R. v. MacDonald (E.), (2014) 341 N.S.R.(2d) 353 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 23, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 341 N.S.R.(2d) 353 (SCC);2014 SCC 3;[2014] SCJ No 3 (QL);[2014] 1 SCR 37;303 CCC (3d) 113

R. v. MacDonald (E.) (2014), 341 N.S.R.(2d) 353 (SCC);

    1081 A.P.R. 353

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.S.R.(2d) TBEd. JA.059

Erin Lee MacDonald (appellant) v. Her Majesty the Queen (respondent)

Her Majesty the Queen (appellant) v. Erin Lee MacDonald (respondent) and Director of Public Prosecutions and Attorney General of Ontario (interveners)

(34914; 2014 SCC 3; 2014 CSC 3)

Indexed As: R. v. MacDonald (E.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Wagner, JJ.

January 17, 2014.

Summary:

Police responded to a complaint of loud music coming from MacDonald's condominium unit in Halifax. An officer tried to get MacDonald to answer his door by knocking on it and kicking it. He shouted that he was from the Halifax Regional Police. MacDonald opened the door about 16 inches. The officer noticed something "black and shiny" in MacDonald's right hand that was partially hidden by his right leg. He twice asked MacDonald what was behind his leg. MacDonald did not respond. Wanting to get a better look at what MacDonald had in his hand, the officer pushed the door open a few inches further. The officer identified the object as a handgun. He forced his way into the unit and disarmed MacDonald. The gun that MacDonald was holding was a restricted firearm. It was registered to him. It was loaded. MacDonald was charged with, inter alia, handling a firearm in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code; unlawfully possessing a weapon for a purpose dangerous to the public peace, contrary to s. 88(1); and possessing, in a place, a loaded restricted firearm without being the holder of an authorization or a licence under which he could possess the said firearm in that place, contrary to s. 95(1).

The Nova Scotia Provincial Court held that MacDonald's s. 8 Charter right to be secure against an unreasonable search was not violated when the officer pushed the door to MacDonald's unit open a few inches further to ascertain what he was holding. The court found MacDonald guilty of the charges under ss. 86(1), 88(1) and 95(1). With respect to the s. 95(1) offence, the court noted that MacDonald had a possession and acquisition licence, and an authorization to transport the firearm, but it entitled him to transport the firearm only between his residence in Calgary and shooting ranges and border crossings in Alberta. He therefore had the firearm in his Halifax condominium without holding a licence which permitted him to possess it in that place. The court imposed a total of three years' imprisonment. MacDonald appealed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, in a decision reported at (2012), 317 N.S.R.(2d) 90; 1003 A.P.R. 90, found that no violation of s. 8 of the Charter occurred. The court concluded that the officer validly exercised the common law police power to search without a warrant where the safety of the public or the police was at stake. The court upheld the convictions under ss. 86 and 88. However, the court overturned the conviction under s. 95 and substituted an acquittal. The court held that MacDonald should be acquitted on the basis of an honest but mistaken belief that his licence extended to his Halifax condominium. The court held that that belief was a mistake of fact which negated the mens rea of the s. 95 offence. The court reduced the sentence for the s. 88 offence to time served (18 days) and the sentence for the s. 86 offence to 14 days, concurrent. MacDonald appealed on the s. 8 Charter issue. The Crown appealed from the acquittal on the s. 95 offence.

