Her Majesty the Queen v. Shand [Indexed as: R. v. Shand]

104 O.R. (3d) 491

2011 ONCA 5

Court of Appeal for Ontario,

Feldman, Rouleau and Watt JJ.A.

January 7, 2011

Charter of Rights and Freedoms -- Fundamental justice -- Mens rea -- Murder -- Section 229 (c) of Criminal Code -- Charter requiring subjective foresight of death as minimum mens rea requirement for murder -- Specific intent to kill or to cause serious bodily harm not required -- Subjective foresight of death combined with committing unlawful object that must be indictable offence with full mens rea constituting proper normative substitute for intent to kill -- Section 229(c) of Code requiring subjective knowledge that death is likely to result from dangerous act -- Section 229(c) not unconstitutionally vague or overbroad -- Section 229(c) not violating s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 229(c).

Criminal law -- Murder -- Section 229 (c) of Criminal Code -- Charge to jury -- Accused drawing his gun in attempt to subdue occupants of basement in course of robbery -- Gun discharging and killing occupant -- Defence theory being that discharge was accidental -- Accused properly convicted of murder -- Requirement that Crown must prove genuine unlawful object separate from assault that led to death met on facts -- Trial judge's instruction to jury under s. 229(c) of Code making it clear that accused had to have known that drawing gun was likely to cause death -- Trial judge not required to define "likely" -- Criminal Code, R.S.C. 1985, c. C-46, s. 229(c).

Criminal law -- Murder -- Section 229 (c) of Criminal Code -- Charge to jury -- Not appropriate to charge jury under s. 229(c) where evidence squarely proving s. 229(a)(i) or (ii) -- Trial judge must ensure that is evidentiary foundation to prove genuine unlawful object beyond goal of causing death or bodily harm -- Jury to be instructed that unlawful act must be indictable offence requiring full mens rea and that accused subjectively knew that some person's death likely to result from dangerous act committed in pursuance of unlawful object -- May be helpful to elaborate on meaning of "likely" in s. 229(c) but failure to do so not necessarily error.

Criminal law -- Murder -- Sentence -- Accused convicted of murder after his gun discharged and killed occupant in course of home-invasion robbery -- Accused having extensive criminal record including involvement in prior drug- and violence- related offences -- Accused taking loaded gun to robbery and fleeing without seeking help for dying victim in order to hide weapon and attempt to avoid arrest -- Parole ineligibility period of 15 years not unfit.

Criminal law -- Trial -- Charge to jury -- Witnesses -- Trial judge not erring in giving Vetrovec warning with respect to Crown witness whose evidence partially assisted defence -- Trial judge having to balance rights of co-accused at joint trial, one of whom opposed warning -- Substantial deference to be accorded to trial judge's exercise of discretion [page492] to give warning -- Accused not objecting to charge -- Appeal from conviction dismissed.

The accused participated in a home-invasion robbery. In the course of the robbery, he drew his gun to subdue the occupants of the basement. The gun discharged, killing one of the occupants. The accused was charged with murder. The accused argued that the gun fired accidentally and that he was guilty of manslaughter, robbery and firearms offences, not of murder. The trial judge acceded to a Crown request to charge the jury on s. 229 (c) of the Criminal Code. The accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 15 years. He appealed.

Held, the appeal should be dismissed.

Section 229(c) of the Code will be satisfied where the following elements are present: (a) the accused must pursue an unlawful object other than to cause the death of the victim or bodily harm to the victim knowing that death is likely; (b) the unlawful object must itself be an indictable offence requiring mens rea; (c) in furtherance of the unlawful object, the accused must intentionally commit a dangerous act; (d) the dangerous act must be distinct from the unlawful object, but only in the sense that the unlawful object must be something other than the likelihood of death, which is the harm that is foreseen as a consequence of the dangerous act; (e) the dangerous act must be a specific act, or a series of closely related acts, that in fact results in death, though the dangerous act need not itself constitute an offence; and (f) when the dangerous act is committed, the accused must have subjective knowledge that death is likely to result. Thus understood, s. 229(c) does not violate s. 7 of the Canadian Charter of Rights and Freedoms. The minimum mens rea for murder required by the Charter is the subjective foresight of death. The specific intent to kill or to cause serious bodily harm is not required. When the subjective foresight of death is combined with proof of an unlawful act, that itself is an indictable offence requiring proof of full mens rea, together they constitute a proper normative substitute for the intent to kill. Section 229(c) is not unconstitutionally vague or overbroad.

The trial judge's charge to the jury with respect to s. 229(c) clearly focused the jury's intention on the need for a dangerous act that caused the death and instructed the jury to assess the accused's state of mind at the moment that the dangerous act was committed. His instruction made it clear to them that a conviction required that the accused actually knew that the dangerous act was likely to cause the death of some person when he committed that act. He was not required to define the term "likely", although there may be cases in which an elaboration of the term "likely to cause death" in s. 229(c) may be desirable.

The trial judge did not err in giving a Vetrovec warning with respect to the evidence of a Crown witness whose evidence partially assisted the defence. The evidence of the witness assisted one accused in his defence that the gun fired accidentally but also assisted the Crown in proving the case against the co-accused. The trial judge had to balance the rights of the two accused at the joint trial and a decision whether to give a Vetrovec warning is to be accorded considerable deference. Although it may have been preferable not to give as forceful a warning as was given, or to lump this witness in with other Crown witnesses whose evidence was only inculpatory, the instruction did not amount to an error.

The accused had an extensive criminal record, including prior offences of involving and drugs. The accused chose to carry a loaded firearm to the planned robbery. After shooting the victim, the accused fled rather than getting assistance [page493] for the bleeding victim, in order to hide his gun and try to avoid arrest. The 15-year parole ineligibility period was not unfit.

APPEAL by the accused from the conviction entered by Glass J. of the Superior Court of Justice, sitting with a jury, on March 21, 2007 and from the sentence imposed on June 21, 2007.

Cases referred to

R. v. Martineau, [1990] 2 S.C.R. 633, [1990] S.C.J. No. 84, 112 N.R. 83, [1990] 6 W.W.R. 97, J.E. 90-1395, 76 Alta. L.R. (2d) 1, 109 A.R. 321, 58 C.C.C. (3d) 353, 79 C.R. (3d) 129, 50 C.R.R. 110, 11 W.C.B. (2d) 3, apld R. v. Arkell, [1990] 2 S.C.R. 695, [1990] S.C.J. No. 86, 112 N.R. 175, [1990] 6 W.W.R. 180, 49 B.C.L.R. (2d) 1, 59 C.C.C. (3d) 65, 79 C.R. (3d) 207, 50 C.R.R. 193, 11 W.C.B. (2d) 217; R. v. DeWolfe (1976), 13 O.R. (2d) 302, [1976] O.J. No. 2202, 70 D.L.R. (3d) 633, 31 C.C.C. (2d) 23 (C.A.); R. v. Nygaard, [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110, 101 N.R. 108, [1990] 1 W.W.R. 1, J.E. 89-1541, 70 Alta. L.R. (2d) 1, 102 A.R. 186, 51 C.C.C. (3d) 417, 72 C.R. (3d) 257, 8 W.C.B. (2d) 797; R. v. Vaillancourt, [1987] 2 S.C.R. 636, [1987] S.C.J. No. 83, 47 D.L.R. (4th) 399, 81 N.R. 115, J.E. 88-27, 68 Nfld. & P.E.I.R. 281, 10 Q.A.C. 161, 39 C.C.C. (3d) 118, 60 C.R. (3d) 289, 32 C.R.R. 18, 3 W.C.B. (2d) 133; R. v. Vasil, [1981] 1 S.C.R. 469, [1981] S.C.J. No. 43, 121 D.L.R. (3d) 41, 35 N.R. 451, J.E. 81-327, 58 C.C.C. (2d) 97, 20 C.R. (3d) 193, 5 W.C.B. 466, consd

Other cases referred to

Downey v. The Queen, [1971] N.Z.L.R. 97 (C.A.); Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31, 2005 SCC 51, 258 D.L.R. (4th) 193, 339 N.R. 1, J.E. 2005-1762, 135 C.R.R. (2d) 1, 50 Imm. L.R. (3d) 1, 142 A.C.W.S. (3d) 480, EYB 2005-95306; R. v. B. (K.G.), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, J.E. 93-466, 61 O.A.C. 1, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1, 18 W.C.B. (2d) 588; R. v. Blackmore, [1966] N.S.J. No. 5, 1 C.R.N.S. 286 (S.C. (A.D.)); R. v. Brooks, [2000] 1 S.C.R. 237, [2000] S.C.J. No. 12, 2000 SCC 11, 182 D.L.R. (4th) 513, 250 N.R. 103, J.E. 2000-417, 129 O.A.C. 205, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201, 45 W.C.B. (2d) 46; R. v. Chartrand, [1994] 2 S.C.R. 864, [1994] S.C.J. No. 67, 116 D.L.R. (4th) 207, 170 N.R. 161, J.E. 94-1144, 91 C.C.C. (3d) 396, 31 C.R. (4th) 1, 24 W.C.B. (2d) 237; R. v. Chenier, [2006] O.J. No. 489, 207 O.A.C. 104, 205 C.C.C. (3d) 333, 68 W.C.B. (2d) 610 (C.A.); R. v. Cooper, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, 146 N.R. 367, J.E. 93-248, 103 Nfld. & P.E.I.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1, 18 W.C.B. (2d) 367; R. v. Desmoulin, [1976] O.J. No. 277, 30 C.C.C. (2d) 517 (C.A.); R. v. Edelenbos (2004), 71 O.R. (3d) 698, [2004] O.J. No. 2810, 187 C.C.C. (3d) 465, 23 C.R. (6th) 350, 62 W.C.B. (2d) 406 (C.A.); R. v. Gelle, [2009] O.J. No. 1232, 2009 ONCA 262, 248 O.A.C. 23, 244 C.C.C. (3d) 129; R. v. Hughes (1951), 84 C.L.R. 170 (H.C. Aus.); R. v. Luxton, [1990] 2 S.C.R. 711, [1990] S.C.J. No. 87, 112 N.R. 193, [1990] 6 W.W.R. 137, 76 Alta. L.R. (2d) 43, 111 A.R. 161, 58 C.C.C. (3d) 449, 79 C.R. (3d) 193, 50 C.R.R. 175, 11 W.C.B. (2d) 1; R. v. MacDonald (2008), 92 O.R. (3d) 180, [2008] O.J. No. 3030, 2008 ONCA 572, 239 O.A.C. 199, 59 C.R. (6th) 339, 79 W.C.B. (2d) 319, 236 C.C.C. (3d) 269 (C.A.); R. v. Magno, [2006] O.J. No. 2590, 212 O.A.C. 16, 210 C.C.C. (3d) 500, 69 W.C.B. (2d) 832 (C.A.), affg [2005] O.J. No. 4198, [2005] O.T.C. 864, 67 W.C.B. (2d) 146 (S.C.J.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 407]; R. v. Meiler, [1999] O.J. No. 1506, 120 O.A.C. 227, 136 C.C.C. (3d) 11, 25 C.R. (5th) 161, 42 W.C.B. (2d) 247 (C.A.); R. v. Quaranta, [1975] O.J. No. 320, 24 C.C.C. (2d) 109, 31 C.R.N.S. 185 (C.A.); R. v. Roks, [2010] O.J. No. 5751, 2010 ONCA 182; R. v. Roks, Court File No. C48418 (Ont. S.C.J.); R. v. Serné (1887), 16 Cox C.C. 311; R. v. Sit, [1991] 3 S.C.R. 124, [1991] S.C.J. No. 72, 130 N.R. 241, J.E. 91-1531, 50 O.A.C. 81, 66 C.C.C. (3d) 449, 9 C.R. (4th) 126, 8 C.R.R. (2d) 317, 14 W.C.B. (2d) 65; R. v. Tennant (1975), 7 O.R. (2d) 687, [1975] O.J. No. 2240, 23 C.C.C. (2d) 80, 31 C.R.N.S. 1 (C.A.); R. v. Vetrovec, [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, J.E. 82-563, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, 7 W.C.B. 477; [page494] R. v. W. (D.), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 11(d) Criminal Code, 1892, S.C. 1892, c. 29, ss. 227(d), 535 Criminal Code, S.C. 1953-54, c. 51, s. 201(c) Criminal Code, R.S.C. 1970, c. C-34, ss. 83, 86, 205(5), 212(a) (ii), (c), 213, (a), (d), 214(5) Criminal Code, R.S.C. 1985, c. C-46, ss. 21(2), 222(5)(a), 229, (a), (i), (ii), (b), (c), 230 [as am.], (a), 430 [as am.] Draft Criminal Code of 1879 (England), s. 174(d)

Authorities referred to

Arvay, J.J., "Developments in Criminal Law and Procedure: The 1980-1981 Term" (1982), 3 S.C.L.R. 171 Coke, Sir Edward, The Third Part of the Institutes of the Laws of England, 4th ed. (London: A. Crooke et. al., 1669) Cross, Rupert, "The Mental Element in Crime" (1967), 83 Law Q. Rev. 215 Fletcher, George P., Rethinking Criminal Law (Boston: Little Brown & Co., 1978) Foster, Sir Michael, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry and of Other Crown Cases: To which are Added Discourses Upon a Few Branches of the Crown Law (Oxford: Clarendon Press, 1762) Kaye, J.M., "The Early History of Murder and Manslaughter" (Part I) (1967), 83 Law Q. Rev. 365 Stephen, Sir James Fitzjames, A History of the Criminal Law of England, Vol. III (London: MacMillan and Co., 1883)

James Lockyer and Brian Snell, for appellant. John Pearson and Alison Wheeler, for respondent. P. Andras Schreck and Candice Suter, for intervenor Adrian Roks. Marie Henein and Matthew Gourlay, for intervenor John Magno.

