Firearm Charges in Toronto: Sections 91, 92 and 95

By Robb MacDonald · Updated 21 October 2026

Sections 91, 92 and 95 are the main gun possession charges. Section 91 covers a firearm held without the required licence or registration certificate. Section 92 adds proof you knew you lacked them. Section 95 covers a loaded prohibited or restricted firearm, or one with ammunition at hand. None has a minimum sentence, but section 95 reverses the bail burden.

What is the difference between sections 91, 92 and 95?

All three are possession offences in Part III of the Criminal Code. They share a starting point: the Crown must prove that you possessed a firearm in the legal sense. After that they part ways.

• Section 91, unauthorized possession. Under s. 91(1), it is an offence to possess any firearm without a licence that lets you possess it and, for a prohibited or restricted firearm, without a registration certificate for that gun. It applies to every class of firearm, including an ordinary rifle or shotgun.
• Section 92, knowing unauthorized possession. Section 92(1) covers the same conduct, but the Crown must also prove you knew you did not hold the licence or the certificate. That extra element is why it is treated more seriously.
• Section 95, a loaded prohibited or restricted firearm. Under s. 95(1), it is an offence to possess, "in any place," a loaded prohibited or restricted firearm, or an unloaded one "together with readily accessible ammunition that is capable of being discharged in the firearm," without both an authorization or licence under which you may possess it in that place and the registration certificate.

A licence and a registration certificate are two different documents, both issued under the Firearms Act. The licence is personal: it says what classes of firearm you may hold. The registration certificate attaches to a particular prohibited or restricted gun. Section 95 adds a third idea, the place. A licence and certificate are not enough if they do not allow you to have that firearm where it was found, which is why a licensed owner can face a s. 95 charge.

The Code does not define "readily accessible." Whether ammunition was close enough to count is decided on the facts, such as whether it was in the same bag, the same room or the same compartment of a car as the gun.

Sections 91, 92 and 95 side by side

Criminal Code ss. 91, 92, 95, 109, 110, 515(6), 730 and 787; Immigration and Refugee Protection Act s. 36. Current to the laws-lois consolidation of 30 September 2026.

Why does the Crown's election matter?

Sections 91 and 95 are hybrid offences. The Crown decides whether to proceed by indictment or summarily, usually early in the case, and the choice changes a good deal.

• The maximum. On indictment, five years for s. 91 and 14 years for s. 95. Summarily, both fall under the general limit in s. 787: two years less a day, a $5,000 fine, or both.
• The court. A summary charge stays in the Ontario Court of Justice. On indictment, s. 536 lets you choose a provincial court judge, a Superior Court judge alone, or a judge and jury. Section 92 is indictable only, so that choice is always yours.
• A preliminary inquiry. Since 2019, s. 535 limits preliminary inquiries to offences punishable by 14 years or more. A s. 95 charge on indictment qualifies on request; ss. 91 and 92 do not.
• The record. Under s. 4 of the Criminal Records Act, you can apply for a record suspension five years after a summary sentence is complete, and ten years after a sentence on indictment.

One thing the election does not change is immigration. Immigration law treats every hybrid offence as indictable even when it was prosecuted summarily, as explained below.

What sentence does a section 95 charge carry now?

Until 2015, s. 95 carried a minimum of three years for a first offence and five for a later one on indictment. In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada held 6 to 3 that those minimums were cruel and unusual punishment under s. 12 of the Charter and struck them down. The Court described s. 95 as covering a wide range of conduct. At one end is a person carrying a loaded handgun for criminal purposes. At the other is a licensed, responsible owner who stores an unloaded gun safely with ammunition nearby but is mistaken about where it may be kept, which the Court saw as close to a licensing offence with little moral fault.

Parliament repealed the s. 95 minimums in S.C. 2022, c. 15, which received Royal Assent on 17 November 2022. The same Act repealed the minimums for repeat offences under s. 92. Today a judge can consider the whole range for both sections, from a suspended sentence with probation to a penitentiary term.

