evidence, but in considering its weight, the justice must scrutinize the evidence to ensure that it is credible and trustworthy.
The Question to Be Determined
At the s.117.05 forfeiture hearing, the question to be determined is whether it is “not desirable in the interest of the safety” that the person from whom the firearm was seized should possess a firearm or any other weapon.
The standard of proof for the order is the civil standard of a “balance of probabilities” (“more likely than not”) and not the criminal standard of “proof beyond a reasonable doubt.”
However, the interests of safety are determined based on the circumstances present at the time of the hearing. This is important because the events that initially justified the police seizing the firearm may no longer exist when the application is heard.
As a result, unless the Crown satisfies the justice that it is more likely than not that there are legitimate concerns that the licensee currently lacks the responsibility and discipline required of a gun owner, the application should be dismissed.
Responding to the Notice of Hearing
You must respond to the s.117.05 application on time. While the police must give notice of the application, a justice may proceed with the hearing itself ex parte: s.117.05(2). This means the hearing can proceed in your absence if you do not appear.
You can, of course, represent yourself. However, if you are planning to hire an experienced firearm lawyer, the time to do so is before the hearing, not after. It is much more difficult (and more expensive!) to appeal the decision of justice after the decision has been made.
Preparing for the Firearm Prohibition Hearing
In preparing for the hearing, some of the issues you should address with your firearms lawyer include:
- Was the seizure of firearms lawful?
- Or did the seizure involve violations of your constitutional rights under the Charter of Rights and Freedoms?
- Was the application commenced within 30 days of the seizure?
- If not, the Criminal Court states that any items seized “shall be returned to the person from whom it was seized”: ss. 117.06
- What evidence can you present to the justice to counter the Crown’s argument that safety is at risk by your continued possession of firearms?
- Your lawyer should work with you to identify witnesses and any documentary evidence relevant to your case. For example, I have successfully presented a package of material that convinced the Crown Attorney that there were no current safety concerns. As a result, the application was abandoned and my client’s firearms were returned without the need for a hearing.
If you would like to discuss the details of the seizure of your firearms, a forfeiture or prohibition hearing, call 249-266-4222 for an immediate free consultation.
While the right to be released on bail applies to all criminal charges (meaning no offence, no matter how serious, is excluded), the practical reality is that being released on bail is much more difficult when you are facing firearm related charges.