Police stop a vehicle. There is a driver and a passenger. On the back seat lies a 45 calibre handgun in plain sight. As was discussed in a previous blog, the Crown has to prove that an accused has both knowledge of and control over a firearm before a conviction can be entered for a possession offence. In this scenario, knowledge is pretty easy to prove given the gun is not hidden. But how can the Crown prove either the driver or passenger had control over the .45?
To address this problem, Parliament added the offence of occupying a motor vehicle knowing an unauthorized firearm is present (s. 94 of the Criminal Code). While the Crown must prove the accused was aware a firearm was present while the accused occupied the vehicle (knowledge), it not need prove control over it. However, just being in a motor vehicle is not enough. In addition, the Crown must prove that the coincidence of occupancy and knowledge was attributable to something amounting to voluntary conduct on the part of the appellant. 94(3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle.
As a result, it is a defence to the charge to show either that the accused left the vehicle, tried to or that it was impossible to (for example because the car sped off after the shooting).