Where a case falls in that range depends on the facts and the person. The factors that usually carry the most weight are:

• whether the gun was loaded, and whether it was a handgun;
• where it was: a car or a public street, or a home;
• any link to other crime, such as drug dealing; acting for a criminal organization is an aggravating factor written into s. 718.2;
• the person's age, record and prospects, and whether they hold any licence at all;
• the principle of restraint, which requires the court to consider every reasonable sanction short of jail.

Because there is no minimum, a conditional sentence served in the community is legally possible on s. 95 under s. 742.1, as long as the sentence is under two years and the court finds the community would not be endangered. It is not available where the offence is prosecuted by indictment as a criminal organization offence. Whether one is realistic in a given case is a different question, and the answer turns on the factors above.

A discharge, which ends with no conviction, is a different matter. Section 730 excludes any offence punishable by 14 years, which rules out s. 95. It remains available on ss. 91 and 92, and that is one reason a plea to a lesser possession charge can matter so much.

Can you get bail on a section 95 charge?

Yes, but you carry the burden. Section 95 is listed in s. 515(6)(a)(vi), alongside firearm trafficking and breaking and entering to steal a firearm. For those charges the justice must order detention unless the accused shows why it is not justified.

Since 15 July 2026, the Bail and Sentencing Reform Act (formerly Bill C-14) has raised that bar. The accused must now show cause "by clearly demonstrating that their proposed release plan addresses the risks" on each ground for detention: attendance in court, public safety and confidence in the administration of justice. In practice that means a written plan, sureties who can explain how they will supervise, and conditions that match each concern the Crown raises.

A charge under s. 91 or s. 92 is not on the reverse-onus list by itself. The burden still shifts if another trigger applies, for example if the person was already on release for an indictable offence, was under a weapons prohibition order at the time, or is not ordinarily resident in Canada.

Whoever carries the burden, any release on a firearm charge must include a condition banning firearms, ammunition and other weapons until the case ends, unless the justice finds it unnecessary for anyone's safety (s. 515(4.1)).

Our guide to the 2026 bail changes explains what sureties need to know under the new rules.

When is the gun legally yours?

Possession is defined in s. 4(3). You possess something if it is on you, if you knowingly have it in another person's custody, or if you knowingly keep it in any place for your own use or someone else's. Where one person has it with the knowledge and consent of others, all of them are deemed to possess it.

Two Supreme Court decisions shape how that is applied. In R. v. Morelli, 2010 SCC 8, the Court confirmed that knowledge and control are essential to possession. In R. v. Terrence, [1983] 1 SCR 357, it held that knowledge and consent are not enough for joint possession without some measure of control.

Those rules decide the three situations that come up most often in Toronto gun cases.

• A car. A gun under a seat or in the glovebox does not belong to everyone in the car. The Crown has to prove that each person charged knew it was there and had some control over it. The driver, the owner and each passenger are assessed separately, using things like where they sat, what was in plain view and what they said.
• A shared home. A gun in a closet or a common room is not automatically possessed by every occupant. The evidence that ties it to one person, such as documents in the same drawer, fingerprints or DNA, has to be weighed against the others who had access.
• A bag. Carrying a bag is not the same as knowing what is inside it. Whose bag it was, who packed it and what else was in it often matter more than who was holding it when police arrived.

Forensic evidence is not always conclusive. A fingerprint or DNA profile on a gun can show contact at some point, but it does not by itself show when that contact happened or that the person knew the gun was in a particular place on the day of the arrest.

Can the gun be excluded if the search was unlawful?

Yes. Many Toronto firearm cases start with a traffic stop, a street detention, a search incident to arrest or a search warrant, and each of those has legal limits. Section 8 of the Charter protects against unreasonable search or seizure, and s. 9 against arbitrary detention. Section 10(b) gives a detained person the right to be told about a lawyer and to speak to one without delay.

When a right was breached, s. 24(2) lets the court exclude the evidence if admitting it would bring the administration of justice into disrepute. The test comes from R. v. Grant, 2009 SCC 32, and it has three lines of inquiry: how serious the police conduct was, how much the breach affected the accused's protected interests, and society's interest in a trial on the merits. Grant was itself a Toronto firearm case, and there the gun was admitted.

