Appeal court overturns gun charge conviction, upholds two others [Archive] - Glock Talk

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05-12-2012, 11:10
Erin Lee MacDonald, 41, was charged with the crimes in 2009 after he opened his condo door to police while holding a loaded, 9-mm Beretta handgun. At his original trial in 2010, he was sentenced to three years in jail on the unauthorized possession charge, two years on the careless use of a firearm charge and three years on the possessing a weapon for a dangerous purpose charge. All three sentences were to run concurrently.
http://thechronicleherald.ca/metro/95586-appeal-court-overturns-gun-charge-conviction-upholds-two-others
Appeal court overturns gun charge conviction, upholds two others

May 12, 2012 - 4:10am By IAN FAIRCLOUGH Staff Reporter (http://thechronicleherald.ca/author/ian-fairclough-staff-reporter)


A conviction a Halifax man received for unauthorized possession of a loaded, restricted firearm has been overturned.
But in a split decision released Friday, the Nova Scotia Court of Appeal also upheld Erin Lee MacDonald’s convictions on possessing a weapon for a dangerous purpose and careless use of a firearm, though it dramatically reduced the sentence on both.
MacDonald, 41, was charged with the crimes in 2009 after he opened his condo door to police while holding a loaded, 9-mm Beretta handgun.
At his original trial in 2010, he was sentenced to three years in jail on the unauthorized possession charge, two years on the careless use of a firearm charge and three years on the possessing a weapon for a dangerous purpose charge. All three sentences were to run concurrently.
MacDonald appealed the convictions last October, arguing the jail term for the unauthorized possession charge was unconstitutional because the mandatory minimum sentence for that charge violated his right not to be subjected to unusual treatment or punishment. He also said the other sentences were excessive and argued that the police entry into his home was unlawful.
In its decision, the Appeal Court outlined how Halifax Regional Police responded to a complaint about loud music coming from MacDonald’s condo at Bishop’s Landing on Lower Water Street on the night of Dec. 28, 2009.
The judges noted he cursed the officers, refused to turn down the volume and when he eventually opened his door partway, police noticed he was holding a black, shiny object behind his leg.
Initially, they believed it was a knife, but when an officer pushed the door open further to get a better look, they realized it was a handgun. They rushed in and subdued him. The safety was off and the weapon had a full clip of ammunition, the decision says.
It also states he was licensed to possess the gun in Alberta, where he lives while working in the oil industry, but didn’t have a permit to have it in Nova Scotia.
Ruling in the majority, Justices Jamie Saunders and Michael MacDonald overturned the unauthorized possession charge because they accepted the accused’s assertion that he believed his Alberta permit extended to Nova Scotia.
With the charge overturned, the three-year sentence that accompanied it was no longer in play.
“Simply put, this offence, with its three-year minimum, cannot be seen to target gun owners who register their restricted weapons and who honestly believe that their impugned possession was authorized,” MacDonald wrote.
“Instead, the Crown should have to prove that the accused knows his possession is unauthorized.”
In addition, the judges ruled the sentences on the two other charges were excessive and reduced them to 14 days for the careless use of a firearm charge and 18 days on the possessing a weapon for a dangerous purpose charge.
They also ruled that time had been served on those convictions. As a result, Erin MacDonald no longer faced any jail time.
In a dissenting vote, Justice Duncan Beveridge, said all the charges should have been dismissed because the police didn’t have lawful grounds to open the door further when responding to the noise complaint.
He said he “may well have taken a different view if I was satisfied police had reasonable and probable grounds to believe that the appellant was in fact in possession of a weapon as he answered the door. But the trial judge made no such finding, nor did (the police officer) so testify.”
(ifairclough@herald.ca)


http://thechronicleherald.ca/metro/95586-appeal-court-overturns-gun-charge-conviction-upholds-two-others