File No. 34914 SUPREME COURT OF CANADA (ON APPEAL FROM A JUDGMENT OF THE NOVA SCOTIA COURT OF APPEAL) BETWEEN: HER MAJESTY THE QUEEN APPELLANT (Respondent) - and - ERIN LEE MACDONALD RESPONDENT (Appellant)
- and – ATTORNEY GENERAL OF ONTARIO INTERVENER ______FACTUM OF THE APPELLANT ______
PUBLIC PROSECUTION SERVICE OF GOWLING LAFLEUR HENDERSON LLP NOVA SCOTIA Barristers and Solicitors Maritime Centre 160 Elgin Street, Suite 2600 1505 Barrington Street, Suite 1225 Ottawa, Ontario K1P 1C3 Halifax, Nova Scotia B3J 3K5 Telephone: (613) 233-1781 Telephone: (902) 424-6795 Facsimile: (613) 563-9869 Facsimile: (902) 424-0653 Email: [email protected] Email: [email protected] Henry S. Brown, Q.C. William D. Delaney, Q.C. Ottawa Agents for the Counsel for the Jennifer A. MacLellan Appellant Counsel for the Appellant
WOLCH DEWIT SILVERBERG & WATTS BURKE ROBERTSON LLP Barristers and Solicitors Barristers and Solicitors Suite 1500 200 – 441 MacLaren Street 633 - 6th Avenue S.W. Ottawa, Ontario K2P 2H3 Calgary, Alberta T2P 2Y5 Telephone: (613) 236-9665 Telephone: (403) 265-6500 Facsimile: (613) 235-4430 Facsimile: (403) 263-1111 Email: [email protected] Email: [email protected] Robert E. Houston, Q.C. Hersh Wolch, Q.C. Ottawa Agents for the Counsel for the Counsel for the Respondent Respondent ATTORNEY GENERAL OF ONTARIO BURKE ROBERTSON LLP 720 Bay Street, 10th Floor 200 – 441 MacLaren Street Toronto, ON M5G 2K1 Ottawa, Ontario K2P 2H3 Telephone: (416) 326-4600 Telephone: (613) 236-9665 Facsimile: (416) 326-4656 Facsimile: (613) 235-4430 Email: [email protected] Email: [email protected] John C. Pearson Counsel for the Intervener Robert E. Houston, Q.C. Attorney General of Ontario Ottawa Agents for the Counsel for the Intervener Attorney General of Ontario
TABLE OF CONTENTS
Page
PART I OVERVIEW AND STATEMENT OF FACTS...... 1 Overview ...... 1 Statement of Facts ...... 3
PART II QUESTIONS IN ISSUE ...... 10 PART III ARGUMENT ...... 11 Issue One ...... 11 Issue Two ...... 11 Issue Three ...... 20 Issue Four ...... 21 Issue Five ...... 30 The Constitutionality of the Mandatory Minimum Sentence Prescribed by Section 95(2)(a)(i) of the Criminal Code 31
If Section 95(2) Violates Section 12 of the Charter, Is It A Reasonable Limit Under Section1 of the Charter? 35
PART IV SUBMISSION ON COSTS ...... 37 PART V NATURE OF ORDER SOUGHT ...... 38 PART VI TABLE OF AUTHORITIES ...... 39 PART VII STATUTES AND REGULATIONS ...... 40 1
PART I
OVERVIEW AND STATEMENT OF FACTS
OVERVIEW
1. The concierge of the apartment building in which the Respondent was residing approached the Respondent’s apartment with a noise complaint. He was greeted with obscenities by the Respondent, who slammed the door in his face. A young police officer who also attempted to persuade the Respondent to turn his music down was similarly greeted with obscenities and a slammed door. The police officer’s supervisor made a third attempt to persuade the Respondent to turn his music down. The Respondent’s response was to load and cock a 9-millimetre Beretta firearm and open his door with the firearm hidden by his right leg. The police officer saw something black and shiny in the Respondent’s hand and asked him what it was. The Respondent did not answer. The police officer moved the door a few inches to get a better look. He saw the firearm and pushed the Respondent into his suite in order to disarm him.
2. Judge Digby of the Nova Scotia Provincial Court found the Respondent guilty of firearms offences contrary to ss.86 (careless use of a firearm), 88 (possession of a weapon for a purpose dangerous to the public peace) and 95 (possession of a loaded, restricted firearm) of the Criminal Code. The Respondent was sentenced to three years’ imprisonment, the mandatory minimum punishment attached to s.95; three years’ concurrent for s.88 and two years’ concurrent on the s.86 conviction.
3. The Respondent appealed to the Nova Scotia Court of Appeal, which dismissed the Respondent’s Charter argument regarding an alleged s.8 breach (Beveridge J.A. would have allowed the appeal regarding the s.8 issue and would have overturned all convictions). The Respondent has filed a Notice of Appeal as of right with respect to issues arising under ss.8 and 24(2) of the Charter.
4. The majority Judgment of the Court of Appeal also dismissed the Respondent’s appeals against the ss.86 and 88 convictions. However, the Court of Appeal allowed the appeal against 2
the s.95 conviction, substituting an acquittal. An appeal against sentence was also allowed, reducing the sentence of three years for the s.88 offence to eighteen days and the sentence of two years for the s.86 offence to fourteen days and two years’ probation.
5. The majority Judgment of the Court of Appeal held that knowledge of illegality is an essential element of the offence of unauthorized possession of a loaded restricted firearm contrary to s.95(1) of the Criminal Code. The position of the Appellant is that the essential elements of s.95(1) are:
(a) that the accused person possessed the firearm; (b) that the firearm was restricted and loaded; (c) that the accused did not have an authorization under which he might possess the firearm in that place.
6. The majority Judgment of the Court of Appeal also found that the Respondent’s claimed mistaken belief that his authorization to transport the firearm extended to his Halifax apartment constituted a mistake of fact as opposed to a mistake of law, therefore providing a full defence. The position of the Appellant is that the Respondent’s purported belief that his action in possessing a restricted firearm in his Halifax apartment was not unlawful was not a mistake of fact and cannot operate as a defence to the charge by reason of s.19 of the Criminal Code which states that ignorance of the law by a person who commits an offence is not an excuse for committing that offence. Furthermore, it is the position of the Appellant that even if one were to accept that the Respondent honestly believed that the Alberta Authorization to Transport which had been issued for the Beretta firearm enabled him to legally possess the firearm in his Halifax apartment and if one were to accept that that erroneous belief was a mistake of fact rather than a mistake of law, it still could not provide the Respondent with a defence to the charge he was facing, in the context of the evidence at trial. The Respondent acknowledged on cross- examination that the Alberta Authorization to Transport upon which he relied as a basis for his mistaken belief that he was authorized to possess the handgun in Halifax prohibited him from loading the firearm in his residence or in any other location unless actively engaged in target practice or a target shooting competition. The very terms of the Authorization to Transport upon which the Respondent relied prohibited him from loading the firearm in his residence. 3
7. The majority Judgment of the Court of Appeal overturned the conviction with respect to the s.95(1) offence and substituted an acquittal as opposed to ordering a new trial, although the defence of mistake of fact was not squarely before the trial Judge. The position of the Appellant is that if mistake of fact could be seen as existing in the circumstances the issue of whether it could operate in these circumstances to negate mens rea should have been left to be decided upon at a new trial.
8. The majority Judgment of the Court of Appeal reduced the sentence imposed by the trial Judge for the firearms conviction contrary to s.88 from three years’ incarceration to eighteen days and reduced the sentence for the conviction contrary to s.86 from two years’ incarceration to fourteen days and two years’ probation. The position of the Appellant is that this drastic reduction of the sentence imposed by the trial Judge represents an interventionist approach to appellate review of the fitness of sentence carried out without regard to the standard of deference required in the circumstances.