The outcome went the other way in R. v. Le, 2019 SCC 34. Police walked into the backyard of a townhouse at a Toronto housing co-operative without a warrant and began questioning the young men there. The Supreme Court held 3 to 2 that the men were arbitrarily detained from the moment police entered. It excluded the loaded firearm, cocaine and cash found on Mr. Le after he ran and was arrested, and entered acquittals.

These challenges depend on details: what the officers knew, what they said, what the notes and in-car video show, and what was in the information used to obtain any warrant. That is why the disclosure in a gun case is read line by line before anything else.

What happens to the seized gun and your licence?

• Forfeiture. Under s. 491(1), when a court determines that a person committed an offence involving a firearm or ammunition, the seized items are forfeited to the Crown. If the lawful owner was not a party to the offence and had no reason to think the gun would be misused, s. 491(2) requires the court to order it returned, or its value paid, to that owner.
• A mandatory prohibition on s. 95. A conviction or discharge under s. 95 brings an order under s. 109. On a first offence, it bans ordinary firearms and ammunition for at least ten years after release, and prohibited and restricted firearms for life. On a later offence, everything is banned for life.
• A discretionary prohibition on ss. 91 and 92. These are not on the mandatory list, but because they involve a firearm, s. 110 requires the court to consider an order of up to ten years after release, and to give reasons if it declines.
• Anything else you own. When a prohibition order begins, anything it covers that is in your possession or already seized is forfeited unless the order says otherwise (s. 115). Possessing anything while prohibited is a separate offence with a maximum of ten years (s. 117.01).

For a licensed owner charged under s. 91 or s. 95 over storage or transport, the prohibition can matter as much as the sentence. That is often where the negotiation in these cases is focused.

How does a gun charge affect immigration?

For anyone who is not a Canadian citizen, this can be the most important part of the case. Under s. 36(1)(a) of the Immigration and Refugee Protection Act, a permanent resident or foreign national is inadmissible for serious criminality if convicted of an offence with a maximum of at least ten years, or sentenced to more than six months for any offence. Section 36(3)(a) deems every hybrid offence indictable, even when the Crown proceeded summarily.

• Sections 92 and 95 carry maximums of 10 and 14 years, so a conviction meets the serious criminality test whatever the sentence.
• Section 91 has a five-year maximum. For a permanent resident it amounts to serious criminality only if a sentence of more than six months is imposed. A foreign national, such as a student or worker, is inadmissible for ordinary criminality on any conviction for it.
• A discharge is not a conviction (s. 730(3)). On a s. 91 or s. 92 charge it can protect a person's status in a way that no sentence can.

Tell your lawyer your status at the first meeting, before any plea discussion. An immigration lawyer should be part of the conversation before a resolution is accepted.

What should you do if you are charged with a firearm offence?

• Say nothing to police about the gun, the car, the bag or who else was there. You have the right to remain silent, and you should speak to a lawyer before any interview.
• Do not discuss the case with co-accused, friends or family, by phone or by message.
• Start the bail plan at once. On a s. 95 charge, the people who will act as sureties need to be ready before the hearing.
• Follow every release condition exactly, including the ban on weapons.
• If you are not a citizen, say so at the start.

Identification was the issue in R. v. Kidane, an armed robbery with a firearm tried before a jury in 2013. Three Toronto police officers said they saw it happen from a surveillance van. Robb's cross-examination exposed inconsistencies in their accounts, and his client was acquitted of all charges.

The full range of gun and weapons charges, from concealed knives to firearm trafficking, is set out on Robb's page as a firearm offences lawyer in Toronto.

Robb MacDonald has practised criminal defence for more than 20 years. He earned his J.D. at Queen's University in 2006, was called to the Ontario bar in 2007, and trained under Edward Greenspan QC. If you or someone close to you has been charged with a gun offence, call (416) 315-1505, day or night. Consultations are free and confidential, and you can also book one online.

This article describes the law as of 21 October 2026. It is general information, not legal advice for a particular case.