R. v. MacDonald (E.), (2012) 317 N.S.R.(2d) 90 (CA)

• Judge: MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 12, 2011
• Jurisdiction: Nova Scotia
• Citations: (2012), 317 N.S.R.(2d) 90 (CA);2012 NSCA 50

R. v. MacDonald (E.) (2012), 317 N.S.R.(2d) 90 (CA);

    1003 A.P.R. 90

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.038

Erin MacDonald (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada (intervenor)

(CAC 347642; 2012 NSCA 50)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A.

May 11, 2012.

Summary:

Police went to the door of MacDonald's condominium to tell him to turn down his music. They knocked and then kicked at the door. MacDonald partially opened the door. He was holding a loaded restricted weapon (9 mm Beretta handgun) behind his right leg. Sgt. Boyd was not sure what MacDonald was holding. Sgt. Boyd asked MacDonald what it was, but there was no response. Sgt. Boyd pushed on the door, which opened inward, to see what was in MacDonald's hand. Sgt. Boyd wrestled the gun away from MacDonald and arrested him. MacDonald was found guilty of careless handling of a firearm contrary to s. 86 of the Criminal Code, possessing a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Code, and possessing (without authorization) a loaded restricted firearm contrary to s. 95 of the Code. The trial judge imposed two years in a federal penitentiary for the careless use offence and three years (concurrent) for the danger to the public peace offence. For the illegal possession offence, he issued the mandatory three year term, concurrent to the other two sentences. The Beretta was also forfeited and MacDonald was prohibited pursuant to s. 109 of the Code from possessing restricted weapons for life and all other weapons for 10 years. MacDonald appealed. He argued that the trial judge erred: 1. in failing to find a breach of s. 8 of the Charter when the police entered MacDonald's apartment; 2. in finding that it was unreasonable for MacDonald to take a loaded handgun to the door when he heard it being kicked repeatedly before he had determined who was present at the door; 3. in finding that the provisions of s. 17 of the Firearms Act were conjunctive and applied in the circumstances here; 4. in failing to find that the minimum sentence provisions of s. 95(1) were unconstitutional; and 5. in imposing a sentence that was excessive and out of all proportion to the offence committed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, allowed the appeal in part. The court dismissed the appeal as it applied to the alleged s. 8 Charter breach; dismissed the appeal against the s. 86 and s. 88 convictions; allowed the appeal by setting aside the conviction and acquitting on the s. 95 charge; allowed the appeal against sentence for the s. 88 offence and reduced the three year sentence to 18 days or time served; allowed the appeal against sentence for the s. 86 offence and reduced the two year sentence to 14 days to run concurrently (time served); ordered a two year term of probation; vitiated the mandatory s. 109 prohibition order and replaced it with a five year s. 110 prohibition order; and confirmed the forfeiture order.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Police went to the door of MacDonald's condominium to tell him to turn down his music - They knocked and then kicked at the door - MacDonald partially opened the door - He was holding a loaded restricted weapon (9 mm Beretta handgun) behind his right leg - Sgt. Boyd was not sure what MacDonald was holding - Sgt. Boyd asked MacDonald what it was, but there was no response - Sgt. Boyd pushed on the door, which opened inward, to see what was in MacDonald's hand - Sgt. Boyd wrestled the gun away from MacDonald and arrested him - MacDonald was convicted of gun related offences - MacDonald appealed - The Nova Scotia Court of Appeal held that the trial judge was correct to find no breach of s. 8 of the Charter when the police entered MacDonald's apartment - The trial judge had looked to the common law, finding that the police action that evening was justified under the heading of "officer safety" - The court stated that "Sgt. Boyd's action of opening the door further in order to protect the safety of all present that evening was authorized. Furthermore, this additional action was, as the judge found, reasonable in the circumstances . ... by simply pushing the door further open, in my view, Sgt. Boyd acted reasonably in his effort to see what Mr. MacDonald may have been hiding. Nor can we seriously question the police action immediately following Sgt. Boyd's 'pushing' of the door. After all, upon 'pushing' the door further open, Sgt. Boyd immediately saw the gun pointed in his direction. ... Furthermore, the judge accepted that 'it was only after he [Boyd] saw a firearm come up from behind the leg that he reacted by immediately entering the home of Mr. MacDonald for purposes of gaining control over the situation'" - See paragraphs 16 to 36.

