INTRODUCTION AND BRIEF DESCRIPTION
The court must provide reasons if it does not make an order to prohibit possession of certain items under subsection (1) of section 110 of the Criminal Code of Canada.
SECTION WORDING
110(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.
EXPLANATION
Section 110(3) of the Criminal Code of Canada requires the court to provide reasons when it does not make an order under subsection (1) or when it makes such an order but does not prohibit possession of everything referred to in that subsection. Subsection (1) deals with orders of prohibition and forfeiture of property related to offenses such as terrorism, criminal organizations, and corruption. The court may choose not to prohibit possession or grant forfeiture under specific circumstances. The provision is crucial in ensuring transparency and accountability in the criminal justice system. The requirement for the court to provide reasons for its decision enables the reviewing judges to understand the decision-making process of the lower court, thereby facilitating an informed appellate review. The requirement also safeguards against arbitrary decisions, as courts must prioritize the interests of justice and public safety. Overall, section 110(3) is designed to ensure that courts justify their decisions by providing clear and concise reasons supporting their conclusions. It stands as a critical aspect of the Canadian criminal justice system's procedural fairness, providing an avenue for parties to assess and hold accountable legal proceedings.
COMMENTARY
Section 110(3) of the Criminal Code of Canada is a provision that requires a court to provide a statement of reasons when it does not make an order under subsection (1) or when it makes an order but does not prohibit the possession of everything referred to in that section. This provision serves the important function of promoting transparency and accountability in the judicial process. When a court is considering whether to make an order under subsection (1), it must take into account a number of factors, including the safety and security of any person and the likelihood of the defendant reoffending. If the court decides not to make an order or if it only prohibits the possession of some of the items referred to in subsection (1), it must provide a clear and detailed explanation of its reasoning. This explanation must be included in the court's record, which is a public document that can be accessed by anyone. The requirement for a statement of reasons is essential to maintaining public confidence in the justice system. When a court makes a decision, it must be able to explain why it has made that decision. This not only helps to ensure that the decision is fair and just, but it also allows the public to understand how the court arrived at its decision. Without a clear and detailed explanation of the court's reasoning, it would be difficult for members of the public to understand why a particular decision was made. This could lead to a perception that the justice system is arbitrary or unfair, which would undermine public trust and confidence. In addition to promoting transparency and accountability, the requirement for a statement of reasons can also be beneficial to the defendant. If a defendant disagrees with a court's decision, they may be able to appeal it. However, in order to do so, they need to be able to identify the specific errors or issues with the court's reasoning. If the court's decision is accompanied by a clear and detailed statement of reasons, the defendant is better able to identify these errors or issues and challenge the decision on appeal. This can help to ensure that the defendant receives a fair and just outcome. Overall, section 110(3) of the Criminal Code of Canada is an important provision that serves to promote transparency, accountability, and fairness in the justice system. By requiring courts to provide clear and detailed explanations of their reasoning when making decisions under subsection (1), this provision helps to maintain public trust and confidence in the justice system while also ensuring that defendants receive a fair and just outcome.
STRATEGY
Section 110(3) of the Criminal Code of Canada requires a court to provide reasons for either not making an order under subsection (1) of that section or for not prohibiting the possession of everything referred to in that subsection. This provision is particularly significant in cases where the prosecution is seeking a prohibition order to prevent the defendant from possessing firearms or other weapons, and the court ultimately declines to do so. In such cases, the court's reasons for not making the order must be clear and well-reasoned, and it is the responsibility of counsel to ensure that the court's reasoning is properly articulated. There are several strategic considerations that counsel should bear in mind when dealing with section 110(3). The first is to closely examine the facts of the case and determine whether or not there are any issues that might lead the court to decline to make a prohibition order. For example, if the defendant has never used firearms in a violent way or has no history of criminal activity, this might be a factor that the court takes into account when deciding whether or not to make an order. Counsel should also consider any mitigating factors that might apply to the particular case, such as mental health issues or other circumstances that might mitigate the risk of future violence. Another strategic consideration is to ensure that all relevant evidence is presented to the court in a clear and persuasive manner. Counsel should be prepared to call expert witnesses or other witnesses who can testify about relevant issues, such as the defendant's character or the prevalence of firearms in a particular community. Counsel should also be prepared to cross-examine any witnesses called by the prosecution, in order to challenge their credibility or to highlight any weaknesses in their testimony. In addition to presenting evidence, counsel should also be prepared to make persuasive legal arguments to the court. This might include arguing that the prosecution has failed to meet its burden of proof, or that the prohibition order would be disproportionate given the particular circumstances of the case. Counsel should also be prepared to cite relevant case law or legal precedents in support of their arguments. Finally, counsel should recognize that the court's decision in these cases may ultimately depend on factors beyond their control. For example, a judge's personal beliefs or attitudes towards firearms or violence might influence their decision-making process, and there may be little that counsel can do to change these factors. Therefore, it is important for counsel to manage their client's expectations and to prepare them for the possibility that the court might decline to make the prohibition order. Overall, the strategic considerations involved in dealing with section 110(3) of the Criminal Code of Canada require careful preparation, persuasive argumentation, and careful attention to both legal and factual details. By employing these strategies, counsel can help to increase the likelihood of a favorable outcome for their client.