R. v. MacDonald, 2012 NSCA 50

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald , 2012 NSCA 50 Date: 20120511 Docket: CAC 347642 Registry: Halifax Between: Erin MacDonald Appellant and Her Majesty The Queen Respondent and The Attorney General of Canada Intervenor Judges: MacDonald, C.J.N.S.; Saunders and Beveridge, JJ.A. Appeal Heard: October 12, 2011, in Halifax, Nova Scotia Held: Appeal allowed in part per reasons for judgment of MacDonald, C.J.N.S.; Saunders, J.A. concurring; Beveridge J.A. dissenting Counsel: David Bright, Q.C. and Brian P. Casey, for the appellant Jennifer A. MacLellan, for the respondent James C.

Martin and Patricia MacPhee, for the intervenor Reasons for judgment : OVERVIEW [ 1 ] Erin MacDonald is a gun enthusiast. In December of 2009, a seemingly innocuous noise complaint at his downtown Halifax condominium erupted into a dangerous police struggle over his loaded 9mm Beretta handgun. In the end, Mr. MacDonald, with no previous criminal record, found himself convicted of several serious gun-related offences for which he has received a 3-year prison

sentence. He now appeals to this court. BACKGROUND That Fateful Evening [ 2 ] As an oil industry worker, Mr. MacDonald keeps a residence in both Calgary and Halifax. On the evening of December 28, 2009, he was entertaining friends at his condominium in Bishop’s Landing in downtown Halifax. They were enjoying some wine. From here, we are presented with two different perspectives.

From the Crown, we see an image of an intoxicated, rude neighbour with his music “blasting”, who was politely asked repeatedly to turn down the volume only to finally respond to police at the door by opening it while carrying a loaded restricted weapon. I refer to its factum: ¶4 On December 28, 2009 Erin Lee MacDonald was at his condominium located at 207 - 1479 Lower Water Street in Halifax drinking and listening to loud music. ¶5 MacDonald was described as intoxicated or quite intoxicated by various witnesses who encountered him during the events of the night. ¶6 The concierge, Mr.

Sears, received a noise complaint from the occupants of apartment 206, across the hall from the MacDonald unit. His attempts to knock on the door of MacDonald's unit and get the occupant's attention went unheeded, until the door opened and MacDonald's guests were departing. Mr. Sears asked MacDonald to "please turn the music down”. MacDonald told the concierge to "fuck off" and slammed the door in his face. Mr. Sears made further attempts to reason with MacDonald without success, finally deciding to call the Halifax Regional Police. ¶7 Cst.

Shelley Pierce was dispatched to the noise complaint at 1479 Upper Water Street. She testified that at approximately 30 feet from the apartment she could hear loud music. She rang MacDonald's bell "at least three times" and knocked on the door announcing who she was. MacDonald answered the door and Cst. Pierce asked him "… Sir, do you mind turning down your music?" MacDonald responded by telling her to "Go fuck yourself" and slammed the door. Cst Pierce waited a few moments to give MacDonald a chance to turn down his music. She heard the music get louder and decided to call for assistance. ¶8 Sgt.

Boyd arrived at the Bishop's Landing complex to assist with the matter. With Cst. Pierce and Mr. Sears, Sgt. Boyd attended at the MacDonald condominium. Sgt. Boyd heard the music "blasting" as soon as he exited the elevator. Sgt. Boyd testified that he knocked as loudly as he could, then kicked the door and yelled "Police". ¶9 Sgt. Boyd noticed that when MacDonald opened the door he had something "black and shiny" concealed in his right hand. Sgt. Boyd asked MacDonald: "what have you got in your hand". MacDonald did not respond. Sgt.

Boyd testified that MacDonald just stared at him with "this crazy look on his face". ¶10 Sgt. Boyd's concern increased when MacDonald did not respond, as in his experience when he asked someone this question, if they are unarmed they will usually tell you. Sgt. Boyd thought the concealed item might be a knife. ¶11 Sgt. Boyd pushed on the door, which opened inward, to see what was in MacDonald's hand. MacDonald was armed with a loaded gun. ¶12 Sgt. Boyd yelled "Gun". A struggle for the weapon ensued, with Sgt.

Boyd being successful in disarming MacDonald. ¶13 The firearm was a restricted 9 mm semi-automatic Beretta handgun.

[ 3 ] Yet from the Defence, we see a private citizen, not intoxicated, enjoying music at a reasonable volume in the privacy of his home only to be startled by kicking at his door so forceful that he had to load and carry his collector’s gun for fear of intruders. Mr. MacDonald explains in his factum: ¶10 On the evening of December 28, 2009, MacDonald was ending his “shift” in Halifax; a co-worker, Neil Duncan, had arrived from Calgary. Duncan would be taking over for the next couple of weeks.

MacDonald and Duncan and Duncan’s girlfriend met in MacDonald’s condominium and enjoyed a glass of wine while MacDonald briefed Duncan on the handover. Duncan does not remember hearing music playing in the unit, and testified that it did not interfere with their discussions. He and MacDonald were about three or five feet apart. ¶11 An employee of the building, Sears, testified that he knocked on the door and rang the doorbell to the unit about 9.30 or 10.00 pm, and then witnessed Mr Duncan and his friend leave the unit at which time Sears told MacDonald to turn down his music.

Duncan testified that he did not see Sears when he left the unit that evening, and that there was no knock on the door or ringing of the doorbell while he was standing next to the door getting his coat and boots on. MacDonald, who was saying good night to his guests while they put on their coats and boots, testified he was immediately inside the unit and had not heard a knock or a bell either. ¶12 Both Duncan and MacDonald testified at trial that the music was not particularly loud; they were able to discuss their business comfortably while it played.

Sears claimed he could hear the music from the elevator; the police officer who attended said that it was only when she had proceeded 30 feet down the hallway towards the unit that she could hear the music. The learned Trial Judge misapprehended the police evidence on this point, and accordingly believed the music could be heard from the elevator. ¶13 MacDonald’s unit is bordered on one side by a stairwell, and on the other side by a utility closet; the garage is directly underneath his unit and directly above him is a person who MacDonald knew was not home (a coast guard employee who was gone for two weeks).

No one with a common wall could be disturbed by his music. As a result, MacDonald was reluctant to believe anyone was disturbed by his music and he told Sears to “fuck off.” ¶14 When MacDonald did not turn off his music, Sears called the police. About half an hour later, Cst Shelley Pierce attended. She rang the doorbell to his suite, and told MacDonald to turn down or turn off the music. MacDonald left the door to go get his remote and turn down the music.

The door slammed shut. (Sears testified that the doors have an automatic closing device which slams the door if you let go of them.) Sears claimed the closing door “threw [Pierce] across the hall”; Pierce denied this entirely. According to her, the door simply closed. Pierce knocked on the door again; MacDonald came back to the door (now with his remote control in his hand). Pierce put her foot in the door, and then removed it.

MacDonald initially increased the volume of his music (he says he accidentally pushed the wrong button on his remote control) and then turned the music down. ¶15 At this point, Cst Pierce could have issued an SOT [summary offence ticket] – she witnessed the apparent noise bylaw violation, she had Mr MacDonald’s name and address. The police knew they had no power of arrest with respect to the noise by-law offence.

MacDonald testified that in turning down his music, he thought the concerns about his music’s volume had been resolved. ¶16 MacDonald was to travel to Calgary in the morning, so he went to his bedroom in the condominium to begin packing. Among other things, he took out his handgun to prepare it for travel. About a half an hour later, while he was packing, he heard a kicking on his condominium door. It was about 11pm; he was not expecting any visitors, and the unit had a buzzer and he had not buzzed anyone into the building. No one rang the unit doorbell, either.

So far as he knew, no one in the building should be knocking on his door (let alone kicking) at this hour. ¶17 In these circumstances, MacDonald retrieved his locked gun case, removed his handgun, loaded it, engaged the safety, and went to the door. As he approached the door, he heard a voice announce “police”.

