Weapons Prohibition Orders

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General Principles

Under s. 731.1, a sentencing judge, before making a probation order, must consider whether to impose a weapons prohibition order under s. 109 or 110:

Firearm, etc., prohibitions

731.1 (1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.

Application of section 109 or 110

(2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) does not affect the operation of section 109 or 110.
1992, c. 20, s. 201; 1995, c. 22, s. 6; 2002, c. 13, s. 73.

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Under s. 84, and for the purposes of Part III of the Code, a "prohibition order means an order made under this Act or any other Act of Parliament 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". This will include a probation order made under .s 732.1(3).

History

In 1977, the Criminal Law Amendment Act, 1977 (SC 1976-77, c 53) expanded the application of the prohibition order to include all offences where "violence was used, threatened or attempted".

Mandatory 109 Order

Prohibition orders under s. 109 are considered mandatory. These orders apply where the offences meet the criteria set out in s. 109(1).

Applicable Offences

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,

(a.1) an indictable offence in the commission of which violence was used, threatened or attempted against

(i) the person’s intimate partner,

(ii) a child or parent of the person or of anyone referred to in subparagraph (i), or

(iii) any person who resides with the person or with anyone referred to in subparagraph (i) or (ii),

(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,

(c.1) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis 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.

...
R.S., 1985, c. C-46, s. 109; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 40, s. 21; 1995, c. 39, ss. 139, 190; 1996, c. 19, s. 65.1; 2003, c. 8, s. 4; 2015, c. 27, s. 30; 2018, c. 16, s. 208; 2019, c. 25, s. 30.

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An order under s. 109 prohibits "possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance". The 109 Order applies where at least one of the elements of s. 109(1)(a),(b),(c), or (d) applies.

Eligible Offences

Section 109(1)(a)

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)(a.1) where the offence is:

• indictable offence;
• "violence was used, threatened or attempted"
• violence was against:
  • the person’s current or former intimate partner,
  • a child or parent of the person or of the intimate partner or
  • any person who resides with the person or with the intimate partner

All offences involving sexual assault against children is always offences where "violence is used" and therefore satisfies the requirement of violence under s. 109(1)(a) and 109(1)(a.1). This includes:

• invitation to sexual touching (152)
• sexual exploitation (153 and 153.1)
• incest (155)
• Bestiality (160)
• sexual assault (271)
• sexual assault causing bodily harm or with a weapon (272)
• aggravated sexual assault (273)

Section 109(1)(b)

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

• criminal harassment (s.264); or
• an enumerated weapon offence:
  • Using a Firearm in the commission of an Offence [s. 85(1)]
  • Using an Imitation Firearm in the commission of an Offence [85(2)]
  • Possession of a Restricted or Prohibited Firearm [95(1)]
  • Weapons Trafficking [99(1)]
  • Possession for the Purpose of Trafficking [100(1)]
  • Making an automatic firearm [102]
  • Importing or Exporting Firearms [103(1)]

Section 109(1)(c)

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

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.

Section 109(1)(c.1)

The order is mandatory under s. 109(1)(c.1) where the offence is the following under the Cannabis Act:

• Distribution of cannabis s. 9(1)
• Possession for the purpose of distribution s. 9(2)
• Selling cannabis s. 10(1)
• Possession for the purpose of sale s. 10(2)
• Importing and exporting cannabis s. 11(1)
• Possession for the purpose of importing or exporting s. 9(2)
• Production and Cultivation of cannabis s. 12(1), (4), (5), (6) or (7)
• Possession, etc., for use in production or distribution of illicit cannabis s. 13(1)
• Using a young person to commit a Cannabis Act offence s. 14(1)

Section 109(1)(d)

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

Specific Prohibitions

The judge, in making an order under s. 109, must specifically prohibit all weapons or devices that are enumerated in the section, consisting of a prohibition from possessing:

• firearm,
• cross-bow,
• prohibited weapon,
• restricted weapon,
• prohibited device,
• ammunition,
• prohibited ammunition and
• explosive substance

Duration

The first time that a s. 109 Order is granted for an accused there is a requirement of a minimum of 10 year prohibition 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.

109.
...

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.
(4) In subparagraph (2)(a)(ii), release from imprisonment means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole.

Application of ss. 113 to 117

(5) Sections 113 to 117 apply in respect of every order made under subsection (1).
R.S., 1985, c. C-46, s. 109; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 40, s. 21; 1995, c. 39, ss. 139, 190; 1996, c. 19, s. 65.1; 2003, c. 8, s. 4; 2015, c. 27, s. 30; 2018, c. 16, s. 208; 2019, c. 25, s. 30.

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Where seeking a s. 109 order for a subsequent offence requires notice of increased penalty under s. 727.

Discretionary 110 Order

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) to (c.1), 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.
...
R.S., 1985, c. C-46, s. 110; 1991, c. 40, ss. 23, 40; 1995, c. 39, ss. 139, 190; 2015, c. 27, s. 31; 2018, c. 16, s. 209; 2019, c. 25, s. 31.