The judgment of the court was delivered by

Overview

ROULEAU J.A.: --

[1] In the majority of murder prosecutions, the Crown must prove beyond a reasonable doubt that the accused either intended to kill, or intended to cause bodily harm knowing that death was [page495] likely to result, and was reckless as to whether death ensued or not. However, s. 229(c) of the Criminal Code, R.S.C. 1985, c. C-46 provides a definition of murder that does not require proof of an intention to cause death or bodily harm. This section provides that a person is guilty of murder when, for an unlawful object, the person does anything that he or she knows is likely to cause death, and death ensues, notwithstanding that in carrying out the unlawful object, the person does not desire to cause death or bodily harm.

[2] The appellant, supported by the intervenors, challenges the constitutionality of s. 229(c) on the basis that s. 7 of the Canadian Charter of Rights and Freedoms demands a minimum mens rea of intent to cause serious bodily harm to the victim to found a conviction for murder.

[3] The Crown takes the position that s. 7 of the Charter only requires that an accused have subjective foresight of the likelihood of death before being labelled a murderer, and that s. 229(c) of the Code meets this standard.

[4] The appellant also argues that s. 229(c) is unconstitutional on the basis of the doctrines of vagueness and overbreadth. The Crown disagrees.

[5] Finally, the appellant raises non-constitutional grounds of appeal related to both his conviction for murder and the period of parole ineligibility imposed upon him.

[6] For the reasons that follow, I conclude that s. 229(c) is constitutional and the other grounds fail. As a result, I would dismiss the appeal.

The Parties

[7] The manner in which the parties have come before this court requires a brief explanation. Originally, this appeal was to be heard together with R. v. Roks (Court File No. C48418). The facts underlying the two appeals are distinct, but each raises the same constitutional question.

[8] Adrian Roks was accused of being involved in a criminal conspiracy that also involved John Magno. Both men were charged for their alleged acts, but they were tried on separate indictments. While Roks proceeded to trial, Magno was discharged at a preliminary inquiry. This resulted in a certiorari application and a subsequent appeal to this court: see R. v. Magno, [2005] O.J. No. 4198, 67 W.C.B. (2d) 146 (S.C.J.); R. v. Magno, [2006] O.J. No. 2590, 210 C.C.C. (3d) 500 (C.A.), leave to appeal to Supreme Court of Canada refused [2006] S.C.C.A. No. 407. Magno was ultimately committed for trial. [page496]

[9] Due to the prerogative writ proceedings, Magno had not yet been tried by the time this appeal was heard. Because Magno's trial raises the same constitutional question at issue in this appeal, Winker C.J.O. granted Magno leave to intervene: see R. v. Roks, [2010] O.J. No. 5751, 2010 ONCA 182.

[10] At the outset of the oral hearing, the parties informed the panel that counsel for Magno had brought a motion in the Superior Court to compel the Crown to produce documents that might be relevant to the credibility of a key witness who was expected to testify for the Crown in his trial. The same witness had testified for the Crown in Roks' trial. This evidence -- if it exists and is relevant -- might form the basis of a fresh evidence application on the Roks appeal.

[11] After obtaining instructions from his client, Mr. Schreck proposed that the Roks appeal be adjourned, but that his client be granted intervenor status to present arguments on the constitutional issues raised here. This appeal proceeded accordingly.

[12] In light of these events, it will only be necessary to discuss the factual background of Mr. Shand's appeal.

Facts

The robbery

[13] On the evening of December 10, 2004, Tyler Bastien had several friends over to his house to drink beer and smoke marijuana. Among these friends was J.B. (a young person). During the course of the evening, the appellant and Jeremy Hynes arrived at Bastien's home.

[14] Bastien and J.B. had been discussing a plan to go to the home of Christopher Blow, a local drug dealer, to steal some marijuana from him. Eventually, J.B., Hynes and the appellant left Bastien's house for Blow's house.

[15] J.B. knocked on the door of Blow's house. Given that J.B. was a regular customer of Blow's, he was let into the kitchen along with his two colleagues. J.B. then indicated that he wished to purchase some marijuana. J.B. asked to purchase half an ounce of marijuana, but Blow responded that he did not have that much.

[16] The appellant and his colleagues noticed Blow's girlfriend, Annie Brisbois, standing in an adjacent room, holding a bag of marijuana. After some interaction, Brisbois fled into the basement of the house with the drugs. The appellant and J.B. pursued her.

[17] Brisbois went into a basement bedroom where two other men, Bradley Fraser and Kevin Goudreau, were present. J.B. and the appellant followed Brisbois into the room. [page497]

The shooting

[18] Several witnesses were called at trial to testify as to what occurred in the basement bedroom. It was undisputed that the appellant produced a gun which discharged and killed Fraser. However, the events leading up to the shot were contested. The version the jury chose to accept was important in determining the appellant's level of culpability. At a minimum, he was guilty of manslaughter; at most, he was guilty of murder.

[19] The appellant did not testify.

[20] According to J.B., when the appellant entered the room, Fraser began to approach the appellant and the two exchanged some hostile words. The appellant gestured that Fraser should stop moving, produced a small handgun from his waist area and raised it towards Fraser's upper body. When the gun reached shoulder level, it discharged. Fraser fell to the ground, the appellant said "Oh shit!" and the robbers fled the home, first grabbing the marijuana.

[21] Kevin Goudreau provided a slightly different account of the events. He agreed that, after J.B. and the appellant entered the room, Fraser moved towards the appellant. The appellant said to Fraser, "You think you are tough, bitch?" He then drew his gun. At that point, Blow entered the room. The appellant proceeded to hit Blow in the face with his gun, then pointed the gun at Fraser and fired.

[22] At trial, Blow testified that, when he entered the basement bedroom, Fraser was still seated on the bed. The appellant grabbed Blow by the collar, then pulled out his gun and pointed it to within six inches of Blow's head. Blow stumbled, and as he lost his footing, he heard the gun discharge. Blow recalled hearing the words "oh shit" being said, but he was unsure whether it was the appellant, J.B. or Goudreau who said it.

[23] However, Blow had provided a different account to police during an interview recorded soon after the event. He told police that, after grabbing him by the collar and pulling out a gun, the appellant struck him on the head with the gun. He also stated that he heard the gun discharge just as he was hit on the head.

[24] During the interview, Blow said, "I think it was an accident probably. I don't think they fuckin', I think the gun probably went off when, when I got hit [on] the head" (emphasis added).

[25] Clearly, the story that Blow told to police was advantageous to the appellant. It provided the strongest support to the appellant's theory of an accidental discharge and, if accepted by the jury, might have supported a conviction for manslaughter [page498] rather than murder. In recognition of its importance, the appellant successfully brought an application to introduce the police statement for the truth of its contents, pursuant to R. v. B. (K.G.), [1993] 1 S.C.R. 740.

[26] Brisbois, for her part, provided a police statement that was substantially similar to Blow's police statement. Brisbois' trial testimony also largely mirrored Blow's trial testimony. She explained the inconsistency by saying that she had originally believed that the appellant hit Blow on the head with the gun, but having later noted the absence of any bruising or bumps on her boyfriend's head, she questioned her initial recollection.

The jury charge

[27] Two issues from the pre-charge conference are relevant to this appeal. The first important issue was how to charge the jury with respect to murder.

[28] There was no question that the evidence justified a charge on the basis of both s. 229(a)(i) (intention to cause death) and s. 229(a)(ii) (intention to cause bodily harm knowing that it is likely to cause death). These sections came into play if the appellant intentionally discharged his firearm into Fraser's chest.

[29] The Crown also sought a charge on the basis of s. 229(c) (unlawful object murder), which might apply to the appellant's claim of accident. The appellant opposed an instruction on s. 229(c), arguing that liability under that section was incompatible with an accidental discharge.

[30] The trial judge informed the parties that he would charge the jury on s. 229(c), and subsequently provided the following instruction to the jury:

When committing robbery, Mr. Shand also committed an unlawful act which caused the death of Mr. Fraser. You may find any of the following to be an unlawful act -- an assault, careless use of a firearm, pointing a firearm. This is for the purpose of furthering the commission of robbery. It is not necessary for the Crown to prove that Mr. Shand intended to kill or cause harm to Mr. Fraser. Further, Mr. Shand must have actually known that clubbing someone and the gun discharging in the presence of other people in a small room was likely to cause death to another human being. Mr. Shand does not have to foresee the actual situation or the developing events leading to the death. Section 229(c) considerations apply to the confrontation between Mr. Shand and Mr. Blow where either he clubbed Christopher Blow and somehow the gun discharged or during the confrontation the trigger was jarred and squeezed or jarred so that the gun went off. It is the unlawful activity with the defendant being found to know that such activity is likely to result in a person being killed that counts.

[31] The second issue related to the proper instruction to be given with respect to the evidence of Blow. His credibility was [page499] attacked by the Crown during closing arguments, but his account of the events in his recorded police statement was critical to the appellant's argument that the shooting was accidental. While conceding that Blow had considerable credibility problems, the defence urged the jury to accept his story about being hit on the head with the gun.

[32] During pre-charge discussions, it was clear that the trial judge would provide a Vetrovec [R. v. Vetrovec, [1982] 1 S.C.R. 811] warning with respect to the evidence of J.B. and Goudreau. Counsel for Hynes, who was the appellant's co-accused, sought a Vetrovec caution for Blow as well. Counsel for the appellant argued that such a warning would undermine his defence and urged the judge to provide no caution, or at least a "watered down" version. The Crown did not oppose the appellant's position.

[33] The trial judge, however, provided a single Vetrovec caution with respect to all three witnesses. After referring to the unsavory characters of Blow, J.B. and Goudreau, the trial judge told the jury:

Common sense tells you that in light of these circumstances there is good reason to look at these witnesses' evidence with the greatest of care and caution. You are entitled to rely on their evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for you to do so. Accordingly, you should look for some confirmation of their evidence from somebody or something other than their own evidence alone before you rely upon these three gentlemen's evidence. That doesn't mean that you cast it aside, just take a little extra caution in looking at their evidence.

The verdicts

[34] During the course of the trial, the appellant admitted that he was guilty of manslaughter and of possession of a loaded restricted firearm. On March 22, 2007, the jury found the appellant guilty of breaking and entering with intent to commit an indictable offence therein, robbery while using a firearm and second degree murder. Hynes was convicted of break and enter and robbery. J.B. had previously pled guilty to a charge of robbery in youth court.

[35] During sentencing, four jurors recommended a parole ineligibility period of 15 years; two recommended 22 years; and six recommended the maximum 25-year ineligibility period.

[36] On June 21, 2007, the trial judge imposed a 15-year period of parole ineligibility. The appellant was also sentenced to an eight-year global sentence for the other convictions. Hynes received a sentence of 18 months' imprisonment, followed by probation. [page500]

Grounds of Appeal

[37] The appellant raises four main issues on appeal: (1) Is s. 229(c) of the Criminal Code unconstitutional (a) because it permits a conviction for murder without proof of an intent to cause serious bodily harm to the victim; (b) because it is vague; (c) because it is overbroad? (2) In the alternative, did the trial judge err in his instruction to the jury on the application of s. 229(c) to the facts of this case? (3) Did the trial judge err in giving the jury a Vetrovec instruction respecting the evidence of Christopher Blow? (4) Did the trial judge err in imposing a 15-year parole ineligibility period?

[38] The intervenors presented submissions with respect to issue 1(a) only.

Relevant Legislation

[39] The appellant challenges the constitutionality of s. 229 (c) of the Criminal Code. To place this provision in its necessary context, we reproduce the whole of s. 229 below:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know [See Note 1 below] is likely to cause death, and thereby causes death [page501] to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Positions of the Parties

Issue 1(a) -- Is the mens rea for murder under s. 229(c) constitutionally sufficient?