He could see no one through the viewer, although the kicking continued. (The police officers are trained not to stand directly in front of the door; the trial judge accepted that they were not visible through the peep hole.) MacDonald did not know if it was the police, and kicking the door seemed odd behaviour for the police. (When Cst Piercey was there before, she simply rang the bell.) MacDonald placed his loaded gun out of sight behind his back, and immediately opened the door – one witness thought he opened it about seven or eight inches, another about sixteen inches.

Cst Pierce said the door opened within five seconds of the announcement it was the police, which was within two or three minutes of Sgt Boyd first kicking at the door.

¶18 MacDonald kept his hand with the gun behind his back and out of sight, so as not to alarm the police. Cst Pierce could not see Mr MacDonald at all when he opened the door. Sgt Boyd, who could see only MacDonald’s face and his right leg asked what he had behind his back. MacDonald did not reply. (Sgt Boyd admitted that if MacDonald had told him what he had in his hand, he might have forced his way into the apartment anyway.) Within seconds of MacDonald opening the door, Sgt Boyd forced his way into the unit “to see what he had in his hand”, wrestled the gun away from MacDonald, and arrested him.

At no time did MacDonald invite the police to enter. The entire incident took ten seconds. The Trial Judge ’s Decision [ 4 ] As I will describe in more detail below, the trial judge, the Honourable William Digby of the Nova Scotia Provincial Court, essentially accepted the Crown’s version of events. He found Mr. MacDonald guilty of careless handling of a firearm contrary to s. 86 of the Criminal Code , possessing a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Criminal Code , and possessing (without authorization) a loaded restricted firearm contrary to s. 95 of the Criminal Code .

Section 95 is a hybrid offence. Here the Crown proceeded by indictment, thereby invoking a mandatory 3-year prison sentence. [ 5 ] Turning to sentence, the judge ordered 2 years in a federal penitentiary for the careless use offence. For the danger to the public peace offence, he ordered 3 years concurrent to the careless use sentence. For the illegal possession offence, he issued the mandatory 3-year term, concurrent to the other two sentences. So the total term was for 3 years. The Beretta was also forfeited and Mr.

MacDonald was prohibited from possessing restricted weapons for life and all other weapons for 10 years. [ 6 ] As well, the judge acquitted Mr. MacDonald of several counts from which there has been no cross-appeal. These included pointing a firearm, resisting arrest, assault with a weapon, and another count dealing with his possession of the Beretta . [ 7 ] At trial, Mr. MacDonald fought these charges on several fronts.

Firstly, in attacking the s. 95 conviction, he asserted that, because his Beretta was in fact registered, his possession was therefore authorized or, in the alternative, he honestly believed it to be authorized. However, because his documentation referred only to the Calgary address, the Crown insisted that possession was not authorized in Halifax and Mr. MacDonald’s ignorance of that legal consequence offered no excuse. The judge agreed with the Crown: It is common ground that he had a loaded, restricted firearm in his residence at Bishop's Landing. Mr.

MacDonald says that he believed he could possess that firearm at that location because he had all the other proper licenses and under

section 63, "licenses, registration certificates, authorizations to transport, authorizations to export and authorizations to import are valid throughout Canada." He had documentation which he submitted in evidence from the Nova Scotia Rifle Association indicating that he was a member and invited to use their facility. I take it it is common ground, and certainly the case has proceeded on the basis of common ground, that Nova Scotia Rifle Association is an organization which falls under section 19(1) (

a) of the Firearms Act . The Defence submission is, is that it would be unfortunate or unjust that Mr. MacDonald be found guilty of that particular offence because of a mistake on his part. The Crown submission is that Mr. MacDonald acquired the weapon in Alberta. He got a one-time license to transport it to his residence. Mr. MacDonald agreed in his evidence that that was, in fact, the case. Mr.

MacDonald also agrees that he got a second authorization to transport which is more of a blanket authorization to transport and that is the one that allows him to take the firearm from his residence to shooting ranges and border crossings within the Province of Alberta. If the Defence is attempting to suggest that

section 63 says that once you have an authorization to transport it is valid throughout Canada, I think the right only in a limited sense in the sense that if the chief firearms officer or someone acting under his or her stead, in a province or territory says, you can transport it to specific locations that that is valid even if one of those locations happens to be in another province, but it does not change an authorization to transport, which is limited by the chief firearms officer or it does not extend that to places not designated within the specific authorization to transport.

In other words, the chief firearms officer or someone acting in his or [her] stead, can designate specific locations or class of locations and that is what was done in the second authorization to transport.

Section 63, in my view, in no way extends that beyond what it is. So, in

effect, Mr. MacDonald had no authorization to transport that to any place other than what the license limited or the authorization to transport limited. He had no authority to bring it to Nova Scotia. [ 8 ] The defence also attacked the constitutionality of s. 95’s 3-year minimum asserting that it represents cruel and unusual punishment as prohibited by the Charter .

Again, the trial judge disagreed: The circumstances of this particular offence are the use of a loaded firearm in a condominium where other people could be found possibly to be present or to travelling in either as residents or having business with residents. The lives of the officers present were at risk. This case demands a significant period of incarceration because of that risk to the public. Mr. Casey has very ably tried to present the circumstances of this as a licencing transgression. The licencing transgression part of the s.95 offence is not what places the public at risk.

What places the public at risk is the use of that loaded firearm in the circumstances of this particular case. To classify this as a licencing offence would be to say that a wolf in sheep’s clothing is not a wolf. That is not the case. In my view, the minimum sentence of three years, although it might be somewhat higher than a Court would otherwise impose, it is not grossly disproportionate. Therefore, it is not an unconstitutional sentencing.

It does not offend s.12. [ 9 ] The defence also challenged the police conduct that evening, asserting that it constituted an unlawful search contrary to s. 8 of the Charter . Mr. MacDonald, in his factum, describes the alleged breach and appropriate remedy this way: ¶39 In the result, when the police observed MacDonald apparently breaching the HRM noise by-law, they were entitled to issue him a ticket, but they had no right to enter, and no right to arrest, and no right to demand compliance. Mr.

Sears had already given the police MacDonald's name, and the police had his address, so there was no need to arrest him to establish his identity or address. . . . ¶43 In the case on appeal, there was no 911 call and no emergency at all. The police were responding an hour after receiving a non-emergency complaint of a noise by-law infraction. The learned Trial Judge found the police had no power of arrest but also found no Charter breach in nonetheless forcing their way into MacDonald's apartment. It is difficult to reconcile these findings.

The police here either had a right to enter (pursuant to permission, a warrant, or "seeing" an indictable offence committed) or they did not. Sharma establishes, and the police acknowledge, they had no right to enter on either basis. If the police are not entitled to charge into an apartment in response to a noise complaint, what was done here is a breach of s. 8. [ 10 ] However, the judge found no such breach. Instead he found the police action to be justified in the interests of “officer safety”: The question simply put in this case is, Does Sgt.

Boyd have a right to push open the door to get a better look at Mr. MacDonald's right hand for the purpose of ensuring, not only his safety, but the safety of Cst. Pierce and the safety of Mr. Sears, who was in the background? Sgt. Boyd thought it might be a knife that Mr. MacDonald was holding in his hand. He indicated he was not even thinking at that point of a firearm. He testified that in his experience as a police officer that normally when people asked that question will either show what is in their hand or put it down, such that the officer's concern as to his or her safety is allayed. In this case, Mr.

MacDonald declined to answer. The Defence has suggested that Sgt. Boyd could have simply written a ticket for the noise by-law at that point, however, one can imagine in a scenario when an officer concerned about something in someone's right hand that they cannot ascertain and the person will not tell them what it is, is not likely to put their head down and begin writing a ticket.

