R. v MacDonald., 2014 NSCA 102

Nova Scotia Court of Appeal Citation: R. v MacDonald. , 2014 NSCA 102 Date: 20141106 Docket: CAC 347642 Registry: Halifax Between: Erin MacDonald Appellant v. Her Majesty The Queen Respondent Judge The Honourable Chief Justice Michael MacDonald and the Honourable Justice Jamie W. S. Saunders, concurring; The Honourable Justice Duncan R. Beveridge dissenting, in part. Appeal Heard: June 9, 2014, in Halifax, Nova Scotia Subject: Criminal law, Criminal Code s. 95(2); mandatory minimum sentences; Charter of Rights and Freedoms, s. 12 and s. 52; cruel and unusual punishment

Summary: [ 1 ] The Supreme Court of Canada restored the Appellant’s conviction for possessing a loaded restricted firearm contrary to s. 95 of the Criminal Code , and remitted the matter to this Court to determine the constitutionality of the provision’s three-year minimum sentence (when prosecuted by indictment). Depending upon that result, it also directed us to consider the appropriate sentence for that offence, and the offences of possession of a weapon for a purpose dangerous to the public (s. 88) and careless handling of a firearm (s. 86).

Page 2 Issues: 1.Does this provision’s three-year minimum offend s. 12 of the Charter by representing cruel and unusual punishment based, a. on the particular circumstances of this case, or b. on a reasonable hypothetical set of circumstances? 2.If this provision does offend s. 12, is it nonetheless saved by s. 1 of the Charter ? 3.If the provision is unconstitutional and not saved by s. 1, what is the appropriate sentence for the s. 95 offence, and the offences under ss. 88 and 86 of the Code ?

Result: 1(a.) This provision does not offend the Charter based on the particular circumstances of this case. (b.) However, it does offend the Charter based on a reasonable hypothetical.

Section 1 of the Charter does not save this provision. 3. The appropriate sentence is a further 18 months but in the exceptional circumstances of this case, the enforcement of it is permanently stayed, and the sentences of time served for the ss. 88 and 86 offences are affirmed. Beveridge J.A. (dissenting) agrees with the majority on the constitutional issue but would impose a sentence of time served for all of the offences. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 55 pages. Nova Scotia Court of Appeal Citation: R. v. MacDonald , 2014 NSCA 102 Date: 20141106 Docket: CAC 347642 Registry: Halifax Between: Erin MacDonald Appellant v. Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Saunders and Beveridge, JJ.A. Appeal Heard: June 9, 2014, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of MacDonald, C.J.N.S. and Saunders, J.A. concurring; Beveridge, J.A. dissenting in part.

Counsel: Hersh Wolch, Q.C., for the appellant Jennifer A. MacLellan, for the respondent Patricia MacPhee, for the intervenor, the Attorney-General of Canada Reasons for judgment: [ 2 ] When prosecuted by indictment, a conviction for possessing a loaded restricted firearm ( s. 95 of the Criminal Code ) carries a minimum three-year sentence. The main issue in this appeal is whether that punishment is unconstitutional, as representing cruel and unusual punishment, contrary to s. 12 of the Charter . BACKGROUND [ 3 ] The appellant, as an oil industry worker, maintained residences in both Calgary and Halifax.

He was also a gun collector and from time-to-time would travel with his firearms to various events both within and outside Canada. His collection included a restricted 9mm Beretta handgun, that was registered in Alberta but not in Nova Scotia. [ 4 ] Throughout November and December 2009, Mr. MacDonald was living in his Halifax condo and, having become a member of the Nova Scotia Rifle Association, had his Beretta with him. On the evening of December 28th, while entertaining friends over a bottle of wine, he was the subject of a noise complaint delivered by the concierge. His music was too loud. Mr.

MacDonald responded by

telling the concierge to “fuck off” and by promptly slamming his door shut. This was just as his friends were leaving. The musiccontinued at a high volume. This prompted the concierge to call the police. A single police officer arrived and demanded that the musicbe turned down. Mr. MacDonald’s response to her was, “Go fuck yourself”. She requested and received assistance from her sergeant,and the two police officers, with the concierge, approached the door, first by knocking and then by kicking. This time, Mr.

MacDonaldanswered carrying his loaded Beretta which he had apparently been packing in his suitcase at the time. A struggle ensued, as Mr.MacDonald was disarmed. This incident prompted a litany of Criminal Code charges for which Judge William B. Digby of the NovaScotia Provincial Court convicted Mr. MacDonald of three, namely: s. 86 – careless use of a weapon, s. 88 – dangerous possession of afirearm and s. 95 – possession of a loaded restricted firearm. The Crown had proceeded by indictment for each. [5] Rejecting Mr.

MacDonald’s s. 12 Charter challenge, Judge Digby sentenced him to the minimum three years for the s. 95charge, with concurrent sentences for the remaining two offences. [6] This Court allowed Mr. MacDonald’s appeal, in part, by setting aside the s. 95 conviction (reported as 2012 NSCA 50). However, we sustained the convictions for the two lesser offences and adjusted the sentence accordingly. In the process, by a 2-1majority decision, we rejected Mr. MacDonald’s plea for a total acquittal based upon his assertion that this police action constituted anillegal search, contrary to s. 8 of the Charter. [7] Mr.

MacDonald’s appeal to the Supreme Court of Canada on the s. 8 issue was dismissed (reported as 2014 SCC 3). However, the Crown successfully cross-appealed the s. 95 acquittal, with the Supreme Court restoring that conviction. It then remittedthe matter to us for sentencing, along with a direction to determine the constitutional validity of s. 95’s three-year minimum: ¶63 For the reasons set out above, I would dismiss Mr. MacDonald’s appeal on the s. 8 issue and allow the Crown’s appeal on thecharge under s. 95(1). Mr. MacDonald's acquittal on that charge is set aside, and his conviction is restored.

This matter will be remittedto the Court of Appeal for sentencing, and it will be necessary for that court to determine whether the mandatory minimum sentenceapplicable under s. 95(2)(a)(

i) of the Code is constitutionally valid. ISSUES [8] In my analysis that follows, I will first assess the constitutional question. This has several aspects: (a.) whether a three-year sentence would represent cruel and unusual punishment i. to Mr. MacDonald in his particular circumstances and, if not, ii. whether it would nonetheless represent cruel and unusual punishment based upon a reasonable hypothetical, and (b.) should I find a breach of s. 12,whether this provision is nonetheless justified under s. 1 of the Charter.

Only after I resolve this constitutional question can I then proceed to the sentencing analysis. ANALYSIS Is the Three-Year Minimum Constitutionally Valid? Overview [9] Fundamentally, this issue explores the comparative roles of the judiciary and Parliament. Specifically, in our constitutionaldemocracy, Parliament decides what actions will constitute a criminal offence together with the corresponding range of punishment foreach. This may include, in Parliament’s discretion, mandatory minimum sentences for certain offences.

In this regard, the will ofParliament shall prevail, unless the sentencing provisions are so severe as to constitute cruel and unusual punishment as prohibited by ourCharter of Rights and Freedoms. It then falls to the judiciary, as guardians of the Charter, to prevent such occurrences. [10] What type of punishment would we classify as cruel and unusual? For starters, it is not enough that the punishment be simplydisproportionate to the offender’s actions and circumstances. Instead, out of deference to Parliament, it must be grosslydisproportionate.

Nor would we interfere even if the penalty appeared to be merely excessive. Instead, as the Supreme Court of Canadahas confirmed on several occasions, it would have to appear “so excessive as to outrage our standards of decency”. See, for example, R.v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at ¶4. [11] Procedurally, when faced with such a challenge, we engage in a two-step analysis. In the first “particularized” step, we wouldconsider the effect of a three-year sentence on the offender personally.

