In Canada, there is no Criminal Code offence that specifically lists the words “pepper spray.” That being said, an item does not have to be explicitly mentioned in the Criminal Code for its possession to be illegal. Pepper Spray is illegal in Canada by virtue of the fact it is included in regulations that deem it a prohibited weapon.
What is a Prohibited Weapon?
Under the Criminal Code, a prohibited weapon is defined as follows:
“prohibited weapon” means
(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or
(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;
Is Pepper Spray a Prohibited Weapon?
Pepper Spray is captured under the definition of a prohibited weapon as it is prescribed to be one under the applicable regulations as follows:
Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of
(a) tear gas, Mace or other gas, or
(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.
Accordingly, it is illegal to carry pepper spray in Canada.
What is Pepper Spray?
Because pepper spray is a lacrimator, it causes tears to flow from the eyes. Usually, it comes in a spray bottle or aerosol.
Oleoresin capsicum oil is the primary ingredient in pepper spray. The plants used to make this oil belong to the genus Capsicum, which also includes chilli peppers.
Capsaicin, which gives chilli peppers their distinctive spiciness, is the active component in pepper spray. Capsaicin levels in pepper spray are significantly higher than in chilli peppers.
Bear spray, an aerosol made to protect people from bears, is another product made from capsicum oil.
Is Bear Spray legal in Canada?
A spray will be considered a prohibited weapon as long as one of its intended uses was to render a person incapacitated.
In some cases, the courts have determined that bear spray did not qualify as a prohibited weapon. Bear spray has the potential to injure, immobilize, or otherwise incapacitate a person, yet it is not “intended to be used” in that way. Bear spray, in contrast to pepper spray, is intended to be used on bears, not humans.
However, there have been other instances where courts have found individuals guilty of possessing and using bear spray on humans. If someone were to carry bear spray for the purpose of using it unrelated to its intended purpose, they may be found guilty of possessing a prohibited weapon.
Accordingly, these cases are often fact-specific and turn on the unique circumstances of the case. Often times expert evidence is necessary to be led by the Crown to prove the nature of the spray in question. The nature of the spray in question and the reason why the person had the spray may be relevant to the issues at trial and potential defences.
Get Legal Advice if You Are Charged With Possessing Pepper Spray.
You should retain legal counsel if you are accused of possessing a weapon that is illegal, such as pepper spray. The chances of getting a favourable result can seem slim when you have been charged with and arrested for a weapons offence. A skilled Toronto criminal lawyer by your side is essential. Throughout Ontario, including Toronto, North York, Mississauga, Brampton, Newmarket, and other cities, we have successfully defended many clients.
Our defence strategy is founded upon a careful analysis of your case. We will review the allegations you are charged with as well as the evidence gathered by the police. We will hold the Crown accountable for meeting their burden of proof and explore every option to help you win your case.
