DATE: 2004-08-23

DOCKET: C37165, C37440 & C37387

COURT OF APPEAL FOR ONTARIO

CHARRON, ARMSTRONG and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

• and -

DAVID TAYLOR

Respondent

Counsel: Susan Chapman, for the appellant Thomas N. Basciano, for the respondent

Heard: April 7, 2004

On appeal from an acquittal on a charge of attempted murder, before Justice John Cavarzan of the Superior Court of Justice with a jury, on September 26, 2001, and an appeal and cross-appeal from the sentence imposed.

R.A. BLAIR J.A.:

Introduction

[1] The events leading to this appeal arose in the context of a barroom brawl at the Crazy Horse Saloon in Hamilton on July 1, 1999. Two men were shot. Drew Warry, a regular patron of the saloon, was killed. Michael Condy was seriously wounded.

[2] The respondent, David Taylor, was charged with second degree murder in relation to the death of Mr. Warry. He was acquitted of second degree murder, but convicted of manslaughter, and sentenced to a period of six years and three months incarceration (in addition to fifty-seven months credit for twenty-eight and one half months of pre-trial custody). He was also charged with attempted murder in relation to the shooting of Mr. Condy and an attempted shooting of another patron, Scott Martin. He was acquitted on both counts of attempted murder.

[3] The Crown appeals the respondent’s acquittal on the charge of attempted murder in relation to Mr. Condy. The Crown also applies for leave to appeal, and if leave is granted, appeals the sentence imposed on the manslaughter conviction. The respondent cross-appeals, seeking leave and, if leave is granted, appeals that sentence.

[4] For the reasons that follow I would allow the Crown’s appeal with respect to the acquittal, grant leave to the Crown and to the respondent to appeal sentence, and dismiss the appeal and the cross-appeal with respect to sentence.

Facts

[5] Mr. Taylor arrived at the Crazy Horse Saloon about midnight on Canada Day, 1999. The bar was busy. He had spent the latter part of the evening visiting various drinking establishments looking for someone who would purchase a .32 calibre semi-automatic handgun he had recently acquired for resell. The handgun was in his pocket, fully loaded with a bullet in the chamber ready to be fired. He anticipated he would find “some criminal types” at the Crazy Horse Saloon and perhaps a buyer amongst them.

[6] He did not find a buyer, but he did become embroiled in an argument with the deceased, Mr. Warry, who was a regular patron of the bar. Mr. Warry was seated at the bar and had been belligerent and obnoxious to everyone surrounding him, swearing at and insulting other customers throughout the evening. Mr. Taylor seated himself at the other end of the bar but was soon drawn into an escalating exchange with Mr. Warry (probably at Mr. Warry’s instigation). The two began to trade insults. Mr. Warry called Mr. Taylor an “f’ing goof” – as the witnesses put it (the language itself was more explicit) – along with other colourful and pejorative adjectives; Mr. Taylor responded by suggesting that Mr. Warry was not a “solid” person.

[7] In their milieu these phrases had particularly insulting connotations. For a person like Mr. Taylor, who has a lengthy criminal record and who has spent time in jail, the epithet “goof” is the worst of its kind. It means an individual who cannot get along in the mainstream population in prison and is a phrase used for child molesters, sex offenders, snitches and rats. Mr. Taylor testified that if someone “calls you a goof in jail and you don’t do something about it, you have to defend yourself right there”, because if you don’t you will end up in protective custody. “There is nothing worse that a guy can call you”, he said.

[8] Mr. Taylor admitted, on the other hand, that referring to someone as not being solid is insulting as well. It infers that the person has failed to stick up for a friend when he should have and therefore cannot be relied upon and is weak. He thought that Mr. Warry was not solid because he felt that Mr. Warry had not come to the defence of a friend during an earlier argument about the payment of money that Mr. Taylor had overheard between Mr. Warry and two other men.