A. Position of the appellant

[40] Relying largely on the seminal decisions in R. v. Vaillancourt, [1987] 2 S.C.R. 636 and R. v. Martineau, supra, the appellant contends that it is unconstitutional to label an unintentional killing "murder". His position rests upon the distinction between a mens rea defined by intention and one defined by mere foresight.

[41] In Vaillancourt and Martineau, the Supreme Court of Canada struck down the "constructive murder" provisions contained in s. 213 [of the Criminal Code, R.S.C. 1970, c. C- 34] (now s. 230) of the Criminal Code. These provisions permitted a court to convict an accused of murder if the accused killed another person while committing one of an enumerated list of offences and certain other conditions were met. For example, under s. 213(d), the accused committed murder if he or she caused the death of another person during the commission of one of the enumerated offences, while carrying a weapon on their person. Notably, s. 213 did not require proof of any foresight of the likelihood of death.

[42] In Vaillancourt, the court established the principle that, for a small number of high-stigma offences like murder, s. 7 of the Charter requires proof of a minimum level of mens rea. The court went further in Martineau, holding that a murder provision that requires anything less than subjective foresight of death fails to conform to the principles of fundamental justice, and is therefore unconstitutional.

[43] The appellant takes the position that Martineau must be read as establishing the principles that (1) subjective foresight of death is a necessary, but not a sufficient condition for a constitutional murder provision; and (2) a constitutional murder provision also requires proof of an intention to cause death or very serious bodily harm.

[44] The appellant's submission is premised on a morally significant distinction between intentional and unintentional killings. Where a person intends to kill, the conduct is sufficiently blameworthy to merit the label "murder". A killing that is foreseen but not intended, while worthy of significant penal sanction, is not blameworthy enough to be called murder. Rather, it amounts to, at most, manslaughter. [page502]

[45] Because s. 229(c) expressly permits a conviction for murder where the accused "desires to effect his object without causing death or bodily harm", it fails to meet this minimum level of mens rea and creates an unconstitutional "unintentional-killing murder".

B. Position of the respondent

[46] The respondent agrees with the governing principle that murder requires a minimum level of mens rea to ensure that only sufficiently blameworthy conduct attracts the stigma and sanction of a murder conviction. However, unlike the appellant, the respondent submits that the standard of subjective foresight of death established in Martineau is sufficient to justify a murder conviction.

[47] The respondent disputes the notion that intention to kill is the relevant dividing line between what may be considered murder and what may not. Instead, it proposes a dichotomy based on the ability of the accused to make a rational choice about his or her conduct. Where an actor, engaged in an unlawful pursuit, contemplates taking some action in furtherance of that object, and is aware that the likely consequence of that conduct is the death of another person, the actor is faced with a moral decision. The actor can refrain from proceeding out of respect for the sanctity of human life, or can prioritize his or her own criminal goals over the lives of others. The actor who makes the latter choice is as morally blameworthy as the actor who intends to cause death or intends to cause bodily harm knowing that death is likely to result.

[48] The respondent submits that liability for murder under s. 229(c) logically follows from liability for murder under s. 229(a)(ii). Neither provision requires an intention to cause death. Section 229(a)(ii) combines an intention to cause bodily harm with the subjective foresight of the likelihood of death and recklessness as to whether death ensues or not. Section 229(c) merely replaces the intention to cause bodily harm with an intention to pursue some other unlawful object. According to the respondent, there is no significant moral distinction between the two courses of conduct.

[49] In any event, the respondent submits that, based on existing Supreme Court jurisprudence, the constitutional issue raised by the appellant has already been addressed. A proper reading of Martineau, its companion cases and subsequent decisions of that court, establishes foresight of death as the sufficient constitutional standard of mens rea.

C. Position of the intervenor Roks

[50] The intervenor Roks supports the appellant's claim that s. 229(c) imposes an impermissibly low mens rea requirement, [page503] and is therefore unconstitutional. The intervenor notes that s. 229(c) is the only murder provision that does not require proof of an intent to kill a specific person or proof of an intent to inflict bodily harm on a specific person that is likely to cause their death. Section 229(c) substitutes this requirement with a broad "unlawful object" requirement and a generalized foresight of death.

[51] Roks' position is based on three main arguments. First, he submits that the concept of intention plays a central role within both our legal system and society's concept of morality. The moral praise or blame that follows conduct is not defined solely on the basis of its effects. The intentions that lead to conduct are also a key consideration in evaluating the act's moral worth. Thus, whether or not an accused intends to kill is a normatively significant factor, whether death is foreseen or not.

[52] Secondly, Roks challenges the respondent's reading of Supreme Court jurisprudence. The intervenor submits that, read properly, the Supreme Court has set subjective foresight of death as a necessary, but not a sufficient condition for a constitutionally acceptable definition of murder. An intention to kill or cause serious harm has also been defined as a constitutionally mandated minimum. In Roks' submission, a proper reading of Vaillancourt, Martineau and their progeny leads to the conclusion that both foresight and intention are required for a constitutional murder provision.

[53] Finally, the intervenor argues that Parliament itself has recognized that subjective foresight of death is not sufficient to ground a conviction for murder. Section 229(c) attempts to substitute the necessary intention (causing death or very serious bodily harm) with a proxy (an unlawful object). The intervenor points to the requirement of an unlawful object as evidence that Parliament recognizes that subjective foresight of death alone cannot support a murder conviction, although he rejects this substituted element of the mens rea as sufficient to establish murder.

[54] Roks argues that principles of fundamental justice demand that the act of intentionally causing harm must be dealt with more harshly than the act of unintentionally causing harm. Labelling a person who falls within the scope of s. 229(c) a murderer, notwithstanding the absence of intent to harm, violates this principle.

D. Position of the intervenor Magno

[55] The intervenor Magno adopts the submissions of the appellant and the intervenor Roks, and focuses his submission on the relationship between the concepts of foresight, intent and desire. [page504]

[56] Magno submits that Martineau determined that intent to kill or cause bodily harm knowing that death is likely is the minimum constitutional standard for murder. He accepts that the Supreme Court's jurisprudence often refers to the need for foresight but argues that this can be explained by properly understanding the relationship between the two concepts.

[57] In Magno's submission, references to the need for a subjective foresight of death use "foresight" as a substitute for "intention". However, this substitution will only be permissible under certain circumstances. Specifically, in Magno's submission, foresight only becomes the functional equivalent of intention where the probability of the foreseen consequence reaches the level of "virtual certainty". Where a person commits an act, foreseeing that a given outcome is virtually certain, then, for all intents and purposes, he intends that outcome.

[58] Section 229(c) attempts to substitute foresight for intent, but sets the standard too low by demanding only foresight of the likelihood of death, not foresight of its virtual certainty. Absent the standard of virtual certainty, there exists both a normative and a legal distinction between foresight and intent.

[59] Magno submits that the true reason for s. 229(c) existing in the Code is to deal with circumstances that do not fall within s. 229(a) or (b), but where there is a virtual certainty of death or grievous bodily harm, such that foresight becomes a proxy for intent. The language at the end of the provision dealing with a desire not to cause death does not undermine this reading of the section. Just as foresight and intent are distinct concepts, desire is not synonymous with intent. A person may intend a particular outcome without desiring it.

[60] Magno further argues that, in any event, s. 229(c) should not be held to apply to co-perpetrators in a criminal enterprise, where the person who dies is one of the perpetrators.

Issue 1(b) -- Is s. 229(c) void for vagueness?

A. Position of the appellant

[61] The appellant points to two aspects of s. 229(c) that are unconstitutionally vague: the need for a distinct object other than the act that causes death, and the meaning of the term "likely".

[62] In R. v. Vasil, [1981] 1 S.C.R. 469, the Supreme Court of Canada confirmed that s. 229(c) requires both an unlawful object and a distinct dangerous act that causes death. However, despite years of judicial consideration, courts have been unable to provide a principled method of determining whether a given set of facts reveals a distinct unlawful object [page505] and dangerous act. Rather, the reported decisions demonstrate a great deal of confusion in this respect.

[63] A jury faced with a given set of facts has no tools to determine whether those facts represent a single course of unlawful conduct that results in death (manslaughter) or an unlawful object that is separate from the particular act that causes death (potentially murder). According to the appellant, given sufficient mental gymnastics, any set of facts could be compartmentalized into having a separate object, or blended together into a unified whole. Any jury faced with a s. 229(c) case would be left to decide for themselves whether to introduce such a distinction or not, guided by nothing more than their personal predilections. This, standing alone, renders s. 229(c) unconstitutional.

[64] The second defect that arises out of the vague nature of s. 229(c) is the uncertain meaning of the term "likely" used with respect to the foresight of death. Taken on its own, the word describes a degree of probability. However, it is impossible to determine the degree of probability that the word encompasses. The word creates a standardless sweep, permitting individual jurors to apply standards ranging from recklessness to virtual certainty. The appellants point to various decisions of the Supreme Court of Canada in which the word "likely" is said to represent different degrees of probability as evidence of its indeterminate nature.

B. Position of the respondent

[65] The respondent submits that a review of the elements and the judicial interpretation of s. 229(c) demonstrates that the section is not void for vagueness.

[66] The elements of unlawful object murder under s. 229(c) can be readily discerned from the text of the provision itself. The actus reus requires that the accused do "anything" that causes death. There are two mens rea requirements: that the act be done for an "unlawful object" and that the accused knows that the act is likely to cause death.

[67] Judicial decisions have introduced certain additional requirements to s. 229(c) and have elaborated on its elements. The case law has determined that (1) the unlawful object must be an indictable offence requiring full mens rea; (2) the section does not apply when the sole object of the accused is to inflict the injury that causes death; and (3) the offender need not foresee the precise situation or all of the events that result in death, so long as the death itself is subjectively foreseen.

[68] It is clear, in the respondent's submission, that s. 229(c) can be interpreted and understood in a coherent manner, thus it is not unconstitutionally vague. [page506]

Issue 1(c) -- Is s. 229(c) overbroad?

A. Position of the appellant

[69] The appellant submits that s. 229(c) is overbroad in that it is too sweeping in scope as compared to its objective. More precisely, without justification, the section takes conduct that is rightly considered manslaughter, and labels it murder.

[70] Many of the cases that would once have fallen within the scope of the former constructive murder provisions -- long since discarded as unconstitutional -- are now being prosecuted as s. 229(c) murder charges. The conduct that falls within the scope of this section is certainly blameworthy, but as manslaughter, not murder.

B. Position of the respondent

[71] Section 229(c), in the respondent's submission, is not grossly disproportionate to its objectives. The section is designed to capture situations in which the accused, fully informed that his actions are likely to kill, places a higher value on pursuing his or her own criminal ends than on the lives of others. Labelling such conduct as murder, and imposing the sanctions associated with it, is constitutionally proportionate.

Issue 2 -- Did the trial judge err in instructing the jury on s. 229(c)?

A. Position of the appellant

[72] If s. 229(c) is found to be constitutional, the appellant argues that the trial judge erred in instructing the jury with respect to s. 229(c). In his submission, as a matter of law, the section could not apply to the facts of this case. In the alternative, the appellant argues that the trial judge erred in the form of his instruction to the jury.

[73] The appellant's submission that s. 229(c) could not apply to this situation rests on the requirement set out in Vasil, that the unlawful object be distinct from the dangerous act. In this case, there was only a single course of conduct that resulted in death: the use of a gun during a robbery.

[74] The trial judge told the jury that one basis on which they could find the appellant guilty of murder under s. 229(c) was if the appellant "used personal violence in order to aid or abet the theft of property". The appellant submits that this instruction was wrong in law. The use of violence was an integral aspect of the robbery, as the wielding of the gun did not have an unlawful purpose beyond that of robbing Mr. Blow and his associates of [page507] their drugs. Without the presence of a distinct object, s. 229(c) had no application to this case.

[75] In the alternative, the appellant submits that the trial judge made two fatal errors in his charge to the jury. First, in setting out three possible "paths" to finding murder under s. 229(c), the trial judge failed to instruct the jury that it was their role to decide whether any of these acts was sufficiently distinct from the robbery to permit a conviction under s. 229(c).

[76] Second, the trial judge failed to define the meaning of the term "likely" to the jury.

B. Position of the respondent

[77] The trial judge made two points very clear throughout his charge. First, he told the jury that before they could convict on the basis of s. 229(c), they had to be satisfied that there was, in fact, an unlawful object and a separate and distinct dangerous act. Second, he told the jury that it was for them to decide whether the Crown had proven any of the suggested acts or objects. Read as a whole, the charge brought home to the jury that they were the triers of fact in the case.