Civil Rights - Topic 8306.1

Canadian Charter of Rights and Freedoms - General - Common law - [See Civil Rights - Topic 1556 ].

Criminal Law - Topic 36.1

General principles - Mens rea or intention - Mistake of fact - [See first Criminal Law - Topic 1137 ].

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - MacDonald kept a residence in both Calgary and Halifax - Arising from an incident at his Halifax residence, MacDonald was convicted of possessing (without authorization) a loaded restricted firearm (a 9 mm Beretta handgun) contrary to s. 95 of the Criminal Code - MacDonald appealed - The Beretta was validly registered in MacDonald's name with his Calgary residence as the noted address - MacDonald argued that he honestly believed that his authorization to possess the Beretta extended to his Halifax home - The Nova Scotia Court of Appeal stated that "the Crown should have to prove that the accused knows his possession is unauthorized. Anything less than that would establish a mens rea unjustly disproportional to the gravity of a conviction for an offence with such serious consequences" - Further "complete, specific, subjective knowledge (unless displaced by wilful blindness) must constitute an essential element of the offence in order to attract the level of moral culpability commensurate with the serious automatic consequences attendant upon conviction" - The trial judge placed no such burden on the Crown - His failure to consider this aspect of the defence constituted an error in law and the court set aside the verdict - A properly instructed jury could not conclude on this evidence that MacDonald knew or was wilfully blind to the fact that his possession was unauthorized - The court therefore acquitted MacDonald of the s. 95 offence - See paragraphs 66 to 106.

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - MacDonald kept a residence in both Calgary and Halifax - A 9 mm Beretta handgun was validly registered in MacDonald's name with his Calgary residence as the noted address - MacDonald argued that his authorization to possess the Beretta extended to his Halifax home - Section 17 of the National Firearms Act provided that "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" - The Crown argued that s. 17 justified possession in only two circumstances, namely (a) in the dwelling house of the individual as recorded in the registry, or (b) by way of a special authorization by the chief firearms officer - MacDonald asserted that s. 17 offered three options for authorized possession, namely (a) at the dwelling house of the individual, (b) as recorded in the Canadian Firearms Registry, or (c) by special authorization - Therefore, under MacDonald's proposed first option, possession in either of his two dwelling houses would be legal - The Nova Scotia Court of Appeal accepted the Crown's interpretation of s. 17 - The commas were equal, if not more consistent, with the Crown's two-option theory - As well, when considering the principles of statutory interpretation, punctuation was not high on the courts' priority list - Further, the French version of s. 17 left no room for doubt - It allowed for only two options - Even if s. 17's English text might be sufficiently ambiguous to allow for either two options (as the Crown asserted) or three (as the defence asserted), the French version was clear in allowing for only two - In these circumstances, the meaning consistent with both languages, namely the existence of only two options, had to prevail - See paragraphs 44 to 65.

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - MacDonald kept a residence in both Calgary and Halifax - Arising from an incident at his Halifax residence, MacDonald was convicted of possessing (without authorization) a loaded restricted firearm (a 9 mm Beretta handgun ) contrary to s. 95 of the Criminal Code - MacDonald appealed - The Beretta was validly registered in MacDonald's name with his Calgary residence as the noted address - MacDonald argued that his authorization to possess the Beretta extended to his Halifax home - The Nova Scotia Court of Appeal rejected the argument - The court stated that "s. 95 of the Criminal Code prohibits possession of loaded restricted weapons anywhere. This blanket prohibition applies unless the accused is specifically authorized to possess the weapon in the place where the alleged offence occurred. Section 17 of the Firearms Act governs such authorizations and offers only two options for legal possession - in the accused's dwelling house as recorded in the registry or as otherwise authorized by the chief firearms officer. Neither option is available to Mr. MacDonald because (a) his Halifax dwelling house was not recorded in the registry, and (b) he had no special authorization from the chief firearms officer" - See paragraph 65.

Criminal Law - Topic 1137

Offences against public order - Restricted weapons - Possession of - [See Criminal Law - Topic 1139 ].

