Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING-TRANSFERRING A FIREARM-SECTION 99 CRIMINAL CODE

R. v. Chief, 2024 MBCA 67, September 19, 2024, at paragraphs 18, 19, 23, 29, 36 to 44, and 45-46:

Firearm offences under s 99 attract a relatively broad range of sentences—from six-month conditional sentence orders to more than eight years’ incarceration.

Low End of Range

At the lower end of the range are cases where the mandatory minimum sentence was held to be unconstitutional and sentences of less than three years were imposed.

Mid-Range Sentences

The middle of the sentencing range for s 99 offences begins at the three-year mandatory minimum provided for in the Code.

High End of the Range

Sentences towards the higher end of the spectrum fall closer to the maximum provided for by s 99, as illustrated by the following decisions. 

Aggravating Factors

A common category of an aggravating factor considered in sentencing decisions under s 99 is the nature of the weapon or weapons and the relative danger posed to the community.

Handguns are described as particularly dangerous owing to their size, easily concealable nature and relationship to criminal activity…Transferring weapons that have had their serial numbers removed to render them more difficult to track is often noted as an aggravating factor.

Trafficking in semi-automatic and automatic weapons has been identified as an aggravating factor given that they are designed to cause maximum injury in a short period of time…Additionally, courts have held that if a firearm is loaded or accompanied by ammunition upon transfer, this is aggravating because the firearm is ready for immediate use.

The transfer of multiple weapons has been identified in several cases as an aggravating factor.

A number of aggravating factors that pertain to the individual offender and their circumstances also appear in the jurisprudence on s 99 sentencing. 

For example, it has been considered aggravating for an accused to transfer a weapon while under a pre-existing weapon prohibition. 

Some courts have found it to be aggravating for an accused to transfer firearms that they have lawfully purchased.  In doing so, they have taken advantage of a privileged position as a licensee to hide criminal transactions, thereby committing a breach of trust.

It is aggravating for an accused to transfer a firearm either to a person they know to be involved in criminal activity or to a stranger—indicating recklessness as to that person’s intended use of the weapon…Moreover, trafficking in firearms in association with, or for the benefit of, a criminal organization is aggravating.

Finally, several cases cite a purely financial motive for the offence as an aggravating factor to be considered in determining a fit sentence.

Mitigating Factors

There appear to be few mitigating factors that are specific or unique to the offence of transferring a weapon contrary to s 99.  Having said that, offenders who make a “hollow offer” to transfer a weapon where they do not in fact possess or have the ability to acquire one have been found to have reduced moral culpability.

A lack of financial motivation is a relevant circumstance in some cases where sentences in the lower end of the range are imposed, even if not specifically cited as a mitigating factor in sentencing.