INTRODUCTION AND BRIEF DESCRIPTION
This section requires that a person convicted of certain offences, including using violence, using firearms in a crime, or possessing prohibited weapons, shall be prohibited from possessing any such items for a specified period of time.
SECTION WORDING
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.
EXPLANATION
Section 109(1) of the Criminal Code of Canada is a provision that mandates a court to prohibit a person who has been convicted or discharged under section 730, of certain offences from possessing specific items. These offences include those where violence against a person was used, threatened or attempted, possession of prohibited or restricted firearms, weapons trafficking, and criminal harassment, among others. The court must impose this order in addition to any other punishment or condition prescribed in the order of discharge. The order applies to firearms, cross-bows, prohibited and restricted weapons and devices, ammunition, and explosive substances. The period of prohibition is determined by the court based on subsections (2) and (3). This provision has several functions. First, it acts as a preventive measure to reduce the likelihood of future violence by individuals who have used violence in the commission of an offence. Second, it helps to protect the public and other individuals from harm by preventing individuals who have committed an offence involving firearms or other dangerous items from possessing them. Finally, it is a means of punishment that restricts the freedoms of individuals who have committed certain offences and sends a message that the criminal justice system takes firearms offences seriously. Overall, section 109(1) is an important provision in the Canadian Criminal Code that helps to protect public safety, prevent future violence, and serve as a form of punishment for certain offences.
COMMENTARY
Section 109(1) of the Criminal Code of Canada is an important piece of legislation that aims to promote public safety and protect individuals from the harm caused by the use of violent weapons. The section provides for the prohibition of the possession of certain items in cases where an individual has been convicted of specific offences, such as those that involve the use or abuse of firearms, explosives, and other dangerous weaponry. The purpose of this provision is to prevent individuals who have demonstrated a risk to public safety from possessing the means to cause harm with firearms, explosives, and other dangerous weaponry. The prohibition of the possession of these items is an essential measure for ensuring the protection of individuals and society as a whole. The section is broken down into four subsections, with each providing for the prohibition of possession of a different type of item. Subsection (a) of the provision prohibits the possession of any weapons that were used, threatened, or attempted to be used during the commission of an indictable offence that involved violence against a person and for which the individual may be sentenced to imprisonment for ten years or more. This subsection aims to prohibit individuals who have demonstrated violent tendencies from possessing dangerous weapons that could be used to cause harm in future. Subsection (b) prohibits the possession of firearms, imitation firearms, or ammunition in cases where an individual has been convicted of certain firearm-related offences. This subsection aims to prevent individuals who have demonstrated antisocial tendencies from possessing firearms or other dangerous weapons that could be used to commit offences in future. Subsection (c) prohibits the possession of controlled substances in cases where an individual has been convicted of offences that contravene specific provisions of the Controlled Drugs and Substances Act. By doing so, it aims to prevent individuals who have demonstrated a propensity to engage in criminal activities such as drug trafficking from having access to these drugs. Finally, subsection (d) provides for the prohibition of possession of firearms, crossbows, prohibited weapons, restricted weapons, explosives, and other dangerous items in cases where the individual has been prohibited from possessing these items under an order made under any Act of Parliament. This subsection aims to prevent individuals who have been prohibited from possessing dangerous weapons from doing so in secret. Overall, section 109(1) is a critical provision in the Criminal Code of Canada aimed at ensuring public safety. By prohibiting the possession of certain dangerous weapons, the law aims to protect individuals from harm and prevent the commission of future offences. While the provision is not a silver bullet to solve problems involving crime and violence, it is an essential component of Canada's legal framework to protect individuals and society as a whole.
STRATEGY
Section 109(1) of the Criminal Code of Canada is a powerful tool that can be used to restrict individuals who have been convicted of or discharged from certain offences from possessing firearms, cross-bows, prohibited weapons, and more. However, there are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code. One of the primary strategic considerations is the period of time for which the prohibition order will be in effect. Under subsection (2) or (3) of Section 109(1), the court must determine the period of time for which the prohibition order will be in effect. This period of time can range from one to 10 years and can be extended for up to another 10 years if the court finds it necessary. Therefore, it is important to carefully consider the length of time the prohibition order will be in effect, as this can have significant implications for the individual's future. Another strategic consideration is the impact the prohibition order may have on the individual's livelihood. If the individual's work requires them to possess firearms or other prohibited items, the prohibition order can have a significant impact on their ability to work and earn a living. In such cases, it may be possible to negotiate a modification or exemption to the prohibition order to allow them to work while still maintaining public safety. Strategies that could be employed when dealing with Section 109(1) include negotiating a plea bargain to reduce the charges against the individual so that the prohibition order is not triggered, arguing against the imposition of a prohibition order and instead seeking other sentencing options, such as community service or probation, or negotiating for a shorter period of time for the prohibition order. Another strategy would be to appeal the imposition of a prohibition order if the individual believes it is unjust or overly harsh, or to seek a variation or termination of the prohibition order once some time has passed and the individual has demonstrated that they are no longer a danger to society. Overall, when dealing with Section 109(1) of the Criminal Code of Canada, careful consideration of the potential implications, duration, and impact of the prohibition order is essential. There may be opportunities to negotiate or appeal the imposition of the prohibition order, and it is important to work closely with experienced legal counsel to determine the best course of action. Ultimately, the goal should be to balance public safety with the individual's rights and freedoms.