[9] In any event, the exchanges between Mr. Warry and Mr. Taylor became more boisterous over time. The bartender and others attempted to keep them separate and to cool things down from time to time. Finally, however, Mr. Taylor rushed across the bar stools separating him from Mr. Warry, took the pistol out of his pocket, and either pointed it directly at Mr. Warry’s head or waved it about his head, saying, “Am I still a f’ing goof?”. Mr. Warry responded, “Yes, you are” and pushed Mr. Taylor on his shoulder, shoving him away. At least one shot was fired into the ceiling (Mr. Taylor says because Mr. Warry still did not look impressed). Mr. Warry shoved Mr. Taylor again. Mr. Taylor admits he was very angry at this stage and blew his top. Mr. Warry was then shot in the chest, and fell backwards onto the floor.[^1] Mr. Taylor stood or bent over him on the floor, yelling words to the effect of “Do you still want some more of that?” and, “Do you still think I’m a f’ing goof?” Mr. Warry died later from the gunshot wound.

[10] What happened next is central to the issues on this appeal. The events gave rise to the charge of attempted murder in relation to Mr. Condy. There are some differences in the evidence, but the following is the essence of the story.

[11] Michael Condy and a group of his friends (including Scott Martin and Mr. Condy’s girlfriend, Jacqui Jednorog) had been drinking and socializing throughout the evening. They had been at the Crazy Horse Saloon earlier, had gone to another tavern to participate in karaoke, and had returned to the Crazy Horse around midnight. At one point they were joined at their table by Peter Gedja, a co-worker of Mr. Warry, who was one of the people involved in the argument about the payment of money, mentioned above. Mr. Gedja had been sitting and talking with Mr. Warry for a period of time, but had moved and gone to sit with the Condy group because of Mr. Warry’s obnoxious behaviour. Mr. Gedja and Ms. Jednorog were among those who tried to intervene between Mr. Warry and Mr. Taylor, from time to time, to cool things down.

[12] Mr. Condy was in the washroom when he heard the first shots. He heard people screaming and someone saying, “It’s only a cap gun”. He came out of the washroom and saw a scuffle up near the table where he had been sitting and he saw his girlfriend pinned up against the wall “as white as a ghost”. He was concerned. He grabbed a quart-sized beer bottle from the counter and smashed it over Mr. Taylor’s head from behind. The impact seemed to have little effect on Mr. Taylor, although Mr. Taylor says it made him see stars. In any event, he turned towards Mr. Condy and brought his right hand forward with the gun. Mr. Condy grabbed for Mr. Taylor’s hands, trying to get his arms and the gun up in the air. He says Mr. Taylor tried to put the gun to his head and the gun fired, but the bullet went right by his temple. Mr. Taylor denies this, although he admitted it might have seemed like that to Mr. Condy. At some point in the struggle Mr. Taylor hit Mr. Condy on the head, injuring him.

[13] The two men fell onto the floor and continued the skirmish. Mr. Condy testified that they were nose to nose and that he was trying to keep Mr. Taylor’s arms pushed away from his (Condy’s) body and towards his feet, whereas Mr. Taylor was trying to bring the gun up to his stomach. He stated that Mr. Taylor then looked him in the eye and said, “You’re dead, mother fucker”, then pulled the trigger. He felt a deep sting in his groin area.[^2] At this time he and Mr. Taylor were being pinned down by Mr. Martin and the others, who had piled on top of them. Seeing that Mr. Taylor was pinned down by the others, Mr. Condy got up and walked away. He felt woozy and was gathering up his pool cue and other belongings to leave when he reached down to his crotch and discovered he was bleeding and had been wounded. He was leaving the saloon with his girlfriend so she could take him to the hospital when he was stopped by the police who had just arrived on the scene.

[14] Mr. Condy testified that he stepped in because he thought it was one of his friends on the floor, because his intention was to get Mr. Taylor down on the ground so they could stop what was going on, and because he was concerned about his girlfriend.

