R. v. McDonald

R. v. McDonald

The court ruled that an application under s.113 to vary or suspend a s.110 prohibition is not, by virtue of statutory silence, an ex parte proceeding; the Crown has standing and must be present to represent the public interest, the sentencing court is the competent authority under s.113(5), and the applicant must adduce evidence addressing the s.113(2) factors (previous sentencing evidence may need to be repeated if no transcript exists).

Citation
2006 NSPC 7
Parties
Respondent (crown): Her Majesty The Queen; Applicant/accused: Alexander McDonald
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 March 2006
Procedural Posture
Criminal / Post Sentence Application Under S.113 to Vary/suspend S.110 Prohibition Order
Outcome
Preliminary ruling: Crown entitled to be present; matter to proceed with Crown participation; no final decision on merits of s.113 relief was made.
Legal Topics
Section 113 Applications, Firearm Prohibition Orders (s.110), Standing of the Crown, Evidence and Procedure for Post Sentence Variation
Source Language
English
Criminal Law Firearms Regulation Sentencing Section 113 Applications Firearm Prohibition Orders (s.110) Standing of the Crown Evidence and Procedure for Post Sentence Variation

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Parties

Her Majesty The Queen

Respondent (crown)

Alexander McDonald

Applicant/accused

Procedural Posture

Criminal / Post Sentence Application Under S.113 to Vary/suspend S.110 Prohibition Order

Legal Issues

  1. 1 Whether an application under s.113 is ex parte or requires Crown presence
  2. 2 Whether the court that made the original s.110 order is the competent authority under s.113(5)
  3. 3 What factors and evidence are required under s.113(2) to grant relief

Ratio Decidendi

The court ruled that an application under s.113 to vary or suspend a s.110 prohibition is not, by virtue of statutory silence, an ex parte proceeding; the Crown has standing and must be present to represent the public interest, the sentencing court is the competent authority under s.113(5), and the applicant must adduce evidence addressing the s.113(2) factors (previous sentencing evidence may need to be repeated if no transcript exists).

Court Disposition

Preliminary ruling: Crown entitled to be present; matter to proceed with Crown participation; no final decision on merits of s.113 relief was made.

Orders

  • Crown has standing and must be present for the s.113 application to vary the s.110 prohibition order.
  • Applicant may set the matter down for hearing in Annapolis Royal if Crown counsel agrees, for the earliest mutually convenient date.