If that exercise produces no breach, then, as a second step, wewould normally consider “reasonable hypothetical” circumstances upon which to judge the impugned provision. Gonthier, J. in R. v.Goltz, (SCC), [1991] S.C.J. No. 90, explains: ¶41 There are two aspects to the analysis of invalidity under s. 12. One aspect involves the assessment of the challenged penalty orsanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particularcircumstances of the offence and the personal characteristics of the offender.

If it is concluded that the challenged provision provides forand would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real andparticular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s.1 of theCharter. There may be no need to examine hypothetical situations or imaginary offenders.

This was not the case in Smith, and for thatreason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12. ¶42 If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be

examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of grossdisproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases. (Seegenerally C. Robertson, “The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth andVagueness” in R. Sharpe, Charter Litigation (1987).) ¶43 The

section 12 analysis must now be undertaken as to both aspects. In the “particularized”

section of analysis, the considerationsof gravity of the offence, the particular circumstances of the case, the personal characteristics of the offender, and the effects of thesentence must be examined in light of the facts of the instant appeal. [Emphasis added] Particularized Analysis [12] I will now assess how this provision stacks up against Mr. MacDonald’s particular circumstances. In doing so, I will defer tothe judge’s factual conclusions but will assess whether those facts constitute a Charter breach on a correctness standard. [13] In R. v.

Morrisey, 2000 SCC 39, Gonthier J. identifies several potential factors that inform our gross disproportionalityanalysis. Relying on the Supreme Court’s earlier decision in R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, he reminds usthat, while no one factor is to be considered paramount, our primary function is to identify an appropriate range of sentences for thisparticular offender, so as to then contextualize the severity of the mandatory minimum: ¶27 In order to properly consider a s. 12 challenge to a punishment, the court must examine all of the relevant contextual factors.

Nosingle factor set out in Smith or Goltz is paramount: see Goltz, at pp. 501-2.

In Smith, at p. 1073, Lamer J., as he then was, set out some ofthe relevant factors as follows: In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. ¶28 In Goltz, at p. 500, I also noted that certain other factors were necessary for a full contextual understanding of the sentencingprovision.

In particular, a court is to consider: the actual effect of the punishment on the individual, the penological goals and sentencingprinciples upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison ofpunishments imposed for other crimes in the same jurisdiction.

None of these factors will be “in themselves decisive to a determinationof gross disproportionality” (p. 500). [14] To identify the appropriate range in this case, I will therefore consider the three Smith factors; namely (a.) the gravity of theoffence, (b.) the personal characteristics of this offender, and (c.) the circumstances of the offence. Then I will consider any guiding caselaw. Gravity of the Offence [15] As to the gravity of the offence, I begin with this basic premise. In today’s Society, loaded guns have become dangerouslyprevalent.

For decades now, successive Parliaments have been trying to protect us from their scourge. The intervening Attorney Generalof Canada in its factum reviews this history culminating with the provision under review. It bears highlighting: ¶12 Parliament’s continuing efforts to control the access and use of firearms in the interest of public safety was acknowledged by theSupreme Court of Canada in the 1988 case of R. v. Schwartz.

There, McIntyre, J. for the majority stated that “[s]ince [1892] there havebeen successive amendments which without exception have strengthened the controls upon possession and use of firearms.” Dickson J.,although in dissent, not only agreed that there was a continuum, but also acknowledged the legitimacy of the concerns which had givenrise to it:

Part II.1 of the Code [now

Part III]... embodies wholly legitimate societal concerns for stricter regulation and control of guns and otheroffensive weapons. ¶13 In 1995, Parliament amended

Part III of the Criminal Code and enacted the Firearms Act, which took the administrative andregulatory aspects of the firearms’ licencing and registration system out of the Criminal Code and sought to create a new scheme betteraimed at controlling the misuse of firearms. These amendments also created a variety of new offences related to the unauthorizedpossession, transfer, import and export of firearms and to the use of firearms in the commission of offences. One of the key objectiveswas to impose tougher penalties for criminal firearm possession and use. Among the changes was the introduction of s.95.

This offenceprovided a one year mandatory minimum sentence for possessing a loaded prohibited or restricted firearm, or an unloaded prohibited orrestricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is theholder of an authorization or a licence to possess the firearm and a valid registration certificate. ¶14 The objectives of imposing minimum mandatory sentences were carefully weighed by Parliament at the time, including theSenate Committee on Legal and Constitutional Affairs.

The object of the mandatory minimums was made clear by the Minister ofJustice, the Hon. Allan Rock, in the House of Commons and in his testimony before the House.

On second reading of the relevant Bill(C-68), he told Parliament that the object of the legislation was the “…preservation of the safe, civilized and peaceful nature of Canada.”The Minister made it clear that “[o]ne of the key elements of this bill is deterrent sentencing for crime with guns.” In support of hisopinion regarding the deterrent effect of the mandatory sentences proposed in the bill, the Minister cited a number of studies on theeffectiveness of such sentences. ¶15 In 2006, new legislation was introduced in the House of Commons aimed at further strengthening sentencing for firearmsoffences by imposing longer mandatory minimum sentences for serious firearms crimes and repeat firearms crime.

Bill C-10 sought toimpose higher mandatory minimum penalties of imprisonment for eight specific offences involving the use of restricted or prohibitedfirearms or firearms related conduct associated with organized crime. It also targeted trafficking, smuggling and the illegal possession ofa restricted or prohibited firearm with ammunition. Among the proposed changes was an increase, when prosecuted by indictment, to a

three year mandatory minimum sentence for the unauthorised possession of a restricted or prohibited firearm with ammunition as definedin s.95. ¶16 The Minister of Justice and Attorney General, then the Honourable Vic Toews, explained before the House of Commons that theproposed changes were aimed at addressing concerns raised by Crown attorneys, police forces and provincial governments from acrossthe country, that tougher legislative measures were needed to combat firearms crime.

In particular, the proposed changes were aimed ataddressing the specific problem of illegal handguns, which were perceived to be a growing concern in this country. As stated by theMinister: Handgun crime is a problem in our cities. This is particularly true in connection with organized crime, including street gang activity suchas in the drug trade or in turf wars.

The statistics also show that while crimes committed with non-restricted long guns are down,handguns and other restricted or prohibited firearms have become the weapon of choice for those who use firearms to commit crimes. ¶17 Once again, the object of the proposed mandatory minimum sentences was the subject of careful consideration by Parliament.After highlighting statistics showing the increase in serious firearms crimes in many regions of the country, the Minister providedassurance that the approach was a proportionate response to the problem: While the overall trend in firearms offences is generally downward, when it comes to guns and gangs, Canada has not yet mademeaningful progress in tackling the challenge.

With the Bill C-10, we are aiming to make a positive dent in the recent trend of illegalfirearms use and possession by street gangs. By specifically targeting serious firearms offences and repeat firearms offenders ororganized criminals and recognizing the types of firearms they are using, Bill C-10 focuses on the problem it seeks to tackle. ¶18 While Bill C-10 did not pass in the first session of Parliament, it was re-introduced by the Minister of Justice and AttorneyGeneral, who was then the Honourable Rob Nicholson, as part of Bill C-2 in October, 2007.

Before the Legislative Committee on BillC-2, Minister Nicholson explained that “[T]he Tackling Violent Crime Act underscores our commitment to safeguard Canadians in theirhomes and on their streets and in their communities.” ¶19 After hearing testimony from many experts in the field of criminal justice and stakeholders affected by the proposed amendmentswho gave evidence both in support and in opposition to the imposition of higher mandatory minimum sentences, Bill C-2 was passed onFebruary 28, 2008. [16] Thus, it is clear that s. 95 represents a significant component of Parliament’s response to the extreme danger of loaded firearms.

They put lives at serious risk, plain and simple. As the Supreme Court of Canada nicely put it in R. v. Felawka, (SCC),[1993] 4 S.C.R. 199 at p. 211; [1993] S.C.J. No. 117 at ¶21: “No matter what the intention may be of the person carrying a gun, thefirearm itself presents the ultimate threat of death to those in its presence.” Personal Characteristics of this Offender [17] Mr. MacDonald has no criminal record and by all accounts is otherwise a law-abiding, industrious Canadian. He fears that athree year sentence would result in him losing his job with little chance of re-employment.