STATEMENT OF FACTS
9. Stephen Sears was employed as the concierge at Bishop’s Landing on December 28, 2009. Bishop’s Landing is a complex consisting of three buildings located at 1475, 1477 and 1479 Lower Water Street in Halifax. The Respondent resided at 1479 Lower Water Street, suite 207. (MacDonald’s Record, pp.122-123)
10. Shortly after 10 p.m. on the above date, Mr. Sears received a call from the resident of suite 206 complaining about loud music. He went to investigate. When Mr. Sears came to the second floor of the building he could hear loud music playing. As he got closer to the door of suite 207 the music became louder. Mr. Sears went to the door of suite 207 and rang the doorbell numerous times. There was no answer. He then knocked on the door numerous times but there was no answer. Then the door to suite 207 opened and a man and a woman came out saying goodnight to the Respondent, at which time Mr. Sears asked the Respondent if he would kindly turn down the music because he had had a noise complaint. The Respondent told him to “fuck off” and slammed the door in his face. (MacDonald’s Record, pp.123-125) 4
11. Mr. Sears again knocked on the door to suite 207 several times and asked the Respondent to shut the music off or turn it down, otherwise he was going to have to call the police. He waited several minutes. The music was not turned down, so Mr. Sears called the police. (MacDonald’s Record, p.125) Mr. Sears stated that the music was loud enough that the door to suite 207 was vibrating. (MacDonald’s Record, p.127)
12. Cst. Shelley Lynn Pierce, a member of the Halifax Regional Police, attended at 1479 Lower Water Street in response to the noise complaint by the concierge, Mr. Sears. She and Mr. Sears went to the second floor of the building and she rang the doorbell of suite 207 at least three times. She then knocked on the door explaining that she was from Halifax Regional Police. She could hear someone inside talking or mumbling. Then she heard someone inside asking “What the fuck do you want?” and she responded “It’s Halifax Police, sir, can you open the door for a second? I’ve got to talk to you.” At that point the door opened and Cst. Pierce said, “Sir, can you turn down your music, please?”. The Respondent slammed the door in her face. Cst. Pierce again rang the doorbell. Approximately five seconds later, the door opened again. Cst. Pierce stuck her foot in the door and said, “Sir, do you mind turning down your music?”. The Respondent said, “Go fuck yourself.”. The Respondent started pushing on the door to close it, so Cst. Pierce took her foot out of the door. The door slammed again. Cst. Pierce called her sergeant for assistance. (MacDonald’s Record, pp.148-149)
13. Sgt. Derek Boyd, a member of the Halifax Regional Police, received a call from Cst. Shelley Pierce asking for his assistance with a noise complaint. Cst. Pierce and the concierge met Sgt. Boyd at the front door of the building and the three of them went by elevator to the second floor. As soon as they got off the elevator Sgt. Boyd could hear loud music a long distance from the door to suite 207. Sgt. Boyd was in uniform, as was Cst. Pierce. Sgt. Boyd positioned himself on the right side of the door to suite 207 and Cst. Shelley Pierce stayed on the left side of the door. Sgt. Boyd knocked loudly and kicked the door, yelling “police”. (MacDonald’s Record, pp.165-166)
14. Sgt. Boyd knocked on the door approximately three minutes. The door opened approximately sixteen inches so that Sgt. Boyd could see the Respondent’s face and his right leg. 5
Sgt. Boyd noticed that the Respondent’s right hand was by his right leg and it looked to Sgt. Boyd as though the Respondent was hiding something in his right hand behind his right leg. It was black and shiny but Sgt. Boyd could not tell exactly what it was. Sgt. Boyd said, “What have you got in your hand there?”. The Respondent did not answer. Sgt. Boyd testified, “he just stared at me like with a crazy look in his face . . .”. (MacDonald’s Record, pp.167-168)
15. The Respondent’s failure to respond to his question concerning what he had in his hand made Sgt. Boyd nervous. Sgt. Boyd was thinking at that point that the Respondent may have had a weapon, possibly a knife, in his hand. (MacDonald’s Record, p.169)
16. Sgt. Boyd wanted to open the door a bit so that more light would fall on the Respondent and enable him to see what the Respondent was holding in his right hand. Sgt. Boyd pushed the door only a couple of inches at which time the Respondent’s right hand came up from behind his right leg and he pointed a gun at Sgt. Boyd’s midsection. The gun was approximately twelve inches away from Sgt. Boyd and pointing three or four inches above his navel. (MacDonald’s Record, pp.168-170)
17. Sgt. Boyd yelled, “Gun!” to alert Cst. Pierce and grabbed the gun and the Respondent’s right hand. Sgt. Boyd twisted the gun so that it pointed at the wall to the Respondent’s right. He did this with his left hand. At this point, Sgt. Boyd was still in the hallway and the Respondent was standing in the doorway. Sgt. Boyd then grabbed the Respondent’s left shoulder with his right hand and pushed the Respondent into the apartment. Sgt. Boyd was trying to push the Respondent off balance so that he could get the gun away from him. Sgt. Boyd pushed the Respondent against a counter and pushed him off balance; then he twisted the gun out of the Respondent’s hand. Cst. Shelley Pierce was assisting Sgt. Boyd in trying to get the Respondent under control. (MacDonald’s Record, pp.170-171) After the Respondent had been handcuffed, Sgt. Boyd examined the handgun which he had taken from the Respondent. It was loaded and had a live round in the chamber, the hammer was pulled back and the safety was off. (MacDonald’s Record, p.173) 6
18. Sgt. Boyd testified that he had no intention of entering the Respondent’s apartment before he saw the gun. His intention was to tell the Respondent to turn the music down. His reason for entering the apartment was concern over the safety of himself and Cst. Pierce. He was trying to get the gun pointed away from him and to get the Respondent off balance. The easiest way to do that was to bring him into his apartment where he thought that he would find a piece of furniture over which he could push the Respondent. Sgt. Boyd testified that he regarded this as a life and death struggle. (MacDonald’s Record, p.175) In Sgt. Boyd’s opinion, the Respondent appeared to be intoxicated by alcohol. (MacDonald’s Record, p.175)
19. Cst. Justin Murphy, also a member of the Halifax Regional Police, arrived at the Respondent’s apartment after Sgt. Boyd had taken the handgun away from the Respondent. Cst. Murphy observed another officer, Sgt. Mason, taking the handgun from Sgt. Boyd and ensuring that it was made safe. Cst. Murphy saw that the handgun had a magazine with ammunition in it. The magazine was removed from the handgun. Cst. Murphy also saw a round ejected from the handgun which meant that there was one in the chamber ready to be fired. Cst. Murphy’s observations of the Respondent’s demeanour were that he was intoxicated by alcohol. He had a strong odour from his breath, bloodshot eyes and he was very talkative. (MacDonald’s Record, pp.144-145)
20. Two witnesses were called by the Respondent. The first was Neil Duncan. Mr. Duncan stated that on December 28, 2009 he visited the Respondent at the Respondent’s residence in Halifax, arriving at approximately 7 p.m. They socialized and discussed their work together. He visited the Respondent for approximately two to three hours.
21. Mr. Duncan testified that he and Mr. MacDonald were sitting at the bar and drinking. He did not remember if there was music playing. He stated that he did not remember having to raise his voice to speak to Mr. MacDonald. Mr. Duncan stated that while he and the lady who was with him were putting on their coats to leave, he did not hear any knocking on the Respondent’s door, nor did he hear the doorbell being rung. When he opened the door to leave he did not see Mr. Sears in the hallway. (MacDonald’s Record, pp.183-186) 7
22. The Respondent testified that he worked in the oil industry, in Canada and internationally. He had two residences: one in Calgary and one at #207-1479 Lower Water Street in Halifax. (MacDonald’s Record, pp.192-193)
23. The Respondent testified that he owned several firearms. Specifically, he produced paperwork pertaining to a Beretta 9-millimetre handgun. It was agreed that this was the firearm which the Respondent had in his possession, loaded and cocked, while standing in the doorway of his residence on December 28, 2009. Included in the documents pertaining to the Beretta firearm were two Authorizations to Transport, both issued on April 30, 2009 by the Chief Firearms Office in the Province of Alberta. The first Authorization to Transport was issued merely for the purpose of transporting the firearm from the seller’s place of registration in Edmonton, Alberta to the Respondent’s place of registration at 949 Citadel Drive Northwest, Calgary, Alberta. This Authorization to Transport expired on the same date it was issued, that is, April 30, 2009. (Crown’s Record, pp.128-130)
24. The second Authorization to Transport authorized the Respondent to transport the 9-millimetre Beretta handgun from his residence at 949 Citadel Drive Northwest in Calgary to and from all approved ranges, licensed gunsmiths and border crossings in the Province of Alberta, returning to his residence at 949 Citadel Drive Northwest in Calgary. A further condition was that the firearm must be transported by a route that, in all circumstances, is reasonably direct. Furthermore, it was the condition of the authorization to transport that the firearm could only be loaded or carried on the Respondent’s person while he was actively engaged in target practice or target shooting competition. This Authorization to Transport had an expiry date of December 7, 2011. (Crown’s Record, pp.128-133)
25. There is no authorization in any of the documentation to permit the Respondent to transport the Beretta 9-millimetre handgun to Nova Scotia. There is no mention in any of the documentation pertaining to the firearm that the Respondent had a second address located at #207-1479 Lower Water Street, Halifax, Nova Scotia. There is nothing in the authorization allowing the Respondent to load the firearm in his condominium building and carry it to his door. In fact, the Authorization to Transport referred to in para.24, above, issued by the Chief 8
Firearms Officer in the Province of Alberta, specifically prohibited the Respondent from loading the firearm unless engaged in target practice or a target shooting competition.
26. The Respondent also produced a letter from the Nova Scotia Rifle Association dated August 4, 2009, confirming his membership in the Nova Scotia Rifle Association and inviting him to participate in any or all matches and practices conducted at their shooting facility located at Bull Meadow Range Complex, while he was visiting Nova Scotia. The letter went on to indicate, “it will of course be incumbent upon you to adhere to all federal or provincial regulations regarding the safe transport and storage of firearms”.
