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Summary

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The courts below set out the following facts. On April 16, 2001, the Appellant's daughter dialed 911 by mistake and then abandoned the call. The police responded and in the Appellant's home they found marihuana plants and they detected a strong smell of marihuana. They met the Appellant who consented to a warrantless search of his garage. He admitted that he owned both the plants and hydroponic paraphernalia used to grow plants found by the police. The police seized about $2000 worth of items. In carrying out their duties, they noticed six legally stored firearms which they did not seize. The Appellant was charged with unlawfully producing cannabis and possession for the purpose of trafficking. While on release he was discovered again operating a grow operation and was charged on a second Information. He entered guilty pleas with respect to the offences in both Informations. At sentencing, the Crown sought to include the mandatory firearms prohibition under s. 109(1)(c) of the Criminal Code which would have required forfeiture of the firearms to the Crown under s. 115(1).

The Appellant challenged the constitutionality of s. 109(1)(c) as it relates to drug offences. The trial judge imposed a fine and intermittent incarceration but adjourned the firearms disposition for a later hearing. At that hearing, the trial judge read s. 109(1)(c) down so that it provided for a discretionary order on the basis that it otherwise violated s. 12 of the Charter and he declined to impose a firearms prohibition. The Appellant was 46 years of age and a labourer. He lives in a rural setting. His criminal record included damage to property while a juvenile in 1973 for which he was conditionally discharged, escaping lawful custody in 1981, and dangerous operation of a motor vehicle in 1987. The marihuana production was found to be for the Appellant's own consumption. There was no evidence as to the Appellant's need for the six firearms. The Crown appealed with respect to the firearms prohibition. The Court of Appeal allowed the appeal, found the mandatory firearms prohibition constitutional, and imposed a firearms prohibition.

Lower Court Rulings