Canadian Criminal Sentencing/Ancillary Orders/Weapons Prohibition Orders

Legislation

Mandatory prohibition order
109. (1) Where a person is convicted, or discharged under section 730, of

(a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more,

(b) an offence under subsection 85(1) (using firearm in commission of offence), subsection 85(2) (using imitation firearm in commission of offence), 95(1) (possession of prohibited or restricted firearm with ammunition), 99(1) (weapons trafficking), 100(1) (possession for purpose of weapons trafficking), 102(1) (making automatic firearm), 103(1) (importing or exporting knowing it is unauthorized) or section 264 (criminal harassment),

(c) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or

(d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

Duration of prohibition order — first offence
(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that

(i) begins on the day on which the order is made, and

(ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Duration of prohibition order — subsequent offences
(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

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Discretionary prohibition order
110. (1) Where a person is convicted, or discharged under section 730, of

(a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (b) and (c), in the commission of which violence against a person was used, threatened or attempted, or

(b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.

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Duration of prohibition order
(2) An order made under subsection (1) against a person begins on the day on which the order is made and ends not later than ten years after the person’s release from imprisonment after conviction for the offence to which the order relates or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence.

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Mandatory 109 Order

The 109 Order applies where at least one of the elements of s. 109(1)(a),(b),(c), or (d) applies.

The order is mandatory under s. 109(1)(a) where the offence is:

• indictable;
• involved violence (used, threatened or attempted) and
• offence has maximum penalty of 10 years or more.

The order is mandatory under s. 109(1)(b) where the offence is:

• criminal harassment (s.264); or
• a weapon offence under s.85(1) or (2), 95(1), 99(1), 100(1), 102(1), 103(1)

The order is mandatory under s. 109(1)(c) where it involves certain drug offences under the CDSA (s.5(1) or (2), s. 6(1) or (2), s. 7(1))

The order is mandatory under s. 109(1)(d) where the offence:

• involves a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and
• the offender was prohibited from possessing such items at the time of the offence

The first time that a s.109 Order is granted for an accused there is a requirement of a minimum of 10 year prohibitoin for firearms, crossbows, restricted weapons, ammo and explosives as well as a lifetime prohibition for prohibited firearms, restricted firearms, prohibited weapons, prohibited devices and prohibited ammunition.

All subsequent 109 orders must be a minimum prohibition of life for all items listed.

Section 109(1)(c) was found not to violate s. 12 of the Charter for Cruel and Unusual punishment for a production of cannabis conviction.

Discretionary 110 Order

The order is discretionary under s.110(1)(a) where the offence involves violence (used, threatened or attempted).

The order is also discretionary under s. 110(1)(b) where:

• the offence involves a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and
• the offender was not prohibited from possessing such items at the time of the offence

To make the order under s. 110, the order must be in the interests of the safety of the accused and other members of the public. Should the judge decline a request for an order under s.110, the judge must give reasons for declining.

A order under s. 110 will impose a maximum of 10 years prohibiting the possession of firearms, crossbows, restricted weapons, ammunition, or explosives, prohibited weapons, prohibited devices, and prohibited ammunition. This does not include prohibited firearms or restricted firearms.

Variations

Section 113 has been found to provide the court with authority to apply to modify a weapons prohibition.