In his factum, he details his concerns: ¶45 Looking at the personal characteristics of the offender, the Appellant once again notes his lack of any prior record and hisestablished career in the oil and gas industry. A three-year sentence of incarceration in a penitentiary is extraordinarily lengthy andsevere for an individual who has never before been in conflict with the law. The actual impact it would have on him and his futureemployment opportunities is tremendous.

His criminal record will already limit his ability to travel to many countries for work;incarceration for such a significant period of time would effectively destroy his career prospects going forward. It is submitted that thedisproportionate impact of the mandatory minimum sentence on this particular offender is abundantly clear. [18] I have no issue with much of this. However, I note that Mr. MacDonald would nonetheless be eligible for day parole after sixmonths and full parole after one year. See ss. 119 and 120 of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

Furthermore, while I accept that a three-year sentence may jeopardize his present employment, it is the conviction (as opposed to thelength of incarceration) that I see posing the greater risk to his career. The Circumstances of the Offence [19] In his factum, Mr. MacDonald downplays the seriousness of this offence: ¶44 The Appellant submits that in this case, notwithstanding that the gun was in fact loaded as discussed above, the level of moralblameworthiness imputed clearly falls on the lower end of the scale. The Appellant was in his own home, not in public.

There is nothingin the evidence to suggest he had any criminal or nefarious intent in bringing the gun to the door and again, his experience in the safehandling of firearms significantly lessens the dangerousness of the situation. The Appellant never raised or pointed the gun; it was onlyon account of Sgt. Boyd’s actions that the gun was even identified as such.

Furthermore, the Appellant’s legal jeopardy would have beenidentical whether the gun was actually loaded or whether he had the ammunition in his other hand or his pocket, all other facts beingexactly the same. [20] However, despite, the offender’s mistaken belief that he was licensed to possess the gun in Nova Scotia, the record reveals avery dangerous situation. The police were at the door. They were met by a homeowner wielding a loaded handgun, who had beendrinking alcohol in his condo before the police arrived.

When the struggle ensued, only luck and quick thinking on the part of the policestood between that loaded gun and four potential victims (including the appellant). The Case Law [21] I now turn to the existing case law for guidance. As this Court noted in R. v. Cromwell, 2005 NSCA 134 (at ¶ 26), the range“is not the minimum to maximum possibilities for the offence but is narrowed by the context of the offence committed and the

circumstances of the offender”. That said, in 2008, the present three-year mandatory minimum replaced what had been, since 1998, a one-year mandatory minimum. This should be taken into account. see R. v. Smickle , 2012 ONSC 602 at ¶77-78 , rev’d on other grounds, 2013 ONCA 678 ; and R. v. Nur , 2011 ONSC 4874 at ¶51-52, rev’d on other grounds, 2013 ONCA 677 ; leave to appeal to the Supreme Court of Canada granted, [2014] S.C.C.A. No. 17.) [ 22 ] Not surprisingly, I have found no situations analogous to this very unique set of circumstances.

Perhaps the best guidance comes from the Ontario Court of Appeal in Nur and Smickle , supra . [ 23 ] Mr. Nur was a 21 year-old first offender who was acting in a threatening manner outside a youth centre. He fled once the police arrived and discarded an object onto the ground. The police caught and arrested him, finding, in the process, a loaded prohibited firearm with an oversized ammunition clip. Although the facts are quite different, Code J. at trial considered almost a dozen Ontario cases to establish that the range under s. 95 for a first-time offender like Mr.

Nur would be two years less a day to three years. Doherty J.A. in the Court of Appeal agreed (at paras 108-109). [ 24 ] Smickle is factually the closest to our situation. Mr. Smickle, a first-time offender, was posing with a loaded cocked handgun for a photograph in his cousin's apartment when the police burst in to execute a search warrant. The trial judge concluded that an appropriate sentence absent the mandatory minimum would have been one year and that the three-year mandatory minimum was grossly disproportionate.

Doherty, J.A. disagreed, finding that the appropriate sentence absent the mandatory minimum was two years less a day. As a result, the three year sentence may have been excessive but it was not grossly disproportionate. Mr. Smickle was eventually sentenced to a further 12 months incarceration but the Ontario Court of Appeal permanently stayed the execution of that sentence: 2014 ONCA 49 . [ 25 ] Guided by this case law and considering the entire circumstances of our case, this particular offence, in my view, would have drawn a sentence in the two-year range but for the mandatory three year minimum. Thus, for Mr.

MacDonald, the three-year mandatory minimum sentence under s. 95 would be excessive but would not be grossly disproportionate. I would therefore find no breach of s. 12 on these facts. Reasonable Hypothetical [ 26 ] In the alternative, the appellant insists that an analysis based on a reasonable hypothetical would, in any event, sound the death knell for s. 95 ’s three-year minimum. To advance this argument, he essentially relies on the analysis in Nur , supra . There, Doherty J.A., for a five-judge panel, delivered a comprehensive analysis of this very issue.

He concluded that this punishment, based on a reasonable hypothetical, constituted cruel and unusual punishment. Before embarking on my own analysis, it would therefore be helpful to review this judgment. R. v.

Nur [ 27 ] Following a comprehensive and accurate review of the applicable s. 12 jurisprudence (at ¶110-140), Doherty J.A. identified the parameters for reasonable hypotheticals generally: ¶142 In my view, after Morrisey and Goltz , a reasonable hypothetical is one that operates at a general level to capture conduct that includes all the essential elements of the offence that trigger the mandatory minimum, but no more. Characteristics of individual offenders, be they aggravating or mitigating, are not part of the reasonable hypothetical analysis.

It flows from Morrisey that the broader the description of the offence in the provision creating the offence, the wider the range of reasonable hypotheticals. [ 28 ] Then, tackling the reasonable hypothetical for s. 95, Doherty J.A. settled on three essential characteristics: ¶143 I begin my description of s. 95 reasonable hypotheticals by considering whether, in keeping with Goltz and Brown , the s. 95 reasonable hypothetical should be limited to cases which share the central features of the appellant’s case, namely, possession of a loaded firearm and the absence of any kind of authorization or licence to possess that firearm anywhere at any time.

Neither the Crown nor the Attorney General for Canada suggested at trial or in this court that the s. 95 reasonable hypothetical could be limited to cases that shared these aggravating features.

Both defended the constitutionality of s. 95 in all its potential applications, although both argued that examples taken from the regulatory end of the spectrum were not sufficiently common to constitute reasonable hypotheticals. ¶144 I was initially attracted to the idea of considering the constitutionality of the mandatory minimum as applied to cases where the gun was actually loaded and the offender had no authorization to have the gun under any circumstances in any place. Cases with those features fall more toward the true crime end of the spectrum.

The mandatory minimum would more easily meet constitutional norms if those features existed. ¶145 I have, however, concluded that the Crown and the Attorney General for Canada’s approach of considering all potential applications of s. 95 is correct.

Section 95 is a different kind of offence than the offences considered in Goltz and Brown . In those cases, the offence that carried the minimum penalty depended on the commission of a predicate offence or the breach of some other statutory provision or order. The seriousness of the offence attracting the minimum penalty depended to some degree on the nature of the predicate offence, or the nature of the conduct giving rise to the prior order. ¶146

Section 95 does not depend on the commission of a predicate offence or the breach of any statutory or other order.

