Her Majesty the Queen v. Erin Lee MacDonald

(Nova Scotia) (Criminal) (By Leave)


Canadian charter (Criminal) - Cruel and unusual treatment or punishment (s. 12), Criminal law, Sentencing.


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Charter of Rights – Cruel and unusual punishment – Criminal law – Sentencing – Mandatory minimum sentences – Possession of loaded restricted firearm – Whether the mandatory minimum sentence imposed by s. 95(2)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, constitutes cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms which cannot be justified under s. 1 of the Charter.

Mr. MacDonald, respondent, was prosecuted by indictment and ultimately convicted of possessing a loaded restricted firearm contrary to s. 95 of the Criminal Code. That offence carries with it a minimum sentence of three years’ incarceration (s. 95(2)(a)(i)). Mr. MacDonald’s s. 95 conviction was overturned by the Court of Appeal (2012 NSCA 50), but restored by this Court On January 17, 2014 (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37). The Court remitted the matter to the Court of Appeal for sentencing, and in particular, for a determination on the constitutionality of s. 95(2)(a)(i) of the Criminal Code. This application for leave to appeal stems from the Court of Appeal’s decision on that issue. The Court of Appeal unanimously concluded that the mandatory minimum sentence imposed by s. 95(2)(a)(i) infringed s. 12 of the Charter and could not be saved by s. 1. The Court was divided, however, on the appropriate sentence to be imposed in this case. The majority found that the appropriate sentence was a period of incarceration of 18 months. However, in the circumstances of this case, it stayed the enforcement of that sentence. Beveridge J.A., dissenting, would have imposed a sentence of time served.