27. The Respondent testified that he had travelled with firearms throughout Alberta, British Columbia and Barbados, as well as to Halifax on numerous occasions. (MacDonald’s Record, pp.197-198)
28. The Respondent testified that on December 28, 2009 he and a friend of his were drinking in his Halifax residence and he had music playing in the background. In the Respondent’s opinion it was not loud enough to disturb anyone or to be bothersome to anybody there. Eventually, the Respondent’s friend, Mr. Duncan, left. The Respondent said good-night to Mr. Duncan and his friend and then the Respondent noticed the concierge in the hallway making a signal to the Respondent that the Respondent interpreted as a request to turn the music down. The Respondent stated that he had not heard a knock on the door or the doorbell ring prior to this. When the Respondent was asked what he did as a result of this request from the concierge he replied, “absolutely nothing”. When asked why, he indicated:
I’ve had problems with concierges in the four and a half years I’ve lived in that place. I’d be watching a movie. They come knocking at my door telling me to turn my music down or turn my music off and I’d just ignore it, close the door and I never hear anything more about it. I’ve been told by other concierges that . . . (MacDonald’s Record, pp.201-203)
29. The Respondent testified about the visit by Cst. Pierce and acknowledged that he indulged in obscene language in response to her discussion of the volume at which he was 9
playing the music. He explained that the increase in the volume of the music after Cst. Pierce’s visit was the result of him hitting the wrong button on the remote. (MacDonald’s Record, pp.204-205)
30. The Respondent stated that later he heard pounding at the door and picked up his 9-millimetre Beretta handgun. He removed the trigger lock, put a loaded magazine in the handgun, and pulled back on the slide to load a round into the chamber. He stated that he applied the safety and then went to the door to find out who was at his front door. (MacDonald’s Record, pp.205-206)
31. The Respondent testified that he asked who it was and, “what the ‘F’ do you want?”. The police officer stated that it was the Halifax police. The Respondent testified that he slowly opened the door, approximately eighteen to twenty inches. He had his handgun behind his back at that time in his right hand. The police officer asked him what he had behind his back and the Respondent stated that he did not answer him because he did not consider it wise to tell a police officer that he had a loaded 9-millimetre handgun behind his back. (MacDonald’s Record, pp.207-208)
32. The Respondent testified that the police officer then pushed the door hard and grabbed the Respondent’s right arm. The Respondent then testified that it was his intention to keep the gun pointed to the right. He was then pushed into the apartment and disarmed by the police officer. (MacDonald’s Record, pp.208-209)
10
PART II
QUESTIONS IN ISSUE
33. This appeal raises a number of issues:
(1) Did the Court of Appeal err in law in holding that knowledge of illegality is an essential element of the offence of unauthorized possession of a loaded restricted firearm contrary to s.95(1) of the Criminal Code?
(2) Did the Court of Appeal err in law in holding that the Respondent’s purported mistaken belief that his authorization to transport the firearm extended to his Halifax home constituted mistake of fact as opposed to a mistake of law, therefore providing a defence to the charge?
(3) Did the Court of Appeal err in law by overturning the verdict of the trial Judge and substituting an acquittal on the s.95(1) offence as opposed to ordering a new trial in a case in which the defence of mistake of fact was not squarely before the trial Judge?
(4) Did the Court of Appeal err in law by reducing the sentence imposed by the trial Judge for the firearms conviction contrary to s.88 from three years’ incarceration to eighteen days and contrary to s.86 from two years’ incarceration to fourteen days and two years’ probation?
(5) Does the mandatory minimum sentence prescribed by s.95(2) of the Criminal Code constitute cruel and unusual punishment in violation of s.12 of the Charter; if so, is the infringement a reasonable limit which can be demonstrably justified in a free and democratic society under s.1 of the Charter?
11
PART III
ARGUMENT
Issue One:
Did the Court of Appeal err in law in holding that knowledge of illegality is an essential element of the offence of unauthorized possession of a loaded restricted firearm contrary to s.95(1) of the Criminal Code?
Issue Two:
Did the Court of Appeal err in law in holding that the Respondent’s purported mistaken belief that his authorization to transport the firearm extended to his Halifax home constituted mistake of fact as opposed to a mistake of law, therefore providing a defence to the charge?
34. Since the above two issues are closely related, the Appellant will discuss them together.
35. There are two steps to the analysis underlying the majority Judgment of the Court of Appeal’s decision that the Respondent could rely on a defence that he honestly believed that his Alberta authorization to transport the handgun was sufficient to permit him to legally possess the loaded handgun in his Halifax apartment. The first step was to conclude that it was an element of the offence requiring proof beyond a reasonable doubt by the Crown that the Respondent knew his possession of the restricted firearm in his Halifax apartment was without authorization. The second step was to characterize the Respondent’s belief that he was authorized to possess the restricted firearm in his Halifax apartment as a mistake of fact rather than as a mistake of law. The Appellant will address each of these issues separately; however, it is the Appellant’s submission that even if one were to accept the two propositions relied upon by the Court of Appeal as correct, they could not in the circumstances of this case provide a defence to the charge under s.95.
36. Somewhere in the analysis of the majority Judgment of the Court of Appeal it was lost sight of that the Respondent was not charged with merely possessing a handgun in his Halifax apartment; he was charged with possessing a loaded restricted firearm, not being the holder of an authorization or license under which he might possess the firearm in that place. The Court of Appeal seemed to forget the evidence of the Respondent in which he acknowledged that the 12
authorization upon which he relied as a basis for his mistaken belief that he was authorized to possess the handgun in Halifax plainly prohibited him from loading the firearm in his residence or in any other location unless actively engaged in target practice or a target shooting competition. (MacDonald’s Record, pp.222-223) It was plain from the Respondent’s own evidence that he understood he could not load a firearm in his residence. Therefore, even if one should accept the two propositions relied upon by the Court of Appeal, they could go no further than providing a possible defence to a charge of possessing an unloaded firearm in his Halifax apartment; they could not provide him with a defence to the charge he was actually facing.
37. Section 95 of the Criminal Code reads as follows:
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, without being 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.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, three years, and
(ii) in the case of a second or subsequent offence, five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
(3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it [Emphasis added]
38. With respect to the charge under s.95(1) of the Criminal Code, the submission of counsel for the Respondent at trial was that the Respondent’s possession of the firearm was not 13
unauthorized, since the Respondent did not need an authorization to possess the firearm at his residence in Halifax, notwithstanding that that residence had never been registered with the Registrar of Firearms. The authorization to transport the firearm within the Province of Alberta was referred to by counsel for the Respondent at trial as a “blanket authorization” and it seems to have been counsel for the Respondent’s submission that the Alberta authorization to transport, together with a letter from a registered gun club in Nova Scotia provided sufficient authorization for possession of the restricted firearm in the Respondent’s residence in Halifax. Only as something of an afterthought did counsel for the Respondent at trial state,
. . . It seems to me that the law must have required intention on his part and it must be more than something that can be accidentally broken because he understands that he has to have a authorization to transport, and he does. He understands that he has to have a registered request from the gun club that he’s going to and he does. He understands that he has to have a registered certificate and a PAL and he does. But then suddenly because he has two dwelling houses instead of one, he’s suddenly guilty of an offence carrying a minimum of three years. (Crown’s Record, p.129)
In dealing with the charge under s.95(1), the trial Judge indicated:
With respect to count 5, the charge of:
Possession of a loaded restricted firearm, was not the holder of an authorization under license with which he may possess the said firearm in that place, contrary to section 95(1).
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. 14
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 head [sic] 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. The Defence also suggests that under section 17, a restricted firearm may be possessed by the holder of the registration certificate at the dwelling house of the individual and the submission is is that the Bishop’s Landing is Mr. MacDonald’s dwelling house. Dwelling house is defined in section 2 of the Criminal Code. There is no doubt that Bishop’s Landing is a dwelling of Mr. MacDonald. The question is is it a dwelling house as recorded in the Canadian Firearms Registry or at a place authorized by a chief firearms officer? The Crown’s case alone on that point is rather weak, however, Mr. MacDonald in his evidence testified that the registration for the firearm was his address in Calgary, Alberta. He was specifically asked by the Crown, Did you do anything to change that? And he said, No, I didn’t do anything to change that because I didn’t think I had to. Based on that, I do not see how it can be that the Bishop’s Landing address was recorded in the Canadian Firearms Registry. How would they know about it? Mr. MacDonald had not done anything to make them aware of it or how could it be a place authorized by the chief firearms officers because there is nothing that Mr. MacDonald did to bring it to the attention of a chief firearms officer. In my view, the Crown has made out its case under count 5 and I find him guilty of that offence. (MacDonald’s Record, pp.20-23)
39. The Nova Scotia Court of Appeal summarized the arguments made in challenging the s.95 conviction in the following manner: 15
[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.
(MacDonald’s Record, p.44)
40. At paras.46-65 of the majority Judgment of the Court of Appeal, the Respondent’s first challenge to the conviction was considered and the Court of Appeal decided that the Respondent was not authorized to possess a loaded restricted firearm at his condominium in Halifax.
41. The Court of Appeal went on to consider another question, which was characterized as that of innocent mistake. This issue was stated in the following terms at para.72 of the majority Reasons for Judgment, ”Did the Crown have to prove that Mr. MacDonald knew his possession was unauthorized?”
(MacDonald’s Record, p.53)
42. The Court of Appeal concluded at para.95 that “complete, specific, subjective knowledge (unless displaced by wilful blindness) must constitute an essential element of the offence . . . “.
