Is Pepper Spray Allowed in Canada?
The Criminal Code of Canada currently defines Pepper Spray as a prohibited weapon under Section 2, except in limited circumstances. Section 2 is linked to Part III, which includes Sections 91-105.
By definition "weapon" includes any object intended or capable of causing death or injury to someone. This is inclusive of objects like firearms, daggers, knives and clubs, pepper spray, and other similar chemical substances intended for use as a weapon.
Under Part III of the Criminal Code of Canada 91, weapons are restricted and regulated across the country. This section of law is further delineated by subsections, including Section 91 (possession of weapons) and Section 92 (possession of weapons for dangerous purpose).
Section 91 states:
"91. (1) Except as authorized by the regulations, it is prohibited for any person to
(a) possess a firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device;
(b) acquire or attempt to acquire any firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device;
(c) traffic in, other than a gun show, or possess for the purpose of trafficking, a firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device,
(d) possess a firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device that is in itself prohibited,
(e) possess a firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device that is loaded,
(f) possess a firearm, cross-bow, prohibited weapon , restricted weapon, and prohibited device that is on a magazine that is attached to a firearm, or
(g) possess any ammunition for a firearm, cross-bow, prohibited weapon, restricted weapon, and prohibited device."
Section 92 states:
"92. Every person commits an offence who possesses a firearm, restricted weapon, prohibited weapon or prohibited device having regard to all the circumstances, including the nature of the act that the person was committing or was about to commit, and whether the person uses, carries, or stores it for a purpose that may cause danger to society or to another person."
Additionally, pepper spray is not authorized as a permitted weapon under pursuant to subsection 4(3). This means, there is no exception or permit for authorization for possession or use of pepper spray, even if you have a license for restricted weapons.
However, Canadian law does provide some exceptions that may allow the use or possession of Pepper Spray, including:
- As part of legitimate law enforcement by a police officer.
- As part of a self-defense situation.
- If the chemical does not cause injury.
- If the use of the chemical is a last resort.
In Canada, pepper spray is not legal. It is defined as a prohibited weapon under the Criminal Code of Canada and it is illegal to possess or use in almost all circumstances. That said, there are some very limited circumstances in which pepper spray may be legally possessed or used in self defense or law enforcement.
Pepper Spray vs Other Self-Defense Weapons
While pepper spray is a popular choice for self-defense in Canada, there are other tools that can be used. It is important to know how these tools compare to pepper spray so you can choose the right option for your needs.
Flashlights
Despite what you may think, flashlights have been used for defense for many years. Of course, this is not the reason that these devices were invented, but with the variety of sizes and lengths on the market as well as their portability, they have become popular tools for those who want an alternative to pepper spray. They are not restricted by law in any way.
Knives
There are many knives that can be bought legally in Canada that serve as excellent self-defense tools. These types of knives are the best route for those who may find themselves in the forest or wilderness and are at risk of being attacked from behind because these types of knives can be carried easily and disguised as other tools. Many people carry keys on small knife tools for protection.
Personal Alarms
If you are more interested in making noise than you are in physically injuring someone, then you might want a personal alarm that may be clipped to your clothing for easy access. The alarm is activated when the user pulls a pin and will sound continuously and loudly to attract attention. As a self-defense tool, these alarms purposely draw attention to the situation and can act as a deterrent against an attack. These alarms are not restricted by law in any way.
Possible Penalties for Carrying Pepper Spray
The unlawful possession of pepper spray in Canada is a criminal offence under the Firearms Act. Under Canadian criminal law, the offence falls under section 91(2) of the Criminal Code, which states: "(2) Every person commits an offence who … (a) possesses a prohibited weapon, restricted weapon, prohibited device, prohibited element or any ammunition for use therewith."
In accordance with Canadian law, if you are held in possession of a prohibited weapon or device without a proper licence or registration certificate, you can face serious legal repercussions.
From a legal standpoint, pepper spray is classified as a "prohibited device" because of its composition, and its intended or likely purpose, as penned under paragraph 84(1)(c) of the Criminal Code. Paragraph 84(1)(c): "(c) a device designed to cause permanent injury or to kill or injure by the discharge of an irritant, noxious substance or variation thereof;"
So, if you are held in possession of pepper spray without the proper legal documentation (such as a restricted or prohibited license for a firearm, along with an accompanying registration certificate), you will be charged with the Penal Code offence of "possession of a prohibited device or ammunition" (Criminal Code, s. 92).
A conviction of possession of a prohibited weapon is a hybrid offence, which means that the Crown Attorney has certain discretion on whether to pursue charges by way of summary conviction or indictment. Under the Criminal Code, for a summary conviction, the Crown can seek up $5,000 in fines and/or up to 6 months’ incarceration for a local sentencing charge. For an indictable conviction, the prosecutor can pursue up to $200,000 in fines and/or up to seven (7) years’ jail time.
