Analysis on R V MacDonald 2014

“We are social beings and that we live in conditions of interdependence.[1]” This is the crux of legal liberalism, while legal liberalism argues for the individual this will always be constrained by our need for social interaction[2]. The case of R. v. MacDonald is based upon the issues that are faced when the police have to make a choice, protect public safety or violate an individual’s rights. Mr. MacDonald’s rights may have been violated but this violation of rights was consistent with the legal liberalism principal that follows those rights, they can only extend so far as to not infringe on other people’s rights. The case of R. v. MacDonald, 2014 SCC 3, revolves primarily around the issues surrounding the rights to be free from unreasonable search and seizure and how the police acted in this case. In the case at hand the defendant was having a party in his Halifax residence when some of his neighbours called in a noise complaint[3]. One officer arrived at the scene and was unable to persuade Mr. MacDonald to turn down his music so she called for another officer[4]. Upon arrival the second officer repeatedly knocked and kicked at the door until Mr. MacDonald opened it. Mr. MacDonald only opened the door a few inches and the offer observed what appeared to be a gun in his hand hidden behind his leg[5]. The officer then opened the door a bit more and confirmed that the metallic object was a gun, upon confirming that the officer forced himself into the apartment and disarmed Mr. MacDonald[6]. Upon further investigation it was revealed that the gun was not properly registered in Halifax and was only registered in Alberta[7]. Mr. MacDonald was charged under section 95 of the criminal code for unlawfully possessing a restricted firearm without a licence, section 86(1) carelessly handling a firearm and section 88(1) having possession of a firearm for a dangerous purpose[8]. Mr. Macdonald was convicted on all three counts and sentenced to a total of 3 years in prison[9]. The case was appealed to the Nova Scotia Court of Appeal where they upheld the sentences and convictions for the charges under section 86 and 88 but threw out the conviction on section 95, this was based on the successful argument that the defendant had made a mistake of fact when he believed that his firearms licence was valid for all of Canada[10]. His sentence was also reduced on the other two charges. This was then appealed to the Supreme Court of Canada where the issue of the section 8 charter rights to be free from unreasonable search and seizure was the main focus as the defendant tried to have the other two charges dismissed, the crown also appealed the findings of the Nova Scotia Court of Appeal on the issue of the charge under section 95. The court reinstated the conviction under section 95 finding that although a mistake of fact was made this was no excuse and the conviction must be reinstated, but this could be a mitigating factor in sentineling[11]. On the next issue of the section 8 charter rights the court applied the Waterfeild test[12] and established that the search was justified, the police were performing there duty to protect the public and there was a real danger present and the only way to remove that danger was to perform a search, so the search was upheld and the court ruled that all of the convictions would stand[13]. Liberalism is a complex set of ideals that are the main governing ideas behind many of our modern political and legal systems today. As part of a larger political idea legal liberalism offers a perspective on how laws should be written and to what extent the government should inject itself into the day to day lives of its citizens[14]. Liberalism stresses a minimalist government approach, one of small government and few, but necessary, laws[15]. According to liberalism when laws are created they should be created in such a way to respect people’s individual rights, laws should not infringe on people unless it is to protect others from harm, the harm principal[16]. As a legal theory, liberalism assumes that all people are rational, independent, free thinking and completely autonomous from outside factors such as the community at large and the government[17]. With this in mind Devlin argues that liberalism advocates that “…society should be governed by the principals of liberty, equality and neutrality. To be more specific, Liberalism advocates that the state and law should strive to provide the citizen with as much space as possible…”[18] Another point that goes hand in hand with the previous is the idea that each individual should be allowed to decide what their personal idea of the good is in their case[19], and each person should be free to choose his or her own path free of outside interference. While remembering that the idea of self is paramount in the realm of liberalism, it is recognized that humans do and must have social and other interactions with other people[20], in other words humans cannot operate as islands upon themselves and must be interactions with others. Legal liberalists would argue that this is the place for law to interject, according to liberalists’ law and government should step in to regulate these relationships and to promote the idea of positive relationships[21]. To fully realize the ideals of liberalism one must realize that this is a human created set of ideas and laws and because of that there are bound to be conflicts and tensions inherent to it. Devlin states that liberalism is the dominant legal ideal present in Canada today[22], and that the guiding principal behind that belief is one of infallible individual rights, but as Devlin goes on to point out rights are not infallible in Canada, and may be disregarded if it can be demonstrated to be justifiable in a democratic society[23]. So liberalism strives