In a world that often feels unsafe, the decision to carry pepper spray as self-defence can easily be seen as a sensible precaution since it only temporarily disables an attacker.
However, in Canada, pepper spray is classified as a prohibited weapon under the Firearms Act, which forms part of the Criminal Code of Canada. This means that owning and carrying pepper spray is only allowed under very specific (and strict!) conditions. One is the requirement to register for a Possession and Acquisition Licence (PAL).
If you're found carrying pepper spray without a PAL, you can face serious consequences, including fines, imprisonment, and a criminal record. The severity of the punishment you will receive depends on the circumstances of the offense and your criminal history.
While pepper spray may seem like a useful tool for self-defense, you have to follow the proper legal procedures and ensure that you’re using it safely and responsibly.
Is Pepper Spray Legal in Canada?
Because pepper spray is considered a prohibited weapon, Canadian law does not allow anyone to possess or carry pepper spray. Pepper spray may also not be produced or sold in Canada.
As mentioned above, there's an exception to this rule — if you obtain a PA from the Royal Canadian Mounted Police. This option is only available in certain provinces, and you will have to pass a background check, finish a safety course, and meet other stringent criteria.
When we talk about pepper spray, we're casting a wide net. It includes:
The common pepper spray
Any other gas, liquid, spray, powder, or substance that can cause an injury, immobilise, or incapacitate a person.
Simply put, if it can harm or restrict someone's ability to move or react, it falls under the legal definition of pepper spray.
If you infringe upon these laws, it can lead to severe consequences, including:
A legal record.
The severity of the penalty often depends on the circumstances of the offense. For example, whether the pepper spray was used or intended for use in a crime. In addition, it will also depend on whether the Crown proceeds summarily or by indictment.
It's crucial to understand these risks before deciding to carry such items.
The main difference between bear spray and pepper spray lies in their intended use and concentration of the active ingredient, oleoresin capsicum.
Bear spray (also known as bear mace) is designed to project the chemical up to 10 meters so that the user can deter aggressive bears, while pepper spray is for personal defense against humans.
In Canada, bear spray is legal to own and possess. It's specifically sold for use in the wilderness, where you might cross paths with a bear while hiking or engaged in hunting activities. Pepper spray has a different legal status. It’s considered a prohibited weapon in Canada, meaning you can't buy it at your local store.
However, if you use bear spray with the purpose of harming another individual, it would be considered a prohibited weapon. This is illegal in Canada, and you could face charges for possession of a prohibited weapon under section 92 (1) of the Criminal Code. Other charges could include assault with a weapon.
Understanding these differences is crucial to avoid any legal complications.
Weapons Classification of Pepper Spray Under the Canadian Criminal Code
In the Canadian legal system, the classification and handling of weapons are regulated with a clear set of rules. For purposes of these rules, pepper spray is considered a weapon.
It is important that you familiarize yourself with these classifications and handle all weapons, including pepper spray, within the confines of the law.
Pepper spray is prohibited under the Firearms Act and falls under the category of prohibited weapons listed in the Canadian Criminal Code. This means it's illegal for you to own, make, sell, or even use it in Canada.
As already mentioned, possessing or carrying mace is a criminal offense in Canada. It is classified with the other types of possession offenses outlined in sections 88 to 91 of the Criminal Code.
The law takes a firm stand on the possession of pepper spray. If you are caught in possession of pepper spray, you can be charged with a criminal offense and could face a maximum 10-year prison sentence or a fine of up to $5,000. You will also end up with a criminal record that could negatively impact your future.
Section 88 – Possession of a Weapon for Dangerous Purposes
In Canada, the law is clear: if you're found with a weapon that could harm others or for any unlawful reasons, you're committing an offense. Pepper spray is seen as such a weapon. This means that if you are caught carrying pepper spray, you could be looking at criminal charges.
The extent of the punishment you might face depends on the gravity of your case. The Crown can choose to deal with it in two ways: summarily, which is less severe, or by indictment, which is more serious and could lead to harsher penalties.
In the most extreme cases, the penalty can be as big as ten years in prison. So, it's absolutely vital for you to understand the gravity of these laws and to steer clear of carrying items like pepper spray.
Section 89 – Carrying Weapon While Attending Public Meeting
Section 89(1) of the Criminal Code makes it an offense for any individual to carry, without lawful reason, a prohibited weapon, prohibited device, ammunition, or prohibited ammunition while attending or on the way to attend a public meeting.
