R. v. MacDonald

R. v. MacDonald
Collection
Supreme Court Judgments
Date
2014-01-17
Neutral citation
2014 SCC 3
Report
[2014] 1 SCR 37
Case number
34914
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Wagner, Richard
On appeal from
Nova Scotia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 34914
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37
Date: 20140117
Docket: 34914
Between:
Erin Lee MacDonald
Appellant
and
Her Majesty The Queen
Respondent
And Between:
Her Majesty The Queen
Appellant
and
Erin Lee MacDonald
Respondent
- and -
Director of Public Prosecutions and Attorney General of Ontario
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Moldaver and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 63)
Concurring Reasons:
(paras. 64 to 92)
LeBel J. (McLachlin C.J. and Fish and Abella JJ. concurring)
Moldaver and Wagner JJ. (Rothstein J. concurring)
R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37
Erin Lee MacDonald Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
Her Majesty The Queen Appellant
v.
Erin Lee MacDonald Respondent
and
Director of Public Prosecutions and
Attorney General of Ontario Interveners
Indexed as: R. v. MacDonald
2014 SCC 3
File No.: 34914.
2013: May 23; 2014: January 17.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Moldaver and Wagner JJ.
on appeal from the court of appeal for nova scotia
Constitutional law — Charter of Rights — Search and seizure — Police responding to noise complaint at accused’s residence — Accused answering door while concealing loaded restricted firearm — Police pushing door open further to ascertain concealment — Whether officer’s conduct constituted search and if so, whether search reasonable — Canadian Charter of Rights and Freedoms, s. 8 .
Criminal law — Offences — Elements of offence — Mens rea — Possession of loaded restricted firearm — Police responding to noise complaint at accused’s residence — Accused answering door while concealing loaded restricted firearm — Accused’s licence to possess firearm in Alberta not extending to Nova Scotia, but accused believing it did — Whether Crown required to prove accused knew or was wilfully blind to fact that possession of firearm was unauthorized — Criminal Code, R.S.C. 1985, c. C‑46, s. 95 .
Police responded to a noise complaint at M’s home in Halifax. When M opened the door, an officer observed that M had an object in his hand, hidden behind his leg. The officer twice asked M what was in his hand. Because M did not answer, the officer pushed the door open a few inches further to see. A struggle ensued and M was disarmed of a loaded handgun. M was licensed to possess and transport the handgun in Alberta, but not in Nova Scotia as he believed he was. At trial, the judge concluded that M’s possession of the gun was unauthorized. He also concluded that the officer’s pushing the door open further did not breach M’s s. 8 Charter right to be free from unreasonable search. The trial judge convicted M of careless handling of a firearm (under s. 86 of the Criminal Code ), possessing a weapon for a dangerous purpose (s. 88 ), and possessing a loaded restricted firearm (s. 95 ). The trial judge sentenced M to a three‑year imprisonment and a ten‑year weapons prohibition. A majority of the Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s. 8 Charter right. It upheld M’s ss. 86 and 88 Criminal Code convictions, but significantly reduced the sentences. However, the Court of Appeal allowed M’s appeal of his s. 95 conviction and substituted an acquittal.
Held: The appeal of the s. 8 Charter issue should be dismissed and the Crown’s appeal of the s. 95 Criminal Code acquittal should be allowed. The matter is remitted to the Court of Appeal for sentencing.
Per McLachlin C.J. and LeBel, Fish and Abella JJ.: The officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter . The action went beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his home. Although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the Waterfield test were satisfied. The first stage was satisfied because the warrantless search falls within the scope of the common law police duty to protect life and safety and the second, because the search constitutes a justifiable exercise of powers associated with the duty.
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: the importance of the duty to the public good; the necessity of the infringement for the performance of the duty; and the extent of the infringement. The duty to protect life and safety is of the utmost importance to the public good, but an infringement on individual liberty may be necessary when, for example, the officer has reasonable grounds to believe that the individual is armed and dangerous. That infringement will be justified only to the extent that it is necessary for the officer to search for weapons. In other words, and as this Court recognized in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the powers of the police are limited. Courts must consider not only the extent of the infringement, but how it was carried out. Restraints on safety searches are particularly important in homes, where such searches can often give the police access to a considerable amount of very sensitive personal information.
