Firearms Prohibition Orders: Difference between revisions
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Revision as of 08:02, 12 February 2019
General Principles
Section 111 Prohibition Order
- Application for prohibition order
111. (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.
- Date for hearing and notice
(2) On receipt of an application made under subsection (1), the provincial court judge shall fix a date for the hearing of the application and direct that notice of the hearing be given, in such manner as the provincial court judge may specify, to the person against whom the order is sought.
- Hearing of application
(3) Subject to subsection (4), at the hearing of an application made under subsection (1), the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.
- Where hearing may proceed ex parte
(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person against whom the order is sought in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.
- Prohibition order
(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall 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, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.
- Reasons
(6) Where a provincial court judge does not make an order under subsection (1), or where a provincial court judge does make such an order but does not prohibit the possession of everything referred to in that subsection, the provincial court judge shall include in the record a statement of the court’s reasons.
- Application of ss. 113 to 117
(7) Sections 113 to 117 apply in respect of every order made under subsection (5).
- Appeal by person or Attorney General
(8) Where a provincial court judge makes an order under subsection (5), the person to whom the order relates, or the Attorney General, may appeal to the superior court against the order.
- Appeal by Attorney General
(9) Where a provincial court judge does not make an order under subsection (5), the Attorney General may appeal to the superior court against the decision not to make an order.
- Application of Part XXVII to appeals
(10) The provisions of Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (8) or (9), with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
- Definition of “provincial court judge”
(11) In this section and sections 112, 117.011 and 117.012, “provincial court judge” means a provincial court judge having jurisdiction in the territorial division where the person against whom the application for an order was brought resides.
R.S., 1985, c. C-46, s. 111; 1991, c. 40, s. 24; 1995, c. 39, s. 139.
– CCC
- Revocation of prohibition order under s. 111(5)
112. A provincial court judge may, on application by the person against whom an order is made under subsection 111(5), revoke the order if satisfied that the circumstances for which it was made have ceased to exist.
R.S., 1985, c. C-46, s. 112; R.S., 1985, c. 27 (1st Supp.), s. 203; 1991, c. 40, s. 26; 1995, c. 39, s. 139.
– CCC
Prohibition After Section 117.04 Seizure
- Application for disposition
117.05 (1) Where any thing or document has been seized under subsection 117.04(1) or (2), the justice who issued the warrant authorizing the seizure or, if no warrant was issued, a justice who might otherwise have issued a warrant, shall, on application for an order for the disposition of the thing or document so seized made by a peace officer within thirty days after the date of execution of the warrant or of the seizure without a warrant, as the case may be, fix a date for the hearing of the application and direct that notice of the hearing be given to such persons or in such manner as the justice may specify.
- Ex parte hearing
(2) A justice may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person from whom the thing or document was seized in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.
- Hearing of application
(3) At the hearing of an application made under subsection (1), the justice shall hear all relevant evidence, including evidence respecting the value of the thing in respect of which the application was made.
- Forfeiture and prohibition order on finding
(4) Where, following the hearing of an application made under subsection (1), the justice finds that it is not desirable in the interests of the safety of the person from whom the thing was seized or of any other person that the person should possess any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or any such thing, the justice shall
- (a) order that any thing seized be forfeited to Her Majesty or be otherwise disposed of; and
- (b) where the justice is satisfied that the circumstances warrant such an action, order that the possession by that person of any weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, or of any such thing, be prohibited during any period, not exceeding five years, that is specified in the order, beginning on the making of the order.
- Reasons
(5) Where a justice does not make an order under subsection (4), or where a justice does make such an order but does not prohibit the possession of all of the things referred to in that subsection, the justice shall include in the record a statement of the justice’s reasons.
- Application of ss. 113 to 117
(6) Sections 113 to 117 apply in respect of every order made under subsection (4).
- Appeal by person
(7) Where a justice makes an order under subsection (4) in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.
- Appeal by Attorney General
(8) Where a justice does not make a finding as described in subsection (4) following the hearing of an application under subsection (1), or makes the finding but does not make an order to the effect described in paragraph (4)(b), the Attorney General may appeal to the superior court against the failure to make the finding or to make an order to the effect so described.
- Application of Part XXVII to appeals
(9) The provisions of Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (7) or (8) with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.
– CCC
Associate Prohibition Order
- Limitations on Access
- Application for order
117.011 (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order under this section where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that
- (a) the person against whom the order is sought cohabits with, or is an associate of, another person who is prohibited by any order made under this Act or any other Act of Parliament from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things; and
- (b) the other person would or might have access to any such thing that is in the possession of the person against whom the order is sought.
- Date for hearing and notice
(2) On receipt of an application made under subsection (1), the provincial court judge shall fix a date for the hearing of the application and direct that notice of the hearing be given, in such manner as the provincial court judge may specify, to the person against whom the order is sought.
- Hearing of application
(3) Subject to subsection (4), at the hearing of an application made under subsection (1), the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.
- Where hearing may proceed ex parte
(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person against whom the order is sought in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.
- Order
(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order in respect of the person against whom the order was sought imposing such terms and conditions on the person’s use and possession of anything referred to in subsection (1) as the provincial court judge considers appropriate.
- Terms and conditions
(6) In determining terms and conditions under subsection (5), the provincial court judge shall impose terms and conditions that are the least intrusive as possible, bearing in mind the purpose of the order.
- Appeal by person or Attorney General
(7) Where a provincial court judge makes an order under subsection (5), the person to whom the order relates, or the Attorney General, may appeal to the superior court against the order.
- Appeal by Attorney General
(8) Where a provincial court judge does not make an order under subsection (5), the Attorney General may appeal to the superior court against the decision not to make an order.
- Application of Part XXVII to appeals
(9) The provisions of Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (7) or (8), with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
1995, c. 39, s. 139.
- Revocation of order under s. 117.011
117.012 A provincial court judge may, on application by the person against whom an order is made under subsection 117.011(5), revoke the order if satisfied that the circumstances for which it was made have ceased to exist.
1995, c. 39, s. 139.
– CCC