Section 95, like the importing offence in Smith , prohibits a broad range of conduct. Upon reflection, I am satisfied that it would be no more appropriate to consider the constitutionality of s. 95 by reference only to the more egregious form of conduct captured by s. 95 than it would have been in Smith to consider the constitutionality of the mandatory minimum by reference only to the crime of importing the more harmful narcotics such as cocaine into Canada. ¶147 The trial judge developed several reasonable hypotheticals at para. 96. Distilled to their essentials, they involved: • offenders of previous good character;

• brief possession of the firearm; • no criminal purpose associated with the possession; and • the appellant’s possession was in the nature of a failure to comply with the regulatory licensing scheme. ¶148 Mr. Shandler, for the Crown, put forward a more restrictive reasonable hypothetical. In his helpful submissions, he argued that a reasonable hypothetical must involve a situation “of imminent and lethal danger inherent in the presence of a loaded handgun”. According to Mr.

Shandler, reasonable hypotheticals must be limited to cases in which the accused knowingly possesses a loaded restricted or prohibited firearm that has never been licensed or legitimately owned. ¶149 This submission does not reflect the broad scope of the offence as defined in s. 95. There is no suggestion in s. 95 that the firearms are limited to those that have “never been licensed or legitimately owned”. Nor does the case law reflect any such limitation: e.g. R. v. Lapon see , 2013 ONCJ 295 ; and MacDonald .

Furthermore, the offence is not limited to loaded restricted or prohibited firearms, but instead extends to such firearms even when unloaded if ammunition is readily accessible.

I do not think that liability based on an unloaded firearm with ammunition stored nearby can be excluded as a reasonable hypothetical given the language of s. 95 any more than possession of a small amount of marijuana could be excluded from the importation offence considered in Smith . ¶150 Having regard to Goltz and Morrisey and, in particular, the emphasis in Morrisey on maintaining a level of generality commensurate with the description of the offence, I would describe the s. 95 reasonable hypothetical to be used in the s. 12 analysis as having three characteristics: • the accused is knowingly in possession of an unloaded restricted or prohibited firearm with useable ammunition stored nearby and readily accessible; • the accused has an authorization to possess the firearm and has registered the firearm, but to his or her knowledge the authorization does not permit possession of the firearm at the place or in the manner in which the accused has possession; and • the possession of the firearm is not connected to any unlawful purpose or activity and the offender is not engaged in any dangerous activity with the firearm. [Emphasis added] [ 29 ] Applying these characteristics, Doherty J.A. concluded that s. 95 constituted cruel and unusual punishment.

The passages I have underlined below describe the features of the hypothetical Justice Doherty designed to test the constitutionality of s. 95: ¶164 I come now to test my reasonable hypothetical using the factors described above, at para. 78. I will focus on the gravity of the offence as reflected in my reasonable hypothetical as, in my view, the gravity of the offence is the crucial, if not determinative, consideration in this case. ¶165 The reasonable hypothetical I use involves no harm to anyone or anything and very little, if any, risk of harm to anyone or anything.

The fact that the firearm in my hypothetical is unloaded, clearly a scenario contemplated by s. 95, significantly, in my view, decreases the risk of harm posed by the conduct described in my reasonable hypothetical. It is certainly arguable that a loaded gun always poses an immediate danger. The same cannot be said of an unloaded gun in the possession of a licensed gun owner who has ammunition stored nearby. ¶166 The offender in my reasonable hypothetical is morally culpable in that he acts with the requisite knowledge of the elements of the offence.

The offender knows that he or she is in possession of a restricted firearm and that the possession is not authorized at the place where he or she is in possession. Given the strict terms on which licences to possess restricted and prohibited firearms are given, a knowing breach of those terms is a morally blameworthy act. ¶167 The level of moral blameworthiness, however, as with the blameworthiness that knowledge of the possession of a narcotic imputes, depends on a number of variables, all of which fall within the broad scope of the offence as defined in s. 95.

Knowledge that one has an unloaded restricted firearm safely stored in one’s cottage with useable ammunition readily accessible in the next room, coupled with the knowledge that under the terms of one’s licence, the firearm should be kept in one’s dwelling , attracts a very different level of moral blameworthiness than does the knowledge of the person standing on the street corner with a loaded gun in his back pocket for which he knows he has no kind of authorization and which he intends to use as he sees fit.

Section 95 is written so broadly as to capture offenders with both levels of moral blameworthiness. My reasonable hypothetical focuses on the less blameworthy category of potential offender. ¶168 I would also rank the moral culpability of the offender in my reasonable hypothetical below the moral culpability of persons who engage in activities with firearms that demonstrate a wanton or reckless disregard for the lives or safety of others.

Offenders in the reasonable hypotheticals described in Morrisey are, in my view, more morally culpable than the reasonable hypothetical offender I describe. ¶169 In my view, a three-year minimum penitentiary term for an offender in my reasonable hypothetical is well beyond any punishment that would be considered proportionate to the gravity of the offence committed in the reasonable hypothetical. A three-year penitentiary sentence for what is essentially a violation of a term of a licence, albeit a knowing violation, is unheard of in Canada.

Even accepting that the unique dangers posed by prohibited and restricted firearms could justify a mandatory jail sentence for what is in essence a licensing offence, a sentence of three years goes well beyond what could be justified for such an offence under any penal theory. A three-year penitentiary sentence is grossly disproportionate to the severity of the offence described in my reasonable hypothetical. [Emphasis added]

[ 30 ] This conclusion was bolstered by a comparison of the three-year mandatory minimum under s. 95 with sentences for related crimes: ¶170 A comparison of the mandatory minimum required in s. 95 with the sentences available for related crimes, another factor identified as relevant in the gross disproportionality analysis, confirms my view that the three-year mandatory minimum is grossly disproportionate. I will consider ss. 92 and 93. Both provisions apply to all firearms, including prohibited and restricted firearms, and both provisions describe offences that are very similar to the offence set out in s. 95. ¶171

Section 92 creates an offence that applies to anyone who is in possession of a prohibited or restricted firearm “knowing that the person is not a holder” of a licence or registration certificate. As I read the offence described in s. 92, it applies to offenders who, to their knowledge, have no licence or registration certificate referable to the firearm.

Section 92 does not require that the firearm be loaded or that useable ammunition be readily available. ¶172

Section 92 carries no minimum penalty for a first offence. There are minimum penalties for second (one year) and subsequent (two years less one day) offences. ¶173 The offence described in s. 93 applies in circumstances that are very similar to the facts of my reasonable hypothetical.

Section 93 applies to a person who has a licence for a restricted or prohibited firearm, but has possession of that weapon at a place not authorized under the licence.

Section 93, unlike s. 95, does not require that the firearm be loaded or that ammunition be readily available. ¶174

Section 93, like s. 95, is a hybrid offence. If the Crown proceeds by indictment, the maximum penalty is five years. There is no minimum penalty under s. 93 regardless of whether the Crown proceeds by indictment or summarily. ¶175 The relatively minor distinctions between the conduct addressed in ss. 92 and 93, and the conduct in s. 95 does not explain the vast differences in the range of penalties available for the offences and, in particular, the three-year starting point for a s. 95 offence.

I stress, again, that s. 95 does not require that the firearm be loaded or that the person in possession of the firearm have any intention of loading the firearm. The presence of useable ammunition stored in a nearby drawer strikes me as a totally inadequate basis upon which to move from an offence under ss. 92 or 93 carrying no minimum penalty to one demanding a three-year penitentiary term. [ 31 ] Thus, Doherty J.A. concluded: ¶176 I do not propose to address the other factors relevant to the gross disproportionality analysis.

In my view, the cavernous disconnect between the severity of the offence as described in my reasonable hypothetical and a three- year penitentiary sentence is determinative of the s. 12 analysis. The severity of the s. 95 minimum when compared to the range of sentences available for similar offences serves to confirm my conclusion. Even taking into account factors such as parole that would mitigate the effect of the three-year sentence, I remain convinced that it is grossly disproportionate in the reasonable hypothetical I have drawn.

The three-year mandatory minimum upon conviction for a s. 95(1) offence constitutes cruel and unusual punishment. Our Reasonable Hypothetical [ 32 ] As I approach our reasonable hypothetical, I am mindful of the general parameters set out in Morrisey : ¶30 What constitutes a reasonable hypothetical? In Goltz , at p. 506, I said that reasonable hypotheticals could not be “far-fetched or marginally imaginable cases”. They cannot be “remote or extreme examples” (p. 515). The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question.