I am satisfied that there is an exemption with respect to officer entry into the home for purposes of officer safety, particularly in these circumstances where the pushing of the door is only a minor intrusion over the threshold by means of an arm. I accept Sgt. Boyd's

evidence, it was only after he saw a firearm come up from behind the leg that he reacted by immediately entering the home of Mr. MacDonald for purposes of gaining control over the situation. I find that there is no Charter breach and the burden is on the accused to prove on a balance of probabilities that there is a Charter breach. [ 11 ] Finally, the Defence challenged both the careless use and dangerous purpose convictions asserting that Mr. MacDonald was justified in taking his loaded Beretta to the door in order to protect himself, having discovered intruders on an earlier occasion.

Again, the judge dismissed this suggestion: ...It is clear that there had been a previous incident with unwanted persons in Mr. MacDonald's condominium. There is no suggestion from Mr. MacDonald in his evidence that those persons threatened him, threatened to take or damage his property, actually or threatened to assault him. It seems that at the end of the day that they were two people who found themselves, by error, in the wrong apartment. The fact that one of them was a rather large individual may have been intimidating to Mr.

MacDonald but there is no suggestion they did anything which would require a significant response. Also, Mr. MacDonald had gone to the door a half hour before when Cst. Pierce was there and there is no suggestion that he, at that time, thought that his life was in danger. He went there, he opened the door. This was half hour later. Is that because his system had a further half hour to ingest the alcohol that was in his stomach? The other factor is that he did not have to open the door. He could have called the concierge for assistance. Now, granted Mr. Sears is an older man. Probably was not much personally Mr.

Sears could have done in terms of physical intervention, he could have called the police for Mr. MacDonald or Mr. MacDonald could have called the police if he was in fear for his life. There is no suggestion that the door was being kicked in such a way that the door was showing signs of giving way or splintering. Also, this is not a situation where one is alone is in a house in the country with no neighbors nearby.

This is a condominium in a busy city where there are likely to be other people around and about, who could become injured if there is an intentional or accidental discharge of a firearm. [ 12 ] Before us, Mr. MacDonald challenges this decision on a number of fronts which I will now address. ISSUES [ 13 ] Mr. MacDonald lists the following grounds in his amended notice of appeal: The learned trial judge erred: 1. In failing to find a breach of the Charter when the police entered the appellant’s apartment, and in failing to grant a remedy under the Charter as a result; 2.

In finding that it was unreasonable for the appellant to take a loaded handgun to the door when he heard it being kicked repeatedly before he had determined who was present at the door; 3. In finding that the provisions of s. 17 of the Firearms Act (the breach of which is made an offence by s. 95 ) are conjunctive and applied in the circumstances here; 4. In failing to find that the minimum sentence provisions of s. 95(1) are unconstitutional; 5. In imposing a sentence that was excessive and out of all proportion to the offence committed;

6. And such other grounds as counsel may advise and this Honourable Court may permit on the hearing of the appeal. [ 14 ] I would distill and recast these issues as follows: - the alleged s. 8 Charter breach - the careless use and danger to the public peace convictions - the restricted weapon conviction - the constitutionality of s. 95’s 3-year minimum - the fitness of the sentence and other ancillary orders [ 15 ] In the course of addressing each of these issues, I will apply the appropriate standard upon which we should review the judge’s findings.

Specifically, I will defer to the judge’s factual findings or inextricably blended questions of fact and law, but hold him to a standard of correctness on pure questions of law. See R. v. R.E.W. , 2011 NSCA 18 at para. 31 . ANALYSIS The Alleged s. 8 Charter Breach [ 16 ] On this issue, as noted, I will defer to the judge’s factual findings. However, whether or not those findings constitute a Charter breach is a question of law that I will review on a correctness standard. See R. v. Grant , 2009 SCC 32 at para. 129 . [ 17 ] Simply put, Mr.

MacDonald asserts that the police, without a warrant, charged into his apartment, wrestled him for the gun and arrested him, when all they had to do was issue him a ticket for a breach of the noise by-law. This, he says, represents an unlawful intrusion into his home. [ 18 ] Respectfully, however, it was not that simple. Instead, a closer look at the events that evening is warranted. In fact, up to a certain point, there is no factual dispute. For example there is no disagreement that: - the police went to Mr.

MacDonald ’ s door simply to tell him to turn down his music; - when they first “ knocked ” and then “ kicked ” at the door, they did not intend to enter without a warrant; - then, on his own volition, Mr. MacDonald partially opened the door while carrying a loaded restricted weapon, holding it, somewhat obscured, behind his right leg; - Sergeant Boyd saw this “ black and shiny ” object and, while not sure exactly what it was, he felt it may have been a knife; - Sergeant Boyd asked Mr.

MacDonald what it was but there was no response. [ 19 ] Based on these undisputed facts, nobody could seriously suggest a Charter breach up to that point. After all, the police were

well within their rights to knock on the door to tell Mr. MacDonald to keep the noise down. In other words, knocking at someone’s doorfor a legitimate purpose does not constitute a search. See R. v. Hope, 2007 NSCA 103 at para. 27 and R. v. Evans, (SCC), [1996] 1 S.C.R. 8 at para. 8. [20] However, Sgt. Boyd’s next move in pushing the door further open does warrant Charter scrutiny. Here, again, we are offeredopposite perspectives. [21] For his part, Sgt. Boyd simply pushed the door open wider in order to see what Mr. MacDonald was hiding, only to have a gunpointed at him.

He testified: ...I heard someone at the door and he was going to open the door. So at that point he opened the door but he didn't open it far enough. He only opened it like ... I'm going to say 16 inches, about that far. I could see his face and his right leg. And I said, ... I noticed hisright hand was basically by his right leg and it looked like he was hiding something. To me it looked like he was hiding something inhis right hand behind his right leg. And it was black and shiny but I couldn't tell exactly what it was. So I said, What have you got inyour hand there? And he didn't respond.

He just stared at me like with a crazy look in his face and I'm going to say around ten secondswent by without him responding to my question. Now in ... in his entryway of his condo there's a light in the entryway behind the doorand he was partially obscured in his shadow, there was some light in the hallway that you could see a little bit, but I wanted to open thedoor to get more light on Mr. MacDonald and so I put my right hand in the middle of the door and just pushed and as I pushed he pointeda gun at my mid-section. [22] Mr.

MacDonald offers this completely different perspective; the door being pushed so hard he was pushed backwards: A. The police officer asked me what I had behind my back. I did not answer the police officer as it's not very wise to tell a policeofficer at your front door that you have a loaded 9-millimeter behind your back. The police officer then pushed the door very hard,which pushed me backwards ... [23] For the reasons that follow, I believe that the judge was correct to find no Charter breach in these circumstances. [24] I begin with the basics.

A warrantless search of someone’s dwelling house is prima facie illegal. See R. v. Feeney, (SCC), [1997] 2 S.C.R. 13 at para. 54.

Therefore, the onus was upon the Crown to justify the police entry that evening. [25] Now I realize that the judge seems to have suggested otherwise when he observed: I find that there is no Charter breach and the burden is on the accused to prove on a balance of probabilities that there is a Charterbreach. [26] However, I am satisfied that here the judge was simply referring to the fundamental burden every accused faces when assertinga Charter breach because elsewhere the judge clearly acknowledges: I am satisfied that Sgt. Boyd was well aware that he had no right of entry into Mr. MacDonald's apartment. Mr.

MacDonald was alsoaware that Sgt. Boyd had no right of entry into his apartment. [27] In any event, to justify the further push on the door, it was up to the Crown to prove that this action was reasonable byestablishing that (

a) it was authorized by law, (

b) that this law is reasonable and (

c) that the search was carried out reasonably. See R. v.Collins, (SCC), [1987] 1 S.C.R. 265. Of course, here there was no statutory basis for this action, so it would have tohave been authorized under the common law. As I will now explain, it appears that the judge did in fact look to the common law for thatjustification.

[28] Specifically, the judge found the police action that evening to be justified under the heading of “officer safety”: The right to privacy in one's home is not an absolute right. For example, the Supreme Court of Canada has ruled that the police have aright to enter a private dwelling in response to a 911 call to ensure the safety of persons inside. Similarly, the Supreme Court of Canadain R. v.