(MacDonald’s Record, p.60)
43. The conclusion in the majority Judgment of the Court of Appeal that a registered gun owner cannot be convicted of a charge under s.95 unless it is proven that he subjectively understood that he was possessing the loaded restricted firearm illegally is based upon the Court of Appeal’s reasoning that for the level of moral fault to be commensurate with an offence carrying a three year minimum sentence, the accused must know that the gun is being possessed illegally. (at para.79) This proposition was taken from a brief passage in the Reasons for Judgment of McLachlin J. (as she then was) in R. v. Creighton, [1993] 3 S.C.R. 3, reproduced at para.75 of the majority Judgment of the Court of Appeal.
44. The Appellant submits that Creighton is not authority for the proposition that in the absence of a Charter challenge a Court may simply read into a criminal charge an element requiring proof beyond reasonable doubt that an accused person knew and understood the law 16
which she is charged with having contravened. The Appellant is not aware of any other authority on the basis of which the Court of Appeal read into s.95 of the Criminal Code the requirement of proof that the accused person had knowledge that he did not have an authorization to possess a loaded restricted firearm in a particular place.
45. The Appellant submits that knowledge that one’s actions are contrary to the law is not a component of the mens rea for an offence. There is no requirement that the Crown prove that an accused person was aware of the illegality of his actions.
R. v. Molis, [1980] 2 S.C.R. 356 R. v. Forster, [1992] 1 S.C.R. 339 R. v. Custance (2005), 194 C.C.C. (3d) 225 (Man.C.A.) R. v. Gunn (1997), 113 C.C.C. (3d) 174 (Alta.C.A.); application for leave to appeal dismissed, R. v. Gunn, [1997] S.C.C.A. No. 175
46. As Lamer C.J. indicated in Forster, at p.346:
It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. The Queen, [1980] 2 S.C.R. 356. This Court recently reaffirmed in R. v. Docherty, [1989] 2 S.C.R. 941, at p. 960, the principle that knowledge that one's actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.
47. Similarly, in Molis, Lamer C.J. indicated, at pp.362-363:
Whatever may be the merit of such a distinction, and this is said without pronouncing on its acceptability, Parliament has by the clear and unequivocal language of s. 19 chosen not to make any distinction between ignorance of the existence of the law and that as to its meaning, scope or application. Parliament has also clearly expressed the will that s. 19 of the Criminal Code be a bar to any such defence, be the offence one created by an "enactment", (s. 27(2) of the Interpretation Act R.S.C. 1970 c. I-23) as is the case here.
48. Furthermore, the majority Judgment of the Court of Appeal was in error in holding that the Crown should have to prove as an element of the offence that a mistake of fact does not exist. As indicated by Dickson, J. in R. v. Pappajohn, [1980] 2 S.C.R. 120 at p.148: 17
. . . Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.
49. The Appellant submits that by requiring the Crown to prove that the accused knew his possession of the loaded restricted firearm was unauthorized in his Halifax apartment, the Court of Appeal has created a mistake of law defence which stands in contradiction to s.19 of the Criminal Code which states that ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
50. At para.69 of the majority Judgment of the Court of Appeal, it is stated:
[69] However, MacDonald is not saying that he was unaware of the state of the law. Specifically, he knew that he had to be legally authorized to possess this gun in his Halifax residence. Instead, he insists that he thought he was so authorized. In other words, he thought, as a matter of fact, that his authorization extended to his Halifax home. This may appear to be a subtle distinction but it is nonetheless a very important one because mistakes of fact may, in certain circumstances, justify an acquittal. (MacDonald’s Record, p.52)
51. It is difficult to understand, however, how a misinterpretation of the extent of the Respondent’s authorization to transport the restricted firearm can be characterized as a mistake of law. Questions pertaining to the extent of the authorization to transport would seem to be legal questions. The Appellant can understand how in certain circumstances a valid mistake of fact issue could arise where an accused person was laboring under a mistaken understanding of the facts pertaining to the charge, rather than being mistaken about the extent of the Authorization to Transport issued in Alberta. For example, if the Respondent’s evidence was that when he picked up the handgun he honestly believed that it was unloaded, forgetting that he had earlier loaded it, this might form the basis of a defence of innocent mistake (although admittedly somewhat far-fetched) to a charge under s.95. It is quite a different matter, however, to assert that one is mistaken as to the legislative and regulatory regime pertaining to control of firearms and mistaken as to the interpretation of the Authorization to Transport which has been issued with respect to the firearm in question. 18
52. In addition to his misinterpretation of the Authorization to Transport, in order to have genuinely believed that he could legally load the firearm and take it to his door, the Respondent would have had to be mistaken about s.15 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, which states in s.15:
15. An individual may load a firearm or handle a loaded firearm only in a place where the firearm may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts, and municipal by-laws. [Emphasis added]
In addition, the Respondent would also have had to be mistaken about, for example, ss.17 and 19 of the Firearms Act which discuss the places where 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. [Emphasis added] . . .
19. (1) An individual who holds a licence authorizing the individual to possess prohibited firearms or restricted firearms may be authorized to transport a particular prohibited firearm or restricted firearm between two or more specified places for any good and sufficient reason, including, without restricting the generality of the foregoing,
(a) for use in target practice, or a target shooting competition, under specified conditions or under the auspices of a shooting club or shooting range that is approved under section 29;
(a.1) to provide instructions in the use of firearms as part of a restricted firearms safety course that is approved by the federal Minister; or
(b) if the individual
(i) changes residence,
(ii) wishes to transport the firearm to a peace officer, firearms officer or chief firearms officer for registration or disposal in accordance with this Act or Part III of the Criminal Code, 19
(iii) wishes to transport the firearm for repair, storage, sale, exportation or appraisal, or
(iv) wishes to transport the firearm to a gun show.
(2) Notwithstanding subsection (1), an individual may not be authorized to transport a prohibited firearm, other than a handgun referred to in subsection 12(6.1), under that subsection, except for the purposes referred to in paragraph (1)(b).
(3) A non-resident may be authorized to transport a particular restricted firearm between specified places in accordance with sections 35 and 35.1.
53. It is the Appellant’s submission that if the Respondent was laboring under mistakes with respect to his illegal possession of a loaded restricted firearm, they were mistakes of law, none of which could have afforded him a defence.
54. The Appellant submits that the essential elements of an offence under s.95(1) are the following:
(a) that the accused possessed the firearm;
(b) that the firearm was restricted and loaded;
(c) that the accused person did not have an authorization to possess the firearm in that place.
R. v. Williams (2009), 244 C.C.C. (3d) 138 (Ont.C.A.)
55. The Appellant submits that it is not an element of an offence under s.95(1) that the accused person had actual knowledge of or was willfully blind to his lack of authorization to possess a loaded restricted firearm in a particular place.
56. More fundamentally, however, even if one were to accept that the Respondent was mistaken about his authorization to possess a restricted firearm in Halifax and if one were to accept that these mistakes could somehow be characterized as mistakes of fact, as indicated above, they could not afford the Respondent a defence to the charge he was facing; that is, being in possession of a loaded restricted firearm without an authorization to possess it in that place. 20
The Respondent’s own evidence made it plain that he appreciated that the authorization to transport upon which he relied and which he referred to as a “blanket authorization” did not authorize him to load the restricted firearm in his residence. That being the case, the whole analysis upon which the majority Judgment of the Court of Appeal is based must be seen as beside the point. At its highest, it could be seen as germane only to a case of simple possession of a restricted firearm in Halifax; it could have no application to the charge before the Court in the context of the evidence heard at trial.
Issue Three:
Did the Court of Appeal err in law by overturning the verdict of the trial Judge and substituting an acquittal on the s.95(1) offence as opposed to ordering a new trial in a case in which the defence of mistake of fact was not squarely before the trial Judge?
57. In this case, the defence at trial raised a number of complex technical arguments on the basis of which it was submitted that the Alberta authorization to transport the restricted weapon, together with a letter from a local gun club, provided sufficient authorization for the Respondent to possess the loaded firearm in his apartment in Halifax. The term “mistake of fact” was never used by defence counsel in his submissions to the trial Judge. The term “innocent mistake” was never raised in submissions to the trial Judge. Seemingly as an afterthought, defence counsel made a submission which was later interpreted by the Court of Appeal as an assertion of a defence of mistake of fact. Notably, however, the conduct of the trial was such that the trial Judge did not seem to appreciate that the defence was being put forth.
58. In setting aside the conviction on the charge under s.95 of the Criminal Code, the Court of Appeal then went on to consider whether to order a new trial on that count or to direct an acquittal. The Court of Appeal acknowledged that generally speaking an acquittal should only be entered if, with the error corrected, a properly instructed jury could not convict on the evidence tendered, referring to R. v. MacNeil (2009), 244 C.C.C. (3d) 88 (N.S.C.A.).
59. At paras.98-106 of majority Reasons for Judgment, the Court of Appeal concluded that a properly instructed jury could not decide on the evidence that the Respondent knew or was 21
wilfully blind to his unauthorized possession of a loaded restricted firearm in his Halifax apartment. This conclusion is difficult to understand, given that the charge under consideration was possession of a loaded restricted firearm in his Halifax apartment and given the Respondent’s own evidence under cross-examination which made it plain that he understood that the terms of the authorization upon which he relied prohibited him from loading the restricted firearm in his apartment. Clearly, a properly instructed jury could have concluded on this evidence that the Respondent knew that his possession of the loaded restricted firearm in his apartment was unauthorized.
