Have you been accused of committing a weapons offence? What are the possible consequences of a conviction under Canada law?

The possession of an offensive weapon is an extremely serious offence which normally carries a term of imprisonment.

The maximum sentence which can be handed down in the magistrates’ court is 6 months imprisonment and/or a fine (for a single offence).

At the crown court, the maximum sentence is four years imprisonment and/or a fine.

There are a number of different types of weapon offences under English law. The primary weapon offences can be summarised as:

1. Possession of offensive weapon/s
2. Possession of a knife/bladed article
3. Possession of a firearm (both real and imitation)

Possessing an offensive weapon in a public place is an offence contrary to section 1 of the Prevention of Crime Act 1953.

What is classified as an offensive weapon in Canada law?

The law recognises three categories of offensive weapon:

1. Those where objects are made for use for causing injury to the person. These items are legally classified as ‘offensive weapons per se’ and include flick knives, kitchen knives, butterfly knives, pepper sprays, knuckle dusters and nunchucks
2. Those where objects are adapted for such a purpose, i.e. to cause injury to a person. This includes items that would otherwise be incapable of causing injury but have been changed so that they now can, for example a sock containing a snooker ball, a sharpened stick or a sharpened snooker cue, or a water pistol filled with acid
3. Those where objects are not so made or adapted but carried with the intention of causing injury to the person, for example a cup of bleach carried with the intent of throwing it into someone’s face to cause injury, sharpened nail scissors or a baseball bat

In the first two categories of offensive weapon, the prosecution does not have to prove that the accused had the weapon with him/her for the purpose of inflicting injury. If the court is certain that the weapon is offensive, an individual will only be acquitted if he or she establishes the defences of lawful authority or reasonable excuse.

Under the third category, the prosecution must prove the accused had the object with him or her with the requisite intention to cause injury.

On occasion, individuals have been accused of possessing an offensive weapon due to the fact that they have had articles which could be offensive weapons in law on their person, which they have had for perfectly innocent reasons. For example, articles that have been used in connection with work or home DIY such as utility knives or hammers can be mistaken as offensive weapons by overzealous police officers.

When is the possession of an offensive weapon permitted by Canada law?

In terms of potential defences in law, the defence of lawful authority is a reference to those people who from time to time carry an offensive weapon as a matter of duty, such as a soldier with a rifle or a police officer with a truncheon. Whilst they are carrying an offensive weapon, they are doing so under lawful authority.

Under certain circumstances, individuals in positions of authority and protection such as security guards or door staff may be permitted to carry offensive weapons, but this will very much depend on the surrounding facts of the alleged offence.

The question of the defence of reasonable excuse is a complex mixture of law and fact and often a lawyer will be required to explain where a certain set of facts will lie.

Examples of reasonable excuse may be:

1. Finding an offensive weapon and being discovered carrying it on the way to hand it in to the police station
2. Possession of a weapon having disarmed another
3. The legitimate transportation of an offensive weapon, such as when moving house or taking it home having purchased it in a shop

Again, it is impossible to give a comprehensive list of what can and cannot constitute a reasonable excuse, as this will vary on a case by case basis.

Where an individual carries a weapon for their own protection and can show on a balance of probabilities that they fear an ‘imminent attack’, this is capable of constituting a reasonable excuse. With the words ‘imminent attack’ not being defined in law, it is for the court to determine how imminent, how soon, how likely and how serious the anticipated attack has to be to allow a reasonable excuse.