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.