60. The Appellant seeks that the conviction under s.95 be reinstated. In the alternative, the issue as to whether or not a mistake of fact existed in the circumstances and whether or not it could operate to negate mens rea should have been left to be ruled upon at a new trial.
Issue Four:
Did the Court of Appeal err in law by reducing the sentence imposed by the trial Judge for the firearms conviction contrary to s.88 from three years’ incarceration to eighteen days and contrary to s.86 from two years’ incarceration to fourteen days and two years’ probation?
61. The majority Judgment of the Court of Appeal reduced the sentence imposed by the trial Judge for the conviction contrary to s.88 of the Criminal Code from three years’ incarceration to eighteen days; it also reduced the sentence for the conviction contrary to s.86 from two years’ incarceration to fourteen days and two years’ probation.
62. The Appellant submits that the extreme reductions in the sentences imposed by the trial Judge constituted an “overly interventionist mode of appellate review of the fitness of sentence which transcended the standard of deference articulated in Shropshire”.
R. v. C.A.M., [1996] 1 S.C.R. 500, at para.94
63. In R. v. Shropshire, [1995] 4 S.C.R. 227 the importance of deference was emphasized at paras.46-48:
46 The question, then, is whether a consideration of the "fitness" of a sentence incorporates the very interventionist appellate review propounded by 22
Lambert J.A. With respect, I find that it does not. An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
47 I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), 98 N.S.R. (2d) 238, and R. v. Muise (1994), 94 C.C.C. (3d) 119. In Pepin, at p. 251, it was held that:
... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive.
48 Further, in Muise it was held at pp. 123-24 that:
In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless the sentence imposed is clearly excessive or inadequate. ...
. . . . .
The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts ... My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive.
64. The importance of the deferential standard of appellate review with respect to a sentencing order was further emphasized in C.A.M. at para.91:
91 This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have 23
had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
65. The trial Judge clearly viewed the actions of the Respondent as having placed the lives of others at risk. He indicated:
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. (Crown’s Record, pp.15-16)
66. The trial Judge distinguished the circumstances of this case from those cases where the firearms in question were either found in a person’s residence, vehicle or somewhere other than the person’s hand:
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. (Crown’s Record, p.12) 24
67. The trial Judge was also aware of the prevalence of firearms offences in the Halifax area:
The use of firerarms 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.
(Crown’s Record, p.10)
68. With respect to the s.88 conviction, the Court of Appeal simply dismissed the trial Judge’s view that this was a serious offence which placed the public at risk. The Court of Appeal indicated, at para.117, “Considering our circumstances, I would place Mr. MacDonald’s actions at the lower end of the spectrum . . .”. The Court of Appeal did not appear to be impressed by the evidence of Sgt. Boyd who testified that he regarded the struggle with Mr. MacDonald over the gun as a life and death struggle. Nor did the Court of Appeal appear to appreciate the extreme danger faced by the police officers and Mr. Sears who were confronted by a belligerent and intoxicated man with a loaded and cocked handgun. In dismissing the trial Judge’s view of these circumstances as having created a serious risk to the public, the Court of Appeal simply abandoned, apart from lip service, any reliance on the principle of deferential appellate review.
69. The Court of Appeal noted that the trial Judge had said with respect to the s.95 offence that the trial Judge’s likely sentence would in any event have been one in a federal penitentiary. From this, the Court of Appeal concluded that were it not for the statutory minimum, the trial Judge would have ordered a sentence closer to two years for the s.95 conviction. The Appellant is at a loss to understand how this conclusion was drawn. Although a federal sentence starts at two years, there is nothing in the trial Judge’s comment to compel or even to support the 25
conclusion that the trial Judge would have considered a sentence closer to two years than to three years in the absence of the statutory minimum.
70. At paras.120 and 121 of the majority Judgment of the Court of Appeal, eleven sentencing cases are referred to, dealing with a wide variety of circumstances in which a wide range of sentences were imposed for firearms related offences. While such an exercise can be useful in determining the appropriate range of sentencing for a particular offence, it must be carried out carefully, with an understanding of the difficulty, and sometimes the impossibility, of finding appropriate comparators. As McEachern C.J.B.C. indicated in R. v. Mafi, (2000), 142 C.C.C. (3d) 449 (B.C.C.A.), at para.55:
55 As already mentioned, in R. v. M. (C.A.), the Supreme Court of Canada has reiterated that the primary principle of sentencing is that stated in s. 718.2(b): that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In my view, the problem with this provision is that it is usually impossible to find appropriate comparators, particularly when it comes to finding "similar" offenders and "similar" circumstances. [Emphasis added]
71. Many of the cases relied upon at paras.120-121 of the majority Judgment of the Court of Appeal do not appear to be genuinely comparable to the circumstances of the Respondent. For example, the Court of Appeal relies upon R. v. L.R.F. (2007), 219 C.C.C. (3d) 57 (N.S.C.A.) where a one year sentence with respect to a charge under s.88 of the Criminal Code was upheld in circumstances of an armed standoff with police. When one examines the actual circumstances of the sentencing, however, this one year sentence with respect to the s.88 conviction was a consecutive sentence, which together with sentences for other related charges resulted in a total custodial sentence of four and one-half years. In these circumstances, obviously the sentencing Judge would have considered the principle of totality when sentencing the accused on the charge under s.88. The one year sentence in these circumstances cannot be understood fully without considering the context of the other charges upon which he was sentenced at the same time.
72. To take another example, the Court of Appeal relies upon R. v. Muise (2008), 270 N.S.R. (2d) 380 (N.S.S.C.), where a two year sentence, along with two years’ probation, was imposed 26
for a s.88 offence. This was the case of an eighteen year old who had pleaded guilty at the first reasonable opportunity. Moreover, the charge arose from the finding of a loaded handgun in a vehicle as a result of a traffic stop. Mr. Muise did not have the firearm in his hand, as did the Respondent in this case. Furthermore, the sentence was as a result of a joint recommendation, a circumstance not present in the sentencing of the Respondent.
73. The Court of Appeal also refers to R. v. Tessman, 2010 ABPC 184 where a sentence of one year was imposed (taking into account the credit for time in pre-trial custody) for convictions under ss.88 and 95 of the Criminal Code. This again was a sentence based on a joint submission. The digest of the case in para.121 of the majority Judgment of the Court of Appeal fails to mention that this is a case where the Crown proceeded by summary conviction, thereby limiting the maximum sentence of imprisonment under s.88 to six months. Again, this case is not particularly helpful in relation to an evaluation of the sentences given by the trial Judge in this case.
74. A sentencing case not referred to in the majority Judgment of the Court of Appeal is R. v. Smith, 2006 NSCA 95. In Smith, police, authorized by a search warrant, entered the Appellant’s townhouse at 3 a.m. The Appellant was the only person on the premises. A 9-millimetre handgun was found on the second level of the residence. The firearm contained a loaded magazine but did not have a cartridge in the chamber. Saunders J.A. with Hamilton J.A. concurring upheld a global sentence of three years. Oland J.A., dissenting, would have reduced the sentence to two years. In upholding the three year sentence, Saunders J.A. indicated:
[57] Neither am I as impressed as my colleague that this was the appellant’s “first” conviction for a firearms’ offence or that his lengthy criminal record “included only one violent offence.” People do not keep loaded semi-automatic handguns by their bedside to greet a florist or the paperboy. The officers’ testimony at trial confirmed that the gun was loaded with the safety OFF. Beside it lay a separate magazine clip containing live rounds. It would take half a second to chamber a round and fire the weapon. Given this evidence, and the other circumstances of this offence and this offender, the Crown attorney was perfectly justified in submitting, as he did, that the appellant “was . . . readying himself to deal with anyone who came to the door.” [Emphasis added]
27
75. While in Smith, supra it may have been a reasonable inference that Mr. Smith had the gun for the purpose of dealing with anyone who came to his door, in the Respondent’s case no such inference is necessary. On the facts of this case Mr. MacDonald loaded and cocked a handgun and took it to his front door to meet police officers attempting to persuade him to turn the music down. The Court of Appeal seems to have failed to grasp the very serious nature of this offence and failed to understand that the danger to the public caused by the Respondent’s actions was a significant aggravating factor.
76. With regard to the conviction under s.88 of the Code, the Court of Appeal found that the sentence imposed by the trial Court was demonstrably unfit. The analysis on the basis of which this conclusion was reached was stated at para.122:
[122] The above cases reveal sentences less than 3 years in circumstances much more grave than ours, often involving guns being discharged and offenders with significant records. Therefore, considering Mr. MacDonald’s individual circumstances including his having no criminal record, this 3-year sentence is, respectfully, demonstrably unfit. It therefore now falls to us to craft an appropriate disposition. See R. v. Shea, 2011 NSCA 107, [2011] N.S.J. No. 653 (Q.L.) at para. 92. (MacDonald’s Record, p.74)
77. Having decided to “craft an appropriate disposition”, the Court of Appeal sentenced the Respondent to “time served” which represented eighteen days in custody.
