Section 117.05 Firearms Hearing: A Challenge to Firearm Possession in Dupree
Canadians may be interested in owning firearms for different reasons, including hunting, recreational or sport shooting, collecting or maintaining family traditions if they live in remote or rural areas of the country. Before anyone can own a firearm, they must go through rigorous training and successfully complete background checks.
If a gun owner faces criminal charges and is released on bail with conditions — such as a prohibition on possessing any weapons, including firearms — or experiences a mental health crisis or struggles with addiction, the chief firearms officer typically issues a Notice of Revocation of a Possession and Acquisition Licence (PAL). The PAL holder is then required to surrender his licence, firearms and ammunition. Next, the firearms are seized by the police. Last, the Crown applies for the disposition of the firearms under s. 117.05(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. Each of these steps requires its own detailed explanation. This article, however, neither constitutes legal advice nor expresses an opinion about gun ownership. The goal is to explore the legal test used when the Crown mounts a challenge to firearm possession.
Section 117.05(4) of the Code focuses on the safety of the public, including the gun owner, who is the respondent on the firearms hearing. It states, “it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance, or any such thing.”
The test for disposition of firearms pursuant to an application under s. 117.05(1) of the Code was recently clarified in R. v. Dupree, 2025 ONCJ 18. In Dupree, the respondent owned four long guns. Melissa Dupree was a former member of the Canadian Armed Forces who was diagnosed with post-traumatic stress disorder due to witnessing traumatic events during her service. She had some passive suicidal thoughts. Dupree acknowledged her mental condition and was undergoing therapy. However, she stopped taking her medication because of some side effects. The guns were proactively seized by the police after a call from her doctor. Dupree had no criminal record. According to her husband, who testified at the hearing, he knew about her suicidal ideation but believed she did not pose any threat to herself or her family members. The court found no basis for keeping her firearms. The Crown’s application was denied as was the related request for a prohibition order.
In Dupree, at para. 28, the court said that the application judge should review the evidence in its totality to determine whether there are legitimate concerns, on a balance of probabilities, indicating that the respondent currently lacks the responsibility and discipline required of a gun owner. At para. 29, the court went on to say that “the appropriate test is whether there are legitimate concerns the person lacks the responsibility and discipline the law requires of gun owners,” as articulated by Justice Bruce Durno in R. v. Day, [2006] O.J. No. 3187, at para. 36. See also R. v. Laxson, 2015 ONCJ 268, at para. 40.
To determine what it means for a person to lack the responsibility and discipline the law requires of gun owners, the application judge may consider the Hurrell factors, reflecting the regulatory criteria in ss. 5(1) and (2) of the Firearms Act, S.C. 1995, c. 39, applicable to the risk-assessment analysis inherent in the Crown’s application. These factors include “the interests of the safety of that or any other person”; whether the person has been convicted or discharged under s. 730 of the Code; whether the person has been treated for mental illness or confined to a hospital or institution for conduct associated with violence or threatened or attempted violence; or whether the person has a history of violent behaviour. See R. v. Hurrell, [2002] O.J. No. 2819, at para. 48.
Firearms safety is public safety; it goes beyond personal gun ownership and personal responsibility. If a gun owner experiences mental health or addiction-related issues or faces criminal charges, they might need to seek assistance and legal advice.
Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.
