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In Canada, the offence commonly referred to as offensive weapons, prohibited is governed by Section 91(2) of the Criminal Code. This provision makes it a crime to possess certain high‑risk weapons, devices, or ammunition unless you are properly authorized under the federal Firearms Act. Classified as a hybrid offence, it can be prosecuted either by indictment or by summary conviction depending on the seriousness of the case. In police and court statistics, this conduct is tracked as UCR Code 3320. Because of its connection to public safety and gun control, this charge is a central part of the legal framework around prohibited weapons Canada wide.
The Legal Definition
“Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless the person is authorized under the Firearms Act to do so.”
Criminal Code, RSC 1985, c C‑46, s. 91(2) – justice.gc.ca
In plain English, Section 91(2) makes it illegal to possess certain categories of weapons or related items if you do not have the proper legal authority. This includes prohibited weapons (such as some types of knives, mace, or brass knuckles), restricted weapons (like many handguns), prohibited devices (for example, some high‑capacity magazines or suppressors), and prohibited ammunition. You do not need to be caught using the item – simple possession without authorization is enough to commit the offence.
The key phrase in this section is “unless the person is authorized under the Firearms Act.” The Firearms Act is the federal legislation that sets out licensing, registration, and authorization rules across Canada. If you hold a valid licence, registration certificate, or special authorization that specifically covers the item in question, you may fall outside the scope of this offence. If you do not, Section 91(2) can apply—even if the item is stored at home and never used. More detail on the types of prohibited and restricted items is provided in the regulations under the Criminal Code and Firearms Act, but the core idea is strict control of highly dangerous items for public safety.
Penalties & Sentencing Framework
- Mandatory minimum penalty: None.
- Maximum penalty (indictable): Imprisonment for a term not exceeding 10 years.
- Maximum penalty (summary conviction): Imprisonment for a term not exceeding 2 years less a day or a fine (or both).
- Offence classification: Hybrid (may be prosecuted by indictment or by summary conviction).
Because Section 91(2) is a hybrid offence, the Crown prosecutor chooses whether to proceed by indictment or by summary conviction. This decision is influenced by factors such as the type of weapon or device, the circumstances of possession (for example, stored at home versus carried in public), the accused’s prior criminal record, links to organized crime, and any aggravating public‑safety concerns. Proceeding by indictment signals that the Crown views the conduct as more serious and exposes the accused to a maximum of 10 years in prison.
There is no mandatory minimum sentence under Section 91(2). This gives judges considerable discretion in crafting a sentence tailored to the particular case. Sentences can range from discharges or fines (in less serious, summary conviction matters involving technical or paperwork‑type breaches) all the way up to lengthy jail terms where the prohibited items pose a clear and significant danger, especially if combined with other criminal activity. Courts will consider public safety as a central sentencing objective, alongside denunciation and deterrence, particularly where prohibited weapons are concerned.
On a summary conviction, the maximum is 2 years less a day in jail, along with potential fines and probation orders. These cases are generally reserved for less serious violations—perhaps where the accused had some form of licence but strayed outside authorized conditions, or where the prohibited item was not clearly linked to broader criminality. On an indictable basis, with a 10‑year maximum, the case proceeds in a higher court, and sentencing can be substantially more severe, particularly if there are aggravating factors such as gang connections, prior firearms convictions, or multiple prohibited items. Other common consequences can include forfeiture of the weapons and devices, bans on possessing firearms in the future, and strict probation terms.
Common Defenses
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Lawful excuse or authorization under the Firearms Act
One of the most direct defenses is showing that you were actually authorized to possess the weapon, device, or ammunition in question. Because Section 91(2) itself recognizes possession “unless the person is authorized under the Firearms Act,” evidence of a valid licence, authorization to transport, authorization to carry, or other statutory permission can negate an essential element of the offence. In practice, this might involve producing documentation from the Canadian Firearms Program, records of restricted or prohibited status being incorrectly assigned, or proof that the weapon does not, in fact, fall into the prohibited category described in the code or regulations. If the Crown cannot prove unauthorized possession beyond a reasonable doubt, the charge should not be made out.