[78] The respondent argues that, with respect to providing a definition of "likely", the word is one of popular usage and there was no need to elaborate on its meaning. The trial judge made sure to stress the subjective nature of the analysis.

Issue 3 -- Did the trial judge err in providing a Vetrovec instruction with respect to Mr. Blow?

A. Position of the appellant

[79] The appellant argues that, as Blow was not a typical unsavoury witness, he did not merit a Vetrovec caution. At most, he was a small-time drug dealer with no criminal record. Though he provided inconsistent statements, the altered story he presented in testimony worked to the benefit of the Crown.

[80] Moreover, the co-accused, Hynes, had no reason to demand a Vetrovec caution with respect to Blow. Hynes' only interest in Blow's credibility was that Blow denied overhearing friendly banter between Hynes and Brisbois when the men first entered the house. The appellant, on the other hand, had a deep interest in ensuring that Blow's credibility was not undermined. Without Blow's police statement, the appellant's claim that the shooting was accidental had little basis.

[81] The appellant argues that the decision in R. v. Vetrovec, supra, is clear that the caution should only be given when an unsavoury witness provides evidence that is incriminating to an [page508] accused. He points to decisions of this court such as R. v. Chenier, [2006] O.J. No. 489, which make this point expressly.

[82] It was clear, the appellant argues, that the Crown was not using Blow's evidence to incriminate the appellant. The Crown went so far as to repeatedly urge the jury to reject Blow's evidence. Though Blow was called by the Crown, after the successful B. (K.G.) application, he was for all intents and purposes a defence witness, and the Vetrovec caution did a great deal of harm to his credibility.

[83] The trial judge, having erred in deciding to give a caution with respect to Blow's evidence, erred again by failing to set out the evidence that was capable of supporting his original statement to the police. The appellant submits that this left the jury unequipped to properly assess Blow's credibility in light of the Vetrovec instruction.

B. Position of the respondent

[84] The respondent notes that the appellant's trial counsel acquiesced to the Vetrovec caution, only asking the judge to "water down" the instruction somewhat.

[85] When he provided the Vetrovec caution, the trial judge referred to the testimony of the three unsavoury witnesses. He said nothing about Blow's statement to the police, which provided the best evidence of the defence's version of the events. In effect, the jury was told to be cautious of Blow's unhelpful trial testimony, but not of his potentially exculpatory B. (K.G.) statement. Accordingly, the appellant benefited from the instruction.

[86] The trial judge did not review the evidence that could potentially confirm Blow's police statement during the Vetrovec instruction. However, the respondent notes that the judge did review that evidence while summarizing the defence's theory of the case. Blow's police statement was one of several pieces of evidence that the trial judge reviewed for the jury with respect to the defence's claim that the shooting was an accident. This provided the necessary guidance to the jury with respect to evaluating Blow's credibility.

Issue 4 -- Did the trial judge err in setting the period of parole ineligibility?

A. Position of the appellant

[87] The trial judge's decision to impose a 15-year period of parole ineligibility was unreasonable because of his failure to draw any factual conclusions as to the events leading up to the [page509] shooting. Notably, the trial judge failed to determine whether the shooting was intentional or accidental. His conclusion on this point would have had a significant impact on the proper sentence.

[88] Moreover, even assuming that the trial judge implicitly concluded that this was an intentional killing, the parole ineligibility period exceeded the appropriate range. Fifteen- year periods of parole ineligibility have traditionally been reserved for cases of gratuitous and brutal violence. An appropriate range would have been 10-13 years.

B. Position of the respondent

[89] Based on the parole ineligibility recommendations from the jury, it is clear that they found that the appellant intended to kill the victim. The respondent submits that the trial judge's sentence discloses no error in principle and is not demonstrably unfit. This was a premeditated and violent home-invasion robbery, in which a gun was used to deadly effect. The period of parole ineligibility was fit.

Analysis

[90] Central to this appeal is the constitutionality of s. 229(c), and if it is found to be constitutional, its proper interpretation and application. It is important, however, to undertake the analysis of these issues with a full understanding of the history and context of the provision.

[91] I have, therefore, structured my analysis of the issues raised in this appeal in the following manner: (1) placing s. 229(c) in an historical context; (2) the proper interpretation of s. 229(c); (3) the constitutionality of s. 229(c); (4) applying the principles to the facts of this case; (5) whether the jury charge on s. 229(c) was adequate; (6) whether the Vetrovec instruction with respect to Christopher Blow was appropriate; and (7) whether the trial judge erred in imposing a 15-year parole ineligibility period.

(1) Historical context

[92] Section 229(c) and other related murder provisions have undergone significant changes over the last century or more. A [page510] review of their history shows that s. 229 (c) of the Criminal Code is the only surviving murder provision that does not require a specific intention to seriously harm or kill. It is also one of the oldest provisions contained in the Criminal Code. It was included in the original Criminal Code 1892, S.C. 1892, c. 29 and its origins reach back further.

[93] While the text of s. 229(c) has remained largely unchanged over time, much of the substantive criminal law surrounding it has undergone fundamental changes. Most critically, the introduction of the Charter of Rights and Freedoms has circumscribed the conduct that can be considered murder. Other, more subtle shifts in criminal law have also affected society's conception of what murder is and how it ought to be punished.

[94] It is therefore important to be aware of the historical underpinnings of s. 229(c), as well as the changes they have undergone. Case law interpreting the provision must be considered in its appropriate historical context and in light of broader changes in the criminal law. As I will explain, these historical factors influenced the manner in which courts have interpreted and applied the requirement for both an unlawful object and the doing of an act that causes the death.

A. The historical foundation of s. 229(c)

[95] Until the early 14th century, "murder" was widely understood to denote any homicide, intentional or otherwise: J.M. Kaye, "The Early History of Murder and Manslaughter" (Part I) (1967), 83 Law Q. Rev. 365, at p. 377. Manslaughter, as a separate category of culpable killing, did not exist. Even a death caused entirely by accident was considered murder, though by the late 13th century, such killings were subject to royal pardons as a matter of course: George P. Fletcher, Rethinking Criminal Law (Boston: Little Brown & Co., 1978), at p. 276. The criminalization of any killing represented what was sometimes referred to as a "harm-oriented" approach, for which the basis for punishment was solely the harmful consequences of the conduct in question: Fletcher, at p. 238. Questions of subjective culpability were irrelevant, as they did not affect the harm caused by the accused's acts.

[96] By the 17th century, a formal legal distinction had developed between killings that occurred purely by accident and other homicides. Accidental killings, known as "homicide by misadventure", were no longer considered to be unlawful because of the inadvertent, and therefore innocent, nature of the harm. However, an exception existed when the accidental killing occurred during the course of some other unlawful act. Sir Edward Coke provided [page511] this description in The Third Part of the Institutes of the Laws of England, 4th ed. (London: A. Crooke et. al., 1669) at p. 56:

There is an homicide, that is neither fore thought nor voluntary. As if a man kill another per infortunium, seu casu, that is homicide by misadventure . . . Homicide by misadventure, is when a man doth an act that is not unlawful, which without any evil intent tendeth to a man's death.

If the act be unlawful, it is murder. As if A meaning to steal a deer in the Park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawful, although A had no intent to hurt the boy, nor knew not of him. But if B the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.

[97] Thus, while a killing that was purely accidental was usually non-culpable, when an accidental killing occurred during the execution of a further unlawful act, it became murder. No defence was available to such a charge, and it was not necessary that the death be objectively foreseeable. Further, there was no need for the accompanying unlawful act to be of any particular gravity. The moral culpability associated with the commission of some other unlawful course of conduct removed any right to plead misadventure.

[98] In the 18th and 19th centuries, the rules respecting this form of murder became less harsh, and began to more closely resemble our modern law. In 1762, Sir Michael Foster expressed his opinion that, in order for a death caused during an unlawful pursuit to amount to murder, the unlawful pursuit should amount to a felony. A killing in the course of some non- felonious illegal pursuit would amount only to manslaughter: Sir Michael Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry and of Other Crown Cases: To which are Added Discourses Upon a Few Branches of the Crown Law (Oxford: Clarendon Press, 1762) at p. 258.

[99] This was the first articulation of what came to be known as the "felony murder rule". Under this approach, what might otherwise be an unintentional killing was considered morally culpable because the mens rea for the felony was superimposed onto the actus reus of killing. At the time, this was reasonable, as all felonies were capital offences: Fletcher, at p. 282. In effect, the act constituted murder because there existed an intention to commit a serious capital offence, coupled with a death caused in pursuit of that evil intention.

[100] Sir James Fitzjames Stephen abhorred this doctrine, calling it "monstrous": A History of the Criminal Law of England, Vol. III (London: MacMillan and Co., 1883) at p. 75. Not surprisingly, [page512] when given the opportunity to narrow its application while sitting as a judge, he did so. In R. v. Serné (1887), 16 Cox. C.C. 311, at p. 313, Baronet Stephen held that, for an accidental killing during a felony to amount to murder, the act that caused death must be "known to be dangerous to life, and likely in itself to cause death". This additional requirement shifted the felony murder rule from one of absolute liability to one of objective mens rea, essentially punishing negligent risk-taking in pursuit of objects that are themselves blameworthy.

[101] Baronet Stephen also played a significant role in the development of the murder provisions in Canada. As a principal Commissioner of the Royal Commission appointed to consider the Law Relating to Indictable Offences, Baronet Stephen contributed to the creation of the English Draft Criminal Code of 1879. While the Draft Code was largely intended to codify the English common law, it is thought to represent in some respects what Baronet Stephen believed the law ought to be: J.J. Arvay, "Developments in Criminal Law and Procedure: The 1980-1981 Term" (1982), 3 S.C.L.R. 171, at p. 190. One provision included in the Draft Code reflected Baronet Stephen's view on the scope of the felony murder rule, as expressed in R. v. Serné. Section 174(d) of the Draft Code reads:

(d) Culpable homicide is murder . . . If the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.

[102] The 1892 Criminal Code of Canada was largely based on the English Draft Code, and Baronet Stephen's objective liability-based murder rule was adopted verbatim in s. 227(d) [of the Criminal Code, 1982]. The language of the provision has changed only superficially between its original enactment and the current s. 229(c).

B. Modern jurisprudence

[103] As previously noted, the definition of the crime of murder contained in s. 229(c) of the Code, including the "ought to know" portion, was intended to punish individuals who negligently or wilfully took serious risks with the lives of others in pursuit of illicit goals. It supplemented the more specific felony murder provisions in the former s. 213. These labelled as murder any death caused during the course of an enumerated list of offences (1) by an attempt to cause bodily harm; (2) by administering a stupefying or overpowering thing or willfully stopping the breath of a human being; or (3) while the accused had a weapon in his or her possession. Both the former s. 213 and [page513] s. 229(c) stood in contrast to the definitions of murder in s. 229(a), which punish individuals who intend to kill or intentionally inflict serious bodily harm knowing that death is likely to follow. However, because most of the unlawful objects were crimes listed in the former s. 213, s. 229(c) was rarely used and courts often struggled to apply it correctly, particularly given its more complex wording.

[104] Of particular concern to courts was the presence of objective liability in s. 229(c). While other definitions of murder in s. 229 required subjective mens rea, a conviction under s. 229(c) did not require proof of subjective foresight of death. In the minds of some jurists, this peculiar aspect of s. 229(c), where the accused "ought to know" that death would result, risked subsuming s. 229(a) entirely, removing the need to ever prove intent to kill in order to obtain a conviction for murder.

[105] The following example illustrates this concern. A person has a desire to cause serious harm to another person, and does so by hitting the person with a club, causing his or her death. Under s. 229(a), it is necessary for the Crown to prove that, in hitting the victim, the accused meant to cause the victim's death, or meant to cause bodily harm to the victim knowing that death was likely and being reckless as to whether death ensued or not.

[106] However, in its broadest possible form, s. 229(c) might also have been applied to these facts. Under this theory, causing harm to the victim could be considered the unlawful object, and the accused hitting the victim with a club could entail doing "anything" that causes death. It would therefore only be necessary to show that the accused had an intention to cause harm to the victim and that the accused ought to have known that death was likely to result.

[107] If this were the case, there would be no need for s. 229(a), with its more stringent mens rea requirement. The provision would be entirely redundant, violating basic tenets of statutory interpretation: see, e.g., Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, [2005] S.C.J. No. 31, at paras. 31-38. As a result, s. 229(c) ought not apply to this scenario. The difficulty facing the courts was to construct a coherent interpretation of s. 229(c) that would not usurp the function of s. 229(a).

