In Canada, weapons possession contrary order is a serious firearms and weapons offence under Section 117.01 of the Criminal Code. It applies when a person possesses a firearm, crossbow, prohibited or restricted weapon, prohibited device, or prohibited ammunition even though a court order or other legal restriction says they are not allowed to. This offence is classified as a hybrid offence, meaning the Crown can choose to proceed by indictment or by summary conviction. In the national crime reporting system, it is tracked under UCR Code 3370, which helps police and courts identify it as a distinct weapons offence tied to breach of a prohibition or authorization condition.
The Legal Definition
“Subject to subsection (4), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition, knowing that the person is not authorized to possess it or of any condition of that authorization, or, in the case of a firearm, a crossbow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition, finding on reasonable grounds that the person is prohibited by any order made under this Act or any other Act of Parliament from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or prohibited ammunition and having knowledge of that order.”
In plain English, this provision makes it an offence to have certain weapons or related items when you either: (1) know you are not legally authorized to possess them, or (2) know that a court or statutory order prohibits you from having them at all. The law specifically covers firearms, crossbows, prohibited and restricted weapons, prohibited devices, and prohibited ammunition. It focuses on people who are already under a weapons prohibition or who are aware of conditions that limit their authorization, such as licensing or registration rules under the Firearms Act.
Two key elements are central: possession and knowledge. Possession for the purposes of Section 117.01 can be physical (having the weapon on your person), constructive (having it stored where you control it), or joint (sharing control with others). Knowledge means the person is aware either that they are not authorized or that a prohibition order exists. The statute, as set out in Section 117.01 of the Criminal Code, requires proof that the accused knew about the prohibition or the lack/limits of authorization, not just that the weapon was physically present somewhere nearby.
Penalties & Sentencing Framework
- Type of offence: Hybrid (Crown may proceed by indictment or by summary conviction).
- Mandatory minimum penalty: None.
- Maximum penalty (indictable): Up to 10 years imprisonment.
- Maximum penalty (summary conviction): Up to 6 months imprisonment or a fine up to $5,000, or both.
Because weapons possession contrary order is a hybrid offence, the Crown decides whether to proceed by indictment or by summary conviction based on the seriousness of the facts, the accused’s prior record (especially for violence or weapons), the risk to public safety, and the broader context (for example, whether the weapon was found during an ongoing investigation into violence or organized crime). Proceeding by indictment exposes the accused to much heavier penalties, including a potential 10-year prison sentence.
There is no mandatory minimum sentence under Section 117.01, which gives sentencing judges flexibility to tailor a fit sentence. However, courts consistently treat breaches of weapons prohibitions as highly aggravating. Prohibition orders are usually imposed because a person has shown risk factors, such as prior violent offences, domestic violence, or unsafe firearms use. When a person later ignores that order and is caught with a weapon or ammunition, courts often view this as a direct challenge to public safety and to the authority of the court.
On a summary conviction, sentences can range from fines and probation to short jail terms, particularly for first-time offenders, limited or technical breaches, or when there is evidence of rehabilitation. On indictable proceedings, especially where the accused has prior weapons or violence convictions, sentences can move into the mid- to high-range of custody. Courts will weigh factors such as: the type of weapon (for example, prohibited handguns or prohibited devices are more serious than some less lethal items), the circumstances of discovery (during a domestic call, gang investigation, or traffic stop), whether the weapon was loaded or accessible, and the length and terms of the underlying prohibition order.
Common Defenses
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Lawful excuse or authorization under the Firearms Act or supervision exception
One potential defense is that the accused had a lawful excuse or valid authorization to be in possession of the item, despite what appears to be a prohibition or restriction. Under the broader firearms regime, certain narrowly defined situations allow an otherwise prohibited individual to handle or be in proximity to a firearm or weapon. Examples include supervised use at a licensed range under direct control of an authorized person, or handling firearms in the course of lawful activities where a specific exception applies. If the defence can show that the possession fell squarely within such an exception, or that the Crown cannot disprove this beyond a reasonable doubt, the offence under Section 117.01 may not be made out. The key is that the authorization or excuse must be genuine and recognized under the Firearms Act or related regulations—it is not enough that the accused believed they should be allowed to have the weapon.
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Lack of knowledge of the prohibition order or item possession
Section 117.01 explicitly requires that the person has knowledge of the prohibition or lack of authorization. If the accused did not know that there was a prohibition order in force, or did not know they had the weapon or ammunition in their possession, this can be a powerful defence. For example, if an individual was never properly served with a prohibition order, or if the order’s terms were unclear or never explained, the Crown may struggle to prove that element. Similarly, if a weapon is found in a shared residence, vehicle, or storage space, the defence may argue that the accused did not actually know it was there or did not control it. Canadian courts analyze whether the person had subjective awareness of the order or item; lack of knowledge cannot be based on willful blindness, but if the Crown cannot establish real knowledge or deliberate avoidance, the offence fails.
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Charter rights violations leading to exclusion of evidence (e.g., s. 8 unreasonable search)
In many weapons possession contrary order cases, the firearm or weapon is discovered during a police search of a person, vehicle, or home. If the search violated the accused’s Charter rights, especially the right to be secure against unreasonable search or seizure under section 8 of the Canadian Charter of Rights and Freedoms, the defence can seek to have the evidence excluded. For instance, if police searched a vehicle without reasonable grounds, or entered a home without a warrant or valid exigent-circumstances justification, a court may rule that the state breached the Charter. When that occurs, the defence can bring an application under section 24(2) of the Charter to exclude the firearm, ammunition, or related evidence. If that evidence is central to proving weapons possession contrary order and is excluded, the Crown may be unable to proceed, resulting in an acquittal or withdrawal of the charge.
Real-World Example
Imagine an individual who, following a previous violent incident involving a gun, is made subject to a weapons prohibition order as part of their sentence. The order clearly states that they are not allowed to possess any firearms, ammunition, or certain other weapons for 10 years. Two years later, police attend at the person’s home for an unrelated matter and see a rifle case in plain view in the living room. On further lawful search, they find a functioning firearm and a box of ammunition stored in a closet. The accused admits that the gun is theirs and that they know about the earlier prohibition. Even though the firearm was never discharged or used to threaten anyone during this incident, they have still committed the offence of weapons possession contrary order under Section 117.01. The police would seize the weapon and ammunition, lay charges, and the Crown would decide whether to proceed by indictment given the prior violent background. At sentencing, the court would consider the earlier violent offence, the clear terms of the prohibition, and the deliberate decision to keep a firearm anyway, likely resulting in a significant custodial sentence and an extension or renewal of the prohibition order.
Record Suspensions (Pardons)
Because weapons possession contrary order is a hybrid offence, the waiting period to apply for a record suspension (commonly called a pardon) under the Criminal Records Act depends on how the Crown proceeded. If the Crown proceeds by summary conviction, the offence is treated as a summary matter for record-suspension purposes, and the typical waiting period is 5 years after the completion of all parts of the sentence (including jail, probation, and payment of any fines or surcharges). If the Crown proceeds by indictment, the waiting period increases, and an individual will generally have to wait 10 years after completing their full sentence before applying. In either case, the Parole Board of Canada will look closely at public safety, the person’s conduct since the offence, and whether they pose any ongoing risk related to weapons or violence. The more serious the underlying facts of the weapons possession contrary order charge, the more important it is for the applicant to demonstrate stable, law‑abiding behaviour over an extended period.
Related Violations
- Possession of a Weapon for a Dangerous Purpose
- Careless Use of a Firearm
- Unauthorized Possession of a Firearm