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.
An unlawful arrest occurs when law enforcement arbitrarily arrests or detains an individual without having reasonable grounds.
When police interact with an individual, the interaction effectively places the person into one of three legal categories:
Investigative detainment: under common law, state officials and law enforcement are granted the power to hold an individual while investigative checks are performed.
Arrest: the Criminal Code authorizes law enforcement the statutory power to hold an individual for a longer amount of time than investigative detention.
Neither detainment nor arrest: depending on the circumstances, not every interaction with police will amount to the individual being detained or arrested. Police have the right to ask questions, and in some instances, a polite conversation with the police can end the discussion more quickly. However, police tactics can be tricky and you may be unaware whether the police are asking innocent questions, or because you are under investigation. A bystander or pedestrian cannot be approached by police if the police do not have a legitimate reason to do so, other than true friendly conversation. If the police implicitly cause an individual to feel they cannot leave, then it might be considered a detainment.
When bringing a section 9 challenge against law enforcement for unlawful arrest, the accused has the burden of proving they were arbitrarily detained or imprisoned. The Supreme Court of Canada set out a two-step analytical framework to determine whether an unlawful arrest occurred:
Was the individual detained or imprisoned?
Was that detention or imprisonment arbitrary?
Being Detained or Imprisoned
When investigating a crime, law enforcement can only detain an individual if there are “reasonable grounds” the individual committed a crime or is connected to a crime, and that detaining the individual is necessary under the circumstances.
The Supreme Court in R v Grant defined detention under section 9 occurs when law enforcement or the state inflicts a significant amount of physical or psychological restraint that suspends the individual’s liberty interest. Psychological detention occurs when an individual is required by law to comply with the police’s restrictive request or demand, or if a reasonable person would conclude that they had no choice but to comply based on the conduct of the state or law enforcement.
Oftentimes, it can be difficult to decipher whether the individual was physically or psychologically detained. To determine whether a reasonable person in the individual’s situation would conclude that they had been deprived of their liberty, the Court in Grant listed the following factors a court may consider:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. (Grant para 2).
The Supreme Court in R v Mann stated that not every encounter with the police will constitute a detention within the guidelines of section 9. Consider an individual is stopped on the street by law enforcement for the purpose of identification or for an interview. The Court states “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. However, a delay does not engage the individual's constitutional right to not be arbitrarily detained. In order for section 9 to be engaged by the delay, there has to be “significant physical or psychological restraint.” For the purposes of detainment, however, the individual does not have to answer the police officer’s questions. On the other hand, if someone is arrested, they must give the officer their name and address when requested.
If a court determines an individual was detained or imprisoned without reasonable grounds, the analysis proceeds to step two of the two-step test.
Arbitrary Detainment or Imprisonment
In the second step of determining whether an individual's section 9 Charter right was infringed, the court will consider whether the detainment or imprisonment was arbitrary. This step is an objective test, and considers whether the arrest or detainment:
Is authorized by law;
The authorizing law is not arbitrary in and of itself; or
Carried out by law enforcement in a reasonable manner.
If a court determines that any of the above occurrences were present in the detainment or arrest, the arrest or detainment is considered arbitrary and an infringement on the individual's section 9 Charter right. When this unlawful arrest occurs, the individual is entitled to a remedy under section 24(1) of the Charter such as a stay of charges or exclusion of evidence.
To lawfully detain or lawfully arrest an individual, law enforcement must have reasonable grounds.
What are Reasonable Grounds to Detain?
The term “reasonable grounds” is often exercised as the threshold that law enforcement must meet before certain authorities can be enacted. The Supreme Court in R v Mann stated when police officers may detain an individual for investigative purposes:
[I]f there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest. (Mann, para 45).
What are Reasonable Grounds to Arrest?
Law enforcement must have a reason for arresting an individual. Police can only arrest someone if:
The police officer sees an individual committing a criminal offence;
The police officer has reasonable grounds to believe an individual has committed a crime or is about to commit a crime;
An individual has broken any law, which includes provincial and city bylaws, and refuses to disclose their name and address to the police;
There is a warrant for the arrest of the individual (ask to see the arrest warrant - if the situation is under control and law enforcement has the arrest warrant, they must show it);
Reasonable grounds are established to believe an individual has a mental disorder and are dangerous;
The individual has breached the peace or about to breach the peace;
The individual is intoxicated in public (this includes being drunk or high); or
The police officer has reasonable grounds to think an individual is a terrorist or is about to commit a terrorist attack.
The Supreme Court in R v Storrey stated the reasonable and probable grounds to arrest an individual must be justifiable from an objective point of view, and an arresting officer(s) must also subjectively form reasonable and probable grounds to arrest. If the police cannot subjectively and objectively show they met the threshold to arrest an individual, the court will likely determine the individual was unlawfully arrested.
The Criminal Code no longer requires “probable grounds” or probable cause to be present to arrest an individual. Despite the change in wording, R v Storrey remains the authoritative test to determine whether law enforcement had reasonable grounds to detain or arrest an individual.
