INTRODUCTION AND BRIEF DESCRIPTION
Before making an order, the judge shall consider if it is desirable to prohibit possession of certain weapons or substances for the safety of the person or others.
SECTION WORDING
83.3(10) Before making an order under paragraph (8)(a), the judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and if the judge decides that it is so desirable, they shall add the condition to the recognizance.
EXPLANATION
Section 83.3(10) of the Criminal Code of Canada relates to the potential restriction of possessing certain items for individuals who are subject to a recognizance order. A recognizance is typically a court order that requires an individual to comply with certain conditions, such as attending court, keeping the peace, or refraining from engaging in certain activities. Prior to issuing an order under paragraph (8)(a) (which relates to preventative arrests), the judge must consider whether it would be desirable to include a condition that prohibits the person in question from possessing various items, such as firearms, cross-bows, and explosive substances. If the judge deems it to be desirable, they may add this as a condition to the recognizance order. This provision is in place to promote the safety of both the person subject to the order and others in the community. Restricting access to firearms, explosive substances, and other potentially dangerous items can help to prevent harm, particularly if the individual in question has a history of violent or destructive behavior. It is important to note that this provision is not limited to individuals who have been charged with a specific offense. It can also apply in situations where there is a concern that an individual may engage in activities that could potentially harm themselves or others. For example, it may be invoked if there is reason to believe that a person may have been radicalized and could pose a threat to national security. Overall, section 83.3(10) is a measure that is designed to help keep individuals and communities safe by limiting access to certain items that could potentially cause harm.
COMMENTARY
Section 83.3(10) of the Criminal Code of Canada is an important provision that imposes certain obligations on judges exercising their discretion to issue recognizance orders. The provision stipulates that before making an order under paragraph (8)(a), which allows a judge to require an individual to enter into a recognizance to keep the peace and be of good behavior, the judge must consider whether it is desirable to include a condition that the person be prohibited from possessing certain items. These items include firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, or explosive substances. The purpose of this provision is to prevent individuals who may pose a threat to public safety from having access to dangerous weapons or substances. By imposing a condition on the recognizance, the judge can ensure that the person is not a danger to society by restricting their access to the specified items for a specified period. This provision is particularly relevant in cases where an individual has been charged with terrorism offenses or another serious criminal offense. The decision to include the condition in a recognizance order is left to the discretion of the judge, who must consider the interests of the safety of the person or any other person. This requires the judge to take a holistic approach in assessing the circumstances of the case, including the person's criminal history, the nature of the offense, and the risk factors associated with the individual. The provision applies to various items that are considered dangerous and pose a substantial risk to public safety. Firearms, for instance, are lethal weapons that can harm or kill a person, whereas explosive substances can cause significant damage to property and endanger life. Therefore, it is essential that judges exercise caution when deciding whether to impose such a condition. Another important aspect of this provision is that judges can tailor the condition to fit the circumstances of the case. For instance, in cases where the risk posed by an individual is particularly high, the judge can prohibit the person from possessing all of the items mentioned in the provision. Alternatively, the judge may decide to impose a limited prohibition, such as prohibiting only the possession of firearms. Overall, section 83.3(10) of the Criminal Code of Canada is an essential provision that allows judges to impose conditions on recognizance orders to protect public safety. By requiring judges to consider the interests of the safety of the person and any other person, the provision strikes a balance between the need to protect public safety and the rights of the individual. It is a critical component of Canada's criminal justice system and reinforces the Canadian government's commitment to ensuring that its citizens are safe from harm.
STRATEGY
Section 83.3(10) of the Criminal Code of Canada allows a judge to prohibit an individual from possessing firearms, ammunition, explosives, or other related items. This section is particularly relevant in the context of terrorism and national security. It is essential to consider some strategic considerations in dealing with this section of the Criminal Code. One strategic consideration is the possibility of challenging the constitutionality of section 83.3(10). Such a challenge could be based on the argument that the section violates an individual's right to bear arms, which is protected under the Canadian Charter of Rights and Freedoms. A successful challenge could result in the section being struck down, rendering the possibility of a judge prohibiting an individual from possessing firearms or other related items moot. Another strategic consideration is the manner in which the evidence is presented to the judge. In order for a judge to make an order under section 83.3(10), they must be satisfied that such an order is desirable in the interests of safety. Thus, it is crucial to present evidence that highlights the individual's potential threat to public safety should they be allowed to possess firearms or other related items. This evidence could include previous criminal convictions or associations with groups or individuals known to be involved in violent activities. A third strategic consideration is the length of time for which the prohibition should be in place. The judge has the discretion to specify the period for which the prohibition will be in effect. It is important to consider the potential impact of the prohibition on the individual's livelihood and whether a more limited prohibition period might be sufficient to address the safety concerns. Furthermore, it is important to recognize that a prohibition order can be challenged or varied. The individual subject to the prohibition order may apply to have it varied or terminated. It is, therefore, crucial to keep abreast of any changes to the individual's circumstances that may impact the need for the prohibition. Overall, several strategic considerations must be taken into account when dealing with section 83.3(10) of the Criminal Code of Canada. These include the possibility of challenging the constitutionality of the section, the presentation of evidence to the judge, the length of the prohibition period, and recognition of the potential for the prohibition to be challenged or varied. Lawyers, prosecutors, and judges must carefully consider these factors to ensure that orders made under this section comply with the law and the interests of justice.