Mann has indicated that police who detain someone in a street to pursue an investigation are permitted if they feel it necessaryto do so for officer safety to conduct a quick pat-down search for weapons, although that does not extend to a detailed search of all thepockets and nooks and crannies of an individual's clothing. I am satisfied that there is an exemption with respect to officer entry into the home for purposes of officer safety, particularly in thesecircumstances where the pushing of the door is only a minor intrusion over the threshold by means of an arm. I accept Sgt.

Boyd'sevidence, it was only after he saw a firearm come up from behind the leg that he reacted by immediately entering the home of Mr.MacDonald for purposes of gaining control over the situation. [29] Note the judge’s reference to R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52. There the Supreme Court of Canada explainedthis common law police authority to search without a warrant in certain circumstances where public and or police safety is at stake: ¶43 The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, (SCC),[1992] 3 S.C.R. 615.

Police officers face any number of risks everyday in the carrying out of their policing function, and are entitled togo about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L’Heureux-Dubé J. inCloutier, supra, at p. 185, a frisk search is a “relatively non-intrusive procedure”, the duration of which is “only a few seconds”. Wherean officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of thedetained individual.

The search must be grounded in objectively discernible facts to prevent “fishing expeditions” on the basis ofirrelevant or discriminatory factors. ¶44 A finding that a limited power of protective search exists at common law does not obviate the need to apply the Collins test fordetermining whether a warrantless search passes constitutional muster under s. 8 of the Charter. To recall, the search must be authorizedby a reasonable law, and be carried out in a reasonable manner. The reasonableness of the search necessarily overlaps the second-prongof the Waterfield test, with the third factor under Collins.

The officer must have reasonable grounds to search before the overallreasonableness of the search is considered on the totality of the circumstances. ¶45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonablegrounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

Inaddition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engagein a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonablemanner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police.

The investigative detention and protective search power are to bedistinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [30] Now, I acknowledge that Mann involved a search incidental to an investigative detention, as opposed to here where we have awarrantless entry into a private dwelling. Nonetheless, I agree with the trial judge that this case is instructive when considering a policeofficer’s very limited common law power to, in appropriate circumstances, reasonably react to danger.

As confirmed in Mann, thisauthority is rooted in the English Court of Criminal Appeal in R. v. Waterfield, [1963] 3 All E.R. 659 and involves a two-prong testnamely; whether the impugned action (

a) fell within the general scope of an officer’s duty and (

b) was a justifiable use of power withinthat duty: ¶38 I rely upon the Waterfield test discussed above to recognize that a power of search incidental to investigative detention does existat common law. Under the first prong of the Waterfield test, the interference clearly falls within the general scope of a duty imposed bystatute or recognized at common law.

The duty at issue here is the protection of life and property, which was also at issue in Dedman,supra, at p. 32. ¶39 To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police powerassociated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably

necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individualliberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of theliberty being interfered with, and the nature and extent of the interference: Dedman, supra, at pp. 35-36. See also R. v. Clayton, 2007 SCC 32 at para. 22 and paras. 48-49; R. v. Godoy, (SCC), [1998] S.C.J. No. 85 at para.12; R. v. Kelsy, 2011 ONCA 605 at paras. 39-50 and more recently R. v..

Tse, 2012 SCC 16 at para. 18. [31] In reviewing these Waterfield line of cases it is clear that the room for the police to trespass outside of their statutory authorityis extremely limited. Specifically it must be restricted to situations where the police, in addition to acting within the general scope of theirauthority, must have no other feasible less intrusive alternative and the manner of carrying out the impugned activity must also bereasonable. [32] Here, it appeared to be the judge’s view, and I agree, that this case represents one such rare circumstance.

Specifically, Sgt.Boyd’s action of opening the door further in order to protect the safety of all present that evening was authorized. Furthermore, thisadditional action was, as the judge found, reasonable in the circumstances . After all and as noted the police were justified in theiractions up to the time Mr. MacDonald voluntarily opened his door. They were legitimately at his door late at night responding to a noisecomplaint. Furthermore, the situation was tense by that time with Mr. MacDonald having previously hurled profanities towards theauthorities. Then when Mr. MacDonald did open his door, Sgt.

Boyd saw him hiding something black and shiny that he feared mayhave been a knife. In these circumstances, pushing the door would appear to be the only feasible alternative. Specifically, by that instant,it would have been too late for less intrusive measures such as retreating or issuing a noise violation ticket. Thus by simply pushing thedoor further open, in my view, Sgt. Boyd acted reasonably in his effort to see what Mr. MacDonald may have been hiding. [33] Nor can we seriously question the police action immediately following Sgt. Boyd’s “pushing” of the door.

After all, upon“pushing” the door further open, Sgt. Boyd immediately saw the gun pointed in his direction. In fact, Mr. MacDonald acknowledged asmuch: ...at that ... which time the police officer could see the 9-millimeter in my hand and from there the police officer lunged at me andgrabbed my ... grabbed my arm, at which time I turned to the right and continued turning to the right to keep the gun pointed at my closetso that should it go off it would be going off in a safe direction.

I continued to turn to try to put the firearm down on the counter, so asnot to drop a loaded firearm at which time pretty much the recollection from the police officer of getting me into handcuffs is prettymuch correct. [34] Furthermore, the judge accepted that “it was only after he [Boyd] saw a firearm come up from behind the leg that he reacted byimmediately entering the home of Mr. MacDonald for purposes of gaining control over the situation”. [35] So, despite the fact that Mr. MacDonald may not have intentionally pointed the gun at Sgt.

Boyd, no one can reasonably faultthe officer for reacting as he did upon the gun being revealed. [36] There was no s. 8 Charter breach that evening. The Careless Use and Danger to the Public Peace Convictions [37] In convicting on the s. 86 and s. 88 charges, the judge concluded: The Defence submits that Mr. MacDonald was entitled to defend himself and his property, the defence of property, again based onsection 40 of the Code.

Section 40 of the Code provides that: Everyone who is in peaceful possession of a dwelling house and everyone lawfully assisting him or acting under his authority, is justifiedin using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling house without

lawful authority. I think the key statement there is "as much force as is reasonably necessarily". The law also indicates that just because one possesses, and for purposes of these offences, we will assume lawfully possesses, these two offences, assume that he possessed it lawfully in his home, does not necessarily preclude a finding of in possession of a weapon for a purpose dangerous to the public peace, the Supreme Court of Canada, R. v. Stavroff , [1980] 1 S.C.R. 441 makes that proposition clear.

If one looks further there is an explanation of self-defence given by the accused as not automatically provid[ing] a defence of a charge having a weapon for a purpose dangerous to the public peace . R. v. Nelson (1972), A.T.C. 2nd, a decision of the Ontario Court of Appeals supports that proposition. While it also does not prohibit persons from arming themselves for self-protection in the absence of other circumstances, the offence under this section, that being

section 89, is not committed if: the accused carries for self-defence a weapon that is an appropriate instrument with which to repel in a lawful manner the type of attack reasonably apprehended and if the accused is confident to handle the weapon likely to use it responsibly. ... I am satisfied that when one weighs all of the factors into account, it is a purpose dangerous to the public peace. It is an action which can result in others being injured. It is way out of proportion to any actual threat or any basis of a perceived threat. I am also satisfied that although Mr.

MacDonald was intoxicated, he was not so intoxicated as to be unable to form the intention to have it for a purpose which, what is in my view, dangerous to the public peace. I find him guilty of that offence. For essentially the same reasons, I find him guilty of the offence of handling in a careless manner without reasonable precaution for the safety of other persons, the Beretta 9-millimeter handgun.

He knew before he opened the door that it was the police, or persons claiming to be the police, and he knew that if it was the police they would have a significant reaction to being confronted with a handgun, which put Mr. MacDonald's own safety at risk, and the safety of the officers and the safety of Mr. Sears. I find him guilty of that. [ 38 ] However, Mr. MacDonald insists that he was justified in taking the loaded revolver to the door in order to protect himself, and that the judge was wrong to conclude otherwise.