In this case, the officer had reasonable grounds to believe that there was an imminent threat to public and police safety and that the search was necessary to eliminate that threat. The manner in which he carried out the search was also reasonable. The trial judge found that the officer pushed the door open no more than was necessary to find out what M had behind his leg. The officer twice asked M what he had in his hand but received no answer. In these circumstances, it is hard to imagine a less invasive way of determining whether M was concealing a weapon and thereby eliminating any threat. It follows that M’s rights under s. 8 of the Charter were not violated.
As for a s. 95 Criminal Code conviction, the Court of Appeal erred in requiring the Crown to prove that M knew that his possession and acquisition licence and authorization to transport the firearm did not extend to his Halifax home. That requirement is inconsistent with the rule, codified in s. 19 of the Code, that ignorance of the law is no excuse. Section 95 is a mens rea offence, but does not include knowledge of unauthorized possession. Rather, knowledge of possession, together with intention to possess in a particular place, is enough.
In this case, M’s subjective belief that he could possess the firearm in his Halifax home is a mistake of law and that mistake is no defence. Therefore, M’s s. 95 conviction must be restored and the matter remitted to the Court of Appeal both for sentencing and for assessing the constitutional validity of the mandatory minimum sentence under s. 95 .
Per Rothstein, Moldaver and Wagner JJ.: The majority concludes that the officer’s conduct in this case was only justified because he had reasonable grounds to believe that M was armed and dangerous. In doing so, they effectively overturn the “safety search” power recognized in Mann and a decade of subsequent jurisprudence.
This Court decided in Mann that officers may conduct protective searches when they have reasonable grounds to suspect that an individual is armed and dangerous. And that is why the search was justified in this case. Five reasons support this conclusion.
First, the language of Mann makes clear that it recognized a protective search power predicated on reasonable suspicion. Second, Mann relies on the U.S. Supreme Court’s seminal decision in Terry v. Ohio, 392 U.S. 1 (1968), a decision which recognized a directly analogous protective search power on a reasonable suspicion standard. Third, subsequent judgments from this Court and courts of appeal have affirmed that Mann employed the reasonable suspicion standard. Fourth, the logical consequences of a reasonable grounds to believe standard make little sense in this context; if Mann required reasonable grounds to believe for a pat‑down search, it would seem that all that Mann achieves is a power to search when there are already grounds to arrest. Fifth, the facts of this case do not support a finding that the officer had reasonable grounds to believe that M was armed and dangerous.
These five reasons — the language of Mann, the history from which Mann emerged, the consequences of interpreting Mann as requiring reasonable grounds to believe, the jurisprudence that has interpreted Mann, and the facts of this case — all lead to the same unavoidable conclusion: Mann recognized a protective search power predicated on reasonable suspicion.
This case ought to have been resolved by extending the logic of Mann. First, the officer, while lawfully engaged in his duties, had a reasonable suspicion that M was armed and dangerous. Second, in response to that reasonable suspicion, the officer’s conduct — pushing M’s door open a few more inches — was no more intrusive of M’s privacy interests than was reasonably necessary to address the threat. Accordingly, the search was reasonable for s. 8 purposes.
The consequence of the majority’s decision is to deprive officers of the ability to conduct protective searches except in circumstances where they already have grounds to arrest. As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat‑down searches to ensure their safety or the safety of the public as they conduct these investigations. However, a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk.
Cases Cited
By LeBel J.
Applied: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Waterfield, [1963] 3 All E.R. 659; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Forster, [1992] 1 S.C.R. 339; referred to: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Stenning, [1970] S.C.R. 631; Knowlton v. The Queen, [1974] S.C.R. 443; Wiretap Reference, [1984] 2 S.C.R. 697; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420; The Queen v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Beaver v. The Queen, [1957] S.C.R. 531.
By Moldaver and Wagner JJ.
Applied: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; referred to: Baron v. Canada, [1993] 1 S.C.R. 416; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; Terry v. Ohio, 392 U.S. 1 (1968); Arizona v. Johnson, 129 S. Ct. 781 (2009); R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. Crocker, 2009 BCCA 388, 275 B.C.A.C. 190, leave to appeal refused, [2010] 1 S.C.R. viii; R. v. Atkins, 2013 ONCA 586, 310 O.A.C. 397; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Golub (1997), 34 O.R. (3d) 743, leave to appeal refused, [1998] 1 S.C.R. ix.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 12 , 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 19 , 86 , 88 , 95 , 487.11 , 529.3(2) .