Criminal Law - Topic 1139

Offences against public order - Restricted weapons - Registration - MacDonald kept a residence in both Calgary and Halifax - Arising from an incident at his Halifax residence, MacDonald was convicted of possessing (without authorization) a loaded restricted firearm (a 9 mm Beretta handgun ) contrary to s. 95 of the Criminal Code - MacDonald appealed - The Beretta was validly registered in MacDonald's name with his Calgary residence as the noted address - MacDonald argued that his authorization to possess the Beretta extended to his Halifax home - Section 17 of the National Firearms Act provided that "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" - MacDonald argued that a breach of s. 17 did not automatically sustain a s. 95 conviction - In other words, s. 17 did not inform s. 95 and specifically did not prescribe what may or may not amount to authorization under s. 95 - Therefore, his registration alone should have justified his possession - The Nova Scotia Court of Appeal stated that "there is simply no merit to this submission. Exemption under s. 95 is not achieved by simply registering the gun. Instead, s. 95 targets both the individual possessing the gun, who must be authorized (or licensed) pursuant to s. 95(1)(a), and the gun itself, which must be registered pursuant to s. 95(1)(b). Furthermore, the individual must be authorized to possess in that place, namely, the Halifax residence. Mr. MacDonald had no such authorization" - See paragraphs 63 to 64.

Criminal Law - Topic 1153

Offensive weapons - What constitutes a weapon possessed for a dangerous purpose or to commit an offence - [See Criminal Law - Topic 1437] .

Criminal Law - Topic 1437

Offences against person and reputation - Firearms - General - Careless use - Police went to the door of MacDonald's condominium to tell him to turn down his music - They knocked and then kicked at the door - MacDonald partially opened the door - He was holding a loaded restricted weapon (9 mm Beretta handgun) behind his right leg - Sgt. Boyd was not sure what MacDonald was holding - Sgt. Boyd asked MacDonald what it was, but there was no response - Sgt. Boyd pushed on the door, which opened inward, to see what was in MacDonald's hand - Sgt. Boyd wrestled the gun away from MacDonald and arrested him - MacDonald was convicted of, inter alia, careless handling of a firearm contrary to s. 86 of the Criminal Code, and possessing a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Code - MacDonald appealed the convictions - MacDonald argued that he was justified in taking the loaded revolver to the door in order to protect himself, and the judge was wrong to conclude otherwise - The Nova Scotia Court of Appeal rejected the argument - The trial judge rejected MacDonald's assertion that his actions were motivated by fear - The judge concluded that MacDonald's judgment was blurred by alcohol and that there was no air of reality to his assertion that he took a loaded handgun to the door to protect himself - Those were unassailable factual findings to which the court had to defer - Therefore, void of any justification, MacDonald's use of the firearm was both careless and dangerous to the public peace - See paragraphs 37 to 43.

Criminal Law - Topic 1441.9

Offences against person and reputation - Firearms - General - Firearms legislation - Interpretation - [See second Criminal Law - Topic 1137 ].

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - [See Criminal Law - Topic 5877 ].

Criminal Law - Topic 5877

Sentence - Dangerous or careless use of firearm - Police went to the door of MacDonald's condominium to tell him to turn down his music - They knocked and then kicked at the door - MacDonald partially opened the door - He was holding a loaded restricted weapon (9 mm Beretta handgun) behind his right leg - Sgt. Boyd was not sure what MacDonald was holding - Sgt. Boyd asked MacDonald what it was, but there was no response - Sgt. Boyd pushed on the door, which opened inward, to see what was in MacDonald's hand - Sgt. Boyd wrestled the gun away from MacDonald and arrested him - MacDonald was found guilty of careless handling of a firearm contrary to s. 86 of the Criminal Code, possessing a weapon for a purpose dangerous to the public peace contrary to s. 88 of the Code, and possessing (without authorization) a loaded restricted firearm contrary to s. 95 of the Code - MacDonald was gainfully employed and had no criminal record - The judge imposed two years in a federal penitentiary for the careless use offence and three years (concurrent) for the danger to the public peace offence - For the illegal possession offence, he issued the mandatory three year term, concurrent to the other two sentences - The Beretta was also forfeited and MacDonald was prohibited pursuant to s. 109 of the Code from possessing restricted weapons for life and all other weapons for 10 years - MacDonald appealed from conviction and sentence - The Nova Scotia Court of Appeal set aside the conviction on the s. 95 charge and acquitted MacDonald of that offence - With respect to the sentences for the other two offences, the court held that the three year sentence for the s. 88 offence and the two year sentence for the s. 86 offence were demonstrably unfit - The court reduced the three year sentence for the s. 88 offence to 18 days or time served and reduced the two year sentence for the s. 86 offence to 14 days to run concurrently (time served) - The court also ordered a two year term of probation; vitiated the mandatory s. 109 prohibition order and replaced it with a five year, s. 110 prohibition order and confirmed the forfeiture order - See paragraphs 108 to 130.