For example, in challenging the careless use conviction, he explains in his factum: ¶27 The learned Trial Judge convicted MacDonald because he found that taking the handgun to the door was unwarranted because MacDonald had the alternative of not opening the door, or calling for assistance. With respect, this is the wrong question to ask.

On the charge of careless use the issue is whether (1) what was done was in fact careless, without reasonable precaution for the safety of other persons (which is judged by asking whether it was a marked departure from the standards of a reasonable person in MacDonald’s position); and (2) whether it was done without lawful excuse. ¶28 Loading the gun . MacDonald has been carefully trained in the correct use of his weapons, and has more than twenty years experience in their safe handling. He is a target shooter of some skill.

There is nothing inherently careless about a trained, experienced handgun owner loading his handgun, and engaging the safety catch. The evidence that the gun had (immediately before the police entered) been safely locked and stored is some evidence of his responsible care of weapons. There is nothing careless about loading the gun. ¶29 Taking the gun to the door . Judge Digby appeared to conclude that simply taking the loaded gun to the door (instead of telephoning for assistance) was inherently careless. When MacDonald went to the door, he did not know it was the police until he reached the door.

The handgun was kept out of sight, so as not to alarm anyone. On the Trial Judge’s finding, it was never pointed at anyone. When the struggle ensued, MacDonald made a special effort not to drop the gun and to keep it pointed in a safe direction. Had Judge Digby asked the correct question, he would not have found “careless use” demonstrated on the facts. ¶30 The second issue (to be answered only if the use is careless) is lawful excuse. The Trial Judge considered s. 40 and 41 of the

Criminal Code but found the appellant was not entitled to their protection because he had used excessive force. MacDonald took theloaded handgun to the door in the reasonable belief someone was attempting to break in.

Section 40 and 41 clearly authorize that step: Rv. Proverbs, (ON CA), [1983] O.J. 155 (C.A.) at para 43 [Tab 13]; R. v. Fraser [1984] NSJ 448 (C.A.) at para 18[Tab 3], R. v. Kephart 1988 ABCA 325 , [1988] AJ 1348 (C.A.) para 8-10, 28-30 [Tab 7].

You should prefer the reasoning inthose cases to that of the learned trial judge. ¶31 The Trial Judge was wrong in any event to consider the “excessive force test” in relation to s. 40 which does not use that test.Section 40 which authorizes the appellant to use, “as much force as is necessary to prevent any person from forcibly breaking in”.MacDonald was not successful in preventing the police from breaking in, so he clearly had not reached that authorized threshold of force. ¶32 For that matter, the appellant did not use any force.

When he heard the person kicking the door claim to be the police, heconcealed the gun behind his back and opened the door. That is not a use of force at all. MacDonald did nothing else which could bedescribed as a use of force. [39] Then, in challenging the danger to the public peace conviction, Mr. MacDonald adds: ¶33 The case law establishes that the issue under this

section is whether, at the moment before MacDonald knew it was the police atthe door, his purpose qualified as a dangerous one in the meaning of the Code. The leading case is the unanimous decision of the OntarioCourt of Appeal in R v. Proverbs, (ON CA), [1983] O.J. No. 155 [Tab 13].

In that case, the Court observed: ¶43 If the jury were satisfied, or had a reasonable doubt, that prior to the entry of the police into his premises, Proverbs did not havethe weapon for a purpose dangerous to the public peace, and he only loaded it on the sudden in the circumstances as outlined in hisstatement unaware that it was the police seeking entry, because he was in fear of harm to himself and only intended to use it if necessaryto defend himself in the event that his premises were broken into, then the Crown would not have proved that he was in possession of itfor a purpose dangerous to the public peace. ¶34 That is essentially our case: there was no evidence whatever that MacDonald knew the police were at the door before he loadedhis handgun; he first heard that claim when he was already at the door with the loaded gun, seconds before he opened the door.

If he hadput down the gun at that point, he would be guilty of unsafe storage (s. 86 (2) of the Code). For that matter, because the police were notvisible through the peephole MacDonald was not able to confirm that it was the police until he opened the door. The Court can takenotice of the fact that homeowners in Halifax have been shot by intruders who knocked and claimed to be police. Instead of putting thegun down, MacDonald put the gun out of sight. The fact he did not use it or brandish it in any way corroborates the fact he did not intendto use it with the police.

As Proverbs establishes, his use is not a possession for a purpose dangerous. [40] Respectfully, I see no merit to these assertions and for the following reasons, I would dismiss this aspect of the appeal. [41] Firstly, as noted above, the judge addressed this issue head on and, in the process, completely rejected Mr. MacDonald’sassertion that his actions were motivated by fear. Nor did the judge accept Mr. MacDonald’s evidence as to his level of sobriety and thenoise level: With the greatest respect to Mr. MacDonald and to Mr. Duncan [Mr. MacDonald’s guest], I accept the police evidence and the evidenceof Mr.

Sears with respect to the noise level. They are the ones that were outside in the corridor. They are the ones that could hear themusic and the transcript indicates that they heard the music when they came off, both Cst. Pierce and Sgt. Boyd, heard the music whenthey came off the elevator when they were some 30 feet away. There was also evidence that the music was sufficiently loud or the[bass] was sufficiently strong that Mr. MacDonald's door was vibrating from the music. It also does not make any sense that Cst.

Pierce, if there was no noise sufficient to form a complaint, would go to the trouble of callingher sergeant in to get him to ask Mr. MacDonald to turn down the music. Defence suggested that she may have done that because Mr.MacDonald was not polite with her. While the reality of police work is that a huge percentage of the people they deal with are not politewith them, it is just part of doing the business, it is not something that's going to get them upset. She testified she was not even going togive him a ticket if he complied. Also, Mr.

MacDonald's activities that night, in my view, do not demonstrate the clarity of thought andjudgment that one would expect from a sober person of average intelligence.

[ 42 ] In short, the judge concluded that Mr. MacDonald’s judgment was blurred by alcohol and that there was no air of reality to his assertion that he took a loaded handgun to the door to protect himself. These are unassailable factual findings to which we must defer. See R. v. Cornell , 2010 SCC 31 , [2010] 2 S.C.R. 142 at para. 25 and R. v. R.E.W. , supra , at para. 31 . [ 43 ] Therefore, void of any justification, there can be no doubt that Mr. MacDonald’s use of the firearm that evening was both careless and dangerous to the public peace. I would dismiss this aspect of the appeal.

The s. 95 Restricted Weapon Conviction [ 44 ] The judge’s conviction under s. 95 of the Criminal Code is more complicated. It involves essentially an exercise in statutory

interpretation which, as a question of law, attracts a correctness standard of review. [ 45 ] To recap, Mr. MacDonald offers alternative submissions on this issue; firstly (

a) that his authorization to possess the Beretta extended to his Halifax home, or alternatively (

b) even had he not been so authorized, he mistakenly (and therefore innocently) thought that he was. My analysis of each issue follows. The Extent of the Authorization [ 46 ] I again start with the basics. Here is the offence with its 3-year minimum punishment: 95.

(1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of (

a) an authorization or a licence under which the person may possess the firearm in that place; and (

b) the registration certificate for the firearm. [ 47 ] Note the breadth of this provision. Casting a wide net, it criminalizes simple possession in any place. Furthermore, it offers little room for exception. Specifically, liability can be avoided only when an accused, (

a) holds a “registration certificate for that firearm”, and (

b) is authorized or licensed to “possess the firearm in that place ”. In other words, justification involves both the registration of the gun and the owner’s authorization to possess it in the place alleged. [ 48 ] Here, the Beretta was validly registered in the appellant’s name with his Calgary residence as the noted address. So there would have been no issue with him possessing it there. The question, however, becomes whether this authorization extended to his Halifax residence which was not referred to in his paperwork. Here, Mr.