The Supreme Court of Canada dismissed MacDonald's appeal, finding that s. 8 of the Charter was not violated. The court allowed the Crown's appeal and restored the conviction under s. 95(1). The matter was remitted to the Court of Appeal for sentencing. Moldaver and Wagner, JJ. (Rothstein, J., concurring), concurred in the result, but disagreed with the majority on the proper interpretation of R. v. Mann (2004 SCC) in determining the s. 8 Charter issue.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - [See first Civil Rights - Topic 1650.3 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - Police responded to a complaint of loud music coming from MacDonald's condominium unit - An officer tried to get MacDonald to answer his door by knocking on it and kicking it - He shouted that he was from the Halifax Regional Police - MacDonald opened the door about 16 inches - The officer noticed something "black and shiny" in MacDonald's right hand that was partially hidden by his right leg - He twice asked MacDonald what was behind his leg - MacDonald did not respond - Wanting to get a better look at what MacDonald had in his hand, the officer pushed the door open a few inches further - The officer identified the object as a handgun - He forced his way into the unit and disarmed MacDonald - The Supreme Court of Canada held that the officer's action in pushing the door open further constituted a "search" for the purposes of s. 8 of the Charter - The police had an implied licence to approach the door of a residence and knock - However, after MacDonald opened the door, the officer's purpose in pushing it open further was to get a better view of what was in his hand - MacDonald's implied waiver of his privacy rights did not extend that far - The officer's action of pushing the door open further was an intrusion upon MacDonald's reasonable privacy interest in his dwelling and constituted a search of MacDonald's home - See paragraphs 25 to 28.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - Police responded to a complaint of loud music coming from MacDonald's condominium unit - Sgt. Boyd tried to get MacDonald to answer his door by knocking on it and kicking it - He shouted that he was from the Halifax Regional Police - MacDonald opened the door about 16 inches - Sgt. Boyd noticed something "black and shiny" in MacDonald's right hand that was partially hidden by his right leg - He believed it might be a knife - He twice asked MacDonald what was behind his leg - MacDonald did not respond - Wanting to get a better look at what MacDonald had in his hand, Sgt. Boyd pushed the door open a few inches further - Sgt. Boyd identified the object as a handgun - He forced his way into the unit and disarmed MacDonald - The Supreme Court of Canada held that Sgt. Boyd's pushing the door to MacDonald's unit open further constituted a reasonable search and MacDonald's s. 8 Charter rights were not violated - The court stated that the "common law power to conduct searches for safety purposes is the reasonable lawful authority for the search carried out by Sgt. Boyd. The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of the public or the police and that the search was necessary in order to eliminate that threat. ... the search conducted by Sgt. Boyd was authorized by law and the law itself, in the form of a well-established common law principle, is reasonable. ... the manner in which he carried out the search was also reasonable" - See paragraphs 29 to 50.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - The Supreme Court of Canada stated that a search that was reasonably necessary to eliminate threats to the safety of the public or the police (a "safety search") would generally be conducted by the police as a reactionary measure - Such searches would generally be unplanned, as they would be carried out in response to dangerous situations to which the police had to react "on the sudden" - Thus, safety searches would typically be warrantless - The court stated that "Even if exigent circumstances exist, however, 'safety searches' must be authorized by law. ... This Court has elaborated on and applied on the two-step Waterfield test in a variety of contexts comparable to safety searches in assessing whether an action constituting prima facie infringement of an individual's liberty falls within an officer's power (Dedman and Mann). At the first stage of the Waterfield test, the court must ask whether the action falls within the general scope of a police duty imposed by statute or recognized at common law. For safety searches, the requirement at this first stage of the analysis is easily satisfied. ... At the second stage, if the answer at the first is affirmative, ... the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. ... Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances ... To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include: 1. the importance of the performance of the duty to the public good ...; 2. the necessity of the interference with individual liberty for the performance of the duty ...; and 3. the extent of the interference with individual liberty ... If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an 'unjustifiable use of ... police power[s]' ... If the requirements of both stages of the Waterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law" - See paragraphs 32 to 37.

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - The Supreme Court of Canada stated that "although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search ... The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter ... As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on 'reasonable and specific inferences drawn from the known facts of the situation' ... As for the second prong of the Collins test, it cannot be disputed that the lawful authority underlying safety searches outlined above is reasonable. Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a social entity. Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police to conduct the safety search in question ... it is only when police officers have reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search" - See paragraphs 41 to 43.

Criminal Law - Topic 36

General principles - Mens rea or intention - Mistake of law - MacDonald was charged with, inter alia, possessing, in a place, a loaded restricted firearm without being the holder of an authorization or a licence under which he could possess the said firearm in that place, contrary to s. 95(1) of the Criminal Code - The trial judge noted that MacDonald had a possession and acquisition licence, and an authorization to transport the firearm, but it entitled him to transport the firearm only between his residence in Calgary and shooting ranges and border crossings in Alberta - MacDonald was guilty under s. 95(1) because he had the firearm in his Halifax condominium without holding a licence which permitted him to possess it in that place - The Nova Scotia Court of Appeal overturned the conviction under s. 95 and substituted an acquittal - The court found that MacDonald should be acquitted on the basis of an honest but mistaken belief that his licence extended to his Halifax condominium - The court held that that belief was a mistake of fact which negated the mens rea of the s. 95 offence - The Supreme Court of Canada allowed the Crown's appeal on this issue and restored the conviction under s. 95(1) - The Court of Appeal erred in requiring the Crown to prove that the accused knew his possession and acquisition licence and authorization to transport the firearm did not extend to the place where he unlawfully had it in his possession - Such a requirement was inconsistent with the rule, codified in s. 19 of the Code, that ignorance of the law was no excuse - The offence provided for in s. 95 was a mens rea offence - However, the mens rea the Crown was required to prove under s. 95(1) did not include knowledge that possession in the place in question was unauthorized - Rather, knowledge that one possessed a loaded restricted firearm, together with an intention to possess the loaded firearm in that place, was enough - MacDonald's subjective belief that he could possess the firearm in Halifax was a mistake of law, which was no defence - See paragraphs 51 to 61.