Firearms Act, S.C. 1995, c. 39, s. 17 .
Authors Cited
Healy, Patrick. “Investigative Detention in Canada”, [2005] Crim. L.R. 98.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 5th ed., vol. 4. St. Paul, Minn.: West, 2012.
Oxford English Dictionary (online: www.oed.com), “risk”.
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
Stribopoulos, James. “The Limits of Judicially Created Police Powers: Investigative Detention after Mann” (2007), 52 Crim. L.Q. 299.
APPEALS from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J. and Saunders and Beveridge JJ.A.), 2012 NSCA 50, 317 N.S.R. (2d) 90, 1003 A.P.R. 90, 283 C.C.C. (3d) 308, 261 C.R.R. (2d) 303, [2012] N.S.J. No. 252 (QL), 2012 CarswellNS 328, setting aside the accused’s conviction for possession of a loaded restricted firearm. Appeal of Erin Lee MacDonald dismissed and appeal of Her Majesty The Queen allowed.
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.
The judgment of McLachlin C.J. and LeBel, Fish and Abella JJ. was delivered by
LeBel J. —
I. Introduction
[1] This case requires us to consider the scope of police search powers in the context of everyday interactions with private citizens at the doorsteps of their homes. The police in this case responded to a noise complaint and, without warning, became engaged in a dangerous situation that, in their opinion, put their safety, and the safety of others, in jeopardy. The charges laid as a result of this incident afford us an opportunity to consider the operation of s. 8 of the Canadian Charter of Rights and Freedoms in this context, the mens rea required for conviction under s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 , and some corollary issues related to sentencing.
II. Background Facts
[2] In 2009, Mr. MacDonald was employed in the oil and gas industry. His employment required him to spend time in both Calgary and Halifax. On the evening of December 28, 2009, Mr. MacDonald entertained a co-worker and his co-worker’s friend at his Halifax condominium (the “unit”). Some alcohol was consumed during the evening as Mr. MacDonald and his colleague — who was about to replace him in Halifax — discussed work.
[3] Later in the evening, the concierge of Mr. MacDonald’s building, Mr. Sears, received a noise complaint regarding loud music reverberating from the unit. Mr. Sears went to the unit, heard the loud music and knocked on the door. He received no response. Just as he was about to leave, he saw Mr. MacDonald’s guests leaving the unit and saying good night. At this point, Mr. Sears asked Mr. MacDonald to turn down his music. Mr. MacDonald, swearing at him, refused to do so.
[4] Mr. Sears contacted the Halifax Regional Police and asked them to deal with the complaint about the noise issue. Cst. Pierce went to the building and, together with Mr. Sears, approached Mr. MacDonald’s unit. Cst. Pierce knocked on his door and asked him to turn his music down or off. Mr. MacDonald swore at her and slammed the door shut.
[5] Cst. Pierce contacted her supervisor, Sgt. Boyd, who arrived at the building approximately a half hour later. Sgt. Boyd, Cst. Pierce and Mr. Sears went to the unit. Sgt. Boyd tried to get Mr. MacDonald to answer the door by knocking on it and kicking it, and also shouted that he was from the Halifax Regional Police.
[6] About five minutes later, Mr. MacDonald opened the door, but only about 16 inches — enough for the officers to see the right side of his body and face. Sgt. Boyd noticed something “black and shiny” in Mr. MacDonald’s right hand that was in a shadow and was partially hidden by his right leg (A.R., at p. 167). He believed it might be a knife. He twice asked Mr. MacDonald what was behind his leg, gesturing toward his right hand. Mr. MacDonald did not respond.
[7] Wanting to get a better look at what Mr. MacDonald had in his hand, Sgt. Boyd pushed the door open a few inches further. The resulting light enabled him to identify it as a handgun. He yelled “gun!” and quickly forced his way into the unit. After a brief struggle, he was able to disarm Mr. MacDonald.