[108] The solutions that emerged focused on the nature of the "unlawful object" required under s. 229(c). In R. v. Blackmore, [1966] N.S.J. No. 5, 1 C.R.N.S. 286 (S.C. (A.D.)), the Nova Scotia Supreme Court, Appeal Division held, at p. 292 C.R.N.S., that "an assault, particularly a massive assault, cannot [page514] be the unlawful object intended in the wording of s. 201(c) [now s. 229(c)]" [of the Criminal Code, S.C. 1953-54, c. 51]. The court's reasoning was based on the words "notwithstanding that he desires to effect his object without causing death or bodily harm", found at the end of the section. The court commented that a person could not have an assault as an unlawful object while desiring that no harm result from that object.

[109] The approach taken by the court in Blackmore, under which the unlawful object could not be an assault, largely resolved the concern over subsuming s. 229(a), as anyone falling within the scope of s. 229(a) would have an assault as their unlawful object. This approach in determining the unlawful object in cases of felony murder was also in accordance with the jurisprudence in New Zealand around that time: Downey v. The Queen, [1971] N.Z.L.R. 97 (C.A.), at p. 103. Worth noting, however, is that the court in Blackmore was more concerned with the internal coherence of s. 229(c) than with the concern of subsuming s. 229(a).

[110] A second line of cases did not consider the definition of the unlawful object but focused on the need for the unlawful object to be separate and distinct from the dangerous act that in fact causes death: see R. v. Hughes (1951), 84 C.L.R. 170 (H.C. Aus.), at p. 174-75. In R. v. Tennant (1975), 7 O.R. (2d) 687, [1975] O.J. No. 2240, 23 C.C.C. (2d) 80 (C.A.), this court considered the difficult relationship between subsections (a) and (c), and adopted the "separate and distinct" reasoning over the "no assault" rule of Blackmore and the New Zealand Court of Appeal's decision in Downey v. The Queen.

[111] The court in Tennant disagreed with the reasoning in Blackmore. It noted that, while the text of subsection (c) made it clear that liability could attach to conduct where the accused did not desire to cause harm, it did not require the absence of an intent to cause harm. In other words, nothing about the text of the provision prohibited the unlawful object from being an assault. However, the court was also aware of the danger of interpreting s. 229(c) in a manner that would render subsection (a) redundant. Addressing this concern, the court stated, at pp. 701-702 O.R.:

We are, none the less, of the view that s. 212(c) [now s. 229(c)] ought not to be given an interpretation which permits foreseeability under s. 212(c) to be substituted for the intent required under s. 212(a)(i) and (ii) in cases where personal injury is not inflicted for a further unlawful object. To hold otherwise would largely nullify the provisions of the section with respect to the necessity for proof of the requisite intent to kill or to inflict bodily harm which the offender knows is likely to cause death in order to constitute murder (apart from the limited class of case falling within a more stringent definition of [page515] murder). Accordingly, s. 212(c) is not applicable where death is caused by an assault which is not shown to have been committed for the purpose of achieving some other unlawful object. It is, however, applicable where death is caused by a separate act which the accused ought to have anticipated was likely to result in death, and which was committed to achieve some further unlawful object; that unlawful object may be an assault.

[112] In the subsequent cases of R. v. Quaranta, [1975] O.J. No. 320, 24 C.C.C. (2d) 109 (C.A.); R. v. Desmoulin, [1976] O.J. No. 277, 30 C.C.C. (2d) 517 (C.A.) and R. v. DeWolfe (1976), 13 O.R. (2d) 302, [1976] O.J. No. 2202 (C.A.), this court affirmed the requirement that the dangerous act causing death must be done for a further and distinct unlawful object.

[113] In 1981, the Supreme Court of Canada considered s. 229(c) extensively in R. v. Vasil, supra, a case in which a man, out of spite towards a woman with whom he shared an apartment, set some of their furniture on fire while she was out. His aim was to destroy the furniture, as it had become a source of conflict between them. However, as a result of setting the fire, the woman's two children died while sleeping in a different room.

[114] Lamer J. (as he then was), writing for the court, clarified two important aspects of the law under s. 229(c). The first was to revive Foster's notion that the unlawful object must be of a minimum gravity before a death caused accidentally while pursuing that object could constitute murder. By the time of Vasil, the Criminal Code had been adopted and the distinction between felony and misdemeanor was done away with: Criminal Code, 1892, s. 535. As a result, s. 229(c) was more appropriately called "constructive murder" rather than "felony murder". In the absence of the legal concept of felony, Lamer J. wrote, at p. 484 S.C.R., that "the 'unlawful object' contemplated by Parliament in that section is that which, if prosecuted fully, would amount to an indictable offence requiring mens rea".

[115] The second clarification that Lamer J. provided was in response to a tendency by some judges to interpret the section as requiring an unlawful object and a further unlawful act. This was largely due to the wording of s. 222(5)(a) of the Criminal Code (then s. 205(5)), which renders homicide culpable when death is caused by means of an unlawful act. Lamer J. interpreted the two provisions together and, at pp. 482-83 S.C.R., concluded that, based on the wording of s. 229(c), only the object must be unlawful, and that the act causing death need only be sufficiently dangerous that a reasonable person would know that doing it was likely to cause death.

[116] Applying the distinct act requirement to the facts of Vasil, Lamer J. was of the view that the unlawful object was the destruction of the furniture, which would constitute the [page516] indictable offence of mischief to property. The dangerous act was the use of fire to achieve this destruction.

C. The Charter

[117] Vasil was decided in 1981, before the enactment of the Charter of Rights and Freedoms. The adoption of the Charter in the following year would have a significant impact on the law of murder in Canada, and would serve to further remove Canada's constructive murder provisions from their historical foundations.

[118] The first step in this process occurred in 1987, with the Supreme Court's decision in R. v. Vaillancourt, supra. In that case, the court considered the constitutionality of what was then s. 213(d) of the Criminal Code. The provision considered as murder a death caused while committing one of an enumerated list of offences, while the accused had a weapon on his or her person. Unlike in s. 229(c), there was no mens rea requirement, subjective or objective, related to the foresight of death.

[119] Lamer J. expressed a tentative view that, for the high- stigma offence of murder, proof of subjective foresight of death was a constitutionally mandated minimum mens rea requirement. Accordingly, a murder provision that did not require subjective foresight of death would be unconstitutional. He noted, at pp. 653-54 S.C.R., that such a finding would have a significant impact on s. 229(c), as it allowed for convictions based on objective foresight. However, because of the absence of many of the Attorneys General as intervenors in the case and because of the broader implications involved, Lamer J. disposed of the appeal on narrower grounds. He held that, if nothing else, proof of objective foresight of death was required in order to convict for murder. Seeing that s. 213(d) did not require even objective foresight, Lamer J. struck down the section as violating ss. 7 and 11(d) of the Charter.

[120] The court returned to the issue of the minimum mens rea for murder in R. v. Martineau, supra. That case dealt with s. 213(a) of the Criminal Code. Much like the provision considered in Vaillancourt, s. 213(a) provided that any attempt to cause bodily harm for the facilitation of an enumerated set of crimes, or to escape after their commission, which resulted in death was murder. Here too, a murder conviction could be entered notwithstanding the absence of even objective foresight of death.

[121] On the reasoning in Vaillancourt alone, s. 213(a) would have been unconstitutional. However, Lamer C.J.C. chose to pursue his initial belief, expressed in Vaillancourt, that subjective foresight of death was the minimum constitutionally permissible mens rea for murder. In rendering the decision, Lamer C.J.C. [page517] was keenly aware of its impact on s. 229(c). He wrote, at p. 648 S.C.R.:

The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) [now s. 229(c)] of the Code, specifically the words "ought to know is likely to cause death" . . . . In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and as a result, it is obvious the part of s. 212(c) of the Code allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11(d) of the Charter.

[122] While technically made in obiter, this passage settled the law, making s. 229(c) unconstitutional insofar as it would permit a conviction based on the objective foresight of death. Only the subjective branch of s. 229(c) survived Martineau: see, also, R. v. Sit, [1991] 3 S.C.R. 124.

(2) The proper interpretation of s. 229(c)

A. General

[123] Before considering whether s. 229(c) is constitutional, I must determine the proper interpretation and application of the section. Though the wording of the section has undergone little change in over one hundred years, its context has changed greatly. There have been amendments to the Criminal Code, the phrase "ought to know" was read out of s. 229(c) in Martineau and the Charter has led to broader changes in what is required to constitute murder. This compels me, in a sense, to re-evaluate and interpret the section afresh.

[124] As previously noted, the Supreme Court of Canada in R. v. Vaillancourt and R. v. Martineau found that the constructive murder provisions of the Criminal Code, which permitted conviction with objective foresight of death, were unconstitutional. As a result, both the operative portion and the context of s. 229(c) are different from when the section was previously considered in Tennant and Vasil.

[125] As I will explain, the new context is one which dictates a narrower reading of s. 229(c), one that is clearly focused on the requirement that, when the act causing the death is carried out, the accused subjectively foresaw that some person's death was likely.

[126] There are two basic components to s. 229(c). The first is relatively straightforward. It requires that the perpetrator be pursuing an unlawful object. The second component is the doing of anything that the person knows is likely to cause someone's death. For simplicity, I will refer to this second component as the [page518] "dangerous act". Generally, it is the interpretation of this component that has been problematic.

B. The unlawful object

[127] As stated in R. v. Vasil, at p. 490 S.C.R., the unlawful object must be "conduct which, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring mens rea".

[128] Similar to the "unlawful purpose" in s. 21(2), the unlawful object is what the accused set out to do -- his or her purpose or goal. Put otherwise, the unlawful object is the end that the accused seeks to achieve. The accused may have more than one object, his or her objects may change and new objects may be added during the commission of the offence. However, any unlawful act an accused may commit or seek to commit in order to achieve his or her object does not necessarily constitute an unlawful object as required under s. 229(c). If, for example, you intend to shoot someone, pointing a firearm constitutes an unlawful act, but would not constitute an unlawful object for the purposes of s. 229(c).

[129] In accordance with the principles of statutory interpretation, s. 229(c) must be interpreted so as not to make s. 229(a) redundant. Parliament created two separate routes to establish murder and each must be given meaning. The difference between ss. 229(a) and 229(c) is that s. 229(c) requires more than proof of an unlawful object. The Crown must also prove that, when the dangerous act was committed, the person knew that death was likely. As a result, where the intention is causing the death of the victim or causing bodily harm to the victim knowing that death is likely, s. 229(a) applies. This is because there is no need to carry out a further analysis focusing on the state of mind of the accused when the dangerous act causing death was committed. Because the two-part analysis prescribed by s. 229(c) is not required in these circumstances, it is apparent that s. 229(a) and not s. 229(c) applies. The situation is similar when s. 229(b) is at play, except that the attempt to cause the death of a person or to cause bodily harm to a person knowing that death is likely results in the mistaken death of another victim.

[130] However, this is not to say that s. 229(c) could not apply where the unlawful object is to kill someone. For example, if an accused, seeking to obtain access to a location in order to assassinate someone, sets off a diversionary explosion at a nearby location, and this explosion kills a passerby or a security guard, s. 229(c) could be applicable, with the unlawful object being the murder of the intended victim and the dangerous act being the explosion. [page519]

(i) Does the dangerous act have to be clearly distinct from the unlawful object?

[131] The appellant argues that the dangerous act must be distinct from the unlawful object. In the appellant's submission, this principle has been established by this court in R. v. Desmoulin and R. v. DeWolfe, and by the Supreme Court of Canada in R. v. Vasil.

[132] However, these cases were decided before R. v. Vaillancourt and R. v. Martineau effectively amended s. 229(c) by striking out the phrase "ought to know". As explained above, the pre-Vaillancourt jurisprudence was largely driven by concern over the objective foresight component of s. 229(c). Specifically, the courts were concerned that s. 229(a) would be subsumed by s. 229(c), which established murder through negligent risk-taking: see, e.g., Tennant, at p. 92 C.C.C. Following Martineau, that concern no longer exists.

[133] Since the phrase "ought to know" has now been removed from s. 229(c), the provision is now more closely related to s. 229(a)(ii), and there is no longer a concern that the objective foresight of s. 229(c) will subsume the subjective intent requirement of s. 229(a). The notion that the two provisions should be kept clearly distinct to ensure that the mens rea for murder was not overly relaxed has disappeared.

[134] In the post-Vaillancourt period, the need to distinguish between the dangerous act and the unlawful object was addressed by this court in R. v. Meiler, [1999] O.J. No. 1506, 136 C.C.C. (3d) 11 (C.A.). As explained, at para. 48 of that decision, "s. 229(c) contemplates some act or conduct by the offender done to bring about some further unlawful object other than the injury that causes the death. Put another way, the unlawful object must be a different object than the assault upon the deceased that gives rise to the charge under s. 229(c)". The requirement that the dangerous act be distinct from the unlawful object is simply a requirement that there be an unlawful object, other than the assault on the deceased, in pursuance of which the accused committed the act or acts that caused the death.