In Smith , the hypothetical used to invalidate the impugned punishment was a very realistic one. There, the legislation attached criminal liability to importers of illegal narcotics, irrespective of the quantity imported. The natural and probable consequence of the legislation would be to catch individuals who could only be described as “small offenders” (p. 1080), such as the individual importing a single “joint”. ¶31 In Goltz , I required examples that “could commonly arise in day-to-day life” (p. 516). This was appropriate for the offence of driving while prohibited under the B.C.

Motor Vehicle Act because that Act touched upon everyday life. It must be recognized that criminal negligence homicides do not easily lend themselves to resorting to reasonable hypotheticals as guides to assessing punishment as cruel and unusual as they can be committed in an almost infinite variety of ways. Nevertheless, hypotheticals remain very useful in determining whether s. 12 is violated in this case. [ 33 ] That said, I find the Nur analysis to be very compelling. It goes a long way to convince me that s. 95 is unconstitutional.

However, the direction of the Supreme Court of Canada in our present case (overturning Mr. MacDonald’s acquittal), in my view, places this provision on an even weaker constitutional footing. I will explain. [ 34 ] Recall that Mr. MacDonald was authorized to possess his Beretta in his Alberta residence. On appeal, we rejected his assertion that this also authorized him to possess it in his Nova Scotia residence. However, we entered an acquittal, based on his mistaken belief that he was so authorized.

In other words, we determined that, in order to be convicted, he would have to know that his possession was unauthorized. [ 35 ] However, this conclusion was reversed by the Supreme Court: ¶55 The mens rea the Crown is required to prove under s. 95(1) does not, however, include knowledge that possession in the place in question is unauthorized . Rather, knowledge that one possesses a loaded restricted firearm, together with an intention to possess the loaded firearm in that place, is enough.

An individual who knowingly possesses a loaded restricted firearm in a particular place with an intention to do so will be liable to punishment for the offence provided for in s. 95(1) unless he or she holds an authorization or a licence under which the firearm may be possessed in that place.

Thus, a proper authorization or licence serves to negate the actus reus of the offence, thereby allowing someone who legitimately possesses a restricted firearm in a given place to avoid liability. [ 36 ] Yet, Doherty J.A. in Nur , like us, assumed knowledge (or wilful blindness) of the unauthorization to be an essential element of

the offence: ¶48 The mens rea of a s. 95 offence, as with most possession-based offences, consists of knowledge or wilful blindness of the existence of the elements of the actus reus : see R. v. Briscoe , 2010 SCC 13 , 253 C.C.C. (3d) 140, at para. 21 . The Crown must prove the following: * the accused knew or was wilfully blind that he or she was in possession of the firearm in issue: see R. v. Williams , 2009 ONCA 342 , 244 C.C.C. (3d) 138, at paras. 10 and 18 ; R. v. Chalk , 2007 ONCA 815 , 227 C.C.C. (3d) 141, at para. 18 ; and R. v. Snobelen , [2008] O.J.

No. 6021, at paras. 34-35 (C.J.) ; * the accused knew or was wilfully blind that the firearm was loaded or, if unloaded, knew or was wilfully blind that useable ammunition was readily accessible; and * the accused knew or was wilfully blind that he or she did not have both the required licence or authorization to possess the firearm at the place alleged and the required registration certificate: MacDonald, at para. 84. [Emphasis added] [ 37 ] This assumption understandably made its way to Doherty J.A.’s hypothetical.

I refer specifically to his proposed second essential characteristic: ¶150 …the accused has an authorization to possess the firearm and has registered the firearm, but to his or her knowledge the authorization does not permit possession of the firearm at the place or in the manner in which the accused has possession; and [Emphasis added] [ 38 ] Yet, in light of this recent direction from the Supreme Court of Canada, it is now clear that such knowledge is not necessary to support a conviction. [ 39 ] I would therefore endorse the Nur characteristics but modify them as follows (with changes highlighted): • the accused is knowingly in possession of an unloaded restricted or prohibited firearm with useable ammunition stored nearby and readily accessible; • the accused has an authorization to possess the firearm and has registered the firearm but , based on an honest but mistaken belief to the contrary, the authorization does not permit possession of the firearm at the place or in the manner in which the accused has possession; and • the possession of the firearm is not connected to any unlawful purpose or activity and the offender is not engaged in any dangerous activity with the firearm. [ 40 ] This modification solidifies my view that this mandatory minimum punishment represents cruel and unusual punishment.

It leaves us with a hypothetical depicting even less moral culpability than that envisaged by Doherty J.A. This is enough to remove any concern one might have with the Nur analysis. [ 41 ] In fact, I can see a reasonable link between this modified hypothetical and the facts at Bar. For example, instead of answering the door with his loaded gun, what if Mr. MacDonald, while packing his suitcase, opened the door, unarmed, with his gun (bullets nearby and accessible) in full view in his opened suitcase? After all, had he believed he was authorized to do so, he would have had nothing to hide.

Or, what if a cleaner were authorized to enter the premises in the occupant’s absence and saw a similar circumstance? What if the concierge was also authorized to enter in the occupant’s absence, for example, to deliver a package? What if the property manager was also so authorized, for example, or to inspect for a potential water leak? In my respectful view, these are not “far-fetched or marginally imaginable cases”. Instead, in my view, they represent “examples that could commonly arise in day to day life” for gun owners living in apartment and condominium units.

Yet, by any of these examples, the offender would have been subjected to a three- year prison term. That, in my view, would represent cruel and unusual punishment. [ 42 ] In reaching this conclusion, I acknowledge the strong submissions made by the Provincial Crown and the Intervenor that the hybrid nature of this offence goes a long way to justify its existence.

For example, the Attorney-General of Canada, in its factum, asserts that with the Nur hypothetical, the Crown would have simply proceeded summarily: ¶56 The hypothetical in Nur was made even more unreasonable with the Court’s finding that the Crown would proceed by way of indictment. In the Nur hypothetical, the Crown would have elected to proceed by

summary conviction, rendering the mandatory minimum inapplicable. Being a hybrid offence, Parliament has acknowledged that some offenders should be sentenced according to a lower tariff, and effectively instructed the Crown to rationally distinguish between offenders - and the Nur hypothetical assumes irrationality. This is not Smith , where there was only one level of punishment. Some effect should be given to the hybrid nature of this offence, and the Ontario Court of Appeal gave it none. [ 43 ] Respectfully, I disagree with this submission primarily for two reasons.

Firstly, I endorse the reasoning in Nur that the decision on how to proceed (summarily or by indictment) is made early on in the process, when the facts are sparse. This would therefore prevent an otherwise well-intentioned Crown from completing the required fulsome analysis. Doherty J.A. explains: ¶155 Crown counsel accepts that the trial judge went too far in viewing the Crown’s power to elect to proceed summarily as “the sine

qua non of constitutionality under the s. 12 analysis”. Crown counsel instead submits that the Crown’s ability to proceed summarilyprovides “an additional safeguard” in those borderline reasonable hypothetical cases. ¶156 With respect, I do not agree with the trial judge’s analysis of the effect of the Crown election on the constitutionality of themandatory minimum.

Further, while the Crown’s ability to elect may provide a safeguard in those cases where the facts are known fromthe outset and agreed upon by the parties, the Crown election provides no safeguard in the vast majority of cases where the facts are indispute or unknown at the time of the election. ¶157 The Crown elects to proceed by indictment or by way of

summary proceedings at an early stage in the prosecution. The election isbased on the information available to the Crown at that time. If the accused pleads not guilty and is convicted, he or she will besentenced based on findings of fact made by the trial judge on sentencing.