[8] The gun that Mr. MacDonald was holding when he opened the door was found to be a 9-mm Beretta — a restricted firearm. It was registered to him. The gun was loaded.
[9] Mr. MacDonald was charged with numerous offences, three of which are relevant here: handling a firearm in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Code; unlawfully having in his possession 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 may possess the said firearm in that place, contrary to s. 95(1) .
III. Judicial History
A. Nova Scotia Provincial Court
[10] At trial, a voir dire was held to determine whether Mr. MacDonald’s right to be secure against an unreasonable search guaranteed by s. 8 of the Charter had been violated when Sgt. Boyd pushed the door to the unit open a few inches further to ascertain what he was holding. Judge Digby found that there is an exception that permits an officer to enter a home to ensure his or her safety, particularly where, as here, the intrusion is minor. He concluded that “there is no Charter breach and the burden is on the accused to prove on a balance of probabilities that there is a Charter breach” (A.R., at p. 250).
[11] After weighing all the circumstances, Judge Digby found Mr. MacDonald guilty of the charges under ss. 86(1) and 88(1). Others could have been injured as a result of his conduct, which was out of proportion to any threat, actual or reasonably perceived. Before opening the door, Mr. MacDonald knew the people there were police officers or people claiming to be police officers. He also knew that if they were in fact police officers, they would react to his holding a handgun, and this would put his own safety at risk as well as that of the officers themselves and of the public.
[12] Judge Digby also found Mr. MacDonald guilty of the charge under s. 95(1) . In so finding, he noted that Mr. MacDonald and the Crown agreed on the following facts:
. . . it is common ground that Mr. MacDonald had a possession and acquisition license, that the Beretta firearm was properly registered in Mr. MacDonald’s name and that he had a right to possess it in his dwelling. It was registered with the Canadian Firearms Centre or another place approved for storage by the chief firearms officer.
. . .
It is common ground that [Mr. MacDonald] had a loaded, restricted firearm in his residence at Bishop’s Landing. . . . He had documentation which he submitted in evidence from the Nova Scotia Rifle Association indicating that he was a member and invited to use their facility. I take it it is common ground, and certainly the case has proceeded on the basis of common ground, that Nova Scotia Rifle Association is an organization which falls under section 19(1) (a) of the Firearms Act . [A.R., at pp. 19 and 21]
[13] Mr. MacDonald had an authorization to transport the firearm, but, the learned trial judge held, it entitled him to transport the firearm only between his residence in Calgary and shooting ranges and border crossings in Alberta. He therefore had no right to take it to Halifax. Mr. MacDonald was guilty under s. 95(1) because he had the firearm in the unit without holding a licence which permitted him to possess it in that place.
[14] Judge Digby sentenced Mr. MacDonald to three years’ imprisonment. He found that two years in a federal penitentiary was an appropriate sentence for the offence under s. 86(1). For the offence under s. 88(1), the proper sentence was three years in a federal penitentiary concurrent with the first sentence. As for the s. 95(1) offence, he found that the minimum sentence of three years in a federal penitentiary was appropriate and ordered that it be served concurrently with the other two sentences. Judge Digby rejected Mr. MacDonald’s contention that the minimum three-year sentence violated the right not to be subjected to cruel and unusual punishment guaranteed by s. 12 of the Charter , finding, despite the consequences for him and despite certain hypothetical scenarios, that it was not grossly disproportionate. He ordered that the firearm be forfeited and prohibited Mr. MacDonald from possessing any weapons for 10 years and any restricted weapons for life.
B. Nova Scotia Court of Appeal, 2012 NSCA 50, 317 N.S.R. (2d) 90
[15] MacDonald C.J.N.S. (Saunders J.A. concurring) found that no Charter violation had occurred on the evening in question. He noted that warrantless entry into a home is prima facie illegal and that the onus was therefore on the Crown to justify the entry. Relying on this Court’s decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, he concluded that there is a common law police power to search without a warrant where the safety of the public or the police is at stake. He acknowledged, however, that this power is limited to situations in which, “in addition to acting within the general scope of their authority, [the police] have no other feasible less intrusive alternative”, and he added that “the manner of carrying out the impugned activity must also be reasonable” (para. 31). He found that Sgt. Boyd had exercised the power validly in the case at bar. The police were acting within the general scope of their authority by going to Mr. MacDonald’s place of residence to deal with a noise complaint. Sgt. Boyd acted reasonably in the circumstances in pushing the door open further to see what he was hiding. Furthermore, no other action would have been appropriate, as it was too late to simply retreat or issue a noise violation ticket.
