Overview
Someone can be charged with a criminal offence for having a weapon even if they never use it, threaten to use it, or hurt someone with it. Carrying or having weapons, an imitation of a weapon, or a prohibited device or ammunition for a purpose which is dangerous to the public peace or for the purpose of committing an offence.Carrying or having weapons, imitation of weapons, or a prohibited device, or ammunition for a purpose which is dangerous to the public peace or for the purpose of committing an offence.
It is important under this section not only that it be carried but why it was carried. That renders the charge rather odd and hard to defend, as the heart of the charge is what the accused was thinking.
What is a Weapon?
Definitions of ‘weapon’ are very broad under the Criminal Code. Anything used, designed to be used, or intended to be used for the purpose of causing death or injury, or threatening or intimidating another person. This includes items that are readily apparent, such as guns, knives, machetes, batons and brass knuckles. It also includes common items that are weapons when used or carried for certain purposes, including:
- A kitchen knife taken out during an argument
- A bat, crowbar, or wrench in the car in case of an emergency
- A broken bottle, belt, or work tool.
- Bear spray that is on a person with the purpose of using it.
- A duplicate or copy of a firearm.
As the definition depends on the intent to use, a lawfully possessed good can be included within it. A toolbox contains a tool, which is a hammer. The same hammer that is brought into a confrontation can be used as a weapon.
Typical Charges
The majority of these charges have been incurred due to conflict in the real world, not planned violence. Common scenarios include:
- One person arrives at the dispute with a knife in hand or in their waistband.
- After a tense encounter, police discover a bat, blade or some other object in a vehicle and are told it’s “for protection”
- Imitation guns are used in public. Use of fake guns in public.
- Someone holding a tool or object during a neighbour, company or family dispute
The Crown does not have to show evidence of the weapon being used. It only requires that it demonstrates that the object was possessed with a “dangerous” or “unlawful” purpose.
What the Crown Must Prove
The Crown must prove three things beyond a reasonable doubt:
Possession or carrying- The accused was in possession of a weapon, an imitation weapon, a prohibited device or ammunition in their possession or under their control.
Knowledge and voluntariness-The accused was acquainted with the article and had it with his consent. Just because an object is located in a common area doesn’t necessarily count.
Dangerous purpose-The item was in possession for an end that was dangerous to the public peace or for the purpose of committing an offence.
The third is typically the battleground. Since prosecutors don’t always get an admission of purpose, they try to get the court to make an inference. Judges consider the circumstances of the setting, timing, and possession, the accused’s words and actions, if any, previous threats or hostility, if the item was hidden or openly carried, and if there was a plausible innocent explanation. Anyone can have the same knife and be in a wide range of situations. Anyone with a knife in a pack does not bother me.
Penalties
Possession of a weapon for a dangerous purpose is a hybrid offence, and the Crown decides on the course of action. This typically depends on the severity of the misconduct, the circumstances surrounding the accused and any criminal history.
Summary conviction: up to 2 years less a day in jail, fine or both
Indictable conviction: A conviction on indictment is a sentence of up to ten years in prison.
Aggravating Factors are considered by the Court when determining sentences. They encompass carrying the weapon near a school, at a demonstration or public event, while intoxicated, or in relation to threats or a history of violence. Anything that shows the person is no longer acting aggressively, but fearfully or panic-stricken, or a clean record or sincere remorse, can lower the sentence. Depending on the circumstances, charges can also be withdrawn; peace bonds, diversion programs, or conditional and absolute discharges are also options.
Common Defences
The type of defence that you need will depend on the facts, but there are a few common themes.
No dangerous purpose- This is the most straightforward challenge. The accused admits possession of the item but proves it was transported for a legitimate purpose like work or hunting, fishing, camping or a hobby. This can be backed up with evidence such as the job history, how the item is used or its condition.
Lawful excuse or ordinary use- Tools are a regular accompaniment for chefs, tradespeople, farmers, and outdoor workers that may be misused. The inference of a dangerous purpose is undermined if the context reveals the item was involved in normal, non-threatening activity.
Inadequate understanding or management- However, if it was someone else’s article or in use by a shared vehicle or in a bag that the accused was unaware of, then the Crown may be unable to establish the element of ‘knowing possession’.
Charter violations: Section 24(2) of the Charter allows the court to exclude the weapon as evidence if it was not obtained by the police through a lawful search, an arbitrary detention, or a failure to consider the rights of the individual, including the right to counsel. If it happens not to occur, the prosecution’s case can go down the drain.
Problems with credibility and inference: This is because the evidence does not prove intent, so the defence can claim that the evidence could reasonably lead to another conclusion, and reasonable doubt remains.
Consequences of a Conviction
If someone is convicted, they will have a criminal record, and the impact of a conviction goes beyond the sentence itself:
- Difficulty finding work or obtaining professional licences
- Restrictions on entering countries and the United States.
- Prohibitions on the possession of firearms were effective for many years.
- Issues related to immigration application or permanent residency application.
That is why it is often important to avoid a conviction or a non-criminal resolution, especially for first-time offenders and young people, for these collateral consequences.
Key Takeaways
The essence of Section 88 is purpose. An ordinary object can form the basis of a grave offense if the circumstances suggest it was carried for the purpose of threatening, intimidating or committing an offense. The context, credibility and method of evidence collection are important factors, as the Crown has to establish that purpose beyond reasonable doubt.
Where tools, blades and personal protective equipment are used for legitimate purposes, the mode and place of transport of such items should be considered by the user, as this may have a significant impact on the assessment of intent.
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