Possessing a loaded prohibited or restricted firearm, such as a handgun, without the necessary authorization to have it in that state and place, is treated as one of the most serious firearms offences in the Criminal Code, separate from the general licensing offences discussed on our unauthorized possession page. This guide explains how this offence is defined under section 95, the penalties involved, and a major Supreme Court of Canada decision that changed how its mandatory minimum sentence is applied. It is general legal information, not legal advice about a specific case.
What Does Section 95 Cover?
Section 95 of the Criminal Code makes it an offence to possess a loaded prohibited or restricted firearm, or an unloaded one together with readily accessible ammunition capable of being fired in it, in a place where the person is not authorized to have the firearm in that state. This is narrower and more specific than the general licensing offences under sections 91 and 92, focusing specifically on the combination of a restricted or prohibited firearm, ammunition readily available to it, and a lack of authorization for that particular circumstance.
Restricted and Prohibited Firearms
Restricted firearms generally include certain handguns and some semi-automatic rifles or shotguns that do not meet the definition of prohibited, while prohibited firearms include fully automatic firearms, certain other handguns, and firearms specifically listed in regulations. Possessing either type without proper authorization for the circumstances is what triggers section 95, distinct from the broader category of non-restricted firearms, which are subject to different, less stringent rules.
Classification and Penalties
Section 95 is a hybrid offence, but its indictable-route penalty structure includes a mandatory minimum sentence, discussed further below.
Possession Under Section 95 at a Glance
- Classification
- Hybrid offence (Crown elects summary conviction or indictment)
- Maximum penalty – indictment
- Up to 10 years imprisonment
- Maximum penalty – summary conviction
- Up to 1 year imprisonment
- Mandatory minimum as written in the statute
- 3 years for a first offence; 5 years for a subsequent offence, if prosecuted by indictment
- Constitutional status of the mandatory minimum
- Struck down as unconstitutional by the Supreme Court of Canada
These figures reflect the wording of the Criminal Code as of this page's last update. As explained below, the mandatory minimum sentences in section 95 have been found unconstitutional by the Supreme Court of Canada, meaning courts are not required to impose them, although the sentence actually imposed can still be substantial. A criminal lawyer can explain the current, practical effect of this ruling on a specific case.
R. v. Nur and the Mandatory Minimum
In R. v. Nur, decided by the Supreme Court of Canada in 2015, the Court struck down the mandatory minimum sentences in section 95, three years for a first offence and five years for a subsequent offence, as unconstitutional. The Court found that although these mandatory minimums would not be excessive in most cases actually prosecuted under section 95, the section was drafted broadly enough to capture a reasonably foreseeable range of less serious conduct, such as a licensed, responsible gun owner who stores ammunition in a way that technically makes it "readily accessible" to an otherwise properly stored firearm, for which a three-year mandatory sentence would amount to cruel and unusual punishment under section 12 of the Charter of Rights and Freedoms. As a result of this ruling, courts are not required to impose the mandatory minimum sentences set out in the text of section 95, though the specific sentence imposed in an actual case still depends on all the circumstances and can still involve significant custody, particularly for more serious conduct involving genuinely dangerous firearm possession.
Even though the mandatory minimum for section 95 has been struck down, the underlying maximum penalties remain in place, and courts continue to treat possession of a loaded restricted or prohibited firearm as a serious matter. A criminal lawyer can explain how this ruling applies in a specific case and what sentence is realistically likely.
How This Relates to Other Weapons Charges
Section 95 is distinct from the more general licensing offences under sections 91 and 92, discussed on our unauthorized possession page, which can apply to any firearm without regard to whether it is loaded or has ammunition readily accessible. Where a firearm was used during the commission of another offence, a separate charge may apply, discussed on our using a weapon during an offence page. Selling or transferring a prohibited or restricted firearm without authorization is addressed separately under our weapons trafficking page.
Possible Defences
Section 95 cases often turn on whether the Crown can prove the firearm was actually loaded, or that ammunition was genuinely readily accessible to it, as opposed to being stored separately in a way that meets legal storage requirements. Whether the person was in possession of the firearm at all, as opposed to another person in a shared space, and whether any relevant licence or authorization did in fact cover the circumstances, can also be significant issues. Given the seriousness of this charge and the ongoing legal significance of the Nur decision, a criminal lawyer experienced in firearms matters should review the full disclosure before advising on possible defences or sentencing arguments.
What Happens After This Charge
Given the seriousness of this offence, a person charged under section 95 is very unlikely to be released directly by police and will typically face a contested bail hearing. The case then proceeds through the standard court process, including disclosure of the Crown's evidence regarding how the firearm and ammunition were found and stored, before moving toward a resolution or a trial. See our sentencing overview and criminal records overview for more on what follows a conviction.
The Nur decision remains one of the most frequently cited firearms cases in Canadian sentencing, and it illustrates a broader point about mandatory minimum sentences in the Criminal Code: a mandatory minimum can be found unconstitutional not because it is unfair in the specific case before the court, but because the provision, as written, could reasonably apply to a much less serious scenario where the same fixed sentence would be grossly disproportionate. This is why criminal lawyers continue to track court decisions on mandatory minimums closely, since the constitutional status of a given provision can change over time as new cases are decided.
Frequently Asked Questions
Is the mandatory minimum sentence for section 95 still enforced?
No, not as written. The Supreme Court of Canada struck down the mandatory minimum sentences in section 95 as unconstitutional in R. v. Nur (2015). Courts still have discretion to impose a significant sentence, but they are not legally required to impose the specific minimums set out in the text of the section.
What does "readily accessible ammunition" mean?
It generally refers to ammunition that could quickly be loaded into the firearm, as opposed to ammunition stored separately and securely in a way that meets legal storage requirements. Whether specific storage arrangements meet this threshold can be a contested issue in these cases.
Is this the same charge as unauthorized possession under sections 91 or 92?
No. Section 95 is a more specific and generally more serious offence, focused on loaded restricted or prohibited firearms or those with readily accessible ammunition, whereas sections 91 and 92 address the broader question of licensing for any type of firearm.
Can a licensed firearms owner still be charged under section 95?
Yes, in some circumstances, such as where a firearm is loaded or has ammunition readily accessible in a place or manner not authorized by the person's licence, even if the person holds a valid licence generally.
Will I go to prison if convicted under section 95?
It depends on the specific facts. While the mandatory minimums have been struck down, courts still frequently impose custodial sentences for this offence, particularly where the circumstances involve genuine danger, such as possession of a loaded handgun in a public place. A criminal lawyer can give a realistic assessment based on the specific facts.