R. v. MacKinnon

R. v. MacKinnon

Section 34 applies to determinations of whether conduct constituting a breach of a conditional sentence order involved culpable use of force; protective self-defence is a justification (not a mere 'reasonable excuse'), therefore the prosecution must negative the applicability of s.34 in a CSO breach hearing, and it must do so on the civil standard of proof (balance of probabilities) once the defence meets the air of reality threshold.

Citation
2014 NSPC 29
Parties
Prosecution: Her Majesty the Queen; Offender/respondent: Joesph Abraham MacKinnon
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
30 April 2014
Procedural Posture
Conditional Sentence Breach Hearing (s.742.6 Criminal Code) / Preliminary Ruling on Applicability of S.34 and Burden of Proof (written Reasons Following Oral Decision)
Outcome
Preliminary ruling: s.34 applies to alleged criminal-assault based CSO breaches; self-defence is a justification and not a 'reasonable excuse'; the prosecution bears the burden to negative s.34 on a balance of probabilities; matter to proceed to next stage to determine whether the prosecution has negatived s.34.
Legal Topics
Conditional Sentence Order Breach, Self Defence (s.34 Criminal Code), Burden of Proof, Reasonable Excuse, Keep the Peace and Be of Good Behaviour, Air of Reality Threshold
Source Language
English
Criminal Law Sentencing Procedure Conditional Sentence Order Breach Self Defence (s.34 Criminal Code) Burden of Proof Reasonable Excuse Keep the Peace and Be of Good Behaviour +1 more

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Parties

Her Majesty the Queen

Prosecution

Joesph Abraham MacKinnon

Offender/respondent

Procedural Posture

Conditional Sentence Breach Hearing (s.742.6 Criminal Code) / Preliminary Ruling on Applicability of S.34 and Burden of Proof (written Reasons Following Oral Decision)

Legal Issues

  1. 1 Whether s.34 Criminal Code applies to CSO breach allegations involving alleged assault
  2. 2 Whether self-defence raised in a CSO breach hearing is a 'reasonable excuse' for which the offender bears the burden of proof or a justification that the prosecution must negative
  3. 3 What standard of proof applies to negating self-defence in a breach hearing

Ratio Decidendi

Section 34 applies to determinations of whether conduct constituting a breach of a conditional sentence order involved culpable use of force; protective self-defence is a justification (not a mere 'reasonable excuse'), therefore the prosecution must negative the applicability of s.34 in a CSO breach hearing, and it must do so on the civil standard of proof (balance of probabilities) once the defence meets the air of reality threshold.

Court Disposition

Preliminary ruling: s.34 applies to alleged criminal-assault based CSO breaches; self-defence is a justification and not a 'reasonable excuse'; the prosecution bears the burden to negative s.34 on a balance of probabilities; matter to proceed to next stage to determine whether the prosecution has negatived s.34.

Orders

  • Proceed to the next stage of the s.742.6 breach hearing for the prosecution to attempt to negative s.34 on a balance of probabilities