MacDonald insists that he was so authorized in either of his two residences and reminds us of the irony implicit in the Crown’s theory; i.e., had this identical incident occurred in his Calgary home, he could not have been charged under s. 95 . Surely, he suggests rhetorically, liability for such a serious crime must not depend on where in Canada you happen to be residing at any given time. [ 49 ] Yet the Crown advances this simple retort. These weapons are so lethal they must be strictly controlled and this includes

knowing where the authorities can expect to find them. As such, they can be legally possessed only in the addresses specified in the authorizing paperwork. [ 50 ] To resolve this issue, a closer look at the authorization process is required. This takes us beyond the Criminal Code to the national Firearms Act , S.C. 1995, c.

Section 17 is the operative provision: Places where prohibited and restricted firearms may be possessed 17. Subject to sections 19 and 20, a prohibited firearm or restricted firearm, the holder of the registration certificate for which is an individual, may be possessed only at the dwelling-house of the individual, as recorded in the Canadian Firearms Registry, or at a place authorized by a chief firearms officer. [ 51 ] For the Crown, this provision is straightforward enough. It applies to s. 95 and justifies possession in only two circumstances, namely (

a) in the dwelling house of the individual as recorded in the registry, or (

b) by way of a special authorization by the chief firearms officer. Therefore, with Mr. MacDonald conceding that he held no special authorization, this gun could only be legally possessed in his Calgary home. [ 52 ] To this Mr. MacDonald offers a creative response. He asserts that s. 17 offers not two, but three options for authorized possession, namely (

a) at the dwelling house of the individual, (

b) as recorded in the Canadian Firearms Registry, or (

c) by special authorization. Therefore, under his proposed first option, possession in either of his two dwelling houses would be legal. In his factum, he advances his three-option theory by relying on the provision’s punctuation, specifically a strategically placed comma: ¶83 MacDonald had his gun at his “dwelling house”. There is no basis for concluding that the language in s. 17 is conjunctive: “a...restricted firearm...may be possessed only at the dwelling-house of the individual, as recorded in the Canadian Firearms Registry, or at a place authorized by a chief firearms officer”.

The use of the comma (“dwelling house of the individual,”) followed by the disjunctive “or” would appear to create three places where firearms may be possessed. The Crown is in effect arguing that there are only two lawful places to possess firearms: at the dwelling house of the individual, or “as authorized”. .3 The appellant is entitled in the event of ambiguity to the

interpretation most favourable to the accused. ____________ 3 MacDonald says that the Act creates three alternatives: at his dwelling house, as recorded, or as authorized. Because his possession was at his dwelling house, it was lawful even though this was not the dwelling house recorded with the Canadian Firearms Registry. The Act appears to use “ as authorized ” as a term of art, to describe those instances for which an authorization is available (eg, Authorization to Transport, Authorization to Carry, Authorization to Import or Export).

It does not appear that the Act entitles the Minister to give a blanket authorization to possess (apart from the specific authorizations named in the Act). As a result, the only language which permits a gun at a specific address other than the “ dwelling house ” is the language “ as recorded ” . [ 53 ] The Crown bluntly asserts that this creative

interpretation simply makes no sense: ¶66 ...The Respondent submits that this

interpretation does not make sense. Why would a dwelling house be singled out from some other place presumably that could be recorded? Would that mean that a person's dwelling house would never have to be registered with the Canadian Firearms Registry? Why would the owner ever have to get the authorization of the Chief Firearms Officer if all he had to do was record a place in the Canadian Firearms Registry? In any event, the

interpretation advocated by the Appellant is not that which is generally accepted. In Halsbury's Laws of Canada - Firearms, Weapons and Explosives Jonathan Keene Brunet and Pamela Goode state: "... generally, a prohibited or restricted firearm may only be possessed at the dwelling-house of the individual who is the holder of the registration certificate for the firearm". It would seem illogical, if pursuant to the Appellant's definition you needed licences, registration and authorizations for a weapon regarding almost everything about it except where it is actually located.

The Appellant acknowledges that nowhere in the Registry will the address of the condominium in issue, 207-1479 Lower Water Street be found. ...

[54] I accept the Crown’s

interpretation of s. 17 for many of the practical considerations it highlights. Furthermore, it would bepeculiar indeed if Parliament set up a firearms registry, presumably to track the location of guns, only to allow them to be possessed in“dwelling houses” of unknown location. [55] As well, the impugned commas are equal, if not more consistent, with the Crown’s two-option theory.

In other words, it wouldbe grammatically correct to suggest that by book-ending the phrase “as recorded in the Canadian Firearms Registry”, these commas dono more than guide the reader to pause for a more detailed description of first option (at the dwelling house of the individual).Furthermore, had Parliament’s intention been as Mr. MacDonald asserts, one would expect to see another “or” inserted immediately afterthe comma and before the next phrase in the couplet “as recorded in ...”, for that would most clearly establish the trifecta of protectedscenarios he imagines. Its omission further undermines Mr.

MacDonald’s construction. [56] As well, when considering the principles of statutory

interpretation, punctuation is not high on the courts’ priority list. For example, in the prominent Canadian text, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis Canada, 2008) at 401-402, Professor Ruth Sullivan explains: I looked at several cases where courts have considered the significance of comma placement in statutory provisions. See e.g.

R vRaham, 2010 ONCA 206, [2010] OJ No 1091 (s 172 of the Ontario Highway Traffic Act created three ways, not two, in which offenceof stunt driving/racing could be committed); R v Plummer, (ON CA), [2006] OJ No 4530 (CA) at para 43 (s 33(3)of the HTA requires officer to make specific request for identification other than a driver's licence before power of arrest kicks in); Beheyt v Chrupalo, 2004 MBCA 130, [2004] MJ No 330 (the owner is not always the "landlord" for the purposes of Manitoba'sResidential Tenancies Act); Mawson Hotels v Solie, [1997] SJ No 333 (QB) (qualifying words in Saskatchewan's Fire Prevention Actonly applied to last antecedent in list); Clark v Fairvale (Village), [1987] NBJ No 1108 (CA) (premises used for residential purposesincluded in meter requirement for water assessment purposes); and R v Gordon, [1984] BCJ NO 1200 (Co Ct) (reasonable beliefrequired before peace officer could search a dwelling-house or any other place under s 10(1)(

a) of the Narcotic Control Act). These cases suggest that in the event of a conflict between a meaning suggested by the punctuation and a meaning suggested by purposeor context or reasonable outcome, the latter is likely to prevail. [57] However, MacDonald bolsters his three-option theory by, among other things, asserting that the Act contemplates lawfulpossession beyond dwellings: Apart from the punctuation, there are several reasons to prefer MacDonald’s

interpretation. In the first place, the Firearms Act clearly contemplates storage somewhere other than a dwelling house. Section 19(1)(iii), for example,permits an individual to transport his firearm for storage. That provision is unnecessary if the only place storage can lawfully occur isone’s dwelling house. So storage somewhere other than the dwelling house must be lawful in some circumstances. In the second place, few individuals have two residences. It would be unusual to interpret the Act as written for the two-dwelling houseindividual, and not the single dwelling house individual. The Court should prefer the likely

interpretation to the unlikely. In the third place, regulated gun businesses are lawful in Canada. The law does not require the owner to bring his stock home everyevening; possession must be lawful apart from at a dwelling house in some circumstances.

Regulations passed under the Act explicitly provide that a prohibited or restricted firearm may be possessed by an individual somewhereother than in a dwelling house. s. 9 (2) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations,SOR/98-209 discusses the display of a restricted or prohibited firearm by an individual other than at his dwelling. So the licencingregime acknowledges individuals will possess restricted firearms other than at a dwelling.