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An order under s. 110 prohibits "possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things".

Eligible Offences

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 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.

An 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.

Specific Prohibitions

The judge, in making an order under s. 110, may specifically prohibit any number of weapons or devices that are enumerated in the section, consisting of:

• firearm,
• cross-bow,
• prohibited weapon,
• restricted weapon,
• prohibited device,
• ammunition,
• prohibited ammunition or
• explosive substance

Duration

110.
...

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.

Exception

(2.1) Despite subsection (2), an order made under subsection (1) may be imposed for life or for any shorter duration if, in the commission of the offence, violence was used, threatened or attempted against

(a) the person’s intimate partner;

(b) a child or parent of the person or of anyone referred to in paragraph (a); or

(c) any person who resides with the person or with anyone referred to in paragraph (a) or (b).

Reasons

(3) Where the court does not make an order under subsection (1), or where the court does make such an order but does not prohibit the possession of everything referred to in that subsection, the court shall include in the record a statement of the court’s reasons for not doing so.

Definition of release from imprisonment

(4) In subsection (2), release from imprisonment means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole.

Application of ss. 113 to 117

(5) Sections 113 to 117 apply in respect of every order made under subsection (1).
R.S., 1985, c. C-46, s. 110; 1991, c. 40, ss. 23, 40; 1995, c. 39, ss. 139, 190; 2015, c. 27, s. 31; 2018, c. 16, s. 209; 2019, c. 25, s. 31.

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Where the Crown wishes to rely upon s. 109(3) to seek an increased duration of prohibition the Crown must comply with s. 727 an provide notice. See Notice of Increased Penalty for details.

Exercise of Discretion

Section 110 permits a judge to make an order of prohibition where it is "desirable, in the interests of the safety of the person or of any other person".

The sentencing principles including proportionality, and taking to account the "circumstances of the offence and the offender", should be applied when considering whether to make an order under s. 110.

Exemptions for Employment or Sustenance

Anyone subject to a weapons prohibition order may apply for a limited employment and sustenance order.

Lifting of prohibition order for sustenance or employment

113. (1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that

(a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or

(b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person,

the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes.

Factors

(2) A competent authority may make an order under subsection (1) only after taking the following factors into account:

(a) the criminal record, if any, of the person;

(b) the nature and circumstances of the offence, if any, in respect of which the prohibition order was or will be made; and

(c) the safety of the person and of other persons.

Effect of order

(3) Where an order is made under subsection (1),

(a) an authorization, a licence or a registration certificate may not be denied to the person in respect of whom the order was made solely on the basis of a prohibition order against the person or the commission of an offence in respect of which a prohibition order was made against the person; and

(b) an authorization and a licence may, for the duration of the order, be issued to the person in respect of whom the order was made only for sustenance or employment purposes and, where the order sets out terms and conditions, only in accordance with those terms and conditions, but, for greater certainty, the authorization or licence may also be subject to terms and conditions set by the chief firearms officer that are not inconsistent with the purpose for which it is issued and any terms and conditions set out in the order.

When order can be made

(4) For greater certainty, an order under subsection (1) may be made during proceedings for an order under subsection 109(1), 110(1), 111(5), 117.05(4) or 515(2), paragraph 732.1(3)(d) or subsection 810(3).

Meaning of “competent authority”

(5) In this section, “competent authority” means the competent authority that made or has jurisdiction to make the prohibition order.
R.S., 1985, c. C-46, s. 113; 1991, c. 40, s. 27(E); 1995, c. 22, s. 10, c. 39, ss. 139, 190.

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It has been suggested that s. 113 was a necessary exemption from s. 109 in order to ensure that the punishment is not grossly disproportionate in the case of those who need the weapons for sustenance or employment.

It can be sufficient to establish that the primary source of meat for an aboriginal family is through hunting. It is not necessary that hunting be for the family's survival or subsistence. It may be that other sources of food are used as well. However, where a farmer uses a firearm to protect his livestock, then they must establish that he "solely or predominantly" depends on the firearm to sustain his family.

There is further suggestion that the provisions of 113 are not for the part-time, cultural or social hunter.

Variation of a Prohibition Order

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

Except for s. 113, there is no power for a provincial court judge to vary the duration of a s. 109 or 110 order.

Young Offenders

Mandatory prohibition order

51 (1) Despite section 42 (youth sentences), when a young person is found guilty of an offence referred to in any of paragraphs 109(1)(a) to (d) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance during the period specified in the order as determined in accordance with subsection (2).

Duration of prohibition order

(2) An order made under subsection (1) begins on the day on which the order is made and ends not earlier than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.

Discretionary prohibition order

(3) Despite section 42 (youth sentences), where a young person is found guilty of an offence referred to in paragraph 110(1)(a) or (b) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), consider whether it is desirable, in the interests of the safety of the young person or of any other person, to make an order prohibiting the young 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.