Because pepper spray is a prohibited weapon, carrying it in public is illegal. This means if you're found with pepper spray at a public meeting or even on your way to one, you're breaking the law.
The prosecution for such offenses is typically handled summarily, which means it's a less severe process but still carries significant consequences. The penalties can range from a fine to imprisonment for up to two years, or in some cases, both.
Section 90 – Carrying Concealed Weapon
Carrying a concealed weapon is a serious crime in Canada, and pepper spray falls under this category. Even though it might seem harmless, if you're carrying it hidden — meaning it's not visible without searching your belongings — it's still considered a weapon.
Under the Criminal Code, carrying any weapon without authorization from the Firearms Act is illegal. The penalty can be quite severe if you're caught with concealed pepper spray. You could face anything from fines to up to five years in prison, depending on how the Crown proceeds.
Section 91(2) – Unauthorized Possession of Prohibited Weapon or Restricted Weapon
In Canada, mace — a form of tear gas — is considered a prohibited weapon. You could face severe repercussions if you have it without the right license. If you're caught with mace and don't have a valid permit, you'll be prosecuted under section 91(2) of the Criminal Code. This section states that unauthorized possession of a prohibited or restricted weapon could land you up to five years in prison.
It's crucial to understand that even if you've bought mace legally, you must still use it within the law's bounds. For instance, if you're carrying mace while intoxicated or using it on someone without their consent, you're committing an offense. Also, it's illegal to have mace in certain places like schools, bars, and other public areas where children might be present.
Exceptions for Possession or Carrying of Pepper Spray
There is one exception to the pepper spray legislation in Canada. According to Canada's Pest Control Product Act, sprays designed for use on pests are legal in Canada. The term "pest" includes an animal that is injurious, noxious, and troublesome. However, pepper spray does not fit under this exception.
Based on this definition, bear spray fits easily into the category of pest-control products, which are legal in Canada. Even so, if you are caught with bear spray in an area not associated with bears or wildlife, you can still be charged with the criminal offense of possessing or carrying a weapon.
It's always a good idea to check your local regulations before you buy, carry, or use any kind of pepper spray product. In fact, by getting a handle on the laws and rules around bear spray in Canada and making sure you use your mace responsibly, you can protect yourself from potential legal issues.
What To Do If You’ve Been Charged with a Weapons Offense
If you have been charged with a weapons offense in Canada, it is important to take the situation seriously and seek legal advice from an experienced criminal defense lawyer. The penalties for weapons offenses in Canada are severe, and a conviction can have a significant impact on your future.
If you, or someone you know, have been charged with a criminal offense for carrying pepper spray or any other criminal offense, obtaining legal representation is vital. The team at Pyzer Criminal Lawyers, Ontario specialize in weapons charges and can provide you with expert defense to protect your rights. We can help you understand the charges, the potential consequences, and we have many years of experience formulating the best strategies for your defense.
Is it legal to bring pepper spray into Canada from the United States?
No, it is illegal to bring pepper spray into Canada from the United States. Pepper spray is listed as a prohibited weapon under the Criminal Code. If you're caught at the Canadian border with pepper spray, there could be serious consequences. These might include penalties, potentially even jail time, and a criminal record. If found guilty, you could be facing an indictable offense with potential jail time of up to 10 years.
Is homemade pepper spray legal?
Pepper spray falls under subsection B of the Firearm Act, categorizing it as an illegal weapon. That means manufacturing, selling, or using any kind of spray that aligns with this definition is considered a criminal offense — even homemade pepper spray.
What happens if you pepper spray someone?
When pepper spray is used on someone, it can cause physical injuries and create immediate and potent effects including:
Immediate and intense burning pain in the eyes
The consequences of using pepper spray on someone else, even in self-defense, can be severe. If caught, you could face legal consequences, including fines or imprisonment. This is because pepper spray is on the list of prohibited weapons, and using it against someone else would be classified as assault under the Criminal Code.
What self-defense weapons are legal in Canada?
In Canada, the law around self-defense tools is quite strict. The possession and use of many items typically considered as self-defense tools are prohibited due to their classification as weapons. Even though the justice minister of Alberta made a request to the federal government to ask for changes to the Criminal Code to allow people to carry pepper spray for self-defense, the request was denied.
