WRITTEN BY
Hussein Aly
In today’s world almost everyone is a photographer and videographer of some sorts. The digital era has created a generation where photos and videos of almost every object on earth exist in infinite amounts. Although it may appear illogical, illegal objects are routinely captured in photos and videos. More specifically, photos and videos of people holding weapons are routinely taken and disseminated on the internet. This begs the question of what the potential penal consequences of creating a photo or video of a weapon are. This article seeks to ensure that childish naivety or desire to be cool and popular does not lead to contact with the criminal justice system.
What is a Weapon?
Some items are obviously weapons, for example firearms, tear gas, mace, tasers. These items are either “prohibited”, or “restricted” weapons and simply having possession of these items is illegal unless the person possesses a valid license or authorization.
In contrast, other objects which are not codified as restricted or prohibited weapons are not as easily recognizable as objects which could lead to criminal charges. Parliament has intentionally defined what constitutes a “weapon” in a manner which can capture a wide range of objects. The Criminal Code of Canada (the Code) defines a “weapon” as follows:
“weapon” means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm;
The law is clear on one point, “any thing” can be a weapon in Canada. The determining factor on whether an object will be deemed to be a weapon in law depends on whether the object was designed, used, or intended to be used to injure, threaten or intimidate another person. These objects are illegal to possess when they are concealed (Carrying a concealed weapon), and /or when they are possessed for a purpose dangerous to the public peace (Weapons Dangerous).
By way of analogy, a beer bottle is not a weapon, but if you hold it up and threaten to hit someone with it at a bar you are arguably committing the offence of Weapons Dangerous. Similarly, if you are in a fight with someone and you hide a beer bottle in your waistband you are arguably committing the offence of carrying a concealed weapon. When attempting to ascertain if an object is a weapon the law requires you to ask yourself why you have possession of the item. If you are in possession of an object to threaten, intimidate, or injure someone you could be committing a criminal offence.
When are you in Possession of a Weapon?
The question of whether an item is a weapon, restricted weapon, or prohibited weapon does not have to be resolved unless someone is first in possession of the item. The Code defines possession as follows:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
The section mandates someone to be in possession of an item when it can be established that they had knowledge and control of the item. Regardless of the nature of the contraband, proving that someone was in possession of an object requires evidence of both knowledge and control.
Knowledge refers to evidencing that the accused knew about the presence of the impugned item(s). Control refers to having physical control or authority regarding the movements of the item. When both of these elements are established beyond a reasonable doubt possession has been proven.
The law is clear that someone can be in legal possession of an item when it is not on their person, or in their own home so long as they know what the item is and have placed it somewhere where they can control the movements of the item. Further, the law permits multiple people to be in possession of the same item when the individuals have knowingly consented to the item being secured somewhere. In the end, you can be in possession of an item when it is in your pocket, your car, your home, or any other location where you knowingly store the item and continue to have control over it.
How Photos can help prove a Case of Possession
The dangers of photos and videos depicting a weapon are that they can serve as incriminating evidence in many ways.
First, before a charge is laid the police have to become aware of a potential crime. Photos or videos which become public can stimulate an investigation. These same photos or videos can be used to assist the police in obtaining a search warrant for the place where they believe the object is stored. Being subjected to police interrogation, and/or the execution of a search warrant are experiences to be avoided. Even if a charge is never formally laid, avoiding these experiences alone is reason not to display, create, or possess photos of weapons.
Further, evidence of a crime can be direct or circumstantial, and photos or videos can be used as evidence in court. A photo or video of a weapon can help the Crown prove that you knew about the existence of a weapon because the photo may have you holding the item, or the photo may have been found in your phone, bedroom, or on your person. This type of evidence can be used to strengthen the case against you.
Furthermore, a photo or video can help prove that an object is in fact a weapon. For example, a photo could bare the make and model of an item and permit the Crown to obtain the same item independently. If the photo is clear, and most photos today are, the Crown could use the item they obtained in court to prove the item is a weapon and establish guilt notwithstanding that they have never seized the actual weapon. For example, a video could depict that a knife is a flick knife, and/or that it opens with centrifugal force which would make it a prohibited weapon. An image or video showing an individual possessing the weapon could make out a case of possession of a prohibited weapon.
Conclusion
Photos and videos of weapons create a risk that an individual will have contact with the criminal justice system. Whether a single photo or video could lead to a conviction for a criminal offence involving a weapon is a theoretical question that a parent need not answer. The answer is immaterial because simply being investigated, searched, and/or charged is ample reason to avoid taking videos or photos of weapons.
Hussein Aly’s practice is focused exclusively in criminal law. Hussein has successfully argued cases before the Ontario Court of Justice, Ontario Superior Court of Justice, and the Ontario Court of Appeal. He has defended cases ranging in severity from Shoplifting to First Degree Murder. Hussein has a particular interest in defending cases involving illegal stops and searches by the police.
Hussein believes both the very rich, and the very poor should always receive the same competent defence. He is committed to providing anyone who has the unfortunate experience of being criminally charged with the best defence imaginable.
Hussein can be contacted by telephone anytime at 647-220-1382, or by email at aly@criminaltriallawyers.ca.
(c) Hussein Aly 2012