[15] At some point almost immediately after Mr. Warry was shot, Mr. Martin, Mr. Gedja, and Mr. Martin’s brother (known as “Panama”) got up and rushed Mr. Taylor, grabbing him by the arms and hands and attempting to hold his hands in the air so he could not shoot anyone else. A fracas ensued. The primary difference in the testimony regarding the incident with Mr. Condy is over whether the other three patrons had attacked Mr. Taylor before Mr. Condy struck him with the beer bottle or whether (as Mr. Condy and Mr. Martin said) the others did not become involved until they piled on top of Mr. Condy and Mr. Taylor while they were wrestling on the ground. In my opinion, this difference is of little importance in resolving the issues on the appeal.

[16] Mr. Taylor denies that he aimed the gun at Mr. Condy or that he said the words attributed to him about Mr. Condy being a dead man. He says he was struck on the back of the head by what he later learned was a beer bottle by a man he later learned was Mr. Condy. He almost blacked out. The man jumped on his back and was trying to choke him. The others had already rushed at him, grabbing his hands and punching him. It was a pretty scary situation, he said, and he was afraid he might get shot. The gun went off unintentionally during the mêlée. He rolled sideways to get the person off his back and they fell to the floor. Mr. Condy was grabbing for the gun and they were wrestling over it. They were trying to push the gun away from each other “and the thing went off and went boom”. Mr. Taylor testified that during this tussle everyone was jumping him and trying to grab his hands. He was pretty frightened and was trying to defend himself. He felt like he was struggling for his life.

Analysis

The Acquittal Appeal

[17] The Crown raises three issues. First, Ms. Chapman submits there was no air of reality to the appellant’s claim to self-defence with respect to the shooting of Mr. Condy, and that the trial judge erred in law in instructing the jury on s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46. Secondly, and alternatively, she argues that the trial judge erred in law in refusing to instruct the jury to consider s. 27 of the Code when assessing whether the appellant reasonably believed that he was being unlawfully assaulted by Mr. Condy and the others. Thirdly, she contends that this error exacerbated the trial judge’s flawed instructions on the defence of accident.

Self-defence: s. 34(2) of the Criminal Code

[18] The trial judge instructed the jury to consider whether Mr. Taylor was acting in self-defence when he shot and wounded Mr. Condy. This instruction was founded on s. 34(2) of the Criminal Code, which states:

34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm

[19] The Crown argues there was no air of reality to this defence on the facts of this case, and that it should not have been left with the jury.

[20] In R v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129, the Supreme Court of Canada dealt specifically with the air of reality test in the context of s. 34(2). At pp. 173-174, McLachlin C.J.C. and Bastarache J. said:

[92] This brings us to the application of the air of reality test to the facts of this case. The question to be asked is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.

[93] In Pétel, supra,[^3] at p. 12, Lamer C.J. stated the three constitutive elements of self-defence under s. 34(2): “(1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary”. All three of these elements must be established in order for the defence to succeed. The air of reality test must therefore be applied to each of the three elements. If any of these elements lacks an air of reality, the defence should not be put to the jury. See Hebert, supra;[^4] Latimer, supra.[^5]

[94] Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused’s perception of the situation is the “subjective” part of the test. However, the accused’s belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances.

[95] The air of reality analysis must be applied to each component of the defence, both subjective and objective. Evidence capable of supporting a particular finding of fact with respect to one component of the defence will not necessarily be capable of supporting other components of the defence. In the case of a defence of self-defence under s. 34(2), the testimony of the accused as to his perceptions does not necessarily constitute evidence reasonably capable of supporting the conclusion that the perception was reasonable.

[96] The difficult issue in this case is whether there is some evidence upon which a properly instructed jury acting reasonably could have concluded that the accused’s purported perceptions were reasonable under the circumstances. Since reasonableness is inherently incapable of being established by direct evidence, the key question is whether there is evidence on the basis of which reasonableness could reasonably be inferred by a jury. If a jury could not have reasonably come to the conclusion that the accused’s perceptions were reasonable, even accepting that his testimonial evidence was true, then the defence should not have been put to the jury.

[97] There is no authority for the proposition that reasonableness is exempt from the air of reality test, or that evidence satisfying the air of reality test as to the subjective component of defence will automatically confer an air of reality upon the whole defence. Moreover, we consider that the introduction of such a requirement would constitute an unwarranted and illogical break with the rationale underlying air of reality analysis. The long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence (citations omitted) (italics in original).