If the Crown chose to proceed by indictment, theconstitutionality of the three-year minimum will be tested in the context of the facts as found for the purpose of sentencing and not thefacts as understood by the Crown when the election was made. ¶158 If an accused pleads not guilty and is convicted, it is not unusual that the facts for the purpose of sentencing will be quite differentfrom the Crown’s understanding of the case when the Crown made its election.

There will inevitably be cases in which the Crownelected to proceed by indictment, but would have elected to proceed summarily had the election been based on the facts as found at thetime of sentencing. . . . ¶162 My holding that the Crown ability to elect to proceed summarily cannot avoid an infringement of s. 12 does not imply that theCrown cannot be relied on to exercise its discretion reasonably. Simply put, except perhaps when the accused pleads guilty, the Crowncannot know the facts on which the accused will be sentenced when the Crown makes its election.

Consequently, the election cannot beexpected to be responsive to those facts. [44] Secondly, and more fundamentally, we must ask whether the constitutional validity of legislation can ever hinge on Crowndiscretion. In posing this question, I hastily acknowledge that, in Canada, we have many dedicated, fair and reasonable crown attorneyswho consistently act with utmost good faith as quasi ministers of justice. However, in my view (and subject to s. 1 justification discussedbelow), a law that even accommodates the potential for cruel and unusual punishment must be struck pursuant to s. 52 of the Charter.

As a matter of fundamental justice, such provisions cannot stand. In this regard, Lamer J.’s (as he then was) comments in Smith, supra(at p. 1078), dealing with the Crown’s discretion to charge for lesser offences, apply with equal force to Crown discretion over hybridoffences: In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use ofprosecutorial discretion to charge for a lesser offence. In my view, the

section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those caseswhere, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extentof the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to theprosecution or to anyone else for that matter. (See also R. v. Seaboyer; R. v.

Gayme, (SCC), [1991] 2 S.C.R. 577, at p. 629; R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371 at ¶136, Fish J. (in dissent) in R. v. J.A., 2011 SCC 28 at ¶119-120; R. v. Nur, (Ont. C.A.), supra; and R. v.Smickle, (Ont. S.C.J.), supra, at ¶110. [45] Finally, in reaching this conclusion, I am mindful of the Provincial Crown’s suggestion in its factum that we should beprecluded from even considering hypotheticals because they were not raised at trial: ¶71 The Appellant did not advance a reasonable hypothetical at trial.

The Crown submits since the onus is on the Accused withrespect to this issue, the hypothetical inquiry should not be considered by this Court (Latimer, para. 79; Ferguson, para. 30). Alternatively, the Crown respectfully submits that the OCA in Nur was wrong, both in its formulation of the reasonable hypothetical andin its application. [46] I am pleased to confirm that, in oral argument, the Crown conceded that we should not be prevented from attempting, for thefirst time on appeal, to conceive reasonable hypotheticals.

This is an appropriate concession as I do not read the noted references inLatimer and Ferguson as preventing us from doing so. [47] For all these reasons, I conclude that this provision breaches s. 12 of the Charter.

Section 1 [48] Nor do I see any hope of justifying this provision under s. 1 of the Charter. I say this essentially because of the highjurisprudential bar that must be reached in order to establish a s. 12 breach. In other words, for a penalty to represent cruel and unusualpunishment it would have to be “grossly disproportionate” and appear “so excessive as to outrage our standards of decency”. Thus, by itsvery nature, such a provision could not be justified. In my view, therefore, it would be incongruent to look to s. 1 to justify theunjustifiable. In fact, I can say it no better than Doherty J.A. in Nur:

¶177 All rights and freedoms guaranteed by the Charter are subject to the limitation in s. 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. ¶178 The format of the s. 1 analysis is well known: e.g. see Smickle (reasons of Molloy J.), at paras. 97-123. I do not propose to gothrough the steps of that analysis.

Given the very high bar set for a finding that a sentence constitutes cruel and unusual punishment, Ifind it very difficult to imagine how a sentence that clears that high bar could ever qualify as a reasonable limit demonstrably justified ina free and democratic society. ¶179 In essence, s. 1 permits what would otherwise be infringements of individual constitutional rights where the societal benefitsflowing from the state action that infringes individual rights can “demonstrably” justify that infringement.

In my view, the basic quid proquo underlying s. 1 does not exist where the state imposes punishment that is “so excessive as to outrage standards of decency” and sodisproportionate as to be “abhorrent or intolerable” to Canadians: Ferguson, at para. 14. What possible societal benefit could render such punishment “demonstrably justified in a free and democraticsociety?” ¶180 No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering thegoals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry.

Similarly, no system ofcriminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on themerits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system. ¶181 If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, Ihave not heard it. The mandatory minimum penalty of three years imposed under s. 95(2)(

a) cannot be saved by s. 1. [49] Pursuant to s. 52 of the Charter, I would therefore declare the mandatory three-year minimum sentence provided for in s. 95(2)(a)(

i) when the Crown proceeds by indictment to be of no force and effect. The Appropriate s. 95 Sentence [50] What then is the appropriate sentence for Mr. MacDonald’s s. 95 conviction? [51] I begin by confirming the deference we owe to the trial judge, who heard firsthand from the various witnesses as they describedthe circumstances of this offence. My colleague, Justice Saunders, put it nicely in R. v. Knockwood, 2009 NSCA 98: ¶11 There is no dispute as to the proper standard of review in this case. This Court’s review of a sentencing order is a highlyrespectful one.

We must show great deference whenever we are asked to consider appeals against sentence. Absent an error in principle,a failure to consider a relevant factor, or an over-emphasis of appropriate factors, we should only vary a sentence imposed at trial if weare convinced that the sentence is demonstrably unfit. See for example, R. v. L.M., 2008 SCC 31; R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Longaphy, 2000 NSCA 136 and R. v. Conway, 2009 NSCA 95. [52] Here the judge embarked upon a particularized analysis only, when assessing the constitutional validity of the three-yearminimum.

In upholding the provision on that basis, he expressly avoided a reasonable hypothetical analysis: It is conceivable that someone who really has no moral culpability in the presence of that item might under the exigencies of themoment resort to that for purposes of self-defence or defence of another such as a threatened break-in or some other scenario. However, the Defence has not advanced the case on the basis of hypotheticals. The burden is on the Defence on the balance ofprobabilities to satisfy the Charter argument.

I don’t feel that there is sufficient basis for saying that that possibility which I haveconceived of is a common enough possibility such that it would warrant striking down s. 12, and I do not do so on that basis. However, Iput it out there for future consideration. . . . To be clear, I am not striking down the minimum sentence under s. 95 because of the circumstances in this particular case.

I amgoing to leave it to others to decide whether in other cases that argument might be successful. [53] However, although bound by the three-year minimum, the judge offered this insight as to what he might do if the minimum didnot apply. Were it not for the minimum three-year sentence, my likely sentence would have been one in any event of one in a federalpenitentiary. Victim fine surcharges are waived in light of the sentence imposed. [54] It is difficult to know exactly what the trial judge meant by his reference. It is clear that he would have ordered at least twoyears.

Yet, he did not say he would have ordered three years “in any event”. In reading this passage in the context of the entire decision,my view is that he would have considered a sentence in the two-year range, but for the mandatory minimum. In reaching this conclusion,I am mindful that the judge ordered three years and two years respectively for the less serious dangerous possession and carelesshandling charges. However, these were appropriately concurrent to what he viewed as the inevitable three-year minimum for s. 95. Therefore, he understandably conducted no separate analysis for the other two charges.

All in all, again in the context of the entiredecision, I view this reference to telegraph that, but for the mandatory minimum, the judge would have sentenced Mr. MacDonald to asentence in the two-year range for the s. 95 offence. That being the case, I view this to be well within the appropriate range andsomething that this Court should consider as a starting point. After all, the judge was keenly aware of Mr. MacDonald’s circumstances,including the fact that this was his first offence:

In support of the discharge, the Defence points out that Mr. MacDonald has an unblotted record up to this point. He’s been a hard worker in the community. He has the support of his cousin and some others, although I note he appears to be estranged from his immediate family. The author of the Pre-Sentence Report says that Mr. MacDonald is an appropriate candidate for supervision, although the probation officer then goes on to suggest that Mr. MacDonald needs to address certain issues - his consumption of alcohol, and unresolved conflicts arising from his family background. Mr.