78. The Appellant submits that a more careful analysis of the authorities relied upon by the Nova Scotia Court of Appeal could not have supported the conclusion that the sentence imposed by the trial Judge in this case with respect to the s.88 conviction was demonstrably unfit. Furthermore, the Appellant submits that the sentence of eighteen days which was substituted by the Court of Appeal was manifestly inadequate, given the very serious nature of this offence and the danger to the public caused by the Respondent’s actions in loading and cocking a handgun and taking it to his door to meet the police.
79. With respect to the sentence for the conviction under s.86 of the Criminal Code, the Court of Appeal took a similar approach, listing nine sentencing cases involving careless use of a firearm, apparently for the purpose of presenting those cases as appropriate comparators with 28
respect to the Respondent’s case. Again, however, the analysis of the cases cited with respect to their relevance to the Respondent’s case appears to be cursory at best.
80. For example, in R. v. Stewart (2010), 253 C.C.C. (3d) 301 (B.C.C.A.), the charge involving careless use of a firearm under s.86 of the Criminal Code was with respect to an unloaded 22-calibre rifle. No meaningful comparison can be made between a careless use of a firearm charge in which an unloaded firearm is used and the handgun which Mr. MacDonald loaded in preparation for meeting the police officers at the door in this case. Any comparisons between the two cases can only be misleading.
81. In R. v. Noorali, 2010 ONSC 3747, another case relied upon in the majority Judgment of the Court of Appeal, a sentence of six months was imposed on a charge of transporting a firearm in a careless manner contrary to s.86 of the Criminal Code. This, however, was in the context of a global sentence of eight and one-half years. It was also in the context of an agreement between the parties that the sentences for four of the counts should be served concurrently with each other and with a longer sentence in relation to a charge of possession of a restricted firearm with readily accessible ammunition, contrary to s.95(1) of the Code.
82. A sentencing decision not mentioned in the majority Judgment of the Court of Appeal is R. v. Archibald, 1998 CarswellOnt 1858 (Ont.C.A.). In Archibald, the Appellant was convicted of charges of careless storage of a firearm and of being an occupant of a motor vehicle in which he knew there were prohibited and restricted weapons. The Appellant was of previous good character, was employed at the time and spent thirty days in pre-sentence custody. A co-accused was clearly established to be the principal offender. The Court of Appeal, however, regarded the careless storage offence as being particularly very serious. The Court of Appeal granted leave to appeal sentence and, allowing the appeal, reduced the sentence to eighteen months in prison to be served concurrently with respect to both charges. Had the Nova Scotia Court of Appeal considered Archibald, in which the circumstances of the s.86 offence were clearly much less aggravated than the circumstances of the s.86 offence in which the Respondent was involved, it would have been far more difficult for the Court of Appeal to have concluded that the sentence imposed by the trial Judge for the conviction under s.86 was demonstrably unfit. 29
83. With regard to the conviction for careless use of a firearm under s.86, the Court of Appeal concluded:
[126] So again, we see dispositions of less than 2 years in circumstances much more serious than ours, often including the discharge of weapons and offenders with serious criminal records. Therefore, considering the circumstances of this offence and considering Mr. MacDonald’s individual circumstances including his having no criminal record, respectfully, this 2-year sentence is, as well, demonstrably unfit. It therefore again falls to us to craft an appropriate disposition. (MacDonald’s Record, p.78)
84. Having decided to “craft an appropriate disposition”, the Court of Appeal imposed a sentence of fourteen days for the conviction pursuant to s.86, to be served concurrently with the sentence under s.88. A two year term of probation was also ordered.
85. The Appellant submits that a more careful analysis of the sentencing cases relied upon by the Nova Scotia Court of Appeal would not have supported the conclusion that the two year sentence imposed by the trial Judge in this case was demonstrably unfit. Furthermore, the Appellant submits that the fourteen day sentence which the Court of Appeal substituted for the sentence of the trial Judge was manifestly inadequate, given the circumstances of the offence.
30
Issue Five:
Does the mandatory minimum sentence prescribed by s.95(2) of the Criminal Code constitute cruel and unusual punishment in violation of s.12 of the Charter; if so, is the infringement a reasonable limit which can be demonstrably justified in a free and democratic society under s.1 of the Charter?
86. Counsel for the Respondent in the Provincial Court submitted that the mandatory minimum sentence provided by s.95(2)(a)(i) of the Criminal Code constituted cruel and unusual punishment and was in violation of s.12 of the Charter. This submission was rejected by the trial Judge.
87. On the appeal to the Nova Scotia Court of Appeal, the issue of the constitutionality of the mandatory minimum sentence was again raised by the Respondent. In the majority Judgment of the Nova Scotia Court of Appeal, the issue of the constitutionality of the mandatory minimum sentence was not dealt with, since the Court of Appeal acquitted the Respondent with respect to the conviction under s.95.
88. In the event that the Supreme Court should rule that the Court of Appeal was in error in overturning the conviction under s.95 and substituting an acquittal, the Appellant seeks to have the conviction and sentence of the trial Judge restored.
89. On December 12, 2012 the Appellant applied to state constitutional questions pertaining to whether the mandatory minimum sentence established by s.95(2)(a) of the Criminal Code infringed rights guaranteed by s.12 of the Charter, and, if so whether the infringement was a reasonable limit prescribed by law that could be demonstrably justified in a free and democratic society.
90. By letter dated January 22, 2013, Robert E. Houston, Q.C., Ottawa agent for counsel for the Respondent, stated that the Respondent did not seek to challenge the constitutional validity of the mandatory minimum sentence provision in the Supreme Court and took the position on behalf of the Respondent that the constitutional question should not be fixed in this case. By 31
Order dated February 6, 2013 the Appellant’s Application for an Order stating constitutional questions was dismissed.
91. By letter dated January 29, 2013 Henry S. Brown, Q.C., agent for the Appellant, wrote to Roger Bilodeau, Q.C. In this letter Mr. Brown indicated,
Despite his Agent’s qualified statements, the constitutionality of the mandatory minimum sentence will certainly be an issue in this appeal, unless Mr. MacDonald’s counsel unequivocally undertakes not to raise the constitutionality of the mandatory minimum sentence in response to the Crown’s request to restore the three year sentence and the conviction, which we invite him to do by copy of this letter.
92. There has been no further correspondence from the agent for the Respondent with respect to this issue. Accordingly, the Appellant will briefly address the issue of the constitutionality of the mandatory minimum sentence under s.95, in the event that the Respondent should raise this issue in response to the Appellant’s request to restore the three year sentence with respect to the s.95 conviction.
The Constitutionality of the Mandatory Minimum Sentence Prescribed by Section 95(2)(a)(i) of the Criminal Code
93. In R. v. Ferguson, 2008 SCC 6, at para.14 McLachlin C.J.C. indicated:
14 The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.). As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84 (S.C.C.), at para. 4, citing Smith, at p. 1072 and Morrisey, at para. 26. The question thus becomes: is a four-year sentence of imprisonment grossly disproportionate to the offence of manslaughter as committed by Constable Ferguson? [Emphasis added]
See also R. v. Smith, [1987] 1 S.C.R. 1045 at p.1072 and R. v. Goltz, [1991] 3 S.C.R. 485, at para.26. 32
94. The gross disproportionality test consists of both a particularized inquiry in which the circumstances of the offence and the offender are considered and, if necessary, an inquiry based upon the consideration of reasonable hypotheticals.
95. In applying the gross disproportionality test, there must be a consideration of all of the relevant contextual factors, including the gravity of the offence. The offence under consideration is possession of a loaded restricted firearm without authorization to possess it in a particular place. The Firearms Act and the Criminal Code together provide a regime for the regulation and criminalization of the dangerous possession and use of firearms. Loaded firearms are, at least potentially, agents of death. The possession of a loaded restricted firearm without authorization represents a grave danger to the public.
96. The Respondent’s position at trial and before the Court of Appeal was that he was authorized to possess the handgun in his Halifax apartment by virtue of the authorization to transport the firearm issued in Alberta. That, of course, is incorrect; moreover, on cross- examination the Respondent acknowledged that the Alberta authorization to transport by its very terms prohibited him from possessing the loaded firearm in his residence. By loading the handgun and taking it to the door to meet the police, the Respondent created a dangerous situation of the very type that the legislative and regulatory regime seeks to prevent.
97. With respect to the particular circumstances of the offence and the circumstances of the offender, the evidence discloses an offence by an intoxicated man who was highly belligerent in responding to requests to turn the music down made by a concierge and by police officers. Many months after the event, when testifying at trial, the Respondent continued to assert that the concierge had no right to ask him to turn his music down. The Respondent was prepared to place the lives of others at risk in order to assert his assumed right to maintain the volume of music at a certain level, irrespective of the requests of others.