For all these reasons, it is clear that possession can lawfully occur apart from the dwelling house of the individual. For that reason, the“as recorded” should be found to be a separate location at which a gun may be possessed, rather than simply a modifier of “dwellinghouse”. [Appellant’s factum, page 26, footnote 3.] [58] Regardless of the defence’s creative submissions, there is one further consideration which, in my view on its own, disposes ofthis entire issue. It involves s. 17’s French language equivalent: Lieu de possession

Sous réserve des articles 19 et 20, une arme à feu prohibée ou une arme à feu à autorisation restreinte enregistrée au nom d'unparticulier ne peut être gardée que dans la maison d'habitation notée au Registre canadien des armes à feu ou en tout lieu autorisé par lecontrôleur des armes à feu. 1995, ch. 39, art. 17; 2003, ch. 8, art. 15 [59] Devoid of any pesky commas, this version leaves no room for doubt. It allows for only two options (for authorized possessionof restricted weapons): (

a) in the dwelling house as noted in the Registry (dans la maison d’habitation notée au Registre...), or (

b) in anyplace authorized by the firearms officer (en tout lieu autorisé par le contrôleur des armes à feu). [60] Furthermore, by virtue of our Official Languages Act, R.S.C. 1985, c. 31, this version is equally authoritative: 13.

Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice,advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall bemade, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative. [61] See also R. v.

Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757 at para. 79. [62] Therefore, even if we were to assume that s. 17's English text might be sufficiently ambiguous to allow for either two options(as the Crown asserts) or three (as the defence asserts), the French version is crystal clear in allowing for only two. In thesecircumstances, the meaning consistent with both languages, namely the existence of only two options, must prevail. Bastarache, J. in R.v.

Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, explains: ¶28 We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are “reasonably capable ofmore than one meaning”: Bell ExpressVu, supra, at para. 29. If there is an ambiguity in one version but not the other, the two versionsmust be reconciled, that is, we must look for the meaning that is common to both versions: Côté, supra, at p. 327. The common meaningis the version that is plain and not ambiguous: Côté, supra, at p. 327; see Goodyear Tire and Rubber Co. of Canada v. T.

Eaton Co., (SCC), [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister of Employment and Immigration, (SCC),[1982] 2 S.C.R. 856, at p. 863. [63] Mr. MacDonald alternatively argues that, in any event, a breach of s. 17 does not automatically sustain a s. 95 conviction. Inother words, s. 17 does not inform s. 95 and specifically does not prescribe what may or may not amount to authorization under s. 95.Therefore, his registration alone should have justified his possession.

In his factum, he explains: ¶84 In any event, even if the possession of the handgun at Bishop’s Landing was a breach of s. 17, that does not establish what theCrown is required to prove to obtain a conviction: that MacDonald’s possession was a breach of s.

Section 95 creates an offence ifthe accused has possession “unless he is the holder of an authorization or a licence” under which he may possess the firearm. MacDonaldwas the holder of three licences under which he was authorized to possess the Beretta (FAC, FRC and PAL), none of which are limited toa particular address. Nothing about s. 17 invalidates or undermines the licences which MacDonald held.

Section 17 does not say “alicence is only valid at the address registered in the CFR”. Whether s. 17 is complied with or not does not change the fact thatMacDonald is the holder of a valid FRC, FAC and PAL.

¶85 The language of s. 95 is a hold over from the days when the FRC did list a specific address; because it no longer does so, his FRCauthorized MacDonald to possess the handgun. As such, he is not in breach of s. 95. Whether he has complied with s. 17 of the FirearmsAct does not arise unless he is charged with a breach of that section. [64] Respectfully, there is simply no merit to this submission. Exemption under s. 95 is not achieved by simply registering the gun.We have been through that above.

Instead, s. 95 targets both the individual possessing the gun, who must be authorized (or licensed)pursuant to s. 95(1)(a), and the gun itself, which must be registered pursuant to s. 95(1)(b). Furthermore, the individual must beauthorized to possess in that place, namely, the Halifax residence. Again, Mr. MacDonald had no such authorization. [65] In

summary, s. 95 of the Criminal Code prohibits possession of loaded restricted weapons anywhere. This blanket prohibitionapplies unless the accused is specifically authorized to possess the weapon in the place where the alleged offence occurred.

Section 17of the Firearms Act governs such authorizations and offers only two options for legal possession – in the accused’s dwelling house asrecorded in the registry or as otherwise authorized by the chief firearms officer. Neither option is available to Mr. MacDonald because(

a) his Halifax dwelling house was not recorded in the registry, and (

b) he had no special authorization from the chief firearms officer.This aspect of his appeal therefore fails. Innocent Mistake? [66] However, that does not end the matter because, as noted, Mr. MacDonald nonetheless asserts that he honestly believed that hisauthorization extended to his Halifax residence. Would that be enough to sustain an acquittal? The answer is not simple and, in largemeasure, depends upon whether his mistake was one of law or of fact. This too therefore involves a question of statutory

interpretation,attracting a correctness standard. My analysis follows. [67] I begin with a procedural matter. At the hearing, we were concerned that although the defence of honest mistake was raised bythe accused at his trial, little consideration was given to the precise requirements for mens rea in a s. 95 offence.

To focus counsels’attention upon this critical aspect of the appeal, we asked the appellant and the respondent to provide post hearing briefs replying tospecific questions posed by the panel. [68] In response, the Crown, not surprisingly, asserts the well known principle that ignorance of the law is no excuse. The CriminalCode makes that clear: 19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. R.S., c. C-34, s. 19. [69] However, MacDonald is not saying that he was unaware of the state of the law.

Specifically, he knew that he had to be legallyauthorized to possess this gun in his Halifax residence. Instead, he insists that he thought he was so authorized. In other words, hethought, as a matter of fact, that his authorization extended to his Halifax home. This may appear to be a subtle distinction but it isnonetheless a very important one because mistakes of fact may, in certain circumstances, justify an acquittal. [70] For example, in R. v. Pappajohn, (SCC), [1980] 2 S.C.R. 120, [1980] S.C.J.

No. 51 at para. 40, Dickson, J.(as he then was), in dissent but not on this point, explains how mistake of fact may negate the mens rea of an offence: Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with whichhe is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. Itavails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of anoffence.

Mistake is a defence, though, in the sense that it is raised as an issue by an accused. ... [71] Before us, the respondent Crown concedes that unauthorized possession in Halifax was an essential element that it had to proveand, in its factum, it insists that it did:

¶60 The Crown proved the essential elements of the offence beyond a reasonable doubt by establishing: - MacDonald possessed the firearm - The firearm was restricted and loaded - MacDonald did not have an authorization allowing him to possess that firearm in that place. [72] However, from this, another question emerges. Did the Crown have to prove that Mr.

MacDonald knew his possession wasunauthorized? [73] The answer to this question takes us to the basics of criminal law and, specifically, to the two fundamental components that theCrown must normally prove for every offence, namely the alleged guilty act (actus reus) and the corresponding guilty mind (mens rea).Simply put, for every guilty act, generally speaking, there ought to be a corresponding guilty intention. For example, in R. v.

Pappajohn,supra, at para. 13, Dickson, J., again in dissent but not on this point, explained: The mens rea which is required, and its nature and extent, will vary with the particular crime; it can only be determined by detailedexamination of the actus reus of the offence. Speaking generally, at least where the circumstance is not “morally indifferent”, the mentalelement must be proved with respect to all circumstances and consequences that form part of the actus reus. ... [74] But of course there are always exceptions. For example in R. v.

DeSousa, (SCC), [1992] 2 S.C.R. 944, [1992]No. 77, the Supreme Court of Canada offered that while there had to be an element of moral fault, it did not have to attach to every aspectof the actus reus: ¶35 There are many provisions where one need not intend all of the consequences of an action. As was pointed out in Hess, supra,there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and everyelement of the actus reus.

The requirement of fault in regard to a meaningful aspect of the actus reus is necessary to prevent punishingthe mentally, and morally, innocent and is in keeping with a long line of cases of this Court including Rees, supra, and Pappajohn, supra.In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but theconsequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm have identicalmens rea requirements and the element of causing bodily harm is merely used to classify the offence.

