Failing to Declare Firearms at the U.S./Canada Border Crossing
It is an all-too-common situation. You are an otherwise law abiding U.S. citizen, with an impeccable background, who is a lawful gun owner in the United States. You arrive at the Canadian border, perhaps in a mobile home, with a view to transiting through Canada. Maybe you’re going to Alaska, or perhaps just paying a visit to Banff before heading south into the United States through Alberta. You have firearms or ammunition in your possession which are either restricted or prohibited in Canada and which you are not licensed to possess here in any event. Firearm possession is such an accepted part of daily life in the United States that you or may not have remembered that you have the firearms or even turned your mind to the issue until such time as a Customs Inspector asks you whether you are in possession of firearms. At that point, panic sets in and you lie.
The suspicious Canadian Customs and Immigration Officer refers you for a secondary inspection. Upon further questioning, and aware that your vehicle is going to be searched in any event, the truth comes out. You are then arrested and placed in a cell to await the arrival of the R.C.M.P. Further interviews are conducted by the police with two possible results. First, you are kept in custody pending a bail hearing (at which your are released on the payment of some sort of bail) or, if you’re lucky, you are released directly by the police on a Recognizance with a modest deposit for bail ($500.00 is common) requiring you to appear for court at a later date.
Release of Your Vehicle
Customs will release your vehicle only upon payment of an administrative penalty, which, for a first offence, is calculated on the basis of $1000.00 per firearm in the vehicle and $500.00 for each prohibited magazine. Seized firearms and cartridges will not be returned.
Charges You Will Face
After that, they are charged with the offences of Smuggling and Making a False a False or Deceptive Statement under the Customs Act and Possession of Prohibited Firearms and often prohibited devices such as overcapacity magazines under the Criminal Code.
One difficulty in these cases from a defence perspective is that there is usually no defence to the charge. Unlike police officers, customs inspectors do not require grounds to detain you for questioning or to conduct a search of your vehicle. The only realistic defences would be based on a lack of knowledge as to the presence of the firearm or ammunition in the vehicle. And generally, you have admitted to the customs inspector or the police that you had knowledge of the presence of the presence of the firearm. While there may be a technical defence based upon the wording of the charge, those are rare and are often cured by amendment. Constitutional issues can arise in customs searches and interviews where they are conducted in a blatantly abusive way, but those circumstances are rare.
Will you go to jail as a first offender in these circumstances? Probably not. These offences are what is known as “hybrid” or “Crown election” offences, meaning the Crown can decide whether to proceed by way of “Indictment” (roughly equating with “felony”) or “Summary Conviction” (roughly equating with “misdemeanour”). The maximum penalties for these types of offences, if proceeded with by Indictment is $500,000.00 fine/5 years imprisonment on the Smuggling/Making a False Declaration charges and 10 years’ imprisonment with a 3 year mandatory minimum) on the firearm counts, assuming the weapon is loaded or there is readily available ammunition. The present trend, however, is for the Crown Prosecutor to agree to proceed summarily, thus avoiding the three-year mandatory minimum sentence for possession of a loaded firearm. (Note that this minimum sentence has been found to be unconstitutional in any event.) At the same time, the range of sentence (up to 1 year imprisonment with no minimum) does include the possibility of jail, so that cannot be ruled out entirely. Much depends on your own circumstances and the circumstances of the offence (such as the number of firearms, how they were stored, and how quickly you “owned up” when being interviewed, assuming that you did).
The more real concerns for many people is that they will have a criminal record in Canada, which could potentially impact their employment in the United States (depending on occupation) and their ability to enter Canada. If, as a non-resident alien, you have a criminal record for these offences, you will be inadmissible to Canada either indefinitely, or for a significant period of time.
Avoiding A Criminal Record
In Canada, even if you plead guilty, or are found guilty, as long as the offences carry maximum penalties of less than 14 years’ imprisonment and have no minimum penalty, the judge has the discretion to grant you what is called a “discharge”. If you are discharged in respect of an offence, it means that the conviction is not entered. That means you will have no criminal record in respect of it.
There are two kinds of discharges – one is “absolute” and the other “conditional”. An “absolute discharge” means that you simply walk out of the courtroom with no strings or conditions attached. The matter is concluded and you have no further obligations. A “conditional discharge” is one where you are placed on a probation order and subject to certain conditions.
Absolute discharges for smuggling a loaded prohibited firearm or firearms into Canada are rare but not unheard of. The cases where they have been granted are older and have generally involved members of the U.S. Armed Forces who are en route to Alaska and for whom a criminal conviction would be ruinous to their career.
Conditional discharges are rarer still, but one reason for that is that counsel generally do not ask the judge to order one. That’s because most non-residents would not want one. As a U.S. resident granted a conditional discharge for this type of offence, the sentence is very likely to include the requirement that you complete a substantial number of community work service hours in Canada. Most U.S. residents are not prepared to spend several weeks in Canada completing a large number of community hours even if such an arrangement could be made. Accordingly, most of the time, defence counsel does not ask the court to consider one.
Note: R. v. Schaffner (2016 B.C. Prov. Ct. unreported) a case on which I was counsel, was the first case in Canada for which a conditional discharge was granted for this type of offence. Mr. Schaffner had to complete 160 community work service hours in Canada as his sentence. A review of this decision will illustrate what sort of detailed plan needs to be in place and what sort of consequences a record would need to create for a court to consider such a remedy.