[135] Approached in this way, s. 229(c) is distinct from s. 229(a)(i) or (ii). If the accused intends to kill or cause serious bodily harm to the deceased, the conduct will almost invariably come within either s. 229(a)(i) or (ii), and s. 229(c) will not apply.

[136] I see no reason to draw the somewhat arbitrary distinction between the unlawful object and the dangerous act in the manner suggested by the appellant. Imposing such a requirement might well lead courts to make artificial and strained [page520] definitions of the dangerous act and the unlawful object. Section 229(c) requires that the unlawful object be something other than the harm that is foreseen as a consequence of the dangerous act. In other words, if the accused's purpose -- the unlawful object -- was something other than to cause the death of the victim or bodily harm to the victim knowing that death is likely, then it will be sufficiently distinct from the dangerous act to engage s. 229(c). In contrast, if the unlawful object was the death of the victim or to cause bodily harm to the victim knowing death was likely, s. 229(c) would not apply. The requirement of distinctness would not be met, as the unlawful object would be the very harm foreseen as a consequence of the dangerous act.

[137] This approach is consistent with the Supreme Court of Canada's decision in Vasil. Mr. Vasil's true object was the destruction of the furniture. He could have achieved this in a number of ways, but in his case, he decided to use fire. Although lighting the fire is closely linked to the unlawful object, he could still be found to have committed murder pursuant to s. 229(c) if it could also be proven beyond a reasonable doubt that he knew when he set the fire that it was likely to cause death. Given that his object -- destroying the furniture -- was clearly different from the harm that he is alleged to have foreseen as a result of the dangerous act -- the likelihood of children in the adjoining room dying -- his actions fit within s. 229(c) but could not be prosecuted under s. 229(a).

(ii) Avoiding the risk of overreaching

[138] Although DeWolfe predates Vaillancourt and Martineau, the caution raised in that case remains relevant today. In DeWolfe, this court commented that courts must be careful about engaging in the unrealistic dissection of the unlawful object in order to fit the facts of the case into s. 229(c). This will arise in situations in which the accused commits an act or series of acts with one general purpose, and the fundamental question facing the trier of fact is whether or not the accused intended to kill or to cause grievous bodily harm to the victim. In these cases, decision makers should be careful not to search out additional and tenuous unlawful objects that the accused carried out, in order to apply s. 229(c).

[139] This point is well illustrated on the facts of DeWolfe. In that case, Mr. Harpell trespassed on the property of the victim. The victim ejected Harpell, who threatened to return with others. The victim then armed himself and said that if Harpell returned, he would shoot him. On the appellant's evidence, he was resting in a house nearby and saw the victim wield a gun. [page521] The appellant, fearing for the safety of his common law wife, wished to stop the victim from brandishing a gun. The appellant testified that he obtained his own gun, and fired a shot "to scare [the victim] into not playing with guns". That shot killed the victim.

[140] The trial judge instructed the jury that they could find that the appellant had the unlawful object either of carrying a weapon for a dangerous purpose (s. 83 [of the Criminal Code, R.S.C. 1970, c. C-34]) or pointing a firearm (s. 86). This court overturned, concluding that there was no basis to leave s. 229(c) (then s. 212(c)) to the jury. In the court's [DeWolfe, supra] view, stated, at pp. 308-309 O.R.:

. . . .[s. 229(c)] should be put to the jury when there is plainly evidence of a further unlawful object, but the facts should not be subjected to a metaphysical examination to uncover further unlawful objects; a common sense view of the evidence should be taken. Cases such as Tennant and Naccarato and Graves can well be regarded as high-water marks of the construction and application of this subsection and should not be construed as points of departure. . . . . .

[I]n my view, the account of the shooting as given by DeWolfe would not attract the operation of [s. 229(c)]. His act of seeing Lewis with a gun (and even shouting of war), getting his own gun and firing were but a single act, or at worst a single series of acts with but one general purpose. To ascribe to DeWolfe a further unlawful object would be to subject his mental processes to an unrealistic dissection. (Emphasis added)

[141] As gatekeeper, the trial judge must be cautious not to instruct juries on s. 229(c) in situations which fit squarely within s. 229(a) or (b). The unlawful object must be a genuine object, and not simply one aspect of the same "general purpose" of causing death or bodily harm that is likely to cause death. Put otherwise, there must be an "air of reality" to the unlawful object that forms the basis of s. 229(c). In DeWolfe, the appellant was shooting at the victim, and the question facing the jury was whether or not he possessed the intent required under s. 229(a) (then s. 212(a)). In that situation, this court was right to find that s. 229(c) did not apply and should not have been put to the jury.

[142] This caution also addresses the concern that s. 229(c) might be used by the Crown as a substitute to s. 229(a) or (b) in an attempt to somehow lessen the burden of proving intent. In the apt words of Zuber J.A. in DeWolfe, at para. 24, we should "prevent [s. 229(c)] from overflowing its banks and making murder of almost every unlawful homicide". While this concern was more acute when s. 229(c) had an objective component, it still remains today. [page522]

[143] Precisely how the distinct purpose or harm requirement is to be interpreted will have to be developed over time and need not be decided in the present case. As I will explain, on the facts of this case, the unlawful object and the harm foreseen as a consequence of the dangerous act are clearly distinct.

[144] I turn now to the constituent elements of the dangerous act.

C. The dangerous act

[145] The first requirement of s. 229(c) is that the dangerous act must be clearly identified and defined. It must also be something that is done in furtherance of the unlawful object, though it need not constitute an offence in itself: see Vasil, at pp. 482-83 S.C.R.

[146] Further, the dangerous act must be a specific act that results in death. In referring to a specific act, I include a series of closely related acts, as some allowance must be made for a continuing transaction: see R. v. Cooper, [1993] 1 S.C.R. 146. However, a general course of conduct only loosely connected to the killing could not be considered a single transaction for the purpose of defining the dangerous act.

[147] Using Vasil as an example, the unlawful object was the destruction of the furniture which, if prosecuted, would have constituted a full mens rea offence pursuant to what is now s. 430 of the Criminal Code. The dangerous act was setting the furniture on fire. The perpetrator's evidence, as well as common sense, established that the dangerous act was done as a means of achieving the unlawful object. It was also proven that the ensuing fire caused the death of the two children who were sleeping in the house.

[148] In Vasil, the unlawful object and the dangerous act were closely related. This will generally be the case, as s. 229(c) requires that the dangerous act be carried out in order to achieve the unlawful object. However, as noted earlier, the harm foreseen by the dangerous act in Vasil, the likelihood of the death of the children, was different than the unlawful object, the destruction of the furniture.

[149] The importance of identifying the specific dangerous act or series of dangerous acts as distinct from the other steps taken to carry out the unlawful object becomes apparent once we turn to the need to prove that the accused knew death was likely. The intention to carry out the unlawful object is not sufficient to meet the requirements of s. 229(c). If this were the only state of mind required, s. 229(c) would become a new constructive murder provision. Although the presence of the intent with respect to the unlawful object is a necessary component of the offence, it [page523] is not sufficient. The Crown must also establish an additional component of mens rea -- the intent to commit the dangerous act knowing that it is likely to cause death.

[150] Again, using Vasil as an example, the question was whether the perpetrator, at the time that he set the fire, knew that this dangerous act was likely to cause death. The trier of fact must focus on the specific moment when the act was committed and determine the perpetrator's subjective foresight at that point. In doing so, the trier of fact must consider the perpetrator's state of knowledge and all of the surrounding circumstances as well as the actions and statements of the perpetrator at and around that point in time.

[151] Several questions may be relevant to this inquiry. For example, was the dangerous act done in a moment of panic? Did the perpetrator know that people were in the house sleeping? Did the perpetrator understand what would happen once the fire was set? Once again, it is the perpetrator's state of knowledge "at that time" that must be determined.

[152] Vague realization that death is possible will not be sufficient. Similarly, if the dangerous act was done as a reaction, and out of panic, this may tend to show that the required subjective foresight of death was not present at the time that the act was committed.

[153] For the act to constitute murder, the appellant must have known that death was "likely". In this context, "likely" has to be understood as being something more than an awareness of risk or a possibility or chance of death. It is not sufficient that the accused foresee a danger of death: Cooper, at p. 155 S.C.R. In Cooper, Cory J. also referred to R. v. Nygaard, [1989] 2 S.C.R. 1074, where the court had explained that there was only a "slight relaxation" of the mens rea required for a conviction for murder under ss. 229(a)(i) and 229(a)(ii). What is necessary is subjective knowledge that death is likely, which must be present at some point during the acts committed by the appellant that caused the death.

(3) The constitutionality of s. 229(c)

[154] Although the positions of the parties have been set out earlier in these reasons, for convenience, I will briefly summarize them again here.

[155] Relying largely on Vaillancourt and Martineau, the appellant and intervenors contend that it is unconstitutional to label an unintentional killing "murder". They argue that s. 229(c) imposes an impermissibly low mens rea requirement for murder, the most serious offence in the Criminal Code. In their submission, nothing [page524] short of intentionally killing or causing bodily harm knowing that it is likely to cause death is sufficient to meet the constitutional minimum for murder. Harm caused unintentionally should not be dealt with as harshly as these intentional acts.

[156] The appellant and intervenors argue that in Martineau, the Supreme Court of Canada did not rule on the constitutionality of s. 229(c). In their submission, Martineau should be read as establishing the principle that subjective foresight of death is a necessary, but not a sufficient condition to meet the constitutional minimum for murder.

[157] Alternatively, the appellant argues that s. 229(c) is unconstitutional on the basis that it is either vague or overbroad.

[158] The Crown submits that, based on existing Supreme Court jurisprudence, the constitutional issue raised by the appellant and intervenors has already been decided. A proper reading of Martineau and its companion cases, as well as subsequent decisions of that court, establishes subjective foresight of death as a sufficient constitutional standard of mens rea for murder. The respondent argues that s. 229(c) is, in substance, no different from s. 229(a)(ii). Neither provision requires an intention to cause death. Section 229(a)(ii) requires an intent to cause bodily harm and the subjective foresight of death, while s. 229(c) simply replaces the intent to cause bodily harm with an intent to pursue another unlawful object.

[159] The respondent contends that an accused who, engaged in an unlawful pursuit, chooses to commit a dangerous act knowing that another person is likely to die as a result is as morally blameworthy as the person who intends to cause death or to cause bodily harm knowing that death is likely.

[160] In my view, the issue as to whether the mens rea for murder under s. 229(c) is constitutionally sufficient has been resolved in past Supreme Court jurisprudence. As I will explain, I agree with the respondent's submission that, in Martineau and its companion cases, the Supreme Court of Canada decided the issue and found s. 229(c) to be constitutional.

A. Martineau

[161] Martineau dealt with s. 213(a) (now s. 230(a)), one of the constructive murder provisions of the Criminal Code. This provision did not require that an accused have even objective foresight of the likelihood of death in order to be found guilty of murder. As a result, the court in Martineau could have disposed of the issue, as they did in Vaillancourt, by finding that the failure to require even objective foresight was constitutionally deficient. [page525]

[162] However, the majority in Martineau chose to go beyond what was necessary to dispose of the case and decided to set the minimum mens rea for murder, one that was higher than objective foresight.

[163] Lamer C.J.C., writing for the majority, explained, at p. 644 S.C.R., why the court decided Martineau on grounds that were broader than the dispute required:

[W]hile I agree with the Alberta Court of Appeal and could dispose of this appeal on the basis of objective foreseeability, it is on the basis of the principle of subjective foresight of death that I choose to dispose of this appeal. I choose this route because I would not want this case, a very serious matter, to return to this Court once again on the grounds that there is some doubt as to the validity of the portion of s. 212(c) [now s. 229(c)] of the Code that allows for a conviction for murder if the accused "ought to know" that death is likely to result.

[164] Clearly, s. 229(c) was in the forefront of Lamer C.J.C.'s mind when he wrote his reasons in Martineau. He wanted to ensure that there was no doubt about the constitutional validity of what is now s. 229(c), as this provision could potentially be used in a later retrial of Martineau for murder. Lamer C.J.C. wanted to ensure that the case would not be prosecuted on the basis of the objective branch of s. 229(c). He did not, however, show any concern with respect to the case being prosecuted later on the basis of the subjective branch of s. 229(c). As he explained, the minimum mens rea for murder required by the Charter is the subjective foresight of death. If it were his view that the Charter required, at minimum, an intent to cause serious bodily harm, the passage quoted above makes little sense. If the Charter required intent to kill or to cause grievous bodily harm, then all of s. 229(c), and not merely its objective branch, would be called into question.

