The Offence of Careless Use of a Firearm

Whether it be a deliberate shot taken at a mistaken target during a hunting trip or an accidental discharge while handling a gun at home, your actions can lead to a criminal charge.

The offence of careless use of a firearm can be found in subsection 86(1) of the Criminal Code.  As with all offences, the Crown must establish two elements beyond a reasonable doubt: an act and a mental state.   In this case, the act can be proven in one of two ways: the accused used a firearm [1] in a careless manner or [2] without reasonable precautions for the safety of other persons. At this preliminary stage, the analysis must focus on the objective assessment of the accused’s conduct or, if appropriate, the insufficiency of precautions at the time the firearm was used. Taking into account all of the circumstances, this evidence is essentially based on the conduct of the accused when he used the firearm, the location of the incident, and the riskiness of the situation.

As for the mental element, the gravamen of the offence is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person. If a reasonable doubt exists, either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a person cannot be found guilty of the offence. It is not based solely on the conduct expected of a reasonable person, which would bring us too close to the standard of conduct of simple imprudence.  The evidence must instead demonstrate a marked departure from behaviour that a so-called reasonable person would have adopted in the same situation. Evidence of a marked departure remains a question of degree left to the assessment of either a judge or jury.

Given that the standard of care of a reasonably prudent person is at issue in these cases, sometimes the defence will need to call expert evidence.  This can be particularly crucial in cases where death occurs as a result of the careless use of a firearm.  If convicted in such cases, an individual faces a mandatory minimum four year jail sentence.





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