[16] MacDonald C.J.N.S. upheld the convictions under ss. 86 and 88 , but overturned the one under s. 95 . On the latter conviction, he acknowledged that pursuant to s. 17 of the Firearms Act, S.C. 1995, c. 39 , Mr. MacDonald’s licence did not extend to his Halifax residence. However, he found that Mr. MacDonald should be acquitted on the basis of an honest but mistaken belief that it did extend to the unit. For the majority, this belief was a mistake of fact which negated the mens rea of the s. 95 offence. The Crown had to prove that Mr. MacDonald knew or was wilfully blind to the fact that his possession was unauthorized. It had failed to do so, as Mr. MacDonald genuinely believed that he was authorized to possess the firearm in the unit. MacDonald C.J.N.S. accordingly set aside the verdict and substituted an acquittal on the s. 95 charge.
[17] Finally, the majority reassessed the fitness of Mr. MacDonald’s sentences for the convictions under ss. 86 and 88 . The majority found that a review of these sentences was warranted because, rather than conducting an independent analysis for each offence, the trial judge had considered the incident globally. Because they had set aside the conviction under s. 95 , they found it necessary to scrutinize the dispositions for the other convictions.
[18] MacDonald C.J.N.S. found the three-year sentence for the conviction under s. 88 to be too harsh, since Mr. MacDonald’s actions “did not involve the more typical scenario such as a highly volatile public confrontation or a dangerous domestic dispute” and since “the gun was neither fired, nor . . . intentionally pointed” (para. 117). He reviewed a number of cases which suggested that three years was outside the sentencing range for this offence. He found the sentence to be demonstrably unfit and concluded:
Considering the principles of sentencing, the circumstances of this offence and Mr. MacDonald’s individual circumstances, particularly his positive pre-sentence report and his previous unblemished record, in my view a sentence of time served would be appropriate. This would represent 18 days in custody (considering the 2 days following his arrest, his release on his own recognizance and then the 16 days between his sentencing and his release on bail pending appeal). [para. 123]
[19] As for the sentence for the conviction under s. 86 , the majority found the imposition of the maximum two-year sentence to be unduly harsh in comparison with other cases. They held this sentence to be demonstrably unfit and imposed a sentence of 14 days concurrent with the sentence imposed for the s. 88 offence.
[20] Finally, MacDonald C.J.N.S. ordered a two-year term of probation, a prohibition on possession of weapons for five years, and forfeiture of the firearm.
[21] Beveridge J.A., in dissent, held that Sgt. Boyd had infringed Mr. MacDonald’s right under s. 8 of the Charter by pushing the door to the unit open further and extending his hand into Mr. MacDonald’s home. In Beveridge J.A.’s view, the authority of the police to enter an individual’s home for the purpose of ensuring officer safety did not apply in the circumstances of this case:
While I have no difficulty with the premise that the officers were lawfully present and carrying out their duties, they did not acquire any power to intrude into [Mr. MacDonald’s] home as a result of Sgt. Boyd’s concern that [he] was concealing something. Sergeant Boyd never suggested that he suspected, let alone had reasonable grounds to believe, that it was a firearm. He said it was something black and shiny. At best he said he “thought he might have a weapon in his hand”. In my view, this is more akin to hunch or suspicion than reasonable grounds to believe. In fact, the trial judge made no finding that reasonable grounds existed. Despite ample opportunity to give evidence that he did, Sgt. Boyd said no such thing.
. . .
The issue is not whether Sgt. Boyd acted reasonably in pushing open the door. The issue is did he have lawful authority to do so. That would only materialize if he had reasonable grounds to believe that his safety, or the safety of others, was at risk and his search in pushing open the door was reasonably necessary in the circumstances.