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Compliance with licence, registration certificate, or exemption
Closely related to authorization is the defense that the accused was in full compliance with all licensing and registration requirements. For example, a person may hold a valid Possession and Acquisition Licence (PAL), along with a current registration certificate for a restricted firearm, stored and transported according to the rules. In some situations, federal regulations carve out specific exemptions for particular types of devices or ammunition (for instance, for law enforcement, certain businesses, or collectors under controlled conditions). If the evidence shows that the person’s possession falls under such an exemption, or that their licence and registration were properly in place and covered the item, the Crown may not be able to prove unlawful possession under Section 91(2). Often, these cases turn on technical details of classification and paperwork, which defense counsel can scrutinize against the regulatory scheme governing prohibited weapons Canada wide.
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Charter challenges: unreasonable search and seizure or overbreadth
Another line of defense involves invoking the Canadian Charter of Rights and Freedoms. Many Section 91(2) cases arise after police discover a weapon or device during a search of a home, vehicle, or person. Under Charter section 8, everyone has the right to be free from unreasonable search and seizure. If the search that uncovered the prohibited weapon was conducted without proper grounds, without a valid warrant where one was required, or in an excessively intrusive manner, a court may find a Charter breach. The usual remedy is an application under section 24(2) to exclude the improperly obtained evidence. If the weapon or ammunition is excluded, the Crown may have no remaining proof of possession and the charge can collapse.
In some cases, counsel may also argue that the law is overbroad—that the prohibition captures more conduct than necessary to achieve valid public‑safety objectives, infringing liberty under section 7 of the Charter. While courts have generally upheld Canada’s firearms control scheme, overbreadth challenges can still be relevant where the prohibited classification or its application appears extreme or disconnected from risk. Even if the provision itself is upheld, a successful Charter challenge can result in a stay of proceedings or an acquittal in a particular case, especially if the violation of rights is serious.
Real-World Example
Imagine a person in Canada keeps a prohibited weapon—such as a banned type of switchblade or a prohibited handgun with a high‑capacity magazine—stored in their home. They have no licence, no registration certificate, and no authorization under the Firearms Act. Police attend the residence on an unrelated matter and, during a lawful search, discover the weapon in a drawer. Even though the person never brandished the weapon, never took it out in public, and never intended to hurt anyone, they can still be charged under Section 91(2) because the offence focuses on unauthorized possession itself. Investigators will document and classify the weapon as prohibited, seize it as evidence, and forward the matter to the Crown. In court, the main questions will be: (1) Is the item legally a prohibited weapon or device? (2) Did the accused possess it? and (3) Were they unauthorized under the Firearms Act? If the answers are yes, a conviction is possible, and sentencing will then consider factors such as public safety risk, the person’s record, and the presence (or absence) of any criminal intent beyond possession.
Record Suspensions (Pardons)
People convicted under Section 91(2) may later seek a record suspension (formerly called a pardon) through the Parole Board of Canada. The waiting period depends on how the offence was prosecuted. Because this is a hybrid offence, treatment as a summary conviction matter usually results in a shorter wait—typically around 5 years after completing the entire sentence, including any jail time, probation, and payment of fines or surcharges. If the Crown proceeded by indictment, the waiting period is longer—often around 10 years after sentence completion. During this time, the individual must remain crime‑free and demonstrate that they have been rehabilitated. A record suspension does not erase the conviction but sets it apart in federal criminal record checks, making it easier to obtain employment, housing, and travel in many circumstances. However, because firearms and prohibited weapons are viewed as serious public‑safety concerns, applicants should expect the Parole Board to scrutinize the nature of the offence, the presence of any ongoing risk, and evidence of positive change.
Related Violations
- Carrying a Concealed Weapon
- Unauthorized Possession of a Firearm
- Trafficking in Firearms
