INTRODUCTION AND BRIEF DESCRIPTION
Possession of a firearm with a partially or wholly obliterated serial number is proof that the possessor knew it had been altered, defaced or removed.
SECTION WORDING
108(4) In proceedings for an offence under subsection (1), evidence that a person possesses a firearm the serial number on which has been wholly or partially obliterated otherwise than through normal use over time is, in the absence of evidence to the contrary, proof that the person possesses the firearm knowing that the serial number on it has been altered, defaced or removed.
EXPLANATION
Section 108(4) of the Criminal Code of Canada is a provision of the law that specifically deals with firearms and their serial numbers. It provides a presumption that if a person possesses a firearm with a serial number that has been wholly or partially obliterated, then that person is presumed to know that the serial number on the firearm has been altered, defaced or removed. The section also clarifies that this presumption applies in proceedings for an offence under subsection (1) of section 108, which deals with offences related to the possession of firearms. This provision is important for law enforcement agencies as it makes it easier to prosecute individuals who possess firearms with altered serial numbers. The rationale behind this provision is that a person who legally owns a firearm would have no reason to obliterate the serial number. Therefore, possession of such a firearm would indicate that the individual knowingly acquired or kept a firearm with an altered serial number to avoid detection or prosecution for illegal activities. However, it is important to note that this section only creates a presumption and does not conclusively prove that the individual was aware of the altered serial number. The accused can still present evidence to the contrary to rebut this presumption. In conclusion, Section 108(4) of the Criminal Code of Canada serves as a helpful tool for law enforcement agencies in prosecuting individuals who possess firearms with altered serial numbers. It creates a presumption that can be relied upon, subject to being rebutted by evidence to the contrary. This provision reflects the Canadian government's commitment to reduce firearms-related violence and ensures that individuals who possess firearms are held accountable for their actions.
COMMENTARY
Section 108(4) of the Criminal Code of Canada is an important provision that aims to deter and punish individuals who alter, deface or remove serial numbers from firearms. This offence is often associated with illegal trafficking of firearms and is a serious threat to public safety. By making possession of such firearms a criminal offence, the law sends a strong message that such acts will not be tolerated and will be punished accordingly. The provision provides a presumption that possession of a firearm with an obliterated serial number is prima facie evidence of knowledge of its altered, defaced or removed status. This means that the prosecution does not need to prove that the accused knew that the serial number was removed, altered or defaced. Instead, the accused must rebut the presumption and provide evidence to the contrary. This serves as a significant evidentiary hurdle for the defence and makes the offence easier to prosecute. The presumption of knowledge is a legal shortcut that saves time and resources of the courts while ensuring that the accused receives a fair trial. It also reflects the public policy of deterring the alteration, defacement or removal of serial numbers on firearms by making it easier to hold individuals accountable for their actions. However, the provision has raised some concerns about its potential impact on innocent firearms owners. It is possible that a firearm could have a partially obliterated serial number due to normal wear and tear over time. In such cases, an innocent owner could be charged with the offence. The consent of the accused must be obtained before the firearm can be examined to determine whether the serial number has been altered, defaced, or removed. If the firearm is found to have an obliterated serial number, the onus is on the accused to provide evidence that the serial number was obliterated by normal use. To address these concerns, a reasonable interpretation of the provision is essential. The courts must be careful not to convict innocent individuals who unknowingly possess firearms with partially obliterated serial numbers. In such cases, the accused should be given the opportunity to demonstrate that the firearm was obtained legally and that the serial number was not removed, altered or defaced intentionally. The provision also highlights the need for stricter regulation of firearms and the importance of tracking firearms to prevent illegal trafficking. The government must make it more difficult for individuals to obtain, alter and sell firearms illegally. Adequate resources must also be provided to law enforcement agencies to investigate and prosecute instances of illegal firearm trafficking. In conclusion, Section 108(4) of the Criminal Code of Canada serves as a useful tool for law enforcement agencies and prosecutors to deter and punish individuals who alter, deface or remove serial numbers from firearms. However, care must be taken to ensure that innocent firearms owners are not convicted of this offence. Additionally, stricter regulation of firearms is necessary to prevent illegal trafficking and to enhance public safety.
STRATEGY
Section 108(4) of the Criminal Code of Canada can be both advantageous and disadvantageous for both the prosecutor and the defense in criminal proceedings. At its core, this section means that possession of a firearm whose serial number has been partially or completely erased other than through normal use over time is assumed to be proof that the possessor knew the serial number had been altered, defaced, or removed, unless there is evidence to the contrary. The following discussion briefly examines strategies that can be employed by both the prosecutor and the defense when dealing with this section of the Criminal Code of Canada. From a prosecutor's perspective, section 108(4) can be an effective tool for proving knowledge for possession charges when the defense has no other viable defense. As the section shifts the burden of proof to the defendant to prove that the possessor did not know the firearm's serial number had been altered, defaced, or removed, prosecutors can focus on presenting credible circumstantial evidence detailing why the defendant could have only known the firearm's serial number was defaced or removed. One common strategy for prosecutors is to establish a chain of custody and document the history of the weapon, including the original manufacturer, serial number, and any known issues with defaced serial numbers. Furthermore, through the use of forensic evidence, prosecutors can show that the method of obliteration, tattooing, or alteration services could only have been achieved with specialized equipment and persons with specific knowledge. This evidence can ensure that the court is aware that this process could only have been performed by a person with technical knowledge or by individuals with criminal intent. However, defense counsel may take several approaches when dealing with section 108(4). The first is to establish a lack of knowledge on the part of the defendant, suggesting that they did not recognize that the firearm's serial number was obliterated, defaced, or removed. Defense counsel may present circumstantial evidence suggesting the defendant's limited technical firearms knowledge or inadequate education to distinguish an unaltered serial number from an altered one. This strategy aims to demonstrate that the accused did not know that the firearm had an altered or defaced serial number and that the section 108(4) presumption should not apply. Alternatively, it is possible for the defense to bring up several arguments when dealing with section 108(4). They may argue that the firearm was previously owned by another person who altered or defaced the serial number, or that it resulted from normal use or accidental damage. Lawyers may further argue that the obliteration, defacing, or removal of the firearm's serial number was not deliberate, and there is no evidence that the accused was aware of the defaced serial number. These arguments can create a reasonable doubt in the judge or jury's eyes about the defendant's knowledge and refute the presumption created under section 108(4). In conclusion, based on the above discussion, the strategic considerations when dealing with section 108(4) of the Criminal Code of Canada are critical for both the prosecutor and the defense counsel. The prosecution will want to focus on providing overwhelming circumstantial evidence of the defendant's technical knowledge or intent to obliterate the serial number. On the other hand, the defense will want to establish reasonable doubt by portraying the defendant as someone who was unaware of the defaced serial number and did not know that it had been altered. Ultimately, the result of the case relies heavily on the circumstances of each case and the plethora of evidence available.