Absent a new-found power to enter a private dwelling based on a suspicion that officer safety concerns are triggered, the conclusion is inescapable that [Mr. MacDonald’s] reasonable expectation of privacy protected by s. 8 of the Charter was infringed or denied. [paras. 156 and 173-74]
[22] In light of all the circumstances, Beveridge J.A. would have excluded the firearm as evidence at trial, because its admission would bring the administration of justice into disrepute. He would accordingly have set aside the convictions and directed acquittals on all three of the charges.
IV. Analysis
A. Issues
[23] This case raises three issues, which I will discuss in turn:
1. Was Mr. MacDonald’s right under s. 8 of the Charter to be free from unreasonable search and seizure violated and, if so, what is the appropriate remedy?
2. Does the mens rea of the offence provided for in s. 95(1) of the Code include knowledge that one’s licence does not extend to the place where the firearm is possessed?
3. Should the sentences imposed by the Court of Appeal for the convictions under ss. 86(1) and 88(1) be varied?
B. Mr. MacDonald’s Charter Challenge
[24] Mr. MacDonald’s central argument is that Sgt. Boyd’s action of pushing the door open further constituted an unreasonable search, contrary to s. 8 of the Charter . He submits that the evidence obtained by the police as a result of the search — namely the firearm — ought to be excluded under s. 24(2) of the Charter , as its admission would bring the administration of justice into disrepute. I cannot accept this argument. As I will explain, although Sgt. Boyd’s action constituted a “search” for the purposes of s. 8 of the Charter , that search was not unreasonable.
(1) Did Sgt. Boyd’s Action Constitute a Search?
[25] R. v. Evans, [1996] 1 S.C.R. 8, is a leading case on what constitutes a “search” for the purposes of s. 8 . The facts of that case were not dissimilar to those of the instant case in that the search was carried out by police at the doorstep of the accused person’s home. Sopinka J. laid down the following test for determining whether a police action constitutes a “search”:
. . . it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8 . [Emphasis added; para. 11.]
In other words, a s. 8 search “may be defined as the state invasion of a reasonable expectation of privacy” (R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 8).
[26] There is no question that individuals have a reasonable, indeed a strong, expectation of privacy in their homes (R. v. Godoy, [1999] 1 S.C.R. 311, at para. 19; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Silveira, [1995] 2 S.C.R. 297), as well as in the approaches to their homes (Evans, at para. 21). However, Evans also established that the police have an implied licence to approach the door of a residence and knock. Doing so will not be considered an invasion of privacy constituting a search if the purpose of the police is to communicate with the occupant. But “[w]here the conduct of the police . . . goes beyond that which is permitted by the implied licence to knock, the implied ‘conditions’ of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder” (Evans, at para. 15). In such circumstances, the police action constitutes a “search”.
[27] Initially, Sgt. Boyd’s actions were compatible with the implied licence to knock. He approached Mr. MacDonald’s door, knocked on it and kicked it for the purpose of communicating to the occupant that he needed to turn his music down. After Mr. MacDonald had opened the door, however, Sgt. Boyd’s purpose in pushing it open further was to get a better view of what was in his hand (A.R., at pp. 168-69). Simply put, Mr. MacDonald’s implied waiver of his privacy rights did not extend that far. Speaking or shouting through the door or knocking on it falls within the waiver; pushing it open further does not. Sgt. Boyd’s action of pushing the door open further constituted an intrusion upon Mr. MacDonald’s reasonable privacy interest in his dwelling.
[28] Having found that the police action constituted a search of Mr. MacDonald’s home, I must now consider whether that search was unreasonable, and therefore in violation of s. 8 of the Charter . At this stage, because the search was warrantless, the Crown has the burden of showing that it was reasonable (R. v. Collins, [1987] 1 S.C.R. 265, at p. 278).
(2) Was the Search Unreasonable?
[29] The framework for scrutinizing warrantless searches for Charter compliance was summarized by this Court in Mann:
[Warrantless] searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32. [para. 36]
[30] Applying the Collins test to the facts of the instant case, I find that the search carried out by Sgt. Boyd was reasonable.