Police - Topic 3024

Powers - Common law - Scope of - [See Civil Rights - Topic 1556 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See Civil Rights - Topic 1556 ].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1556 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See second Criminal Law - Topic 1137 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to other - [See second Criminal Law - Topic 1137 ].

Statutes - Topic 1822

Interpretation - Intrinsic aids - Punctuation - General - [See second Criminal Law - Topic 1137 ].

Cases Noticed:

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 15].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [paras. 16, 176].

R. v. Hope (J.) - see R. v. Galloway (M.) et al.

R. v. Galloway (M.) et al. (2007), 259 N.S.R.(2d) 99; 828 A.P.R. 99; 2007 NSCA 103, refd to. [para. 19].

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. [paras. 19, 157].

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. 24, 138].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [paras. 27, 139].

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, refd to. [paras. 29, 152].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 30].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [paras. 30, 167].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 30].

R. v. Kelsy (M.) (2011), 283 O.A.C. 201; 2011 ONCA 605, refd to. [paras. 30, 167].

R. v. Tse (Y.F.A.) et al. (2012), 321 B.C.A.C. 1; 429 N.R. 109; 2012 SCC 16, refd to. [paras. 30, 167].

R. v. Cornell (J.M.), [2010] 2 S.C.R. 142; 404 N.R. 133; 487 A.R. 1; 459 W.A.C. 1; 2010 SCC 31, refd to. [para. 42].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 61].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 62].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 70].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 74].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 75].

R. v. Williams (C.) (2009), 248 O.A.C. 323; 2009 ONCA 342, dist. [para. 80].

R. v. Beaver, [1957] S.C.R. 531; 1957 CarswellOnt 10, refd to. [para. 87].

R. v. Manuel (N.V.) (2008), 254 B.C.A.C. 69; 426 W.A.C. 69; 2008 BCCA 143, leave to appeal refused (2008), 390 N.R. 397; 275 B.C.A.C. 319; 465 W.A.C. 319 (S.C.C.), refd to. [para. 88].

R. v. Darquea (1979), 47 C.C.C.(2d) 567 (Ont. C.A.), refd to. [para. 88].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 89].

R. v. Vinokurov (D.) (2001), 281 A.R. 176; 248 W.A.C. 176; 2001 ABCA 113, refd to. [para. 90].

R. v. Raglon (K.H.) (2001), 295 A.R. 71; 2001 ABPC 117, affd. [2001] A.R. Uned. 251; 2001 ABCA 261, refd to. [para. 90].

R. v. Eastgaard (H.J.) (2011), 510 A.R. 117; 527 W.A.C. 117; 2011 ABCA 152, affd. (2012), 428 N.R. 200; 522 A.R. 389; 544 W.A.C. 389 (S.C.C.), refd to. [para. 90].

R. v. Budden (L.M.) (2005), 386 A.R. 313; 2005 ABQB 757, refd to. [para. 90].

R. v. MacNeil (J.P.) (2009), 277 N.S.R.(2d) 22; 882 A.P.R. 22 (C.A.), refd to. [para. 97].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27, refd to. [para. 109].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 109].

R. v. Bernard (A.) (2011), 303 N.S.R.(2d) 384; 957 A.P.R. 384; 2011 NSCA 53, refd to. [para. 109].

R. v. Conway (M.F.) (2009), 282 N.S.R.(2d) 154; 895 A.P.R. 154; 2009 NSCA 95, refd to. [para. 109].

R. v. Markie (B.J.) (2009), 284 N.S.R.(2d) 352; 901 A.P.R. 352; 2009 NSCA 119, refd to. [para. 109].

R. v. Finck (L.R.) et al. (2007), 253 N.S.R.(2d) 267; 807 A.P.R. 267; 2007 NSCA 32, refd to. [para. 120].

R. v. Grant (J.A.) (2006), 384 A.R. 140; 367 W.A.C. 140; 2006 ABCA 102, refd to. [para. 120].

R. v. Hillyard, [2002] N.S.J. No. 87 (S.C.), refd to. [para. 120].

R. v. Pinsent (B.S.) (2000), 187 Nfld. & P.E.I.R. 337; 566 A.P.R. 337; 2000 NFCA 26, refd to. [para. 120].

R. v. Smith (P.J.) (1999), 131 B.C.A.C. 272; 214 W.A.C. 272; 1999 BCCA 747, refd to. [para. 120].

R. v. Cheema (R.S.) (1997), 98 B.C.A.C. 307; 161 W.A.C. 307 (C.A.), leave to appeal refused (1998), 227 N.R. 152; 118 B.C.A.C. 320; 192 W.A.C. 320 (S.C.C.), refd to. [para. 120].

