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Canadian Criminal Law/Offences/Possession of a Weapon for a Dangerous Purpose

< Canadian Criminal Law | Offences
Possession of a Weapon for a Dangerous Purpose
s. 88 of the Crim. Code
Election / Plea
Crown ElectionHybrid
JurisdictionProv. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp.Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum6 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp.same as summary
Maximum10 years
References
Offence Elements
Sentence Principles
Sentence Digests
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Legislation

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88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.


– CCC

Proof of Offence

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Including the elements of time and date, jurisdiction, and identity, the crown must prove:

  1. that the object was in the possession of the accused,
  2. that the object was a weapon as defined in the Criminal Code, and
  3. that the purpose for which the respondent had possession was one which was dangerous to the public peace[1]
  4. that there was a danger to the public peace
  5. continuity of the object
  6. the object was filed as an exhibit


  1. ↑ R. v. Cassidy 1989 CanLII 25 (S.C.C.), (1989), 50 C.C.C. (3d) 193 at 197 (S.C.C.)

Interpretation

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The actus reus of the offence is established through possession.

Much of s. 88 consideration is upon the purpose for which the accused possessed the weapon.

Possessing a weapon in a reckless manner is not sufficient for proof of s.88. [1]

  1. ↑ R. v. McCullough, 2012 ONCJ 17

Purpose

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Proof of the purpose for possessing the weapon may be established by the manner in which the weapon is used, circumstances and statements surrounding its use and the rational inferences to be drawn from the facts[1]

A person's initial intent in possessing a weapon "does not necessarily remain constant and may change to a dangerous intent even though the initial purpose in taking possession was not a dangerous one."[2]

It has been suggested that the lawful possession of a weapon does not suddenly become unlawful by virtue of the possessor acting out in sudden anger with the weapon.[3]

It is not sufficient to simply establish that "what was done was in fact dangerous to the public peace". There must be an intent for that purpose. [4]

  1. ↑ R. v. Chalifoux (1974), 14 C.C.C. (2d) 526 (BCCA) at p. 529
  2. ↑ R. v. Calder, (1984), 11 C.C.C. (3d) 546 (Alta. C.A.) at p. 549
  3. ↑ R. v. Flack, [1969] 1 C.C.C. 55 (B.C.C.A.)
  4. ↑ R. v. Kerr 2003 ABCA 92 (CanLII), (2003), 12 C.R. (6th) 308 (Alta. C.A.) at para. 27

Self-Defence

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Self-defence can be a limited defence to this charge.[1] However, self-defence will only apply where the attack is imminent and inescapable.[2]


  1. ↑ R. v. Sulland, 1982 CanLII 495 (BCCA)
  2. ↑ R. v. Kerr, [2004] SCJ 39 at para. 25 (the test) and para. 38 [1]; R. v. Nelson (1972) 8 CCC (2d) 29 (ONCA)

Kiennapple

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Where the evidence is substantially the same for proving the elements of possession for a dangerous purpose and assault with a weapon, convictions on both are precluded.[1]

  1. ↑ R. v. Briscoe 1992 CanLII 938 (BC CA), (1992), 76 C.C.C. (3d) 563 (B.C.C.A.)

See Also

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