However, there are other options available to you for security and protection. Some of the self-defense items that you can legally carry in Canada include dog sprays, personal safety alarms, self-defense keychains, safety whistles, and flashlights.
It's important to note that while these items are legal, their use must be appropriate and proportional to the threat faced. Misuse can still lead to criminal charges.
Even when an accused has a strong case, a criminal trial is unpredictable and can end in an unjust verdict. Fortunately, accused individuals can appeal the outcome of their case to a higher court under certain circumstances. In Canada, there are different levels of court that form a hierarchy-type system. The court system is similar in each province. Except for Nunavut, each province has three levels of courts:
Provincial and territorial courts (considered lower courts);
Superior courts; and
The appeal process in Canada is available when an individual believes the decision of a lower court interpreted the facts or law incorrectly that affected the outcome of the case. Through an appeal, a higher court can overrule the decision of a lower court.
When an appellate court overrules a decision, it means there has been an error in the lower court’s judgement. The appeal court can remedy the error by:
Reversing the trial judge’s decision;
Ordering a new trial;
Substituting a verdict of guilt;
Agreeing with the original decision of the case and uphold the decision; or
Modifying the trial decision.
For a criminal case, an appeal can be made against a conviction, the sentence received (including a probation order), a finding of not criminally responsible due to a mental disorder or fitness to stand trial. The Crown can also appeal a judge’s decision to acquit an accused.
Right and Leave to Appeal
A right of appeal means an individual has an automatic right to appeal the trial judge’s decision without the court’s discretion. Leave to appeal allows the upper court to have discretion as to whether they will hear the appeal. Under section 675(1)(a)(ii) of the Criminal Code, leave is required for an individual convicted by indictment who is appealing their conviction based on a question of fact or mixed law and fact. If the appeal involves a question of law alone, leave to appeal is not required.
In Canada, there are indictable offences and summary offences. Indictable offences, such as murder and aggravated sex assault, are more serious and carry harsher punishments. Summary offences, such as theft under $5,000, are less serious and come with a lesser punishment. When the Crown proceeds by way of a summary offence, the accused appeals their decision to a superior court. If the defendant was convicted of an indictable offence, the court of appeal will hear the appeal.
Provincial and Territorial Courts
The different levels of court in Canada deal with separate matters. In the hierarchy of the courts, provincial and territorial courts are considered lower courts. In Ontario, the Ontario Court of Justice is considered the lower or provincial division.
Provincial and Territorial courts deal with:
Most criminal offences
When a decision from a provincial court is appealed, it either goes to the province’s superior court or court of appeal. In Ontario, appeals for summary convictions are heard by the Superior Court of Justice, and appeals for indictable convictions are heard by the Ontario Court of Appeal.
If a party disagrees with the superior court judge’s decision, they can ask the province’s appeal court to review it.
Ontario Court of Appeal
In Ontario, appeals are heard by the Court of Appeal. The Court of Appeal can either allow or deny the applicant’s appeal, and typically provides the final ruling on a legal issue. If the appeal is denied, the decision of the lower court stands. If a decision or ruling by the Court of Appeal is questioned, the applicant can apply for leave to the Supreme Court of Canada.
The Supreme Court of Canada
The Supreme Court of Canada is considered the highest appeal court in the Canadian judicial system, and it only agrees to hear cases that are important to the country or in unsettled areas of law. Once the Supreme Court of Canada makes a decision, the appeal cannot go any further. Fewer than two percent of appeals are heard by the Supreme Court, so the court of appeal is often the last avenue for individuals to appeal their case.
For an individual to appeal to the Supreme Court of Canada, an application for leave is required. However, in criminal cases, if an accused’s acquittal was set aside in the provincial court of appeal, or where one judge dissented on a question of law, there is an automatic right of appeal to the Supreme Court.
Even when an accused has exhausted all of their options through the appeal courts, section 696.1(1) of the Criminal Code allows the accused one last possibility to appeal their conviction or sentence only if there was a miscarriage of justice. An accused can apply for a ministerial review in which their case can be heard in front of the Minister of Justice. The Minister of Justice can grant the accused a new trial, refer the matter to the court of appeal for a hearing, or dismiss the application. The decision of the Minister of Justice is final and cannot be appealed.
What are Grounds for an Appeal?
