The respondent, Michael Franchina, was sentenced to an absolute discharge and a weapons prohibition order under section 109 of the Criminal Code following a trial for assault with a weapon.
However, because the Crown had proceeded by summary conviction, a section 109 weapons prohibition order was not legally available upon the imposition of an absolute discharge.
The Crown conceded the sentencing error and brought the matter forward for review.
The Ontario Superior Court of Justice granted leave to appeal, allowed the appeal, and varied the sentence to delete the weapons prohibition order.