Regardless of how you are charged with an offence of possession of a prohibited weapon, it will be noted on your criminal record, which could impact the various facets of your life, such as travelling, applying for jobs, volunteering opportunities, or applying for a visa in a different country.
Pepper Spray Alternatives for Self-Defence
Alternatives to Pepper Spray for Self-Defense in Canada
Some individuals may feel that the limitations on warrants for bear spray, limitations of Canuck-style pepper spray and problems with bear spray not being allowed in certain public places, lead to their consideration of other alternatives. For example, a personal alarm or whistle is a more humane and less harmful way to fend off potential attackers. Similarly, a martial arts training/school or self-defense course can be helpful in teaching the tools one needs to protect themselves in a crisis . Another non-lethal alternative to bear spray is a taser, although those are also not legal in Canada. These concealed weapons also require a licence and are highly regulated. If used inappropriately, you could be charged with the criminal offence of Assault with a Weapon or Possession of a Weapon for Dangerous Purpose. Nudging someone with a taser to commit sexual assault, for example, would certainly be an assault with a weapon.
Previous Background of Self-Defence Laws in Canada
Historically, Canada’s self-defense laws have been relatively liberal compared to many other jurisdictions. The Criminal Code of Canada has explicitly allowed for the use of reasonable force to prevent personal violence and to protect property since 1892. However, the terms of what constitutes "reasonable force" has evolved over the years. The perception of what is reasonable has shifted from a focus on objective standards of self-defense to a subjective standard that asks whether the accused believed their actions were necessary and whether their actions were not grossly disproportionate in light of the perceived threat. As such, whereas formerly a knife, firearm or club might have been deemed "reasonable force" in a self-defense situation, the more contemporary standard would hold these to be "grossly disproportionate." Today, the use of lethal and semi-lethal weapons for self-defense is often viewed by the courts as unnecessary and, therefore, not self-defense.
As an added factor to illustrate the shifting nature of the law, even extensive court decisions, statutory changes and influential legal commentary in Canada haven’t reduced the uncertainty as to what constitutes "reasonable" or "unreasonable" actions in self-defense. For example, in 1921 it was established in the common law that when faced with a lethal threat, while the victim may use lethal force in self-defense, they must attempt to retreat rather than respond with the same lethal force. This principle derived from an English Case (R. v McGowan), wherein the assailant was "in the extermination of the one assassin that imperilled his life, [was not justified in so recklessly] depriving the other or another of this right," to life. A similar principle arose in 1949 when the offence of homicide was defined in Canada to an extent that required a "duty to retreat where this is possible" first be taken before seeing if the use of force was reasonable. In 1988, in R. v Lavallee, subsection 1(3) was added to Section 35 of the Criminal Code, which expands manslaughter to cases of such excessive self-defense that amounted to murder. This caveat clearly reflects the extremity of the aforementioned common law principles.
Emerging from these historical precedent, Canada’s firearm legislation has both expanded and contracted throughout the years, resulting in the current state of Canada’s pepper spray laws and its burgeoning public interest.
Pepper Spray Facts and Fiction
Private security officials, law enforcement personnel, and ordinary citizens sometimes use pepper spray when they travel through dangerous situations. However, Canadians are often mistaken about the purpose and legalities surrounding this tool. Here, you can begin to educate yourself on some of the most common myths and misconceptions about legal pepper spray in Canada.
It is a Completely Legal Self-Defense Tool
While pepper spray is not listed as prohibited under the Criminal Code, that doesn’t make it completely legal everywhere in Canada. Each province handles the legality of the item differently. Ontario, for example, has banned the spray for personal use. In Manitoba, the item can be carried for personal self-defense use but not sold, imported, or carried for the purpose of defense of another. Alberta has no regulation about carrying the spray. Before you ever consider carrying or using the spray, you should check with your individual province to find out if it is allowed.
A Licensing Process is Required
Some individuals think that pepper spray is considered akin to a firearm or weapon in Canada by the government, but that is not the case. There is no licensing process to go through in order to keep the spray at home or buy it for self-defense . Of course, if you are already involved with law enforcement or the military, you may need to submit to additional regulations at the federal level. But, for civilians, there’s no permit needed to own the item.
It’s A Lethal Weapon
While pepper spray can be used as a lethal weapon, it is only considered a self-defense item if you use it as such, according to the Criminal Code of Canada. In order to be legal, you must clearly show the intention of self-defense to your accuser. If you have a stash of pepper spray at home, and you’re caught using a canister to threaten another individual, then you’ve broken the law under the Criminal Code.
It’s the Same as Mace
Many people think of pepper spray as nothing other than a form of mace, but nothing could be further from the truth. Mace is not just an aerosol that will theoretically incapacitate your attacker momentarily – it’s basically a fortified form of tear gas that you can’t legally carry in Canada. In fact, you could end up facing serious criminal charges if you are caught carrying actual mace or "tear gas." Mace is regulated under SOR/2001-190 and requires a license to have in one’s possession.