Possession of a Loaded Prohibited or Restricted Firearm

In a previous blog we discussed offences that involve possession of firearms.  One of those offences that has a unique element is possession of a loaded  prohibited or restricted firearm (Section 95 of the Criminal Code).  The Crown must prove that the accused:

  1. possessed the firearm;
  2. that it was either restricted or prohibited;
  3. that the accused had knowledge that the firearm had the characteristics of a restricted or prohibited firearm;
  4. that the firearm was either loaded or unloaded together with readily accessible ammunition; and
  5. that the accused knew the firearm was loaded or that there was readily accessible ammunition

It is this last element which makes this offence different from other possession of firearms offences.

In a recent decision, the Ontario Court of Appeal overturned a conviction for possession of a loaded firearm.  The trial judge accepted the evidence of the police officers who executed the search warrant at the accused’s apartment. This evidence, taken as a whole, established that the appellant was in actual possession of a Ruger handgun, which he attempted to move beneath his buttocks as he sat on the couch in the living room area of the apartment. The gun, fully loaded with a box magazine containing 11 cartridges, was a restricted firearm. In her analysis of the fault element required to establish personal possession, the trial judge was satisfied that by manually handling the gun, the appellant knew what he handled was a loaded firearm.  The Court of Appeal disagreed and held that the evidence was insufficient to establish knowledge that the gun was loaded as other reasonable inference arose on the evidence.


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