No principle of fundamental justiceprevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences. [75] Then a year later in R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, [1993] S.C.J. No. 91, McLachlin, J. (as shethen was) added that, in any event, the level of moral fault must be commensurate with the seriousness of the charge: ¶97 ...I agree that as a general rule the mens rea of an offence relates to the consequences prohibited by the offence. ... Yet ourcriminal law contains important exceptions to this ideal of perfect symmetry.

The presence of these exceptions suggests that the rule ofsymmetry is just that -- a rule -- to which there are exceptions. If this is so, then the rule cannot be elevated to the status of a principle offundamental justice which must, by definition, have universal application. ¶98 It is important to distinguish between criminal law theory, which seeks the ideal of absolute symmetry between actus reus andmens rea, and the constitutional requirements of the Charter.

As the Chief Justice has stated several times, "the Constitution does notalways guarantee the 'ideal'... ¶99 I know of no authority for the proposition that the mens rea of an offence must always attach to the precise consequence which isprohibited as a matter of constitutional necessity. The relevant constitutional principles have been cast more broadly. No person can besent to prison without mens rea, or a guilty mind, and the seriousness of the offence must not be disproportionate to the degree of moralfault.

Provided an element of mental fault or moral culpability is present, and provided that it is proportionate to the seriousness and

consequences of the offence charged, the principles of fundamental justice are satisfied . [Emphasis added] [ 76 ] It is also presumed that the requisite mental element, short of express statutory language, will be subjective. See Morris Manning, Q.C. & Peter Sankoff, Manning, Mewett & Sankoff – Criminal Law, 4th ed (Markham, Ont: LexisNexis, 2009) at 153: From the foregoing it is now possible to state the following propositions. First, the mens rea of an offence simply refers to the mental elements the Crown must prove in relation to the actus reus .

Second, we start by assuming that every component of the actus reus possesses a corresponding mental element. Finally, in the absence of statutory wording to the contrary, it can be presumed that a subjective mental state is required to establish culpability. [ 77 ] Here, the Crown, while acknowledging that it must prove unauthorized possession, says it does not have to prove Mr. MacDonald’s corresponding guilty intention to possess the gun without authority. Instead it insists that simple knowledge that the gun was restricted and loaded would suffice in these circumstances. In other words, even had Mr.

MacDonald honestly believed that he was authorized to possess this weapon in his Halifax home, he should nonetheless be convicted. Respectfully, for the following reasons, I disagree. [ 78 ] First of all, addressing the need for proportionality outlined in Creighton , here we have an extremely serious offence placing the offender in significant jeopardy. In fact, in defending the constitutionality of the 3-year minimum, both the Provincial and Federal Crown acknowledged this.

For example, the Federal Crown, in its factum, acknowledged it to be a “full mens rea offence” and that “the degree of punishment must be consistent with the degree of moral fault”: ¶32 Determining whether a provision is a full mens rea offence requires an examination of the general nature of the legislative scheme, the wording of the particular offence, any explicit or implicit fault element, and the severity of the punishment. There can be no doubt that this crime is a full mens rea offence . As the Court of Appeal for Ontario stated, the particular punishment alone is determinative.

Since the degree of punishment must be consistent with the degree of moral fault , and the degree of moral fault is consistent with the Crown's burden to prove a mens rea element, this offence is a true crime. [Emphasis added.] [ 79 ] In my view, therefore, a registered gun owner who honestly believes that his possession is authorized should not be exposed to this type of jeopardy.

In other words, for the level of moral fault to be commensurate with an offence commanding a 3-year minimum, the accused must know that the gun is being possessed illegally. [ 80 ] In advancing its position on this issue, the Crown relies heavily upon the Ontario Court of Appeal decision of R. v. Williams , 2009 ONCA 342 . I refer to its supplementary factum: ¶6 ...The Court [in Williams ] further states in paragraph 18: To adopt the respondent's argument that the Crown must prove mens rea in relation to the type of weapon specified in the indictment would create an unwarranted hurdle for the Crown.

Accused persons could always assert that they had not measured or made any enquiries about the length of the handgun's barrel. Accordingly, regardless of the way in which the charge is framed, the Crown would rarely, if ever, be able to obtain a conviction. Where the charge is possession of a loaded prohibited firearm, the argument will be that the accused person did not know that the length of the barrel was 105 mm or less and therefore lacked the requisite mens rea that the gun was a prohibited firearm.

Where the charge is possession of a loaded restricted firearm, the same argument would be made with respect to the length over 105 mm. If the Crown charged possession of a loaded prohibited firearm or restricted firearm - adopting the exact language of the offence created - the accused will submit that the Crown must prove knowledge of one or the other, but he or she just did not know either!

To give effect to the language and purpose of s. 95(1), and to the intention of Parliament, it is only necessary to give to the mens rea component its common sense meaning: the requisite mental element will be established where the Crown proves that the accused was knowingly in possession of a loaded prohibited or restricted handgun that he or she was not legally entitled to possess. Knowledge that the barrel of the handgun measures 105 millimetres, or more or less than that length - i.e., of whether the handgun is "prohibited" or "restricted" - is immaterial.

¶7 In paragraph 18 of Williams the OCA used the word "knowingly" only in regard to the possession of a loaded firearm (see alsopara. 12). Therefore, Williams supports the Crown's view in the case at Bar. The Crown does not have to prove that the Appellant knewthe legal effect of his licence, authorization, and understood the sections of the Criminal Code and the Firearms Act and Regulations.The legal effect of his authorizations is a question of law not fact. [81] Respectfully, Williams is not relevant to our analysis.

For example, there the Crown appeared to have painted itself into acorner because its indictment only alleged possession of a “prohibited” firearm, (as opposed to our broader charge alleging possession ofeither a prohibited or restricted firearm). A “prohibited firearm” is one with a barrel shorter than 105 millimetres while a “restrictedfirearm” would be a handgun with a barrel longer than 105 millimetres, but less than 470 millimetres in length (s. 84(1) of the CriminalCode). So the accused in Williams asserted that the Crown had to prove that he knew the barrel was less than 105 millimetres. In otherwords, Mr.

Williams knew his possession was illegal (either restricted or prohibited) but the Crown was caught by its limitedindictment. The Ontario Court of Appeal explained: ¶4 On the appeal, the Crown attacks only the acquittal for possession of a loaded prohibited firearm. The issue is narrow: did therespondent have the necessary mens rea for that offence? The respondent says he did not because he was unaware that the barrel wasshorter than 105 millimetres, which is the demarcation point between a prohibited firearm and a restricted firearm under the CriminalCode.

He therefore did not know that the firearm was “prohibited.” The Crown chose to particularize the offence by charging possessionof a prohibited firearm, he says, and was accordingly required to prove that he had the requisite knowledge that the handgun wasprohibited as opposed to restricted. [82] It is understandable that the court would reject such a defence in those circumstances. [83] Here, however, Mr. MacDonald asserts that he thought his possession was perfectly legal; far from the technical defence raisedby Mr. Williams.

Therefore, this case does not inform our analysis. [84] Simply put, this offence with its 3-year minimum cannot be seen to target gun owners who register their restricted weapons andwho honestly believe that their impugned possession was authorized. Instead, the Crown should have to prove that the accused knows hispossession is unauthorized. Anything less than that would establish a mens rea unjustly disproportional to the gravity of a conviction foran offence with such serious consequences. [85] At the same time, I am not at all suggesting that Mr. MacDonald’s actions that evening were legitimate.

Quite the opposite. Hisdecision to answer the door with a loaded restricted weapon was careless and dangerous. Here I agree with the Crown – he was certainlynot authorized to do that. However, for that he has been convicted and must be punished under ss. 86 and 88 of the Criminal Code. [86] In reaching this conclusion, I am mindful of the Crown’s assertion that this knowledge requirement will make it too difficult tosecure s. 95 convictions; it being simply too easy for an accused to say that he mistakenly thought he was authorized. After all, asDicks

[…]