R. v. Weir (R.E.) (1997), 209 A.R. 222; 160 W.A.C. 222 (C.A.), refd to. [para. 120].

R. v. Tessman (T.), [2010] A.R. Uned. 509; 2010 ABPC 184, refd to. [para. 121].

R. v. Richardson (R.J.A.), [2010] A.R. Uned. 494; 2010 ABPC 219, refd to. [para. 121].

R. v. Muise (C.A.) (2008), 270 N.S.R.(2d) 380; 865 A.P.R. 380; 2008 NSSC 340, refd to. [para. 121].

R. v. Woledge (N.M.), [2005] Northwest Terr. Cases 45 (SC); 2005 NWTSC 45, refd to. [para. 121].

R. v. Shea (S.M.) et al. (2011), 309 N.S.R.(2d) 349; 979 A.P.R. 349; 2011 NSCA 107, refd to. [para. 122].

R. v. Cheddesingh (D.M.), [2004] 1 S.C.R. 433; 319 N.R. 94; 186 O.A.C. 184; 2004 SCC 16, refd to. [para. 124].

R. v. Roberts, 2011 BCPC 329, refd to. [para. 125].

R. v. Stewart (A.A.), [2008] B.C.T.C. Uned. G30; 2008 BCSC 1741, affd. (2010), 285 B.C.A.C. 144; 482 W.A.C. 144; 2010 BCCA 153, refd to. [para. 125].

R. v. Noorali (T.), [2010] O.T.C. Uned. 3747; 2010 ONSC 3747, refd to. [para. 125].

R. v. Palahnuk, [2000] O.J. No. 5771 (C.J.), refd to. [para. 125].

R. v. Frost, 2001 YKSC 45, refd to. [para. 125].

R. v. Casey (W.) (1997), 214 A.R. 295 (Q.B.), refd to. [para. 125].

R. v. Nui, [1994] N.J. No. 169 (C.A.), refd to. [para. 125].

R. v. George (1992), 112 N.S.R.(2d) 183; 307 A.P.R. 183 (C.A.), refd to. [para. 125].

R. v. Sharma (D.), [1993] 1 S.C.R. 650; 149 N.R. 161; 61 O.A.C. 161, refd to. [para. 134].

R. v. Paint (1917), 28 C.C.C. 171 (N.S.C.A.), refd to. [para. 135].

R. v. Landry, [1986] 1 S.C.R. 145; 65 N.R. 161; 14 O.A.C. 241, refd to. [para. 136].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 137].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 139].

R. v. LeClaire, 2005 NSCA 165, refd to. [para. 157].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 161].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, dist. [para. 165].

R. v. Kelly (F.T.) (2010), 367 N.B.R.(2d) 1; 946 A.P.R. 1; 2010 NBCA 89, refd to. [para. 182].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 16].

Criminal Code, R.S.C. 1985, c. C-46, sect. 86, sect. 88 [para. 37]; sect. 95(1) [para. 46].

Firearms Act, S.C. 1995, c. 39, sect. 17 [para. 50].

Authors and Works Noticed:

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), p. 153 [para. 76].

Ruby, Clayton C., Sentencing (7th Ed. 2008), pp. 1033 to 1034, §23.625 [para. 116].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 401, 402 [para. 56].

Counsel:

David Bright, Q.C. and Brian P. Casey, for the appellant;

Jennifer A. MacLellan, for the respondent;

James C. Martin and Patricia MacPhee, for the intervenor.

This appeal was heard on October 12, 2011, in Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. The judgment of the Court of Appeal was delivered on May 11, 2012, including the following opinions:

MacDonald, C.J.N.S. (Saunders, J.A., concurring) - see paragraphs 1 to 131;

Beveridge, J.A., dissenting - see paragraphs 132 to 195.