for an individualistic society, where everyone has rights that are their own, but as it can be seen there is room to bend that stringent definition of liberalism, and every society may adapt it to meet the needs of the people at the time. There are many ways in which the case of R. v. MacDonald can be looked at through the lens of liberalism. First off and probably most importantly is that of the police’s right to search a person to ensure public safety, secondly would be the need to restrict and licence the firearm in the case and finally the question of, was Mr. MacDonald justified in pulling out a firearm when he knew or ought to have known that the police were outside of his residence? All three of these issues can be tested against the harm principal of liberalism. This principal is one that if the action is not causing harm to others than there is no reason to regulate it and there is no need for government intrusion into that area of a person’s life[24]. When the police’s actions are compared against this framework of the harm principal it becomes very subjective to judge whether the actions were consistent with liberalism. While all can most likely agree that a firearm is a dangerous weapon did Mr. MacDonald’s actions constitute a dangerous act? This was the question that the judges had to answer and they aired on the side of caution, trusting the police officer’s judgment that this situation could have escalated into one where the public was at great risk[25]. In this same vein the judges also decided that Mr. MacDonald’s section 8 rights could be violated if it meant ensuring public safety[26]. While this on its face would be a violation of liberalism when we consider the harm principal, this ruling and the police’s actions can be considered to be within the ideals of liberalism, while one person’s rights were violated this was done to protect others, and to allow others to fully enjoy their rights without interference. On the next issue of firearms control and licencing, while the court didn’t rule on the validity of firearms licencing they did enforce the law by upholding the conviction[27]. So this begs the question, are these controls and limitations that are put on firearms consistent with liberalism? On its face these laws would be straying into the field of government intrusion into peoples’ private lives, but firearms can be quite dangerous so then according to the harm principal shouldn’t government attention be paid to firearms? These are the questions that must be debated when discussing the issue. Canada has decided that, to spite our legal liberalism ideals[28], that firearms are something that deserve government intrusion into people’s lives to ensure the protection of the public. While regulating and restricting firearms clearly goes against the ideals of legal liberalism, this is a restriction that we as a society has decided is necessary and is just in a democratic society. On the final issue of Mr. MacDonald’s actions, carrying a firearm to the door of his home when he should have known that the police were outside. While this may have been a justifiable action under legal liberalism if he suspected that the persons at his door were intruders, as they would have been violating his rights[29] and therefore he could justifiably have used the weapon in self-defence but the fact was that the people at his door were police officers. They had identified themselves[30], and were in essence enforcing the rights of Mr. MacDonald’s neighbours, so under legal liberalism the police presence was justified as Mr. MacDonald was in the wrong[31]. When he carried his weapon he then violated everyone in the vicinity’s right to be safe and this caused the police to act and protect all. While according to liberalism the firearms licence regime may be government intrusion, Mr. MacDonald violated his neighbours and the police’s rights to safety and the actions that were taken by the police were appropriate under the harm principal of legal liberalism[32]. What was a simple noise complaint turned into so much more when the defendant, Mr. MacDonald decided to bring his unregistered firearm to the door, with the police outside[33]. This turned into a charter of rights and freedoms issue at the Supreme Court of Canada where Mr. MacDonald was unsuccessful in arguing that his rights were violated[34]. When looked at through the lens of legal liberalism, it can be seen that although he may have the right to have a firearm in some contexts, in this one he was a danger to others which necessitated the police’s actions against him. While the gun control system may be against the ideas of legal liberalism, the harm principal is quite clear in that you may only enjoy your rights as far as they do not harm others[35], and in this case the chance of harm was just too great to ignore. Bibliography R. v. MacDonald, 2014 SCC 3 Richard F. Devlin, "Mapping Legal Theory" 1994 32: 3 Alta L Rev 609. 1

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[1] Richard F. Devlin, "Mapping Legal Theory" 1994 32: 3 Alta L Rev 610 [2] Ibid 610 [3] R. v. MacDonald, 2014 SCC 3 at para 3 [4] Ibid at para 5 [5] Ibid at para 6 [6] Ibid at para 7 [7] Ibid at para 13 [8] Ibid at para 9 [9] Ibid at para 14 [10] Ibid at para 16 [11] Ibid at para 60 [12] Ibid at para 33 [13] Ibid at para 40 [14] Devlin, supra note 1 610 [15] Ibid 610 [16] Ibid 610 [17] Ibid 610 [18] Ibid 610 [19] Ibid 610 [20] Ibid 610 [21] Ibid 610 [22] Ibid 609 [23] Ibid 611 [24] Ibid 610 [25] MacDonald, supra note 3 at para 29 [26] Ibid at para 29 [27] Ibid at para 60 [28] Devlin, supra note 1 609 [29] Ibid 610 [30] MacDonald, supra note 3 at para 5 [31] Devlin, supra note 1 610 [32] Ibid 610 [33] MacDonald, supra note 3 at para 7 [34] Ibid at para 40 [35] Devlin, supra note 1 610

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