MacDonald, as I indicated earlier, works in the oil industry. That requires him to travel about the globe seeking various stints of employment in his consulting work. A criminal record would not do anything to enhance his ability to move about the globe. Each country has different requirements for admission or to work in that country. Some require visas, some don’t. In any event, it would not be beneficial to Mr. MacDonald’s efforts to keep himself employed. The economic consequences for Mr. MacDonald could be significant.

The question is whether or not it would be contrary to the public interest. [ 55 ] At the same time, the judge was properly concerned about the seriousness of this offence: The use of firearms is a problem in our society, particularly in this area. And I say that not based on any particular data that’s been provided by counsel, but from simply living in this city and being aware of the news reports, and reading the newspaper, listening to the radio, and listening to the television. I can also acknowledge the fact that Courts usually impose sentences of incarceration where firearms are involved.

I know I have done that personally. I have sentenced young persons without criminal records who have been in possession of unloaded firearms in their cars to sentences of incarceration based on the principle of specific and general deterrence in the hopes that by emphasizing that principle, we can have a safer and more peaceful society. In light of what I have just said, I am of the opinion that a conditional discharge would not be in the best interests of society and I will not grant Mr. MacDonald a conditional discharge.

To some extent, with respect to the type of sentence that is then to be imposed in this situation, in my view it has to be a sentence which deprives Mr. MacDonald of his liberty. That would be consistent with the approach that the Courts have taken in other cases. The question is how long. A sentence less than two years subject to the minimum can, of course, be served under the provisions of s.742.1 in the community provided it is a sentence of two years less a day, or less.

The Crown has indicated that in situations involving the use of firearms, significant periods of incarceration have been imposed where there has been a breach of s.95(1) of the Criminal Code . And the Crown in its factum has listed a number of cases for reference. I don’t think it is necessary to go through them. I will say in Mr. MacDonald’s favour that the individuals in I believe all or, if not all, most of those cases had significant criminal records. On the other hand, I don’t recall that in any of those cases the individual actually had the firearm in their hand.

The firearms were either in a backpack or in a drawer or somewhere in their residence. Well, not to belabour the obvious, but loaded firearms stored in drawers don’t tend to go off without some human agency, whereas firearms in the hand don’t require much to set them off. A flick of the finger, a knock on the safety, and the firearm will go off. It is a tremendous difference when one considers the issue of safety to the public. Obviously safety of the public is a primary factor in sentencing.

Some guidance can be obtained from how the Courts have dealt with other situations where they feel the safety of the public is put at risk. [ 56 ] I therefore accept the judge’s two-year range as an appropriate starting point. This is, as well, consistent with my “particularized” analysis above. [ 57 ] However, that was back in April 2011, over 3½ years ago. I must now consider the fact that, since then, Mr. MacDonald has been incarcerated for 16 days (between his sentencing and release on bail pending appeal) and has served a two-year term of probation.

Taking these factors into account, I would reduce the sentence to 18 months going forward. [ 58 ] That said, I am troubled by the fact that, in addition to serving his brief periods of incarceration and a term of probation, Mr. MacDonald has now been in jeopardy for almost five years. There is nothing to suggest that he has been in any kind of trouble since that fateful evening. In my view, it is therefore no longer in the interests of justice to enforce this 18 month sentence. In other words, it is one of those exceptional cases where justice commands that this sentence be stayed. [ 59 ] This Court in R. v.

Best , 2012 NSCA 34 recently considered the rare circumstances that would warrant such an order: [35] I realize that this represents an exceptional form of relief. However it is not unique. For example, in R. v. Butler , 2008 NSCA 102 , the Crown appealed a community sentence for armed robbery (robbing a taxi driver at knife point by an offender suffering from addictions). This court found this disposition to be demonstrably unfit in the circumstances and declared a 30-month sentence to be appropriate: ¶18 Mr. Butler spent the five and one half months between his arrest and sentencing on remand.

In that period he made what efforts he could at rehabilitation, successfully completing the short term drug rehabilitation course available to him in the institution. It was while on remand that he learned of the Salvation Army program, which he brought to his counsel's attention. Mr. Butler maintained that he was determined to overcome his addiction to drugs. He accepted responsibility for the offence and expressed remorse.

¶19 The judge made several factual findings which are supported by the record: Mr. Butler has a significant and chronic addiction to both powder and crack cocaine; he has an attachment to the work force; in the past he has not had any significant intervention with respect to his substance abuse; were it not for his chronic addiction he would not be involved in the criminal justice system. ¶20 It is clear that in crafting this sentence the judge had determined that the public could best be protected if Mr. Butler's drugaddiction were successfully addressed.

This, he determined, should be accomplished through a sentence which facilitated Mr. Butlerattending the Salvation Army program. . . . ¶38 The appropriate sentence, before credit for remand time, would have been 30 months. But it is important here to consider Mr.Butler's considerable progress since sentence was imposed. [36] However, despite this conclusion, the court resolved not to incarcerate Mr.

Butler: ¶39 Although I have concluded that the sentence imposed by the trial judge, notwithstanding the need for rehabilitation, inadequatelyreflects denunciation and general deterrence, in view of the sentence served and the post-sentence update, I am not persuaded that it is inthe interests of justice to now substitute incarceration for the conditional sentence. (See, for example, R. v. C.S.P. 2005 NSCA 159,[2005] N.S.J. No. 498 (Q.L.) (C.A.); and R. v. Hamilton, (ON CA), [2004] O.J. No. 3252 (Q.L.) (C.A.) and R. v.Edmondson, 2005 SKCA 51, [2005] S.J.

No. 256 (Q.L.) (C.A.); leave to appeal refused [2005] S.C.C.A. No. 273). ¶40 Mr. Butler has successfully completed the six month addiction program at Booth Centre. He is pursuing an upgrading programwith a view to entering Community College for which he has funding in place. It would not be in the interests of justice to now commithim to a prison environment which may adversely affect his rehabilitation (R. v. Bratzer, supra, at para. 47 and R. v. Parker (NS CA), [1997] N.S.J. No. 194 (Q.L.) (C.A.)). I have considered, as well, the fact that Mr.

Butler, having spent five and one halfmonths on remand, prior to trial, is now aware of the realities of prison life. Indeed, that experience may well have motivated him to gethis life in order and will hopefully keep him moving forward on that path. (R. v. C.S.P., supra; R. v. Hamilton, supra; R. v. Edmondson,supra; R. v. Symes, [1989] O.J. No. 528 (Q.L.) (C.A.); R. v. Shaw, [1977] O.J. No. 147 (Q.L.) (C.A.); R. v. Boucher, (ON CA), [2004] O.J. No. 2689 (Q.L.) (C.A.); R. v. Hirnschall, (ON CA), [2003] O.J. No. 2296 (Q.L.) (C.A.); R. v.Fox, [2002] O.J. No. 2496 (Q.L.) (C.A.); and R. v.

G.C.F., (ON CA), [2004] O.J. No. 3177 (Q.L.) (C.A.)). [37] A similar approach has been taken by other Canadian appellate courts. For example, in R. v. Shaw, [1977] O.J. No. 147, tworespondents were convicted of "serious drug trafficking offences" for which the trial judge gave them no jail-time, but rather, strictprobation for two years. The sentences were imposed ten months after the offence, and at the time of the appeals the two respondentshad carried out four months of their two-year probation order.

Post-sentence reports meanwhile indicated that their work records wereexemplary, and that their community involvement was providing needed services in the community. The Ontario Court of Appealobserved: "[i]t is apparent that the rehabilitation program directed by the trial judge is working" and "[t]o impose a custodial term nowwould be a sentence far more crushing than it would have been if it had been imposed at the time of trial".