[165] Having decided to go beyond the scope of what was needed to dispose of the appeal, surely Lamer C.J.C. would not have raised a concern about one aspect of s. 229(c) while establishing a rule that was ambiguous as to the validity of the balance of that provision. The more logical inference is that Lamer C.J.C.'s only concern was with the constitutionality of the objective branch. In his view, the principles of fundamental justice brought that part of s. 229(c), and only that part, into question.

[166] In concurring reasons, Sopinka J. considered it unnecessary to decide the issue of the constitutional validity of s. 229(c). However, he clearly understood that the majority was ruling on the constitutionality of the s. 229(c) as a whole, and not merely the "ought to know" portion. At p. 685 S.C.R., he explained that:

Admittedly, it is an important function of this court to provide guidance to lower courts. In the context of this case, it would also be desirable that the [page526] validity of s. 212(c) [now s. 229(c)] be known with certainty for the purposes of the new trial. However, this desirable result does not outweigh the importance of deciding on the validity of s. 212(c) [now s. 229(c)] in a case where it is directly in issue and is fully argued by the parties.

[167] Lamer C.J.C.'s view that he was deciding that subjective foresight of death in s. 229(c) was a sufficient threshold on which to base a murder offence is apparent from his statement, at p. 647 S.C.R., to the effect that a person should not be labelled and punished as a murderer "who did not intend or foresee death" (emphasis added). It is further reinforced by the comments made later in the reasons, where Lamer C.J.C. outlined the effect of Martineau on the unlawful object murder provision. At p. 648 S.C.R., he stated that:

The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) of the Code [now s. 229(c)] specifically the words "ought to know is likely to cause death" . . . In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and as a result, it is obvious the part of s. 212(c) of the Code [now s. 229(c)] allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11(d) of the Charter. (Emphasis added)

[168] If, as alleged by the appellant, the Charter required, as a minimum, the intent to cause serious harm, then surely all of s. 229(c) would have been called into question.

[169] Based on his explanation as to why he chose to go beyond Vaillancourt, on the requirement of subjective foresight of death, and as to how this would affect s. 229(c), I can only conclude that Lamer C.J.C. considered the remainder of s. 229(c), after removal of the "ought to know" portion, to be constitutional. Subjective foresight of death coupled with the unlawful object in s. 229(c) met the constitutional minimum. The specific intent to kill or to cause serious bodily harm was not required.

B. What the Supreme Court of Canada said about Martineau

[170] Martineau was released concurrently with a number of other judgments dealing with various murder provisions. While Martineau was the leading case, the other decisions provide helpful insight into Martineau's intended scope and confirm the view that subjective foresight was intended to be the minimum constitutional requirement for murder.

[171] R. v. Arkell, [1990] 2 S.C.R. 695 was an appeal that challenged the constitutionality of what was then s. 214(5), which allowed a conviction for first degree murder where death occurred in the course of committing one of an [page527] enumerated list of offences. Responding to an argument raised by the accused, Lamer C.J.C. wrote, for the majority, at p. 703 S.C.R.:

First, I must note that as a result of this Court's decision in Martineau, released concurrently, it can no longer be said that s. 214(5) has the potential to classify unintentional killings as first degree murder. A conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death. Therefore, when we reach the stage of classifying murders as either first or second degree, we are dealing with individuals who have committed the most serious crime in our Criminal Code, and who have been proven to have done so with the highest level of moral culpability, that of subjective foresight. (Emphasis added)

[172] Arkell provides a clear statement, by the author of Martineau, that subjective foresight of death constitutes "the highest level of moral culpability". If proof of subjective foresight of death is the highest level of moral culpability existing in Canadian law, then it is difficult to see how s. 229(c) can be held to be constitutionally defective for failure to require a greater level of culpability.

[173] Equally useful are Lamer C.J.C.'s comments in R. v. Luxton, [1990] 2 S.C.R. 711, an appeal that addressed the constitutionality of the parole ineligibility rules for persons convicted of first degree murder. In that case, the court upheld the 25-year parole ineligibility rule, finding, at pp. 720-21 S.C.R., that this sentence, the harshest in Canadian criminal law, was justified because it

. . . has first been proven beyond a reasonable doubt that the offender is guilty of murder, that is, that he or she had subjective foresight of death: R. v. Martineau, handed down this day. . . . . .

As I have stated, we are dealing with individuals that have committed murder and have done so with the now constitutionally mandated mens rea of subjective foresight of death.

[174] In Luxton, the court used the presence of subjective foresight of death to justify the 25-year parole ineligibility for first degree murderers. Its use of subjective foresight as the constitutional standard is inconsistent with the appellant's argument that Martineau established only that a murder provision requiring less than subjective foresight of death is constitutionally insufficient, while leaving open the question of whether more than subjective foresight of death might be required to meet the minimum standard. Had the true minimum standard been intent to kill or to cause grievous bodily harm, as argued by the appellant, it would not have been justifiable for the majority in Luxton to rely on a constitutionally insufficient standard, subjective foresight of death, to justify the sentence. [page528]

C. The passage in Martineau that is said to be confusing

[175] Having reached this conclusion, I acknowledge nonetheless that a passage in Lamer C.J.C.'s reasons in Martineau may be susceptible to more than one interpretation. The appellant and intervenors argue that this passage, at pp. 645-46 S.C.R. of the decision, suggests that the court in fact considered the intent to cause death or bodily harm knowing that death is likely, to be the constitutional minimum for murder.

[176] In this passage, Lamer C.J.C. seems to move freely between the concept of intent and the concept of subjective foresight. I have reproduced this paragraph in full and have italicized the relevant portions [at para. 11]:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death. In this regard, I refer to the following works as support for my position, in addition to those cited in Vaillancourt: Cross, "The Mental Element in Crime" (1967), 83 L.Q.R. 215; Ashworth, "The Elasticity of Mens Rea," in Crime, Proof and Punishment (1981); Williams, The Mental Element in Crime (1965); and Williams, "Convictions and Fair Labelling", [1983] 42 C.L.J. 85. (Emphasis added)

[177] In my view, when read in the context of the reasons as a whole and the decisions released concurrently with Martineau, this passage cannot be interpreted as the appellant and [page529] intervenors contend. The requirement of subjective foresight of death is repeated numerous times in the balance of the reasons, but the reference to the intent to kill or to cause grievous bodily harm appears only in this paragraph.

[178] As I have explained, interpreting the passage as the appellant suggests would conflict with (1) Lamer C.J.C.'s stated intention of clarifying s. 229(c) in the event of a later prosecution of Martineau under that section; (2) the balance of the reasons in Martineau, where it is made clear that the constitutional minimum is the subjective foresight of death; and (3) the decisions released concurrently with Martineau, in which the same constitutionally mandated minimum of subjective foresight of death is confirmed.

[179] The explanation for this apparent confusion lies in a reading of the articles Lamer C.J.C. has referred to at the end of this passage. These articles disclose a debate among academics as to whether, in the words of Professor Rupert Cross, "there is much difference in moral blame between a man who does an act knowing it is certain to cause serious harm, and one who does the act knowing it is likely to have that effect": "The Mental Element in Crime" (1967), 83 Law Q. Rev. 215, at p. 217.

[180] In the article, Professor Cross gives the example of person "A" intending to make a claim against his insurance company, who sets fire to his house knowing that his baby son will probably be burnt to death. Professor Cross explains that it would be possible to construct a highly sophisticated utilitarian argument in favour of punishing "A" less severely than someone who is virtually certain that death will ensue (in Canada this would constitute oblique intent, the equivalent to intent, see R. v. Chartrand, [1994] 2 S.C.R. 864). However, he observes that it would be difficult to accommodate these concerns in the definition of the crime, given that the level of blameworthiness would depend on the extent to which "A" hoped that his baby would escape harm.

[181] In the article, Professor Cross goes on to refer to the views of Professor Williams, which differed from his own. Professor Williams' view was that virtual certainty was necessary to constitute intent. Professor Cross then explains, at pp. 217-18:

So far as Professor Williams is concerned, the major culprit is Lord Denning for having, throughout his Lionel Cohen lecture, treated intention in the law of murder as including foresight of the likelihood of death or grievous bodily harm. [page530]

Most lawyers would agree that such foresight constitutes malice aforethought under the present law and accordingly hold A guilty of murder if his baby were burnt to death. The precise extent of A's liability if the baby were to survive with burns is more disputable.

[182] Professor Cross was explaining the view contrary to that of Professor Williams, by which foresight of the likelihood of death constituted malice aforethought for murder at common law. Malice aforethought was the mens rea concept that Canada's codified law of murder has replaced with the intent to cause death contained in s. 229(a).

[183] Given that Lamer C.J.C. referred to the works of both Profs. Williams and Cross as influencing his reasons in Martineau, he was surely aware of the debate as to whether subjective foresight of the likelihood of death was the normative equivalent of intent. It would appear, therefore, that Lamer C.J.C.'s use of the phrases interchangeably in this paragraph indicates his acceptance of the view that, in the context of s. 229(c), subjective foresight of death provided the level of intent required for murder.

[184] This view of intent is, in a sense, consistent with the view expressed by the Supreme Court of Canada in both R. v. Nygaard and R. v. Cooper. In Nygaard, the court was considering s. 229(a)(ii) and, at p. 1089 S.C.R., found that someone who viciously assaults another person realizing that death is likely has "committed as grave a crime as the accused who specifically intends to kill". In other words, by pushing ahead to achieve a criminal objective knowing that death will likely occur as a result, a person intentionally causes the death.

[185] We must recall that s. 229(c) is set apart from provisions that might seek to label any foreseen death as murder. Like s. 229(a)(ii), it contains a "true" intent requirement, intent in the sense of being the accused's purpose, object or desire. Section 229(a)(ii) requires a true intent to cause serious bodily harm and s. 229(c) requires an intent to further the pursuit of an unlawful object, which is itself an indictable offence requiring full mens rea. When the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill. This, in my view, is what emerges from the passage in Martineau that the appellant and intervenors rely on.

D. Vagueness and overbreadth

[186] I consider the appellant's overbreadth argument to be largely an adjunct to his Martineau argument. When interpreted as I have suggested in the previous section, s. 229(c) is limited in its application. Similar to s. 229(a)(ii), it involves only [page531] a "slight relaxation" in the mens rea required for a conviction as compared to s. 229(a)(i): R. v. Cooper, at p. 155 S.C.R.

[187] With respect to the appellant's vagueness argument, I have carefully set out both the actus reus and mens rea requirements of s. 229(c) in the previous section and, for these reasons, reject the submission that the section is unconstitutionally vague.

(4) Applying the principles to the facts of this case

[188] As explained earlier, s. 229(c) will be satisfied where the following elements are present: (a) the accused must pursue an unlawful object other than to cause the death of the victim or bodily harm to the victim knowing that death is likely; (b) the unlawful object must itself be an indictable offence requiring mens rea; (c) in furtherance of the unlawful object, the accused must intentionally commit a dangerous act; (d) the dangerous act must be distinct from the unlawful object, but as stated above, only in the sense that the unlawful object must be something other than the likelihood of death, which is the harm that is foreseen as a consequence of the dangerous act; (e) the dangerous act must be a specific act, or a series of closely related acts, that in fact results in death, though the dangerous act need not itself constitute an offence; and (f) when the dangerous act is committed, the accused must have subjective knowledge that death is likely to result.

[189] In applying the principles outlined above to the facts of this case, the unlawful object was robbery. Although the appellant carried a gun to the robbery, and this is also unlawful, this was not his purpose or goal, so it is not an unlawful object in the sense used in s. 229(c). In all probability, the appellant was hoping to carry out the theft with little violence and no likelihood of death.

[190] In identifying the dangerous act, as explained earlier, it is important not to frame the dangerous act too broadly. A broad and vague characterization of what constitutes the dangerous act does not fit well into the causation framework and may skew the subsequent mens rea analysis.

[191] It would, for example, be wrong to frame the dangerous act as entering a home with a loaded gun or engaging in a home [page532] invasion with a gun. Although these "acts", in a sense, led to the events in the basement bedroom, they were not the acts that actually caused the death.

[192] When Brisbois fled to the basement with the marijuana and the appellant and J.B. pursued her, the situation changed significantly.

[193] In my view, it is upon entering the basement bedroom that the appellant committed the dangerous act. The act was drawing and using his gun in an attempt to subdue the occupants of the room. This act was clearly done in furtherance of the unlawful object, being the robbery. Whether the gun was intentionally or accidently discharged, it was the choice to use the gun in order to subdue the occupants that caused the death.