(a) The Search Was Authorized by Law and the Law Itself Is Reasonable
[31] Where the first prong of the Collins test is concerned, a search will be authorized by law if it is authorized by a valid police power. In Godoy, Lamer C.J. affirmed that the police have a common law duty to protect life and safety. Nevertheless, “[p]olice powers and police duties are not necessarily correlative” (Mann, at para. 35). Indeed, the police power to search is not unlimited. This power is constrained by a requirement of objectively verifiable necessity (para. 26). In Mann, Iacobucci J. accepted the need for a general police power to conduct pat-down searches, but solely in appropriate circumstances. He was mindful of the risks of abuse of such a power, as he observed that “[s]uch a search power does not exist as a matter of course: the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk” (para. 40).
[32] A search that is reasonably necessary to eliminate threats to the safety of the public or the police — which I will term a “safety search” — will generally be conducted by the police as a reactionary measure. In other words, although such searches may arise in a wide variety of contexts, they will generally be unplanned, as they will be carried out in response to dangerous situations created by individuals, to which the police must react “on the sudden”. Binnie J.’s observation in A.M. in relation to sniffer-dog searches that “the police are generally required to take quick action guided by on-the-spot observations” (at para. 90) is equally applicable to safety searches. Thus, safety searches will typically be warrantless, as the police will generally not have sufficient time to obtain prior judicial authorization for them. In a sense, such searches are driven by exigent circumstances. Even if exigent circumstances exist, however, “safety searches” must be authorized by law.
[33] In arguing that Sgt. Boyd’s search was authorized by law, the Crown relies on the test from R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), as set out by this Court in Dedman v. The Queen, [1985] 2 S.C.R. 2. It will be recalled that in Waterfield, two police officers had attempted to detain personal property (a car) belonging to the accused. The court set down a two-part test to determine whether the officers were acting in the execution of their duties when they sought to stop the accused from removing his property. As Professor P. Healy notes, the Waterfield test served in Dedman, as in earlier Canadian cases in which it had been applied (R. v. Stenning, [1970] S.C.R. 631, and Knowlton v. The Queen, [1974] S.C.R. 443), to mark “the limits of liability when there [was] some question whether a police officer [had] acted in the execution of his or her duty”: “Investigative Detention in Canada”, [2005] Crim. L.R. 98, at p. 102. It was of assistance in the determination of whether a police officer who had been assaulted was acting as an officer at the time of the assault, in which case the accused would be guilty of assaulting a police officer and not a regular citizen. Waterfield is therefore an imperfect authority on the question whether police have a common law power to search an individual in a safety search.
[34] Instead, we must consider this Court’s jurisprudence. This Court has elaborated on and applied 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).
[35] 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. In the case at bar, the police action falls within the general scope of the common law police duty to protect life and safety that I mentioned above. This duty is well established (Mann, at para. 38; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20-21; Dedman).
[36] At the second stage, if the answer at the first is affirmative, as it is in this case, the court must inquire into whether the action constitutes a justifiable exercise of powers associated with the duty. As this Court held in Dedman,
[t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [Emphasis added; p. 35.]
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 (Mann, at para. 39; Clayton, at paras. 21 and 29).
[37] 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 (Mann, at para. 39);
2. the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26 and 31); and
3. the extent of the interference with individual liberty (Dedman, at p. 35).
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 powers (Dedman, at p. 36). 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.
[38] As can be seen, the Dedman-Mann line of cases does not stand for the proposition that all acts related to an officer’s duties are authorized by law. Quite the opposite, only such acts as are reasonably necessary for the performance of an officer’s duties can be considered, in the appropriate circumstances, to be so authorized. The English Court of Appeal was clear on this point in Waterfield, in a passage quoted by this Court in Dedman:
Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited. [Emphasis added; p. 33.]
Likewise, Dickson J., in a powerful dissent in the Wiretap Reference, [1984] 2 S.C.R. 697, stressed the critical importance of a narrow reading of the Waterfield test:
The fact that police officers could be described as acting within the general scope of their duties to investigate crime cannot empower them to violate the law whenever such conduct could be justified by the public interest in law enforcement. Any such principle would be nothing short of a fiat for illegality on the part of the police whenever the benefit of police action appeared to outweigh the infringement of an individual’s rights. [pp. 718-19]
Such restraints on safety searches are particularly important in the context of a search in a private home, as in the case at bar, which concerns a serious invasion of Mr. MacDonald’s privacy in his home. Moreover, safety searches can often give the police access to a considerable amount of very sensitive