The court moreover stated: ¶15 Although as I have observed this was a case in which an appropriate sentence should have included the imposition of a custodialterm, in the circumstances which now confront this Court general principles of sentencing are not paramount. [38] Then in R. v. Boucher, (ON CA), [2004] O.J. No. 2689, the respondent was sentenced to two years (less oneday) plus two years of probation for attempting to murder his estranged wife. The Ontario Court of Appeal held that this sentence wasunfit and that a term of six years less time on remand was more appropriate.

However, the sentence at trial was varied only to increasethe probation period to three years. The court stated: ¶33 …[A]t the time this appeal was heard, [the respondent] had been out of custody for several months. On the record before us, thereis no indication that the [respondent] has made any attempt to contact the complainant, or otherwise repeat his previous misconduct,since being released. This court has commented on other occasions about the potentially deleterious impact of re-incarceration,particularly in relation to its effect on rehabilitation. ...

In all of the circumstances, I do not consider that it would be in the interests ofjustice to re-incarcerate the appellant at this time. [60] As well, this was the same approach taken by the Ontario Court of Appeal in Smickle, supra; a situation very similar to ours: 10 This court has, on occasion, declined to re-incarcerate a respondent even though the sentence imposed at trial was manifestlyinadequate. Sometimes after identifying the sentence that should have been imposed and explaining why the respondent should not be re-incarcerated, this court has simply dismissed the appeal: e.g. see R. v.

Hamilton (2004), (ON CA), 72 O.R. (3d) 1, atpara. 165 (C.A.); and R. v. Banci, [1982] O.J. No. 58 (C.A.). The court also has the power to impose the appropriate sentence but staythe execution of the remaining custodial part of that sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 132. Asexplained in R. v.

F. (G.C.) (2004), (ON CA), 71 O.R. (3d) 771, at para. 35, the imposition of the appropriatesentence followed by a stay of the execution of the remainder of the custodial sentence is probably a more appropriate disposition than isan outright dismissal in that it identifies the sentence that should have been imposed. 11 When, as in this case, the sentencing of an accused has been delayed by a lengthy appellate process, and the accused has servedthe sentence imposed at trial, the imposition of a "just sanction" demands that those factors be taken into account. The respondent

completed the sentence imposed on him long ago. He has spent the last two years in legal limbo uncertain as to whether he would be required to return to jail and, if so, for how long. Those hardships must be taken into account. As observed in Hamilton , at para. 165 : This court has recognized both the need to give offenders credit for conditional sentences being served pending appeal and the added hardship occasioned by imposing sentences of imprisonment on appeal. The hardship is readily apparent in these cases.

Had the respondents received the appropriate sentences at trial, they would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now. 12 We adopt the observation of Green C.J.N.L. in R. v.

Taylor , 2013 NLCA 42 , at para. 133 , who, in the course of explaining the function of the appellate court when deciding whether to re-incarcerate an accused who had received in inappropriately low sentence at trial, said: ... there is nothing inconsistent with saying that the sentencing judge, with the record in front of him, should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows, the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence.

Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight, a perspective that the sentencing judge did not have. The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances. [Emphasis added.] 13 Counsel for the respondent relies primarily on two arguments in urging the court to not re-incarcerate the respondent.

First, counsel submits that, through no fault of the respondent, the determination of an appropriate sentence comes almost five years after the commission of the offence, almost three years after the conviction, almost two years after sentence was imposed at trial, and a year and a half after the respondent successfully completed the sentence imposed at trial.

Counsel argues that this timeline speaks loudly to the significant added hardship that the respondent would suffer should he be incarcerated at a point so distant from the events that led to his conviction. 14 Second, counsel stresses that incarceration at this time poses a significant risk to the stability of the respondent's present life and, therefore, to his ultimate rehabilitation.

That ultimate rehabilitation provides, by far, the best long-term hope for "a just, peaceful and safe society". 15 The respondent, who apart from this offence has no other convictions, has continued in the years since his conviction to live a positive law-abiding lifestyle. He works two jobs, is developing his own business, has a stable loving relationship with his fiancée, and a close relationship with his two children from earlier relationships.

He supports both children financially. 16 Counsel submits that incarceration of the respondent in the name of the abstract notions of deterrence and denunciation puts at very real risk the positive and tangible steps the respondent has taken to establish himself as a responsible father, spouse, employee, and contributing member of society. Counsel, relying on the respondent's latest affidavit, submits that the respondent has even come to appreciate the seriousness of the conduct that led to his conviction.

He has taken steps to avoid any further such conduct by disassociating himself from his cousin, the owner of the firearm that the respondent had in his possession at the time of the offence. 17 Counsel urges the court to give priority to the very real benefits to society flowing from the respondent's ongoing positive lifestyle over the much more nebulous and uncertain societal benefits that may flow from further incarceration in the name of denunciation and deterrence.

Finally, counsel submits that the denunciation/deterrence message can be forcefully sent by a clear statement as to the appropriate sentence for this offence, and an equally clear explanation of the extraordinary circumstances that justify the staying of what would otherwise be the appropriate sentence in this case: see Taylor, at paras. 67 and 154 . 18 We agree with Crown counsel's submission that the offence committed by the respondent was serious and that the principles of deterrence and denunciation must be paramount in fixing an appropriate sentence.

If those principles cannot be adequately served without further incarceration, then incarceration is necessary, despite the significant hardship to the respondent and the risk it may pose to his rehabilitation and full reintegration into the community. 19 We are satisfied that the principles of deterrence and denunciation can be fully served without re-incarcerating the respondent at this time. This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle , at para. 30; and R. v. Nur , 2013 ONCA 677 , at para. 206 .

Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.

Staying the execution of the appropriate sentence in this case should not dilute in any way the pronouncements in Nur and Smickle as to the appropriate sentences for s. 95 offences. 20 Given that the principles of denunciation and deterrence can be adequately served without re-incarceration, we agree with counsel for the respondent that re-incarceration would not serve the other principles of sentencing and would undermine the fundamental purpose of sentencing set out in s. 718.

The community is best protected if the respondent continues along the rehabilitative path that he has followed in the five years that he has been before the court. [ 61 ] Therefore, in these exceptional circumstances, it is appropriate to stay the enforcement of this sentence. However, this should not be seen as diluting the seriousness with which this Court views gun crimes. [ 62 ] We have also been asked to reconsider our disposition as it applied to Mr. MacDonald’s convictions for s. 88 (dangerous possession of a weapon) and s. 86 (careless use of a firearm).

There, the judge issued sentences of three years and two years respectfully (both concurrent to the three years for the s. 95 offence). On appeal, we reduced these to 18 days and 14 days respectively (or time served). In my respectful view, there is nothing to add or detract from our initial analysis. Therefore, except to declare these dispositions

to be concurrent to the 18 month sentence for the s. 95 offence, I would not make a change. DISPOSITION [ 63 ] Pursuant to s. 52 of the Charter , I would declare s. 95(2)(a)(

i) to be of no force or effect to the extent that it imposes a mandatory minimum punishment of imprisonment of three years for a first offence when the Crown proceeds by indictment. The maximum punishment of 10 years under s. 95(2)(a)(

i) remains intact. I would instead impose a sentence of 18 months going forward for this offence but stay its enforcement. Finally, I would confirm our original dispositions for the s. 86 (careless use of a firearm) and s. 88 (dangerous possession of a weapon) offences, both concurrent to the 18-month sentence for the s. 95 offence. MacDonald, C.J.N.S. Concurred in: Saunders, J.A. Beveridge, J.A.’s Dissenting Reasons: INTRODUCTION [ 64 ] I have the privilege of reading the draft reasons for judgment penned by the Chief Justice. I agree with his conclusion that the mandatory minimum sentence enacted by Parliame

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