R. v. McGillivary, (1991) 89 Sask.R. 289 (CA)

• Judge: Tallis, Cameron and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 09, 1990
• Jurisdiction: Saskatchewan
• Citations: (1991), 89 Sask.R. 289 (CA)

R. v. McGillivary (1991), 89 Sask.R. 289 (CA)

MLB headnote and full text

Marcel Austin McGillivary (appellant) v. Her Majesty The Queen (respondent)

(No. 4962)

Indexed As: R. v. McGillivary

Saskatchewan Court of Appeal

Tallis, Cameron and Wakeling, JJ.A.

February 1, 1991.

Summary:

The accused Treaty Indian pleaded guilty and was convicted of assault causing bodily harm to his wife contrary to s. 267(1)(b) of the Criminal Code. The accused was fined $200.00 and placed on probation for one year. The sentencing judge also made the mandatory minimum firearms prohibition order for five years pursuant to s. 100(1) of the Code. The accused appealed the sentence, specifically that the firearms prohibition order was, for him, cruel and unusual punishment contrary to s. 12 of the Charter.

The Saskatchewan Court of Appeal allowed the appeal and struck out the firearms prohibition order respecting this accused. The Court of Appeal increased the period of probation to three years and ordered that the accused deliver all his firearms to the police, who would release them to him, as needed, for hunting or trapping.

Civil Rights - Topic 3832

Cruel and unusual punishment - What constitutes - Prohibition order - Firearms - Section 100(1) of the Criminal Code provided a mandatory minimum firearms prohibition order of five years for those first offenders convicted of certain indictable offences involving violence or the threat of violence - A Treaty Indian supported his wife and seven children by hunting and trapping - He pleaded guilty to assault causing bodily harm to his wife - A order under s. 100(1) would bar him from pursuing his livelihood and perhaps condemn him to welfare - The Saskatchewan Court of Appeal held that to impose a prohibition order against this accused constituted cruel and unusual punishment under s. 12 of the Charter - The court declared s. 100(1) inoperative respecting the accused in this case only.

Criminal Law - Topic 5799

Punishments (sentence) - Prohibition orders - Respecting firearms - [See Civil Rights - Topic 3832].

Cases Noticed:

R. v. Weyallon (1985), 60 A.R. 79, refd to. [paras. 3, 11].

R. v. Rogers, [1987] N.W.T.R. 304, refd to. [paras. 3, 11].

R. v. Smokeyday (1989), 76 Sask.R. 221 (Q.B.), refd to. [para. 8].

R. v. Tobac (1985), 20 C.C.C.(3d) 49, refd to. [para. 11].

R. v. Kelly, Payne and Kelly (1990), 41 O.A.C. 32 (C.A.), refd to. [para. 12].

R. v. Smith (E.D.) (1987), 75 N.R. 321; 34 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 12].

R. v. Chief (1989), 51 C.C.C.(3d) 265 (Yuk. C.A.), appld. [para. 13].

R. v. Westfair Foods Ltd. and Canada Safeway Ltd. (1990), 80 Sask.R. 32; 65 D.L.R.(4th) 56 (C.A.), appld. [para. 16].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 12 [paras. 1, 3, 9, 11]; sect. 24(1) [para. 15].

Criminal Code, R.S.C. 1985, c. C-46, sect. 85 [para. 10, Footnote 4]; sect. 100(1) [paras. 1-2, 7-11, 15, 18-19, Footnote 1]; sect. 267 [para. 2, Footnote 2].

Transfer Resources Agreement, 1930, sect. 12 [para. 6, Footnote 3].

Counsel:

S.I. Robinson, for the appellant;

R. Macnab, for the Crown.

This appeal was heard before Tallis, Cameron and Wakeling, JJ.A., of the Saskatchewan Court of Appeal on November 9, 1990. The decision of the Court of Appeal was delivered by the Court on February 1, 1991.