By: William Jaksa Criminal Litigation April 27, 2020

WHAT IS A WEAPONS PROHIBITION ORDER?

MANDATORY SECTION 109 ORDERS

Section 109 of the Canadian Criminal Code makes a weapons prohibition order mandatory for a person convicted of certain types of violent offences. Under Canadian law section 109 orders are mandatory when a person has been convicted of:

an indictable offence involving violence, or the threat of violence, that may result in a jail sentence of 10-years or more
an indictable offence involving violence, or the threat of violence, against a current or former intimate partner, their child or parent, or any other person that lives with them
most offences involving a firearm or any weapons – the use, trafficking, importing etc.
any sexual assault offence against children as it is considered violent
criminal harassment; or
involving the trafficking or production of illegal drugs

The mandatory section 109 weapons prohibition order means a convicted person is prohibited from possessing firearms, crossbows, restricted weapons, ammunition or explosive substances for 10 years on a first conviction and for life upon any further convictions. When a person receives a section 109 order for life they are not allowed to possess any:

a prohibited firearm – automatic firearms, bull-pup shotguns, handgun under 105 mm
a restricted firearm – most guns that are 105 mm to 470 mm in length
prohibited weapon – mace, brass knuckles, stun gun, spring-load knife, etc.
prohibited device – suppressors (silencers), bump stocks, overcapacity magazine; and
prohibited ammunition – incendiary bullets or exploding rounds

DISCRETIONARY SECTION 110 ORDERS

Section 110 of the Canadian Criminal Code gives a judge discretion to issue a weapons prohibition order for a person convicted of a violent offence not listed in section 109. Before issuing a section 110 order a judge should consider the safety of the convicted person, the victim or any other person and the circumstances of the offence and the offender when determining if a weapons prohibition is appropriate.

A judge may issue a discretionary section 110 weapons prohibition order if a person has been convicted of:

a summary or indictable offence not listed in section 109 of the Criminal Code
an offence that involved violence or threats; or
an offence that involved a weapon

The discretionary section 110 weapons prohibition order means a convicted person is banned from the possession of the following items for 10-years:

a firearm
crossbow
prohibited weapon
restricted weapon
prohibited device
any ammunition; and
any explosive substance

If the offence involved a current or former intimate partner, their child or parent, or any person that lives with them under Canadian law a section 110 order can be extended for a longer period.

PREVENTATIVE SECTION 111 ORDERS

Section 111 of the Criminal Code of Canada gives a judge discretion to issue a preventative weapons prohibition order for any person regardless if they have been charged or convicted of an offence. If a police officer, or firearms officer, has reasonable grounds to believe that there is a public safety concern, they may apply to have a preventative weapons prohibition order issued.

Like section 109 orders and section 110 orders, a preventative weapons prohibition order means a person is not allowed to possess:

a firearm
crossbow
prohibited weapon
restricted weapon
prohibited device
any ammunition; or
any explosive substance

If a judge decided to issue a preventative weapons prohibition order they must also decide how long the order shall remain in place, but it cannot exceed 5-years.

SECTION 113 EXEMPTION ORDERS

The Criminal Code under section 113 allows for a very limited exception to section 109 and section 110 orders. A judge may order an exemption to a mandatory or discretionary order prohibiting the possession of firearms, weapons and related items with any terms and conditions deemed appropriate. The granting of these exemptions are limited to persons who require them for sustenance or employment purposes.

An exemption order is only available where the person applying proves they require the firearm or restricted weapon for hunting to sustain themselves and their family; or, they convince a judge that the weapons prohibition order prevents them from employment. However, courts in northern communities have been expanding on these grounds to include such reasons as family traditions. In C.K., 2001 NWTSC 16, the court allowed an exemption to permit for the young offender to participate in “family hunting activities” as the judge believed it was important to preserve the accused’s “sense of family identification” and that it allowed the offender “the benefit of their guidance and influence”.

When determining if a weapons prohibition exemption order is appropriate a judge must consider the applicant’s criminal record; the circumstances surrounding the offence for which they were convicted and public safety.

Varying a Weapons Prohibition Order

A judge may also vary a prohibition order in the appropriate circumstances see R. v. Brown, 2016 ONCJ 183. In this matter, the judge varied a discretionary section 110 order to allow the offender to possess a crossbow to engage in a family activity with his children. The offender had been complying with the terms of his probation and the judge found that he posed no risk to public safety.

BREACHING WEAPONS PROHIBITION ORDER

Section 117.01 of the Criminal Code deals with breaches of prohibition orders. Effectively any person that is in possession of a weapon that has been ordered under section 109, section 110 or section 111 not to possess a weapon is in possession contrary to an order. This section reads:

Section 117 of the Criminal Code

117.01 (1)Subject to subsection (4), every person commits an offence who possesses a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance while the person is prohibited from doing so by any order made under this Act or any other Act of Parliament.

(2) Every person commits an offence who willfully fails to surrender to a peace officer, a firearms officer or a chief firearms officer any authorization, licence or registration certificate held by the person when the person is required to do so by any order made under this Act or any other Act of Parliament.

(3)Every person who commits an offence under subsection (1) or (2)

(a)is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or
(b)is guilty of an offence punishable on summary conviction.

(4)Subsection (1) does not apply to a person who possessed a firearm in accordance with an authorization or licence issued to the person as the result of an order made under subsection 113(1).

DEFENCES TO WEAPONS PROHIBITION ORDER VIOLATIONS

Very few substantive defences are available to failing to comply with weapons prohibition orders, and most would be fact-driven. The technical and procedural defences available revolve around the proper laying of the charges, the wording on the court information, the swearing of said information and if certified copies can be produced for trial.

Proof of Offence

The Crown is required to prove the following elements to secure a conviction for failing to comply with the weapons prohibition order.

Identity of the accused person as being the person that breached
Date and time of the offence
The jurisdiction that the offence occurred
That the accused was in actual possession or constructive possession of a weapon
That the item was actually a weapon
That the accused was subject to a weapon prohibition order at the time
That there was no exemption or variation order under section 113 at the time

FREQUENTLY ASKED QUESTIONS:

If I get a pardon will that take the weapons prohibition order off my criminal record?

No. Pardons or record suppression do not remove weapons prohibitions order from a criminal record. While it’s possible to get a pardon after 10 years that would suppress all criminal convictions however weapon prohibition orders will always remain. Pardons only hide criminal convictions; they do not delete section 109 or section 110 orders or probation orders. These ancillary orders will always be visible on criminal records, vulnerable person and security background searches.

Will a weapons prohibition order prevent me from traveling to the United States?
No, a weapons prohibition order in of itself will not prevent a person from traveling to the United States. It will, however, indicate to the US Customs Officer that the person has been convicted of a violent offence and that may be enough to prevent entry into the US.

Can I appeal just the section 109 or section 110 order?

No, a section 109 or section 110 order cannot be appealed on its own. The convicted person would need to appeal the actual conviction and/or sentence.

What if I’m knowingly in possession of a replica handgun while under a weapons prohibition order?

Depending on the circumstances surrounding the possession and how that replica firearm was being used, it could constitute a breach. If, for example, the replica was used in the commission of an offence then expect the police to charge you with a breach of a possession order. However, if the replica was simply found in your home, and not being used, there would likely be no charge.

Is it easy to apply for a weapons prohibition order exemption?

The application for an exemption is an administrative process – court documents must be obtained, an application must be drafted, affidavits and other supporting documents must be gathered. The granting of an exemption or even a variation of the order will depend on the personal circumstances of the person applying. Exemptions and variations are rarely granted.