[21] On the facts of this case, there is no evidence upon which a properly instructed jury acting reasonably could have concluded that Mr. Taylor reasonably believed he was the object of an unlawful assault. The evidence is not open to the interpretation that Mr. Condy, and the others, were jumping into a brawl for the sake of a brawl or that their motives were simply to avenge an attack on a friend. This was the suggestion of the defence. Rather, the evidence is consistent only with the interpretation that they were intervening in an attempt to disarm or neutralize Mr. Taylor in order to prevent a further shooting or violence on his part. In Mr. Condy’s case, there was his particular concern about the safety of his girlfriend.

[22] The law permits a bystander to intervene to stop or prevent an offence that is likely to cause serious injury to anyone: Criminal Code, s. 27. None of the foregoing reasons for intervention – for which there is some support on the record – constitutes an unlawful assault. Consequently, even if there were some evidence to support the subjective or objective components of the remaining elements of the s. 34(2) defence, there was no evidence to support the objective component of the first requirement, namely, an unlawful assault. As the court said at para. 97 of Cinous, “[t]he long-standing requirement is that the whole defence must have an air of reality, not just bits and pieces of the defence” [emphasis in original].

[23] In fairness to the trial judge, I note that there is nothing in the record to indicate that counsel for the Crown (not Ms. Chapman) objected to the s. 34(2) defence being left with the jury. Nonetheless, in my respectful opinion, the defence should not to have been left to the jury.

The Defence of Self-Defence and s. 27 of the Criminal Code

[24] The Crown did request that the jury be instructed with respect to the application of s. 27 of the Criminal Code in the circumstances. However, the trial judge declined to do so. Respectfully, in my opinion, he erred in this regard.

[25] Even if there were an air of reality to the s. 34(2) defence, the jury should have been told that s. 27 permits an innocent bystander who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring.

[26] Section 27 states:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without a warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[27] The use of such force is lawful. Accordingly, if the members of the jury concluded that Mr. Condy was simply participating in the attempt to neutralize Mr. Taylor and prevent further violence generally, and to his girlfriend in particular – a finding that was open to them on the evidence – they should have been instructed that Mr. Condy’s acts would not constitute an unlawful assault and therefore in such circumstances Mr. Taylor could not rely on s. 34(2). As it was, the jury was in substance left with the impression that Mr. Condy and the others were engaged in an unlawful assault on Mr. Taylor and accordingly that Mr. Taylor could rely upon the s. 34(2) defence. The jury was not given the opportunity to consider whether Mr. Condy was acting lawfully in doing what he did, having regard to s. 27. In my view, this constituted reversible error with respect to the acquittal on the charge of attempted murder relating to Mr. Condy and there must be a new trial.

The Defence of Accident

[28] The Crown also argued that the flawed instructions on the defence of self-defence adversely influenced the jury’s approach to the defence of accident. Given the foregoing conclusions, it is not necessary to pursue this point, although I am inclined to agree that there is some force in the Crown’s argument in this regard. Integral to this defence was the view that Mr. Taylor could be acquitted on the basis of accident because what he was doing immediately before the alleged attempted murder was lawful if the jury were satisfied he was acting in self-defence and the gun discharged accidentally. However, the jury could not properly consider the accident defence, given the faulty charge on self-defence.

Conclusion With Respect to the Acquittal Appeal

[29] For the foregoing reasons, therefore, I would allow the Crown’s appeal from the jury’s acquittal on the charge of attempted murder in relation to Mr. Condy, and direct a new trial on that count.

