“We are societal existences and that we live in conditions of mutuality. [ 1 ] ” This is the Southern Cross of legal liberalism, while legal liberalism argues for the person this will ever be constrained by our demand for societal interaction [ 2 ] . The instance of R. v. MacDonald is based upon the issues that are faced when the constabulary have to do a pick, protect public safety or go against an individual’s rights. Mr. MacDonald’s rights may hold been violated but this misdemeanor of rights was consistent with the legal liberalism principal that follows those rights, they can merely widen so far as to non conflict on other people’s rights.
The instance of R. v. MacDonald, 2014 SCC 3, revolves chiefly around the issues environing the rights to be free from unreasonable hunt and ictus and how the constabulary acted in this instance. In the instance at manus the suspect was holding a party in his Halifax abode when some of his neighbors called in a noise ailment [ 3 ] . One officer arrived at the scene and was unable to carry Mr. MacDonald to turn down his music so she called for another officer [ 4 ] . Upon arrival the 2nd officer repeatedly knocked and kicked at the door until Mr. MacDonald opened it. Mr. MacDonald merely opened the door a few inches and the offer observed what appeared to be a gun in his manus hidden behind his leg [ 5 ] . The officer so opened the door a spot more and confirmed that the metallic object was a gun, upon corroborating that the officer forced himself into the flat and disarmed Mr. MacDonald [ 6 ] . Upon farther probe it was revealed that the gun was non decently registered in Halifax and was merely registered in Alberta [ 7 ] . Mr. MacDonald was charged under subdivision 95 of the condemnable codification for unlawfully possessing a restricted piece without a license, subdivision 86 ( 1 ) heedlessly managing a piece and subdivision 88 ( 1 ) holding ownership of a piece for a unsafe intent [ 8 ] . Mr. Macdonald was convicted on all three counts and sentenced to a sum of 3 old ages in prison [ 9 ] . The instance was appealed to the Nova Scotia Court of Appeal where they upheld the sentences and strong beliefs for the charges under subdivision 86 and 88 but threw out the strong belief on subdivision 95, this was based on the successful statement that the suspect had made a error of fact when he believed that his pieces license was valid for all of Canada [ 10 ] . His sentence was besides reduced on the other two charges. This was so appealed to the Supreme Court of Canada where the issue of the subdivision 8 charter rights to be free from unreasonable hunt and ictus was the chief focal point as the suspect tried to hold the other two charges dismissed, the Crown besides appealed the findings of the Nova Scotia Court of Appeal on the issue of the charge under subdivision 95. The tribunal reinstated the strong belief under subdivision 95 determination that although a error of fact was made this was no alibi and the strong belief must be reinstated, but this could be a mitigating factor in sentineling [ 11 ] . On the following issue of the subdivision 8 charter rights the tribunal applied the Waterfeild trial [ 12 ] and established that the hunt was justified, the constabulary were executing at that place responsibility to protect the populace and there was a existent danger nowadays and the lone manner to take that danger was to execute a hunt, so the hunt was upheld and the tribunal ruled that all of the strong beliefs would stand [ 13 ] .
Liberalism is a complex set of ideals that are the chief government thoughts behind many of our modern political and legal systems today. As portion of a larger political thought legal liberalism offers a position on how Torahs should be written and to what extent the authorities should shoot itself into the twenty-four hours to twenty-four hours lives of its citizens [ 14 ] . Liberalism stresses a minimalist authorities attack, one of little authorities and few, but necessary, Torahs [ 15 ] . Harmonizing to liberalism when Torahs are created they should be created in such a manner to esteem people’s single rights, Torahs should non conflict on people unless it is to protect others from injury, the injury chief [ 16 ] . As a legal theory, liberalism assumes that all people are rational, independent, free thought and wholly independent from outside factors such as the community at big and the authorities [ 17 ] . With this in head Devlin argues that liberalism advocates that “…society should be governed by the principals of autonomy, equality and neutrality. To be more specific, Liberalism advocates that the province and jurisprudence should endeavor to supply the citizen with every bit much infinite as possible…” [ 18 ] Another point that goes manus in manus with the old is the thought that each person should be allowed to make up one’s mind what their personal thought of the good is in their instance [ 19 ] , and each individual should be free to take his or her ain way free of outside intervention. While retrieving that the thought of ego is paramount in the kingdom of liberalism, it is recognized that worlds do and must hold societal and other interactions with other people [ 20 ] , in other words worlds can non run as islands upon themselves and must be interactions with others. Legal progressives would reason that this is the topographic point for jurisprudence to come in, harmonizing to liberalists’ jurisprudence and authorities should step in to modulate these relationships and to advance the thought of positive relationships [ 21 ] . To to the full recognize the ideals of liberalism one must recognize that this is a human created set of thoughts and Torahs and because of that there are bound to be struggles and tensenesss inherent to it. Devlin states that liberalism is the dominant legal ideal nowadays in Canada today [ 22 ] , and that the guiding chief behind that belief is one of infallible single rights, but as Devlin goes on to indicate out rights are non 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 ain, but as it can be seen there is room to flex that rigorous definition of liberalism, and every society may accommodate it to run into the demands of the people at the clip.