98. While the Respondent has a good employment record and no prior involvement with the criminal law, these factors are overshadowed in this case where his actions disclose a willingness to put other members of the public at considerable risk. 33
99. The effect of the sentence on the Respondent must also be considered. The position of the Respondent at trial and before the Nova Scotia Court of Appeal was that the mandatory minimum sentence would have an impact on his employment. Although the Respondent was said to have been able to maintain some employment in the oil industry in Canada, his employment opportunities abroad have been limited. The Appellant submits that it is not the mandatory minimum sentence per se which is responsible for the effect on the Respondent’s employment. Any period of incarceration would likely affect the Respondent’s ability to work internationally. Indeed, it may be that the Respondent’s conviction alone for the offence of possession of a loaded restricted firearm without authorization would significantly impact his employment opportunities abroad.
100. Furthermore, the Corrections and Conditional Release Act and the Regulations pursuant to it would be applicable to the three year mandatory minimum sentence. The Respondent would be eligible for full parole after one-third of the total sentence (twelve months). The Respondent would be eligible for day parole after six months of his sentence. Beyond that there is the potential for temporary absences; parole may also be available at any time for exceptional reasons such as illness.
101. The trial Judge stated that quite apart from the mandatory minimum sentence, he would have sentenced the Appellant to a period of federal incarceration. It cannot be said that the incremental increase in the sentence over and above the penitentiary term already contemplated by the trial Judge would be such as to outrage standards of decency or render the punishment abhorrent or intolerable, to adopt the terminology of McLachlin, C.J.C. in Ferguson.
102. The mandatory minimum sentence for a conviction under s.95 is justified by penological goals and sentencing principles. As indicated by Gonthier J. in R. v. Morrisey, 2000 SCC 39, at para.43, “Unquestionably, Parliament is entitled to take appropriate measures to address the pressing problem of firearm-related deaths . . .”. That the legislative regime with respect to control of firearms places more emphasis on the principles of general deterrence, denunciation and retribution than on rehabilitation and specific deterrence does not mean that the sentencing regime is unconstitutional. As Gonthier J. said in Morrisey at para.54: 34
54 . . . Extra vigilance is necessary with guns, and while society would expect people to take precautions on their own, unfortunately people do not always do so. Consequently, Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society's denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future.
103. With respect to s.95, the mandatory minimum sentence of one year upon conviction of an indictable offence was raised to three years in order to denounce and deter unauthorized possession of loaded prohibited or restricted firearms. This was the response to the increased incidence of possession of illegal handguns in Canada and the corresponding increase in danger to the public. The intentional limitation of judicial discretion by Parliament in order to achieve the objective of decreasing the possession of illegal handguns was a reasonable response to the concern of increased public danger from the possession of illegal handguns.
104. In Morrisey, the Supreme Court upheld the mandatory minimum penalty of four years for criminal negligence causing death involving a firearm. In Ferguson, the Supreme Court upheld the four year mandatory minimum for manslaughter involving a firearm.
105. In Morrisey, the accused person, while intoxicated and holding a loaded rifle, tried to awaken another man by jumping on a bed. The rifle discharged and the other man was killed. Apart from the tragic consequences, there are similarities with the Respondent’s case. The Respondent showed disregard for the lives and safety of others when he loaded and cocked a handgun and took it to the door to meet the police. Were it not for the alertness of Sgt. Boyd and his competence in disarming the Respondent, tragic consequences may very well have been the result of the Respondent’s dangerous actions.
106. In these circumstances, the three year mandatory minimum sentence appropriately reflects the denunciation and deterrence determined by Parliament for this type of dangerous activity. 35
107. Upon a consideration of all the appropriate factors, it is the Appellant’s submission that s.12 of the Charter is not breached by the imposition of the three year sentence in this case. It is only through good fortune that the Respondent’s actions in taking a loaded firearm to the door did not result in the death of one of the four people involved.
108. In his written submissions at trial and before the Court of Appeal, the Respondent did not ask that the mandatory minimum sentence in this case should be declared unconstitutional on the basis of reasonable hypotheticals. The Appellant submits that since the onus is on the Respondent with respect to this issue, the hypothetical inquiry is unnecessary until raised by the Respondent.
Ferguson, at para.30
If Section 95(2) Violates Section 12 of the Charter, Is It A Reasonable Limit Under Section 1 of the Charter?
109. The three year mandatory minimum sentence arising under s.95(2)(a)(i) has as its objective the denunciation of and deterrence of illegal possession of loaded restricted and prohibited firearms. This is a pressing and substantial purpose.
110. The sentencing principles of denunciation and general deterrence can be advanced through the use of mandatory minimum sentences. There is a rational connection between the means used and the purpose for which it is employed.
111. This case provides an illustration of the fact that the mandatory minimum sentence pursuant to s.95(2)(a)(i) satisfies a minimal impairment analysis. The trial Judge made a point of saying that he would have sentenced the Respondent to a penitentiary term in any event. Like most individuals convicted of the offence of possessing a loaded restricted firearm without authorization, the Respondent would have received a significant sentence of incarceration in any event. If the mandatory minimum sentence in this case raised the Respondent’s sentence somewhat to three years, when one considers the effect of the Corrections and Conditional 36
Release Act in relation to that incremental increase, the real effect of the mandatory minimum sentence must be seen as minimal with respect to the actual sentence of the Respondent.
112. The unauthorized possession of loaded prohibited or restricted firearms was seen by Parliament as representing a grave threat to public safety. In furtherance of a purpose of discouraging the commission of these crimes, Parliament chose to place a limit on judicial discretion. The Appellant submits that the legislative choice made by Parliament in thus limiting discretion with respect to the mandatory minimum sentence pursuant to s.95 is deserving of deference.
37
PART IV
SUBMISSION ON COSTS
113. The Appellant does not seek costs in this appeal.
38
PART V
NATURE OF ORDER SOUGHT
114. The Appellant submits that with respect to the offence under s.95, the appeal should be allowed, the verdict of acquittal set aside, and the verdict and sentence of the trial Judge restored; alternatively, that a new trial should be ordered. With respect to the offences under ss.86 and 88, the Appellant submits that the appeal should be allowed, the Judgment of the Court of Appeal set aside, and the sentences imposed by the trial Court restored.
115. ALL OF WHICH IS RESPECTFULLY SUBMITTED.
William D. Delaney, Q.C. '---
Counsel for the Appellant
Halifax, Nova Scotia March 22,2013 39
PART VI
TABLE OF AUTHORITIES
Paragraph
1. R. v. Archibald, 1998 CarswellOnt 1858 (Ont.C.A.) 82 2. R. v. Creighton, [1993] 3 S.C.R. 3 43, 44 3. R. v. Custance (2005), 194 C.C.C. (3d) 225 (Man.C.A.) 45 4. R. v. L.R.F. (2007), 219 C.C.C. (3d) 57 (N.S.C.A.) 71 5. R. v. Ferguson, 2008 SCC 6 93, 101, 104 108
6. R. v. Forster, [1992] 1 S.C.R. 339 45, 46 7. R. v. Goltz, [1991] 3 S.C.R. 485 93 8. R. v. Gunn (1997), 113 C.C.C. (3d) 174 (Alta.C.A.); application for leave to appeal dismissed, R. v. Gunn, [1997] S.C.C.A. No. 175 45 9. R. v. C.A.M., [1996] 1 S.C.R. 500 62, 64 10. R. v. MacNeil (2009), 244 C.C.C. (3d) 88 (N.S.C.A.) 58 11. R. v. Mafi, (2000), 142 C.C.C. (3d) 449 (B.C.C.A.) 70 12. R. v. Molis, [1980] 2 S.C.R. 356 45, 47 13. R. v. Morrisey, 2000 SCC 39 102, 104, 105 14. R. v. Muise (2008), 270 N.S.R. (2d) 380 (N.S.S.C.) 72 15. R. v. Noorali, 2010 ONSC 3747 81 16. R. v. Pappajohn, [1980] 2 S.C.R. 120 48 17. R. v. Shropshire, [1995] 4 S.C.R. 227 63 18. R. v. Smith, 2006 NSCA 95 74, 75 19. R. v. Smith, [1987] 1 S.C.R. 1045 93 20. R. v. Stewart (2010), 253 C.C.C. (3d) 301 (B.C.C.A.) 80 21. R. v. Tessman, 2010 ABPC 184 73 22. R. v. Williams (2009), 244 C.C.C. (3d) 138 (Ont.C.A) 54
40
PART VII
STATUTES AND REGULATIONS
Statutes
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Sections 1, 8, 12 and 24(2) 1. The Canadian Charter of Rights and 1. La Charte canadienne des droits et Freedoms guarantees the rights and freedoms libertés garantit les droits et libertés qui y set out in it subject only to such reasonable sont énoncés. Ils ne peuvent être restreints limits prescribed by law as can be que par une règle de droit, dans des limites demonstrably justified in a free and democratic qui soient raisonnables et dont la society. justification puisse se démontrer dans le cadre d’une société libre et démocratique.
8. Everyone has the right to be secure 8. Chacun a droit à la protection contre against unreasonable search or seizure. les fouilles, les perquisitions ou les saisies abusives.
12. Everyone has the right not to be 12. Chacun a droit à la protection contre subjected to any cruel and unusual treatment or tous traitements ou peines cruels et punishment. inusités.