The Sentence Appeal and Cross-Appeal

[30] Following his conviction for manslaughter, Mr. Taylor was sentenced to a term of incarceration of eleven years, less credit for fifty-seven months time served (based on two days credit for each day of pre-trial custody). In the result he was ordered imprisoned in a federal penitentiary for a further period of six years and three months. In addition, the trial judge delayed the appellant’s eligibility for parole, pursuant to s. 743.6 of the Criminal Code, and ordered that Mr. Taylor serve one half of his sentence before becoming eligible.[^6]

[31] The Crown submits that the sentence is inappropriately light, given the need for general and specific deterrence and denunciation, and seeks a sentence of fifteen years in custody, less two and one half years credit for pre-trial custody on a one-for-one basis, for a total of twelve and one half years post-conviction incarceration. Ms. Chapman submits that the trial judge gave insufficient weight to the need for general and specific deterrence and denunciation, allowed undue credit for time served in pre-trial custody (when the 2-for-1 rationale did not apply in the circumstances), and erred in declining to consider the impact of the foreseeable collateral damage that was occasioned by the appellant’s highly dangerous conduct.

[32] On behalf of the appellant, Mr. Basciano argues that Mr. Taylor had spent a total of eight years and five months in jail at the time the appeal was argued and that his sentence should be reduced to time served. He contends that the trial judge erred in principle (a) by treating the appellant’s criminal record as an aggravating factor raising the sentence beyond what would otherwise be a fit sentence; (b) by misusing the victim impact statement, (c) by refusing to give Mr. Taylor credit for offering to plead guilty to the charge of manslaughter at an early stage in the proceedings; (d) by treating the appellant’s perceived lack of remorse as an aggravating factor; (e) by failing to make the sentence proportionate to the degree of responsibility of the accused; (f) by placing too much emphasis on general deterrence; (g) by failing to give the appellant 3-for-1 credit, as opposed to 2-for-1 credit for pre-trial custody, given the alleged harshness of the pre-trial detention conditions and the lack of a statutory remission mechanism relating to pre-trial custody; and (h) by misapplying his power to delay parole ineligibility.

[33] I would not give effect to the arguments raised by either the Crown or Mr. Taylor in relation to sentence. There is no error in principle on the part of the trial judge in this respect, and no basis for interfering with the sentence he imposed.

[34] The trial judge heard the evidence at trial. In addition, he heard evidence prior to sentencing about firearms abuse in the community, about conditions at the detention centre where Mr. Taylor was held pending trial, and about certain misconduct reports relating to Mr. Taylor while he was awaiting trial. The trial judge heard lengthy submissions from counsel. He gave careful and thorough reasons, considered all of this evidence and the arguments of counsel, and exercised his discretion in imposing what he considered to be a fit sentence in all of the circumstances, having regard to the purposes and principles of sentencing in ss. 718, 718.1 and 718.2 of the Criminal Code. The sentence is well within the range of appropriate sentences for the offence of manslaughter given the circumstances of the offence and the circumstances of the offender, including his quite extensive record of crimes of violence and the trial judge’s reasonable finding that Mr. Taylor “is a recidivist for whom incarceration and extensive attempts at supervision and rehabilitation have had no apparent effect”.

[35] Although no further comment is called for with respect to the points raised by the respondent in (c), (d), and (e) referred to in para. 32 above, as they are without merit in my view, I make the following observations with respect to the other issues raised by the Crown and the respondent.

[36] I am satisfied that the trial judge was fully alive to, and gave effect to, the need for denunciation and for general and specific deterrence in the circumstances of this case, without placing undue emphasis on those criteria. His review of the aggravating factors in the case makes it clear that he was well aware of the highly dangerous and serious nature of Mr. Taylor’s conduct (the “foreseeable collateral damage”, as the Crown put it).

[37] In addition, the trial judge properly considered the law respecting the granting of credit for pre-trial custody, as set out in R. v. Wust (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.), and exercised his discretion to grant 2-for-1 credit based upon the application of that law to the facts before him. He was entitled in the circumstances to reject both a higher and a lower ratio of credit and to approach the issue of credit for pre-trial custody in the way he did. I would not interfere with his exercise of discretion in this regard.

[38] For similar reasons I would not interfere with the exercise of his discretion in delaying Mr. Taylor’s parole eligibility.