Rights on Arrest or Detainment
If an individual is arrested or detained, section 10 of the Charter is initiated. Canadians have the following rights when they have been arrested or detained:
To be promptly informed of the reasons why they are being detained or arrested;
To retain counsel and be informed of their right to retain counsel without delay; and
The ability to have the validity of the detention determined by a court by way of habeas corpus and to be released immediately if the detention is not lawful.
Rights on Detainment
If an individual is detained but not under arrest, has not broken any laws, and is not driving, the individual does not have to reveal their name to the police. However, if someone feels a polite conversation will allow them to be on the way sooner, it might be in their best interest to do so. Use common sense and remember that if you are not being arrested, you legally do not have to give the police any information.
When an individual is detained, law enforcement has the right to search for weapons by doing a pat-down search or looking in the individual’s bag. If a court later determines the police did not have reasonable grounds to detain the individual, then the pat-down and bag search is illegal and anything they find cannot be used against the individual. It is important to remember all the details during your detainment or arrest to relay to a lawyer or make a complaint.
If you are being detained but have not been arrested, remember the following:
Ask if you are being detained
Ask why you are being detained
Exercise your right to remain silent - you do not have to answer police questions
On the other hand, if an individual has been arrested and asked by the police for a name and address, the individual must provide this information. If you are under arrest, it is in your best interest to physically co-operate. Any physical resistance to avoid arrest, including pushing, spitting, kicking, or running, could result in more charges.
When an individual is arrested, the police have the right to do a full search of the person and property. If a court later determines the police unlawfully arrested an accused, any evidence the police found during the search of the accused and their property is likely to be excluded from evidence.
When an individual is arrested for a hybrid or summary offence, the police must provide an appearance notice and release the person immediately. An appearance notice tells the individual when they must appear in court at a specific time and place to respond to criminal charges. Summary offences are less serious offences and typically have less punishments than indictable offences. Indictable offences are the most serious offences and carry higher punishments. Police do not have to release an individual if the police:
Cannot identify the accused;
Preserve evidence of the alleged offence;
Is required to stop the person from committing or attempting to repeat the alleged offence; or
Establishes reasonable grounds to believe the person won’t come to court compliant with the undertaking to appear or notice to appear.
Right to Remain Silent
Staying silent and not talking to law enforcement is a right. When an individual informs the police their desire to remain silent, the police may continue to ask questions. The individual is not required to respond to the queries. If you have been arrested or detained, meet with a criminal defence lawyer before you talk to the police. Remember, however, that if you are arrested, you are legally required to give the police your name and address, but not required to when you are only being detained.
When to Challenge a Detention or Arrest?
Consider an individual is arrested and held in custody, and the police have not released him or her within a reasonable amount of time. The individual should immediately challenge the arrest through a bail hearing. By this point, the police officers should have informed the individual the right to retain counsel. As early as possible, speak to a defence attorney to determine the appropriate steps to take. The criminal lawyers at Pyzer Criminal Lawyers have the experience you need for the best possible outcome at your bail hearing and trial.
Now, consider an individual is in custody but has not been arrested. If the individual is not released after a reasonable amount of time and no charges have been laid, the person is entitled to apply for a Habeas Corpus application. This is statutorily available by section 10(c) of the Charter which states:
Everyone has the right on arrest or detention… c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Law Enforcement Need a Search Warrant to Arrest in a Residence
Most of the time, law enforcement must have a search warrant to arrest an individual inside the residence.
False Arrest and False Imprisonment
Independent from criminal law, if an abuse of legal procedure or process has occurred, such as a wrongful arrest, the defendant can sue law enforcement through a civil action in tort law. In a civil case, the defendant becomes a plaintiff and sues the police or state for “damages”. Damages refers to monetary compensation the plaintiff seeks against the other side because of the wrongful conduct (i.e.: unlawful or wrongful arrest).
False arrest and false imprisonment are two different actions under tort law, and a plaintiff can sue the other side for both. In Collins v Toronto Police Services Board, the Divisional Court stated that false arrest is a “tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification.” False imprisonment, the court stated, “is a tort that similarly flows from the unlawful total deprivation of a person’s liberty.”
When an accused files a lawsuit against law enforcement for either false arrest, wrongful arrest, or false imprisonment, they have the onus to prove they were arrested or detained, and that law enforcement, the defendant, caused the arrest or detainment. Once established, the onus shifts to the defendant to justify the actions taken by them.
The police are only confined to the powers granted to them via statutes or the common law. When police officers overstep their boundaries and unlawfully arrest an individual, that person is legally entitled to a remedy from the court. Remedies often include a stay of charges, which means the accused is not guilty and free to go, or evidence is excluded if it was located in the context of the unlawful arrest. If you think your arrest or detainment was unlawful, contact a criminal defence lawyer at Pyzer Criminal Lawyers for legal advice and to ensure your rights are protected, and that law enforcement is held accountable.
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.