How to Prevent Forfeiting Your Guns at a Firearm Hearings
If you are arrested and charged with a crime in Canada, you may need to defend your right to retain your firearms at a firearms hearing or face forfeiting them to the government.
This may even apply if you have been charged with a non-firearms offence where the bail conditions stipulate that you must hand over your firearms to the police until your case is resolved.
Even if your particular case is dismissed or you are acquitted at trial, you may not simply be able to go and collect your firearms, even if they are all legally registered and licenced.
As harsh as this may seem, the Crown may request that your firearms are retained by the government and not returned if a prohibition order is granted.
There will then be a firearms hearing at which you can present evidence and tell your side of the story.
What is a prohibition order in Ontario?
A prohibition order is a court order that prohibits you from owning certain possessions and forces you to surrender any of these items presently in your possession.
Such an order often applies to firearms and may be granted at a sentencing hearing for a crime or a firearms hearing if requested by the prosecution.
A typical firearms prohibition order may prevent you from possessing any of the following:
- A firearm
- A restricted weapon
- Explosive substances
The exact nature of your prohibition order will be tailored according to your circumstances and your criminal record.
If you breach the terms of a firearm protection order, you can be arrested for a criminal offence under s. 145(5) of the Canadian Criminal Code.
Your firearms could even be destroyed if the prosecution obtains an Order for the Disposition of Seized Property.
Will you need to attend a firearms hearing?
You may need to attend a firearms hearing if one of the following two situations apply in your case:
- You are adjudged to be unfit to possess firearms by the police or a firearms officer, who then apply for a protection order (even if you are released, acquitted, or your case is dismissed before trial).
- Your firearms are seized by a warrantless search. This is unusual but normally results from law enforcement believing that they have “reasonable grounds” to confiscate a firearm, prohibited device, ammunition, etc. in the interests of safety (and obtaining a warrant would be impracticable).
If firearms are confiscated, an application for a firearms hearing should be made within 30 days, at which you or your criminal defence lawyer will need to appear before a provincial court judge.
At this hearing, the Crown will present evidence to convince the judge that a firearms prohibition order should be issued.
What happens at a firearms hearing in Ontario?
For a prohibition order to be awarded at a firearms hearing, the Canadian Criminal Code says that the Crown will need to prove that:
“It is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.”
As you can see, the judge’s interpretation of whether there is a threat to the safety of any individual, including the owner, is the key point here.
In trying to persuade the judge, the Crown may submit evidence to show that the person against whom the order is sought has been convicted of certain criminal offences or treated for a mental illness and poses a risk of due to a history of threatening and violent behaviour, and/or lacks the responsibility and discipline required of firearms owners.
Your lawyer can help defend you at the firearms hearing, presenting arguments that defend your right to legally own firearms and demonstrating that you pose no risk to the safety of any other individual.
The judge will then decide, based on the arguments from both sides, whether there are sufficient grounds to issue the firearms prohibition order.
What can you do if your firearms license is refused or revoked?
A firearms licence in Canada is called a Possession and Acquisition License (PAL), which is renewable every five years.
If you apply for a PAL (or attempt to renew it after the five-year expiry period) and are refused or the license is revoked, you cannot legally own a firearm.
However, the Firearms Act does allow you to apply to the provincial court for a “reference” hearing, at which you can appeal the decision before a judge. You must apply for this hearing within 30 days of your license being revoked/refused.
At the hearing, several outcomes are possible depending on the judge’s interpretation of your situation:
- The refusal/revocation of license decision is upheld
- The chief firearms officer is directed to issue a firearms licence
- The revocation of the licence can be cancelled
The judge’s decision can be appealed at the Ontario Superior Court of Justice. The judgement will be reviewed and a decision made whether an appeal can proceed.
If it proceeds, the outcome will be either to uphold the original decision by the lower court or to allow the issuance of a licence, registration certificate or authorization to own a firearm.
If the decision goes against you, a final appeal can be heard by the Ontario Court of Appeal but this is extremely rare and will only proceed if the law has been incorrectly applied in previous hearings.
Are you at risk of losing your firearms licence?
Defending yourself at firearms hearings or firearms “references” is a daunting prospect.
Your chance of success is much higher with a seasoned firearms lawyer at your side, presenting evidence why you should be able to retain your firearms and not forfeit them to the government.
Take the first step to protect your right to possess a firearm by calling 613-223-4089 to arrange a free case evaluation with one of the lawyers at Friedman Mansour, LLP.