Duration of prohibition order

(4) An order made under subsection (3) against a young person begins on the day on which the order is made and ends not later than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.

Reasons for the prohibition order

(5) When a youth justice court makes an order under this section, it shall state its reasons for making the order in the record of the case and shall give or cause to be given a copy of the order and, on request, a transcript or copy of the reasons to the young person against whom the order was made, the counsel and a parent of the young person and the provincial director.

Reasons

(6) When the youth justice court does not make an order under subsection (3), or when the youth justice court does make such an order but does not prohibit the possession of everything referred to in that subsection, the youth justice court shall include in the record a statement of the youth justice court’s reasons.

Application of Criminal Code

(7) Sections 113 to 117 (firearm prohibition orders) of the Criminal Code apply in respect of any order made under this section.

Report

(8) Before making an order referred to in section 113 (lifting firearms order) of the Criminal Code in respect of a young person, the youth justice court may require the provincial director to cause to be prepared, and to submit to the youth justice court, a report on the young person.

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Review

Review of order made under section 51

52 (1) A youth justice court may, on application, review an order made under section 51 at any time after the end of the period set out in subsection 119(2)(period of access to records) that applies to the record of the offence that resulted in the order being made.

Grounds

(2) In conducting a review under this section, the youth justice court shall take into account

(a) the nature and circumstances of the offence in respect of which the order was made; and

(b) the safety of the young person and of other persons.

Decision of review

(3) When a youth justice court conducts a review under this section, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard,

(a) confirm the order;

(b) revoke the order; or

(c) vary the order as it considers appropriate in the circumstances of the case.

New order not to be more onerous

(4) No variation of an order made under paragraph (3)(c) may be more onerous than the order being reviewed.

Application of provisions

(5) Subsections 59(3) to (5) apply, with any modifications that the circumstances require, in respect of a review under this section.

Surrender and Forfeiture of Weapons

Requirement to surrender

114 A competent authority that makes a prohibition order against a person may, in the order, require the person to surrender to a peace officer, a firearms officer or a chief firearms officer

(a) any thing the possession of which is prohibited by the order that is in the possession of the person on the commencement of the order, and

(b) every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by the order that is held by the person on the commencement of the order,

and where the competent authority does so, it shall specify in the order a reasonable period for surrendering such things and documents and during which section 117.01 does not apply to that person.
R.S., 1985, c. C-46, s. 114; R.S., 1985, c. 27 (1st Supp.), s. 203; 1995, c. 22, s. 10, c. 39, s. 139.

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Forfeiture

115 (1) Unless a prohibition order against a person specifies otherwise, every thing the possession of which is prohibited by the order is forfeited to Her Majesty if, on the commencement of the order, the thing is in the person’s possession or has been seized and detained by, or surrendered to, a peace officer.

Exception

(1.1) Subsection (1) does not apply in respect of an order made under section 515.

Disposal

(2) Every thing forfeited to Her Majesty under subsection (1) shall be disposed of or otherwise dealt with as the Attorney General directs.

R.S., 1985, c. C-46, s. 115; 1995, c. 39, s. 139; 2003, c. 8, s. 5; 2019, c. 9, s. 17.

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Revocation of Authorizations, Licences and Registration

Authorizations revoked or amended

116 (1) Subject to subsection (2), every authorization, licence and registration certificate relating to any thing the possession of which is prohibited by a prohibition order and issued to a person against whom the prohibition order is made is, on the commencement of the prohibition order, revoked, or amended, as the case may be, to the extent of the prohibitions in the order.

Duration of revocation or amendment — orders under section 515

(2) An authorization, a licence and a registration certificate relating to a thing the possession of which is prohibited by an order made under section 515 is revoked, or amended, as the case may be, only in respect of the period during which the order is in force.
R.S., 1985, c. C-46, s. 116; 1991, c. 28, s. 11, c. 40, ss. 28, 41; 1995, c. 39, s. 139; 2003, c. 8, s. 6.

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Return Firearm to Lawful Owner

Return to owner

117 Where the competent authority that makes a prohibition order or that would have had jurisdiction to make the order is, on application for an order under this section, satisfied that a person, other than the person against whom a prohibition order was or will be made,

(a) is the owner of any thing that is or may be forfeited to Her Majesty under subsection 115(1) and is lawfully entitled to possess it, and

(b) in the case of a prohibition order under subsection 109(1) or 110(1), had no reasonable grounds to believe that the thing would or might be used in the commission of the offence in respect of which the prohibition order was made,

the competent authority shall order that the thing be returned to the owner or the proceeds of any sale of the thing be paid to that owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.
R.S., 1985, c. C-46, s. 117; 1991, c. 40, s. 29; 1995, c. 39, s. 139.

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See Also

• Firearms Prohibition Orders
• Seizure of Firearms
• Forfeiture of Weapons and Firearms
• Weapon Offences