[39] Moreover, it is a misconception to say – as the respondent submits – that a criminal record may not be an aggravating factor in sentencing. Certainly, it would be wrong to punish a person for his or her past crimes by using a criminal history in effect to impose a “double punishment” on that person, i.e., to impose a sentence for the offence in question and then to add something more for the criminal record: see Regina v. Hastings (1985), 1985 ABCA 20, 19 C.C.C. (3d) 86 at 88 (Alta. C.A.); R v. Young (1979), 22 C.L.Q. 35 (Man. C.A.). Thus, it is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence: R v. Carrier (1996), 1996 ABCA 133, 187 A.R. 40 (Alta. C.A.). However, a criminal record, depending on its nature, may be an “aggravating” factor in the sentencing context in the sense that it renders a stiffer sentence “fit” in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism.

[40] Here, the trial judge did not treat Mr. Taylor’s extensive criminal record as an aggravating factor entitling him to raise the sentence beyond what would otherwise be fit. Rather, he addressed the record in the context of the purposes and principles of sentencing set out in the Criminal Code, and in particular in the context of the concept of deterrence and the prospects of rehabilitation and recidivism. Trial judges are not only entitled to do this; they must do so. In this sense, an accused’s criminal record may well be an “aggravating” factor in sentencing, but it is not aggravating in the “double punishment” manner that counsel for Mr. Taylor contends. I do not read the authorities referred to above as compelling a contrary conclusion.

[41] Similarly, counsel for Mr. Taylor submitted that the trial judge erred in utilizing the victim impact statements presented to him as an aggravating factor justifying a heavier sentence. In my view, this case does not provide a proper record for a full analysis and assessment of the uses of victim impact statements and the ways in which a trial judge may take them into account for the purpose of sentencing. Suffice it to say that in my opinion, the trial judge in this case did not utilize the victim impact statements specifically to increase the sentence beyond what would otherwise be a fit sentence, albeit that he referred to “the permanent residual consequences for the family and the friends of the victim, referred to in the victim impact statements filed” in his list of aggravating factors.

[42] I would observe only that victim impact statements, like criminal records, do not justify double punishment – once for the crime against society, and again to counterbalance the harm done to the victims (a sort of criminal revenge in lieu of civil damages). Parliament has provided in s. 722 of the [Criminal ]Code, however, that the court “shall consider” such statements “for the purpose of determining the sentence to be imposed on an offender”. The court must therefore take them into account; otherwise there is no point in having them. Whether victim impact statements may be used by the sentencing judge, in themselves, to increase or decrease the fitness of the sentence, is an issue I leave for determination on another day. What they do at least, in my opinion, is help the judge to understand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a more textured context. Here, the trial judge did no more than that. He did not err in his use of the victim impact statements he had before him.

[43] I would accordingly dismiss both the Crown’s appeal and the respondent’s cross-appeal with respect to sentence.

Disposition

[44] The appeal from the acquittal of Mr. Taylor on the charge of attempted murder in relation to Mr. Condy is therefore allowed, and a new trial ordered on that count. Leave to appeal sentence is granted to both the Crown and the respondent, but the appeal and the cross-appeal as to sentence are dismissed.

“R.A. Blair J.A.”

“I agree Louise Charron J.A.”

“I agree R.P. Armstrong J.A.”

Released: August 23, 2004

[^1]: Mr. Taylor’s explanation is that the gun went off when he tightened his hand on it while hitting Mr. Warry over the head with the gun. He did not recall where the gun was pointed when he shot. Other witnesses testified that Mr. Taylor pointed the gun at Mr. Warry’s chest and fired. The discrepancy is not material to the issues on this appeal. [^2]: The bullet that wounded Mr. Condy entered his body about an inch and a half above his penis and came out his rectal wall. He had surgery twice and wore a colostomy bag temporarily for a period of about six months. At the time of trial he was still suffering from occasional bowel obstruction and pain. [^3]: [1994] 1 S.C.R. 3 [^4]: [1996] 2 S.C.R. 272. [^5]: 2001 SCC 1, [2001] 1 S.C.R. 3. [^6]: There was a weapons prohibition order and an order authorizing the taking of DNA samples as well, but these dispositions are not the subject of the cross-appeal.