24. . . . (2) Where, in proceedings under 24. . . . (2) Lorsque, dans une instance subsection (1), a court concludes that evidence visée au paragraphe (1), le tribunal a conclu was obtained in a manner that infringed or que des éléments de preuve ont été obtenus denied any rights or freedoms guaranteed by dans des conditions qui portent atteinte aux this Charter, the evidence shall be excluded if droits ou libertés garantis par la présente it is established that, having regard to all the charte, ces éléments de preuve sont écartés circumstances, the admission of it in the s’il est établi, eu égard aux circonstances, proceedings would bring the administration of que leur utilisation est susceptible de justice into disrepute. déconsidérer l’administration de la justice.
41
Criminal Code of Canada, R.S.C. 1985, c.C-46 as amended – Sections 19, 86, 88 and 95
19. Ignorance of the law by a person who 19. L’ignorance de la loi chez une commits an offence is not an excuse for personne qui commet une infraction committing that offence. n’excuse pas la perpétration de l’infraction.
86. (1) Every person commits an offence 86. (1) Commet une infraction who, without lawful excuse, uses, carries, quiconque, sans excuse légitime, utilise, handles, ships, transports or stores a firearm, a porte, manipule, expédie, transporte ou prohibited weapon, a restricted weapon, a entrepose une arme à feu, une arme prohibited device or any ammunition or prohibée, une arme à autorisation restreinte, prohibited ammunition in a careless manner or un dispositif prohibé, des munitions ou des without reasonable precautions for the safety of munitions prohibées d’une manière other persons. négligente ou sans prendre suffisamment de précautions pour la sécurité d’autrui. (2) Every person commits an offence who contravenes a regulation made under paragraph (2) Commet une infraction quiconque 117(h) of the Firearms Act respecting the contrevient à un règlement pris en storage, handling, transportation, shipping, application de l’alinéa 117h) de la Loi sur display, advertising and mail-order sales of les armes à feu régissant l’entreposage, la firearms and restricted weapons. manipulation, le transport, l’expédition, l’exposition, la publicité et la vente postale (3) Every person who commits an offence d’armes à feu et d’armes à autorisation under subsection (1) or (2) restreinte.
(a) is guilty of an indictable offence and (3) Quiconque commet l’infraction liable to imprisonment prévue au paragraphe (1) ou (2) est coupable : (i) in the case of a first offence, for a term not exceeding two years, and a) soit d’un acte criminel passible d’un emprisonnement maximal : (ii) in the case of a second or subsequent offence, for a term not (i) de deux ans, dans le cas d’une exceeding five years; or première infraction,
(b) is guilty of an offence punishable on (ii) de cinq ans, en cas de récidive; summary conviction. b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire.
42
Criminal Code continued
88. (1) Every person commits an offence 88. (1) Commet une infraction who carries or possesses a weapon, an quiconque porte ou a en sa possession une imitation of a weapon, a prohibited device or arme, une imitation d’arme, un dispositif any ammunition or prohibited ammunition for prohibé, des munitions ou des munitions a purpose dangerous to the public peace or for prohibées dans un dessein dangereux pour the purpose of committing an offence. la paix publique ou en vue de commettre une infraction. (2) Every person who commits an offence under subsection (1) (2) Quiconque commet l’infraction prévue au paragraphe (1) est coupable : (a) is guilty of an indictable offence and liable to imprisonment for a term not a) soit d’un acte criminel passible d’un exceeding ten years; or emprisonnement maximal de dix ans;
(b) is guilty of an offence punishable on b) soit d’une infraction punissable sur summary conviction. déclaration de culpabilité par procédure sommaire.
95. (1) Subject to subsection (3), every 95. (1) Sous réserve du paragraphe (3), person commits an offence who, in any place, commet une infraction quiconque a en sa possesses a loaded prohibited firearm or possession dans un lieu quelconque soit une restricted firearm, or an unloaded prohibited arme à feu prohibée ou une arme à feu à firearm or restricted firearm together with autorisation restreinte chargées, soit une readily accessible ammunition that is capable telle arme non chargée avec des munitions of being discharged in the firearm, without facilement accessibles qui peuvent être being the holder of utilisées avec celle-ci, sans être titulaire à la fois : (a) an authorization or a licence under which the person may possess the firearm a) d’une autorisation ou d’un permis in that place; and qui l’y autorise dans ce lieu;
(b) the registration certificate for the b) du certificat d’enregistrement de firearm. l’arme.
(2) Every person who commits an offence (2) Quiconque commet l’infraction under subsection (1) prévue au paragraphe (1) est coupable :
(a) is guilty of an indictable offence and a) soit d’un acte criminel passible d’un liable to imprisonment for a term not emprisonnement maximal de dix ans, la exceeding 10 years and to a minimum peine minimale étant : punishment of imprisonment for a term of (i) de trois ans, dans le cas d’une (i) in the case of a first offence, three première infraction, years, and 43
Criminal Code, s.95 continued
(ii) in the case of a second or (ii) de cinq ans, en cas de récidive; subsequent offence, five years; or b) soit d’une infraction punissable, sur (b) is guilty of an offence punishable on déclaration de culpabilité par procédure summary conviction and liable to sommaire, d’un emprisonnement imprisonment for a term not exceeding one maximal de un an. year. (3) Le paragraphe (1) ne s’applique pas (3) Subsection (1) does not apply to a à quiconque utilise une arme à feu sous la person who is using the firearm under the surveillance directe d’une personne qui en a direct and immediate supervision of another la possession légale, de la manière dont person who is lawfully entitled to possess it celle-ci peut légalement s’en servir. and is using the firearm in a manner in which that other person may lawfully use it.
44
Firearms Act, S.C. 1995, c.39, sections 17 and 19
17. Subject to sections 19 and 20, a 17. Sous réserve des articles 19 et 20, prohibited firearm or restricted firearm, the une arme à feu prohibée ou une arme à feu holder of the registration certificate for which à autorisation restreinte enregistrée au nom is an individual, may be possessed only at the d’un particulier ne peut être gardée que dwelling-house of the individual, as recorded dans la maison d’habitation notée au in the Canadian Firearms Registry, or at a Registre canadien des armes à feu ou en place authorized by a chief firearms officer. tout lieu autorisé par le contrôleur des armes à feu.
19. (1) An individual who holds a licence 19. (1) Le particulier titulaire d’un authorizing the individual to possess prohibited permis de possession d’armes à feu firearms or restricted firearms may be prohibées ou d’armes à feu à autorisation authorized to transport a particular prohibited restreinte peut être autorisé à en transporter firearm or restricted firearm between two or une en particulier entre des lieux précis more specified places for any good and pour toute raison valable, notamment : sufficient reason, including, without restricting the generality of the foregoing, a) pour le tir à la cible, la participation à une compétition de tir ou l’usage à (a) for use in target practice, or a target des conditions précisées ou sous les shooting competition, under specified auspices d’un club de tir ou d’un champ conditions or under the auspices of a de tir agréé conformément à l’article shooting club or shooting range that is 29; approved under section 29; a.1) pour offrir un entraînement au (a.1) to provide instructions in the use of maniement des armes à feu dans le firearms as part of a restricted firearms cadre d’un cours sur la sécurité des safety course that is approved by the armes à feu à autorisation restreinte federal Minister; or agréé par le ministre fédéral;
(b) if the individual b) s’il :
(i) changes residence, (i) change de résidence,
(ii) wishes to transport the firearm to a (ii) désire la présenter à l’agent de peace officer, firearms officer or chief la paix, au préposé aux armes à feu firearms officer for registration or ou au contrôleur des armes à feu disposal in accordance with this Act or pour enregistrement ou disposition Part III of the Criminal Code, en conformité avec la présente loi ou la partie III du Code criminel, (iii) wishes to transport the firearm for repair, storage, sale, exportation or (iii) désire la transporter aux fins de appraisal, or réparation, d’entreposage, de vente, d’exportation ou d’évaluation, 45
Firearms Act, s.19 continued
(iv) wishes to transport the firearm to a (iv) désire l’apporter à une gun show. exposition d’armes à feu.
(2) Notwithstanding subsection (1), an (2) Il ne peut toutefois être autorisé à individual may not be authorized to transport a transporter une arme à feu prohibée — prohibited firearm, other than a handgun autre qu’une arme de poing visée au referred to in subsection 12(6.1), under that paragraphe 12(6.1) — entre des lieux précis subsection, except for the purposes referred to que pour les raisons visées à l’alinéa (1)b). in paragraph (1)(b). (3) Un non-résident peut être autorisé à (3) A non-resident may be authorized to transporter, en conformité avec les transport a particular restricted firearm dispositions des articles 35 et 35.1, une between specified places in accordance with arme à feu à autorisation restreinte entre sections 35 and 35.1. des lieux précisés.
Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, Section 15
15. An individual may load a firearm or 15. Le particulier ne peut charger une handle a loaded firearm only in a place where arme à feu ou manier une arme à feu the firearm may be discharged in accordance chargée qu'à un endroit où il est permis de with all applicable Acts of Parliament and of tirer au moyen de l'arme à feu selon les lois the legislature of a province, regulations made et règlements fédéraux et provinciaux et les under such Acts, and municipal by-laws. règlements municipaux applicables.