Criminal Law - Topic 36.1

General principles - Mens rea or intention - Mistake of fact - [See Criminal Law - Topic 36 ].

Criminal Law - Topic 228

General principles - Statutory defences or exceptions - Mistake or ignorance of the law - [See Criminal Law - Topic 36 ].

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - [See Criminal Law - Topic 36 ].

Criminal Law - Topic 1440

Firearms - General - Search and seizure on ground of safety - [See first Civil Rights - Topic 1650.3 ].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See all Civil Rights - Topic 1650.3 ].

Police - Topic 3186

Powers - Search - Private property - [See first Civil Rights - Topic 1650.3 ].

Cases Noticed:

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, appld. [paras. 15, 65].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 25].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [paras. 25, 73].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 26].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [paras. 26, 89].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 26].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, appld. [para. 28].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), appld. [para. 33].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 33].

R. v. Stenning, [1970] S.C.R. 631, refd to. [para. 33].

R. v. Knowlton, [1974] S.C.R. 443, refd to. [para. 33].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [paras. 35, 76].

Wiretap Reference - see Interception of Private Communications Reference.

Interception of Private Communications Reference, [1984] 2 S.C.R. 697; 56 N.R. 43, refd to. [para. 38].

R. v. Tse (Y.F.A.), [2012] 1 S.C.R. 531; 429 N.R. 109; 321 B.C.A.C. 1; 547 W.A.C. 1; 2012 SCC 16, refd to. [para. 41].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 54].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 54].

Beaver v. The Queen, [1957] S.C.R. 531, refd to. [para. 54].

R. v. Forster, [1992] 1 S.C.R. 339; 133 N.R. 333, refd to. [para. 59].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 69].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 70].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 72].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 73].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 73].

Terry v. Ohio (1968), 392 U.S. 1, refd to. [para. 74].

Arizona v. Johnson (2009), 129 S. Ct. 781, refd to. [para. 75].

R. v. Aucoin (B.D.), [2012] 3 S.C.R. 408; 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, refd to. [para. 77].

R. v. Crocker (L.) (2009), 275 B.C.A.C. 190; 465 W.A.C. 190; 2009 BCCA 388, leave to appeal refused (2010), 404 N.R. 400 (S.C.C.), refd to. [para. 78].

R. v. Atkins (R.) (2013), 310 O.A.C. 397; 2013 ONCA 586, refd to. [para. 78].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 80].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 85].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), leave to appeal refused [1998] 1 S.C.R. ix, refd to. [para. 89].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 19 [para. 58]; sect. 95(1) [para. 52].

Authors and Works Noticed:

Healy, Patrick, Investigative Detention in Canada, [2005] Crim. L.R. 98, p. 102 [para. 33].

LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (5th Ed. 2012), vol. 4, §9.6(a)) [para. 75].

Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), pp. 319 to 321 [para. 61].

Stribopolous, James, The Limits of Judicially Created Police Powers: Investigative Detention after Mann (2007), 52 Crim. L.Q. 299,

p. 311 [paras. 71, 79].

Counsel:

Hersh Wolch, Q.C., and Janna Watts, for the appellant/respondent;

William D. Delaney, Q.C., and Timothy S. O'Leary, for the respondent/appellant;

James C. Martin and Ann Marie Simmons, for the intervener, the Director of Public Prosecutions;

John C. Pearson and Michelle Campbell, for the intervener, the Attorney General of Ontario.

Solicitors of Record:

Wolch, Hursh, deWit, Silverberg & Watts, Calgary, Alberta, for the appellant/respondent;

Public Prosecution Service of Nova Scotia, Halifax, Nova Scotia, for the respondent/appellant;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervener, the Director of Public Prosecutions;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario.

This appeal was heard on May 23, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Moldaver and Wagner, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered on January 17, 2014, including the following opinions:

LeBel, J. (McLachlin, C.J.C., Fish and Abella, JJ., concurring) - see paragraphs 1 to 63;

Moldaver and Wagner, JJ. (Rothstein, J., concurring) - see paragraphs 64 to 92.