There are many ways in which the instance of R. v. MacDonald can be looked at through the lens of liberalism. First off and likely most significantly is that of the police’s right to seek a individual to guarantee public safety, secondly would be the demand to curtail and license the piece in the instance and eventually the inquiry of, was Mr. MacDonald justified in drawing out a piece when he knew or ought to hold known that the constabulary were outside of his abode? All three of these issues can be tested against the injury principal of liberalism. This principal is one that if the action is non doing injury to others than there is no ground to modulate it and there is no demand for authorities invasion into that country of a person’s life [ 24 ] . When the police’s actions are compared against this model of the injury principal it becomes really subjective to judge whether the actions were consistent with liberalism. While all can most likely agree that a piece is a unsafe arm did Mr. MacDonald’s actions constitute a unsafe act? This was the inquiry that the Judgess had to reply and they aired on the side of cautiousness, swearing the constabulary officer’s judgement that this state of affairs could hold escalated into one where the populace was at great hazard [ 25 ] . In this same vein the Judgess besides decided that Mr. MacDonald’s subdivision 8 rights could be violated if it meant guaranting public safety [ 26 ] . While this on its face would be a misdemeanor of liberalism when we consider the injury principal, this opinion 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 let others to to the full bask their rights without intervention. On the following issue of pieces control and licencing, while the tribunal didn’t regulation on the cogency of pieces licensing they did implement the jurisprudence by continuing the strong belief [ 27 ] . So this begs the inquiry, are these controls and restrictions that are put on pieces consistent with liberalism? On its face these Torahs would be rolling into the field of authorities invasion into peoples’ private lives, but pieces can be rather unsafe so so harmonizing to the injury principal shouldn’t authorities attending be paid to firearms? These are the inquiries that must be debated when discoursing the issue. Canada has decided that, to hurt our legal liberalism ideals [ 28 ] , that pieces are something that deserve authorities invasion into people’s lives to guarantee the protection of the populace. While modulating and curtailing pieces clearly goes against the ideals of legal liberalism, this is a limitation that we as a society has decided is necessary and is merely in a democratic society. On the concluding issue of Mr. MacDonald’s actions, transporting a piece to the door of his place when he should hold known that the constabulary were outdoors. While this may hold been a justifiable action under legal liberalism if he suspected that the individuals at his door were interlopers, as they would hold been go againsting his rights [ 29 ] and therefore he could justifiably hold used the arm in self-defense but the fact was that the people at his door were police officers. They had identified themselves [ 30 ] , and were in kernel implementing the rights of Mr. MacDonald’s neighbours, so under legal liberalism the constabulary presence was justified as Mr. MacDonald was in the incorrect [ 31 ] . When he carried his arm he so violated everyone in the vicinity’s right to be safe and this caused the constabulary to move and protect all. While harmonizing to liberalism the pieces license government may be authorities invasion, Mr. MacDonald violated his neighbors and the police’s rights to safety and the actions that were taken by the constabulary were appropriate under the injury principal of legal liberalism [ 32 ] .
What was a simple noise ailment turned into so much more when the suspect, Mr. MacDonald decided to convey his unregistered piece to the door, with the constabulary outside [ 33 ] . This turned into a charter of rights and freedoms issue at the Supreme Court of Canada where Mr. MacDonald was unsuccessful in reasoning that his rights were violated [ 34 ] . When looked at through the lens of legal liberalism, it can be seen that although he may hold the right to hold a piece in some contexts, in this 1 he was a danger to others which necessitated the police’s actions against him. While the gun control system may be against the thoughts of legal liberalism, the injury principal is rather clear in that you may merely bask your rights every bit far as they do non harm others [ 35 ] , and in this instance the opportunity of injury was merely excessively great to disregard.
R. v. MacDonald, 2014 SCC 3
Richard F. Devlin, “ Mapping Legal Theory ” 1994 32: 3 Alta L Rev 609.