An appeal court is limited in what they can do. The purpose of appealing a criminal conviction is not to retry the entire case. Therefore, appeal courts typically cannot hear new evidence. Section 686(1) of the Criminal Code outlines the powers of the Court of Appeal and the decisions they can make. An appeal court can only set aside a conviction for the following three reasons:
The verdict was unreasonable or could not be supported by the evidence;
The trial judge made an error of law; or
There was a miscarriage of justice on any grounds.
Given the evidence presented in trial, an accused’s conviction or sentence, or both, may be appealed if it was unreasonable. Challenging a conviction on these grounds only focuses on the weakness or lack of the evidence presented. For any criminal conviction, the accused must be found guilty beyond a reasonable doubt. Therefore, to successfully appeal an unreasonable verdict, the accused must persuade the appeal court that the evidence against them at trial was too weak to be found guilty beyond a reasonable doubt.
An appellate court may find a verdict unreasonable on the basis of one of the following three grounds:
Whether the overall verdict is one that a properly instructed jury who, by acting judicially, could have rendered;
When the wrongful assessment of material evidence was used in a way that could have affected the outcome; and
“Demonstrable logical incompatibility”, described by the Supreme Court as: ...if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40,  3 S.C.R. 3, at paras. 4, 16 and 19‑21; R. v. Beaudry, 2007 SCC 5,  1 S.C.R. 190): R v RP at para 9.
Error of Law
An accused can appeal a conviction or sentence on an error of law, and the Crown can appeal an acquittal on an error of law. If an accused successfully argues an error of law occurred during their trial, their conviction will be overturned. Not every error of law is cause for reversing the decision of a trial court, however. Even if the court of appeal finds there was an error, they may still dismiss the appeal if the error was not significant.
For example, convictions may be set aside if:
Evidence was wrongfully admitted;
A finding of fact was made when there was no evidence to do so;
Evidence was assessed based on a wrong legal principle;
If an appellate court determines an accused’s conviction or sentence was unreasonable, an error of law, or that a miscarriage of justice occurred, the court of appeal can make the following decisions to remedy the error the lower court made:
Reverse the trial judge’s decision;
Order a new trial;
Substitute a verdict of guilt;
Agree with the original decision of the case and uphold the decision; or
Modify the trial decision.
Reverse the Trial Judge’s Decision
The appeal court can acquit the accused if the evidence does not support their conviction or sentence. When an accused is acquitted, they are not guilty of the charges.
Order a new Trial
If the court of appeal finds the accused’s trial was not fairly or properly conducted, the court can set aside the conviction and order a new trial. Typically, a new trial is ordered when the lower court made an error of law.
Substitute a Verdict of Guilty
In rare circumstances, the Crown can appeal an accused’s acquittal and ask the court of appeal to find the accused guilty. This can only occur when a trial by judge alone acquitted the accused. If a jury acquitted an accused, the appeal court’s powers are limited and a new trial must be ordered.
Uphold the Decision
When an appellate court finds the trial in the lower court was properly conducted, and evidence supports the accused’s conviction, the court of appeal may dismiss the appeal. The appeal court can also dismiss the appeal of an accused’s sentence if they determine the sentence fits the crime.
Modify the Trial Decision
The appeal court also has the power to change or vary the sentence. The court of appeal can either increase or lower the sentence or add or remove penalties, such as probation or a fine.
Generally, a notice of appeal has to be filed within 30 days of the defendant’s sentencing date. If the time to apply for an appeal has passed, the individual can file a motion for an order extending the time to file.
What can I Expect if an Appeal Court Accepts to Hear my Appeal?
All appeals at the Ontario Court of Appeal are heard by a panel of three judges, although some appeals may be heard in front of five judges. Once the notice of appeal has been filed, the court of appeal requires the following:
Certificate of perfection; and
Book of authorities.
Click here to learn more about how to proceed in the Ontario Court of Appeal for criminal matters.
Individuals appealing their decision can represent themselves, but the appeal process can be difficult to navigate and typically involve complex legal arguments. It is recommended to have a criminal defence lawyer to put together a persuasive argument and make sure you get the best possible outcome for your appeal. The criminal lawyers at Pyzer Criminal Lawyers have the experience necessary to vigorously fight your appeal.
Legal Review By:
Summer Student and JD Candidate
Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.