[194] The critical issue, then, is whether the appellant possessed the necessary mens rea at the time that he committed the dangerous act. If, when he pulled out the gun and used it in the confined space of the basement bedroom, the appellant knew that it was likely to cause death, but did so nonetheless in pursuance of the theft, this would satisfy the mens rea component of s. 229(c).

[195] If, however, he did not then know that death was likely, the necessary mens rea would be absent. It is critical that the appellant's state of mind at this particular point in time is ascertained. That determination is a subjective one. The question is not what he ought to have known. The question is what he actually knew and foresaw. Surrounding facts, including the appellant's prior conduct, can be considered to determine what the appellant actually knew. What his state of mind may have been before or after committing the dangerous act is not determinative.

[196] In determining the appellant's subjective knowledge, relevant facts could include the appellant's knowledge of whether the gun was loaded and whether the safety of the gun was on or off; the appellant's knowledge of the presence and location of a person or persons who could be hurt if the gun discharged; whether the appellant was acting in panic or out of fear; the conduct of the appellant as observed by others; whether the appellant drew the gun or had already drawn it; and whether the appellant was using the gun to press or force others to submit or using it in an attempt to extricate himself from a dangerous situation. All of these facts may shed light on the mental state of the appellant at the critical moment in time.

[197] The appellant argues that s. 229(c) had no application to the facts of this case, as it requires that there be a dangerous act distinct from the unlawful object. At trial, the theory of the defence was that the appellant brought the gun in order to carry out the robbery and that it discharged accidently, killing [page533] the victim. On the appellant's view, there was no dangerous act separate and distinct from the unlawful object of robbery, as the gun and its use were an integral part of the robbery. In other words, this was a robbery gone wrong.

[198] As I explained earlier, the dangerous act need not be distinct in the sense of being unrelated to the acts carrying out the unlawful object. In fact, as the text of s. 229(c) requires that the dangerous act be committed for or in pursuance of the unlawful object, the dangerous act must be associated with the unlawful object to fall within the provision. In the present case, the dangerous act was the choice to draw and use the gun in order to subdue the occupants of the basement bedroom and take the bag of marijuana. The fact that the gun may have discharged accidently while being used to that end does not remove these facts from the ambit of s. 229(c).

[199] In my view, therefore, there was an adequate factual basis for the trial judge to charge the jury on s. 229(c).

(5) Charge to the jury

[200] Having concluded that s. 229(c) is constitutional and that it was properly left with the jury, as it could form a basis of liability in this case, I turn now to consider the appellant's objections to the charge. As set out above, the appellant argues that the trial judge erred in the portion of his charge to the jury dealing with s. 229(c). Specifically, the appellant submits that (1) the trial judge ought not to have set out three possible "paths" to finding a s. 229(c) murder; and (2) the trial judge failed to define the meaning of "likely".

[201] I will address both of these points in turn.

(1) Did the trial judge err by setting out three paths to finding a s. 229(c) murder?

[202] The appellant submits that the trial judge erred in setting out three paths to finding murder under s. 229(c) and in failing to instruct the jury that it was up to them to decide whether the relevant act or acts occurred, and whether they constituted the "doing of anything", as contemplated under s. 229(c). I disagree. In the portion of his charge dealing with s. 229(c), the trial judge explained that the unlawful object was the robbery and that a second unlawful act was required in order for s. 229(c) to apply. He then suggested one of several acts -- assault, careless use of a firearm or pointing a firearm -- which could constitute the second unlawful act. [page534]

[203] The trial judge further explained that the second unlawful act must have been committed in order to advance the robbery. In his recharge, he told the jury that a conviction required that the appellant "actually knew that the unlawful act was likely to cause someone's death" when he committed the unlawful act that caused the death.

[204] The charge clearly focused the jury's attention on the need for a dangerous act that caused the death and instructed the jury to assess the appellant's state of mind at the moment that the dangerous act was committed. Moreover, the fact that the trial judge told the jury that the dangerous act had to be unlawful could only have inured to the benefit of the appellant.

[205] I would have defined the dangerous act differently, as the drawing and using of the gun in the basement room. However, the trial judge's reference to three potentially unlawful acts would not have confused the jury or prejudiced the appellant. All three of the acts he suggested centred on the appellant's decision to draw and use the gun upon entering the basement bedroom. More importantly, his instruction was coupled with clear directions that a key aspect of the appellant's mens rea, the knowledge that his actions were likely to result in death, had to be assessed at the moment that the dangerous act was committed and not earlier in the robbery.

[206] Finally, with respect to whether the jury properly understood that it was for them to determine what acts occurred, when the charge is read as a whole, it would have been clear to the jury that they were the finders of fact and that, as finders of fact, they were responsible for determining whether the facts of this case fulfilled the requirements of s. 229(c).

(2) Was the trial judge required to define the meaning of "likely"?

[207] In his instructions on the charge of murder pursuant to either s. 229(a) or s. 229(c), the trial judge did not attempt to define the term "likely". He did, however, explain that it was the appellant's subjective knowledge of the likely outcome of committing the dangerous act that should be considered, not what someone else might think would be the likely outcome.

[208] In my view, in this case, the trial judge was not required to elaborate on what is meant by the term "likely" in s. 229(c). The appellant's trial counsel did not ask that likely be further defined, and the jury did not ask for an explanation of the term. Moreover, this court has previously stated that "likely to cause" is "clear and straightforward", and that further explanation of [page535] the term is not required unless the jury is having difficulty with it: R. v. MacDonald (2008), 2008 ONCA 572, 92 O.R. (3d) 180, [2008] O.J. No. 3030 (C.A.), at para. 49; R. v. Edelenbos (2004), 71 O.R. (3d) 698, [2004] O.J. No. 2810 (C.A.).

[209] This said, determining whether a person knew that an act was "likely to cause death" is, of course, a fact-specific question. In some s. 229(c) cases, an elaboration of the term may be desirable. It may, for example, be of assistance to a jury faced with applying s. 229(c) to be told that "likely" requires more than knowledge that death was a possibility or that there was a chance of death. As Cory J. stated in Cooper, at p. 155 S.C.R., when discussing similar language in s. 212(a) (ii) (now s. 229(a)(ii)), "it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim" (emphasis in original).

[210] The jury could also be instructed to avoid reasoning backwards. That is, they should avoid the logical fallacy of assuming that, because the victim died, the appellant must have known that death was likely. This type of analysis essentially amounts to the constitutionally prohibited reasoning that the accused "ought to have known" that his or her act was likely to cause death.

[211] I do not view my suggestion that some elaboration on the term "likely" in applying s. 229(c) may be helpful in some cases as inconsistent with this court's decision in R. v. Edelenbos. In Edelenbos, the trial judge had elaborated at great length in his charge on the meaning of the term "likely" in s. 229(a)(ii). On appeal, Lang J.A. commented, at p. 704 O.R., that "It was unnecessary and potentially confusing to the jury for the trial judge to engage in a nuanced discussion of the precise meaning of 'likely' in the circumstances of this trial . . . [T]his is because juries are able to apply 'likely', in accordance with its established ordinary meaning, to the particular context."

[212] Although the same expression, "likely to cause death", is used in both s. 229(c) and s. 229(a)(ii), the context in which it appears in s. 229(c) is not as circumscribed as it is under s. 229(a)(ii), the provision considered in R. v. Edelenbos. Accordingly, some elaboration on the term will be more appropriate under s. 229(c). Moreover, as Lang J.A. made clear, the extent to which the trial judge in Edelenbos elaborated on the term is not desirable and may simply confuse the jury.

(6) Was the Vetrovec instruction with respect to Christopher Blow appropriate?

[213] The appellant argues that a Vetrovec warning ought not to have been given with respect to Blow. Since Blow's statement [page536] to the police was central to the defence theory that the gun had discharged accidentally, a Vetrovec warning would only serve to undermine the defence's position.

[214] The appellant submits that, although Blow was called as a Crown witness, he was for all intents and purposes a defence witness. This was apparent when, in final submissions, the Crown urged the jury to reject Blow's evidence.

[215] I would reject this submission. Although it is recognized that a trial judge should not give a Vetrovec warning with respect to a defence witness (see R. v. Chenier, supra), the trial judge retains discretion over the decision whether to give a warning in the case of mixed witnesses: see R. v. Gelle, 2009 ONCA 262, [2009] O.J. No. 1232, 244 C.C.C. (3d) 129 (C.A.). In this case, while Blow gave evidence that assisted the defence, he also gave evidence that incriminated the appellant. At trial, Blow's testimony was inconsistent with his earlier videotaped statement which suggested that the gun had discharged accidentally. Further, although Blow's videotaped statement supported the defence's theory of accidental discharge, it was nonetheless evidence on which the jury could find liability for murder under s. 229(c).

[216] I would also refuse this ground of appeal on the basis that the appellant's interest in not having a Vetrovec warning conflicted with the interests of his co-accused. This was a joint trial, and the co-accused, Jeremy Hynes, had advocated for a strong caution with respect to Blow. Although Blow's evidence was, admittedly, not central to a finding of guilt against Hynes, there were elements of Blow's testimony which implicated Hynes in the robbery.

[217] In the present case, Blow was an unsavoury witness. He dealt in drugs and lied to police about this activity. In addition, his testimony at trial varied from his initial statement to police. As I noted earlier, his evidence, while supporting the appellant's theory of accidental discharge, also potentially helped to prove the appellant's guilt.

[218] The strong caution given by the trial judge with respect to Blow's evidence, and the fact that he lumped this caution together with that given for two other unsavoury Crown witnesses, was not ideal. However, the manner in which a trial judge crafts the Vetrovec warning is owed deference. In this case, the trial judge was required to balance the trial rights of the two accused. Balancing these rights is a case-specific exercise and, in my view, the manner in which the trial judge did so does not amount to reversible error.

[219] I would also not give effect to the appellant's submission that the trial judge erred when he failed to refer the jury to evidence that was confirmatory of Blow's original statement to the [page537] police. Although it may have been helpful to have done so, the charge as a whole provided the jury with the necessary guidance to assess Blow's credibility. Although the potentially confirmatory evidence was not reviewed as part of the Vetrovec instruction, it was discussed during the trial judge's summary of the defendant's theory of the case.

[220] I also note that, during post-charge submissions, defence counsel took no issue with respect to the Vetrovec caution. As stated by the Supreme Court of Canada in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, [2000] S.C.J. No. 12, at para. 99, the absence of a request from counsel to correct a non- direction or misdirection with respect to a Vetrovec warning is a factor to be considered in evaluating the prejudice that may have been occasioned.

[221] Finally, viewed as a whole, the balance of the charge more than compensated for any shortcomings in the Vetrovec caution. Specifically, (i) the trial judge told the jury that, when considering all of the evidence, the accused's defence that the discharge was accidental was supported by Blow's recorded statement to the police; (ii) in his recharge, the trial judge gave a W.D.-type instruction [R. v. W. (D.), [1991] 1 S.C.R. 742] by reminding the jury that, even if they did not believe what Blow said in the videotaped statement, they were required to find the appellant not guilty of murder if the evidence left them with a reasonable doubt; (iii) in the recharge, the trial judge instructed the jury that Blow's videotaped statement carried additional weight because, in that statement, he had "recognized an obligation to tell the truth . . . was cautioned about obstructing justice by the police officer . . . [h]e understood that the investigation involved a serious matter . . . [a]nd, finally, he said that he was doing his best to tell the truth."

(7) Did the trial judge err in imposing a 15-year parole ineligibility period?

[222] The appellant argues that the 15-year parole ineligibility period is unreasonable because the trial judge failed to draw conclusions as to the factual circumstances of the case. Specifically, he did not determine whether the discharge of the gun was accidental or intentional. Even assuming that the gun had been intentionally discharged, the appellant submits that the period of parole ineligibility exceeded the range for cases of this nature. [page538]

[223] I would not give effect to the sentence appeal. Even assuming that the gun discharged accidently, the period of parole ineligibility imposed by the trial judge discloses no error in principle and does not constitute an unfit sentence. The extensive criminal record of the appellant shows a pattern of unlawful conduct, including resort to violence and drug crimes. The appellant and his accomplices, including a youth, planned a home invasion and drug "rip off". The appellant brought a gun with him and hid it on his person. After the victim was shot, the appellant fled from the scene while the victim bled to death. Rather than express remorse for the enormity of his act, the appellant hid his weapon and attempted to avoid arrest. In light of these circumstances, I do not consider the parole ineligibility period to constitute an unfit sentence.

Conclusion

[224] For these reasons, I would find s. 229(c) to be constitutional and would dismiss the appeal.

Appeal dismissed.

Notes

Note 1: The phrase "or ought to know", while still contained in the text of the Criminal Code, has been found to be unconstitutional by the Supreme Court of Canada in R. v. Martineau, [1990] 2 S.C.R. 633. These words have effectively been excised from the text of s. 229(c).