The accused pleaded guilty to possession of a prohibited weapon (brass knuckles) and to the possession of other weapons (a machete and bear spray) for a purpose dangerous to the public peace. He had no prior criminal record and the Crown and defence both recommended a conditional discharge.
The Crown also requested that the sentencing judge impose a weapons prohibition under section 110 of the Criminal Code. There was very little discussion as to the length of the weapons prohibition. The judge asked the Crown “Ten years?” and the Crown responded “Ten years.” That was the length of ban imposed. No submissions were made by the defence on the length of the prohibition. Later, as other ancillary orders and issues were being discussed, defence counsel said that his client opposed the proposed prohibition order because his client was a hunter. No reasons as to why the sentencing judge rejected the defence submission and accepted the Crown submission were given.
The accused appealed his sentence, focusing specifically on the weapons prohibition order: R v Wauer, 2014 ABCA 270 (CanLII).
The Court of Appeal began its analysis by noting that a weapons prohibition under section 110 of the Criminal Code is not mandatory. A sentencing court is to consider the imposition of a weapons prohibition upon a conviction or discharge for an offence involving a prohibited weapon or prohibited device. The criteria is “whether it is desirable, in the interests of the safety of the person or of any other person” to make the order: Criminal Code, s. 110(1).
It is clear that where a sentencing court decides not to impose a weapons prohibition order under s. 110 (or to limit the weapons to which such an order applies), in circumstances where there is an obligation to consider the issue, the court must give reasons: Criminal Code, s. 110(3). The Court of Appeal noted, however, that as a practical matter, it will not be possible for an appellate court to meaningfully review the decision to make a weapons prohibition order under section 110 unless reasons are also given: at para. 32.
Because no reasons had been given by the trial judge in this case, the Court of Appeal considered afresh the issue of whether the accused ought to have been given a weapons prohibition, and under what terms. The Court of Appeal agreed that this offender, who had been involved in a confrontation following the removal of some materials from a construction site while in possession of the weapons, ought to be prohibited from the possession of weapons for a period of time. There was evidence of a safety concern. However, given that the weapons weren’t used, weren’t threatened to be used and that the accused was a first-time offender, the Court of Appeal concluded that the maximum prohibition period under s. 110, ten years, should not have been ordered. Instead, a three year prohibition period was substituted.