R V Macdonald Essay

Regarding R v. MacDonald, summarily, the police responded to a noise complaint at the residence of the accused. The accused answered the door while concealing a loaded, restricted firearm. The police pushed the door open to determine what the accused was concealing. At issue is the possession of a loaded restricted firearm and the accused answering the door while concealing a weapon. At question are circumstances surrounding the accused’s licence to possess a firearm in Alberta not extending to his Nova Scotia residence and whether the Crown is required to prove that the accused knew or was wilfully blind to the fact that his possession of said firearm was unauthorized. At further question is the issue of whether the police officer’s conduct

constituted a “search” as per Section 8 of the Charter of Rights and Freedoms . For the purposes of this examination of R v. MacDonald a critical lense from a liberal perspective will be applied. Central to this analysis is an exploration of constitutionalism as it applies to individual rights through the Charter of Rights and Freedoms. An exploration of the criminal component of this case will also be undertaken.

Liberalism holds the protection of individual autonomy, rights and freedoms as essential.

It also holds the protection from arbitrary authority as profoundly important. In Canada, the Canadian Charter of Rights and Freedoms is the central document outlining the constitutional protections of all Canadian citizens. Paul Burd asserts in his analysis of R v. MacDonald, “This case essentially revolves around the question of how sure a police officer must be of the presence of a safety risk before he or she can perform a safety search.” Section 8 of the Charter of Rights and Freedoms, limits the power of the state, in this case its agents, the police from unreasonably intruding on citizen’s private spaces. The protection of privacy rights in one’s home is important, particularly as one’s dwelling contains significant personal information and should not be subject to arbitrary search without a warrant. In R v. MacDonald, “the right to be secure against unreasonable search or seizure,” as protected by section 8 of the Charter is

examined.

The application of this Charter protection is further understood through this explanation, “Section 8 does not apply to every search or seizure. Rather, the right focuses on the action being unreasonable on the basis that it violates the expectation of privacy that a reasonable individual would have…A search within the meaning of section eight is determined by whether the investigatory technique used by the state diminishes a person's reasonable expectation of privacy.” Through the officer’s action of pushing the door open, the implied licence to knock on the door was exceeded and this activity may be seen as constituting an invasion of the accused’s reasonable expectation of privacy in his home. Section 8, outlines “constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.”

In examining the officer’s actions, “the Court of Appeal applied R v Mann, [2004] 3 SCR 59 [Mann], which recognized a common law police power to search without a warrant where the safety of the public or the police is at stake.” A consideration of the precedent set by Mann, offers these guidelines, “Mann lays out three requirements for warrantless searches to avoid violating section 8 by being deemed reasonable: (1) the search is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search was carried out was also reasonable.” The court found that MacDonald’s autonomous privacy rights as protected by the Charter were not infringed upon by the officer’s actions. Given that the officer while lawfully engaged in his duties had reason to believe that there was a safety risk and given that the officer did not act egregiously in his conduct by simply pushing the door open a few more inches, he search was deemed reasonable for Section 8 purposes.

Further to the issue of privacy rights, as investigated in R v. MacDonald, there is the issue of ignorance of the law with regards to regulations governing registration of a firearm. In this case, we see the application of section 95 of the Criminal Code which indicates, “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…” MacDonald was operating under mistake of law in his belief that his Alberta firearm registration carried over to his possession of said firearm in Nova Scotia.

However, Section 19 of the Criminal Code of Canada states quite plainly, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.” Justice Label, who held that the Nova Scotia Court of Appeal erred in requiring the Crown to prove that MacDonald knew his gun licence did not extend to Nova Scotia, rejected MacDonald’s position. Justice Label asserted that in order to secure conviction under s. 95(1), the Crown had only to prove that MacDonald knowingly and intentionally possessed a loaded restricted firearm because of the provisions of s. 19 regarding ignorance of the

law.

One of the tenets set forth by liberalism is equality before the law. In Richard F. Devlin’s, “Mapping Legal Theory” he cites Karl Klare’s definition of Legal Liberalism which explains, “Its essential features are the commitment to general, democratically promulgated rules, the equal treatment of all citizens before the law, and the radical separation of morals, politics, and personality from judicial action. Liberal legalism also consists of a complex of social practices and institutions that complement and elaborate upon its underlying political philosophy and jurisprudence.” It is this notion of equality before the law that is demonstrated through the treatment of MacDonald with regards to the application of section 19 of the Criminal Code in this case. R v. MacDonald certainly offers a unique exploration of personal privacy regulations with regards to police intervention. Similarly, from the opposite side of the equation, the manner in which firearm possession is dealt with, in upholding section 19, of the Criminal Code in R v. MacDonald expresses the spirit of diplomacy and equal treatment that is fundamental to the Canadian approach to justice.