section 161(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a court to modify conditions of an order of prohibition on application of the offender or prosecutor if there are changed circumstances.

SECTION WORDING

161(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.

EXPLANATION

Section 161(3) of the Criminal Code of Canada gives the courts the power to vary the conditions of an order of prohibition if there are changed circumstances. This provision allows for the offender or the prosecutor to apply to the court that made the original order or to another court of equivalent jurisdiction in the same province to modify the conditions if they are no longer relevant or appropriate. The court has the responsibility of hearing both parties and then determining whether the variation is desirable based on the changed circumstances. This change can involve the type of prohibition, scope, or the length of time it is in place. The court should weigh the public interest in protecting society from the offender against the offender's interest in being reintegrated into society. Therefore, if the changed circumstances have made the existing conditions unreasonable or too onerous, the court may vary the conditions of the order accordingly. This provision is significant because orders of prohibition, which prevent certain individuals from engaging in specified behaviors, are used to protect society from potential harm. However, the circumstances and context of an individual's life may change, making certain prohibitions unnecessary or excessively harsh. The objective of this section is to allow the court to make changes to the initial order to benefit both the offender and the public.

COMMENTARY

The section 161(3) of the Criminal Code of Canada is an important provision that allows courts to vary the conditions of an order of prohibition when deemed desirable due to changed circumstances. Such a provision is necessary to ensure that the conditions of an order remain relevant and effective in addressing the specific circumstances of the offender. The purpose of this provision is to ensure that the court remains flexible in its approach to orders of prohibition and recognizes that the circumstances of the offender may change over time. For example, an offender who was previously unable to obtain employment due to issues related to substance abuse may have completed a treatment program and now be seeking gainful employment. In such a case, the court may vary the conditions of the order by removing the restriction on employment. This provision is important because it ensures that the court remains engaged and informed about the circumstances of the offender, instead of just imposing a general prohibition without considering the unique needs and situation of the offender. This provision also allows the court to monitor the progress of the offender and make necessary adjustments to the conditions of the order as needed. It is important to note that any variation to the conditions of the order must be made with caution and based on an assessment of the changed circumstances. The court must weigh the interests of the offender against the need to ensure public safety and the protection of any victims. The prosecutor may also apply for a variation to the conditions of the order if there is compelling evidence that the offender is not complying with the conditions or if they believe the conditions need to be strengthened to ensure public safety. This provision ensures that the court stays engaged with the offender and the circumstances surrounding the order. This approach recognizes that conditions of an order of prohibition can be onerous and can result in significant hardship for offenders, especially if the conditions are not responsive to their changing circumstances. In conclusion, section 161(3) of the Criminal Code of Canada highlights the importance of remaining engaged with the circumstances of offenders once an order has been issued. This provision ensures that the court can monitor the progress of the offender and adjust the conditions to make them responsive to changing circumstances. This approach ensures that orders of prohibition remain relevant and effective in enhancing public safety.

STRATEGY

Section 161(3) of the Criminal Code of Canada gives the court the power to vary the conditions prescribed in an order of prohibition. This can be done if the offender or the prosecutor applies and the court determines that the variation is desirable due to changed circumstances. In this article, we will discuss some strategic considerations when dealing with this section and some strategies that could be employed. Strategic Considerations: 1. Timing: The timing of the application for a variation is essential, as it depends on the circumstances of the case. The court may not vary an order if the changes in circumstances are not significant or if the variation is not in the interest of justice. Therefore, the application must be made at the appropriate time when the court is most likely to grant the variation. 2. Evidence: The successful application for a variation of conditions requires the presentation of compelling evidence. The court will not grant the variation unless the applicant can persuade the court that there is a significant change in circumstances that justifies the variation of conditions. Therefore, the applicant must gather and present all relevant evidence to support the application. 3. The Judge: The judge assigned to the application has a significant impact on the outcome. Therefore, when selecting the judge, the applicant must consider the judge's previous rulings and seek legal advice regarding the judge's tendencies in cases that are similar to theirs. It is essential to select a judge who is likely to grant the variation. 4. Jurisdiction: The applicant must consider the jurisdiction of the court when applying for a variation. The court that made the order of prohibition or a court of equivalent jurisdiction in the same province can vary the conditions. It is essential to make the application to the appropriate court to avoid wasting time and resources. Strategies: 1. Evidence of Rehabilitation: The applicant can present evidence of rehabilitation as a reason for the court to vary the conditions. For instance, if an offender has completed treatment for a mental health condition or substance abuse, they can present this as evidence that they pose a lower risk to society. Thus the court may be more willing to grant the variation. 2. Evidence of Employment: The applicant can present evidence of stable employment to persuade the court to vary the conditions. Employment is an essential factor in the rehabilitation of offenders and demonstrates their ability to reintegrate into society successfully. Therefore, the court may be more willing to grant the variation if the offender has stable employment. 3. Evidence of Changed Circumstances: The applicant can present evidence of changed circumstances to persuade the court to vary the conditions. For instance, if the offender has moved to a different province, this can be presented as evidence of a change in circumstances that justifies the variation of conditions. 4. Negotiation with the Crown: The applicant can negotiate with the Crown Prosecutor to determine if they would support the application for a variation. The negotiation can result in an agreement that the Crown will support the application, thus making the process smoother and reducing tension between the parties. 5. Hire a Criminal Lawyer: Applicants who are unfamiliar with the legal process may require the guidance of a criminal lawyer to prepare the application and present compelling evidence to the court. A criminal lawyer can also help with negotiating with the Crown Prosecutor and selecting the appropriate judge and jurisdiction. In Conclusion, Section 161(3) gives the court the power to vary the conditions prescribed in an order of prohibition due to changed circumstances. Strategic considerations and strategies during this process can significantly impact the outcome. The successful applicant must present compelling evidence, choose the right jurisdiction, negotiate with the Crown, choose the right judge, and possibly hire a criminal lawyer.