section 380.2(3)

INTRODUCTION AND BRIEF DESCRIPTION

The court can vary the conditions of a prohibition order if the offender or prosecutor apply and changed circumstances are present.

SECTION WORDING

380.2(3) A court that makes an order of prohibition or, if 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.

EXPLANATION

Section 380.2(3) of the Criminal Code of Canada relates to orders of prohibition that are made by a court against an offender. A court may impose an order of prohibition on a person who has been convicted of certain offences, such as fraud or theft. This order prohibits the offender from engaging in certain activities, such as operating a business or holding a position of trust. Under this section, an application can be made by either the offender or the prosecutor to the court that made the order of prohibition or another court with equivalent jurisdiction in the same province. The court can require the offender to appear before it at any time and, after hearing from both parties, the court may vary the conditions prescribed in the order. This provision allows for the possibility of a change in circumstances that may require a variation in the conditions of the order of prohibition. For example, if the offender has completed a rehabilitation program and can show that they are no longer a risk to engage in prohibited activities, the court may consider varying the conditions of the order. Alternatively, if the offender has violated the conditions of the order, the court may consider imposing stricter conditions or extending the prohibition period. In summary, section 380.2(3) provides for a mechanism whereby an offender or prosecutor can seek a variation of the conditions of an order of prohibition based on changed circumstances. This provision helps to ensure that the conditions of the order remain appropriate and effective in preventing future offending by the offender.

COMMENTARY

Section 380.2(3) of the Criminal Code of Canada grants courts the power to make orders of prohibition and impose conditions on offenders in order to protect against future occurrences of similar criminal behavior. This provision ensures that courts have the tools necessary to ensure the public safety and protect victims of crimes. An order of prohibition is essentially a ban on certain activities or actions that the offender may engage in. These orders are typically imposed when an individual has been convicted of a serious criminal offense, such as fraud, embezzlement, or theft. The conditions prescribed in these orders can include things such as a ban on possessing firearms, working in certain industries, or even having contact with certain individuals. While these orders can be effective in preventing similar criminal behavior, changing circumstances can sometimes necessitate a modification of the conditions outlined in the order. For example, an offender who was banned from working in finance may have developed new skills that would make them a valuable asset in the industry. In this case, it would be appropriate to allow the offender to work in this field, albeit with certain restrictions in place. Section 380.2(3) acknowledges the potential for changing circumstances and provides a mechanism by which offenders and prosecutors can request a modification to the conditions outlined in the order of prohibition. This allows courts to take into account new information that may not have been present at the time of the original order. However, it is important to note that any modifications made to an order of prohibition must still prioritize public safety and the protection of victims. In other words, if the court believes that the new conditions would increase the risk of the offender committing another crime, or would put others in danger, they are unlikely to grant the requested modifications. Furthermore, while offenders may request modifications to their orders of prohibition, it is ultimately up to the court to determine whether or not to grant the request. The court will consider a variety of factors, such as the nature of the original offense, the offender's criminal history, and the potential risks associated with the requested modifications. In summary, Section 380.2(3) of the Criminal Code of Canada is an important provision that ensures that courts have the flexibility to modify orders of prohibition as necessary. This allows for the consideration of changing circumstances and allows offenders to potentially reintegrate into society in a safe and responsible way. However, public safety and the protection of victims is always the top priority, and any modifications made to these orders must reflect this priority.

STRATEGY

Section 380.2(3) of the Criminal Code of Canada provides the opportunity for individuals subject to a prohibition order to vary its conditions based on changed circumstances. This section creates strategic considerations for both the offender and the prosecution. For offenders, the first strategic consideration is whether to make an application to vary the conditions of the order. Offenders must assess whether there are new circumstances that would justify the variation. If the offender believes that the situation has changed significantly since the order was made, they may want to consider making an application to vary the conditions of the order. However, if they do not believe that there has been a significant change, it may be best to wait and continue to comply with the existing order. Secondly, offenders must decide whether to hire a lawyer to assist them in making the application. Hiring a lawyer can be expensive, but it may improve the chances of success. A lawyer can help prepare a strong application and ensure that all necessary information is presented to the court. They can also advocate on behalf of the offender, increasing the chances of the court granting the variation. Thirdly, another strategic consideration is whether to negotiate with the prosecution before making an application. Negotiating with the prosecution can be advantageous for offenders as it can avoid the need for a court hearing. By discussing the proposed variation with the prosecution and coming to an agreement, the parties can present a joint submission to the court. Joint submissions are usually given a lot of weight by the court, and therefore, have a higher chance of being successful. For the prosecution, the strategic considerations are different from the offenders. Firstly, the prosecution must consider whether to oppose the application to vary the conditions of the order. If the prosecution opposes the application, they must identify the grounds for their opposition and provide evidence to support their position. Prosecution must also assess the strength of their case and the likelihood of success if they choose to oppose the application. Secondly, the prosecution must negotiate with the offender if appropriate. If the prosecution believes that the proposed variation is reasonable, they may choose to negotiate with the offender and agree on a joint submission to present to the court. Negotiating with the offender can avoid the need for a court hearing, and a joint submission has a higher chance of success. Thirdly, the prosecution must consider the potential consequences of a variation to the conditions of the order. If the court varies the conditions, the effectiveness of the order may be compromised, and the offender's behavior may become more difficult to monitor. Prosecutors must consider the impact of a variation on public safety and the victim's rights, balancing the interests of the parties involved. In conclusion, Section 380.2(3) of the Criminal Code of Canada provides the opportunity for offenders subject to a prohibition order to vary the conditions if there are changed circumstances. Strategic considerations involve assessing the strength of the case, negotiating with the prosecution, and considering the potential consequences of variation. Hire a lawyer will increase the chances of success and avoid the need for a court hearing. Finally, a joint submission of the proposed variation to the court has a higher chance of success.