CITATION: R. v. Shand, 2011
      ONCA 5

DATE: 20110107

DOCKET: C47483

COURT OF APPEAL FOR ONTARIO

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Everton Shand

Appellant

James Lockyer and Brian Snell, for the appellant

John Pearson and Alison Wheeler,
          for the respondent

P. Andras Schreck and Candice
          Suter, for the intervener Adrian Roks

Marie Henein and Matthew Gourlay, for
          the intervener John Magno

Heard: May 4 and 5, 2010

On appeal from the conviction entered by Justice Bruce A. Glass
          of the Superior Court of Justice, sitting with a jury, on March 21, 2007, and
          from the period of parole ineligibility imposed on June 21, 2007.

Rouleau J.A.:

OVERVIEW

[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 likely to result,
    and was reckless as to whether death ensued or not.  However, s. 229(c) of the
Criminal
    Code
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 interveners,
    challenges the constitutionality of section 229(c) on the basis that s. 7 of
    the
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 CanLII 35684 (ON S.C.);
R. v. Magno
(2006), 210 C.C.C. (3d) 500 (Ont. C.A.), leave to appeal to Supreme Court of
    Canada refused, [2006] S.C.C. No. 407.  Magno was ultimately committed for
    trial.

[9]

Due to the prerogative writ proceedings, Magno
    had not yet been tried by the time this appeal was heard.  Because Magnos
    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 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 intervener 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. Shands 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 Bastiens 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 Bastiens house
    for Blows house.

[15]

J.B. knocked on the door of Blows house.  Given
    that J.B. was a regular customer of Blows, 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 Blows
    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.

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 appellants 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 Frasers 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 Blows 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 dont 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
    appellants theory of an accidental discharge, and, if accepted by the jury,
    might have supported a conviction for manslaughter 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 Blows police statement.  Brisbois
    trial testimony also largely mirrored Blows 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 boyfriends 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 Frasers chest.

[29]

The Crown also sought a charge on the basis of
    s. 229(c) (unlawful object murder), which might apply to the appellants 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
    attacked by the Crown during closing arguments, but his account of the events in
    his recorded police statement was critical to the appellants 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
warning with respect to the
    evidence of J.B. and Goudreau.  Counsel for Hynes, who was the appellants
    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 appellants 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 gentlemens evidence.
    That doesnt 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
    fifteen-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.

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 fifteen-year parole ineligibility period?

[38]

The interveners 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
, R.S.C. 1985, c. C-46.  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
[1]

is likely to cause
    death, and thereby causes death 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
, [1990] 2
    S.C.R. 633, 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 (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 appellants 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.

[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 Intervener Roks

[50]

The intervener Roks supports the appellants
    claim that s. 229(c) imposes an impermissibly low
mens rea
requirement,
    and is therefore unconstitutional.  The intervener 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 societys 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 acts 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 respondents
    reading of Supreme Court jurisprudence.  The intervener 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 intervener 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 intervener 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 Intervener Magno

[55]

The intervener Magno adopts the submissions of
    the appellant and the intervener Roks, and focuses his submission on the
    relationship between the concepts of foresight, intent, and desire.

[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
    Courts 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 Magnos 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 Magnos 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 ss.
    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 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 respondents submission,
    that s. 229(c) can be interpreted and understood in a coherent manner, thus it
    is not unconstitutionally vague.

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 respondents 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 appellants 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 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
    Blows 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 Blows credibility was not
    undermined.  Without Blows police statement, the appellants claim that the
    shooting was accidental had little basis.

[81]

The appellant argues that the decision in
Vetrovec
    v. The Queen
, [1982] 1 S.C.R. 811, is clear that the caution should only be
    given when an unsavoury witness provides evidence that is incriminating to an
    accused.  He points to decisions of this court, such as
R. v. Chenier
(2006), 205 C.C.C. (3d) 333, which make this point expressly.

[82]

It was clear, the appellant argues, that the
    Crown was not using Blows evidence to incriminate the appellant.  The Crown
    went so far as to repeatedly urge the jury to reject Blows evidence.  Though
    Blow was called by the Crown, after the successful
K.G.B.
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 Blows 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 Blows credibility in light of the
Vetrovec
instruction.

B.

Position of the Respondent

[84]

The respondent notes that the appellants 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 Blows statement to the police, which
    provided the best evidence of the defences version of the events.  In effect,
    the jury was told to be cautious of Blows unhelpful trial testimony, but not
    of his potentially exculpatory
K.G.B.
statement.  Accordingly, the
    appellant benefited from the instruction.

[86]

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

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

A.

Position of the Appellant

[87]

The trial judges decision to impose a fifteen
    year period of parole ineligibility was unreasonable because of his failure to
    draw any factual conclusions as to the events leading up to the 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 judges
    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
    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
Code
of 1892, 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 societys
    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 14
th
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 13
th
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 accuseds acts.

[96]

By the 17
th
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 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
    misadventureHomicide by misadventure, is when a man doth an act that is not
    unlawful, which without any evil intent tendeth to a mans 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 18
th
and 19
th
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, when
    given the opportunity to narrow its application while sitting as a judge, he
    did so.  In
R. v. Serné and another
(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
    Stephens view on the scope of the felony murder rule, as expressed in
R. v.
    Serné
.  Section 174(d) of the
Draft Code
reads:

Culpable homicide is
    murderIf 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 Stephens objective
    liability-based murder rule was adopted verbatim in s. 227(d).  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 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 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 victims 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] 2 S.C.R. 539,
    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), 1 CRNS 286 (N.S.S.C.A.D.), the Nova Scotia Supreme Court, Appeal
    Division held, at p. 292, that an assault, particularly a massive assault,
    cannot be the unlawful object intended in the wording of s. 201(c) [now s.
    229(c)].  The courts 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, at p. 174-175 (H.C. Aus.). In
R.
    v. Tennant and Naccarato
(1975), 23 C.C.C. (2d) 80 (Ont. 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 Appeals decision in
Downey v. The Queen
.

[111]

The court in
Tennant and Naccarato
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 p. 701-702:

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 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), 24 C.C.C. (2d) 109 (Ont. C.A.),
R. v. Desmoulin
(1976), 30
    C.C.C. (2d) 517 (Ont. C.A.) and
R. v. DeWolfe
(1976), 13 O.R. (2d) 302
    (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
, [1981] 1 S.C.R. 469, 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 womans 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 Fosters 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
, 55-56 V., c. 29

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, 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 p.
    482-483, 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 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
    Canadas constructive murder provisions from their historical foundations.

[118]

The first step in this process occurred in 1987,
    with the Supreme Courts decision in
R. v. Vaillancourt
, [1987] 2 S.C.R.
    636.  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, 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 interveners 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
, [1990] 2 S.C.R. 633.  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., 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. was keenly aware of its impact
    on s. 229(c).  He wrote, at p. 648:

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 in so far 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 reevaluate 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 229(c) are different from when the section was previously
    considered in
Tennant and Naccarato
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 persons 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 someones death.  For simplicity, I
    will refer to this second component as the 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, 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 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.

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 appellants 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 and Naccarato
, at p. 92.  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), 136 C.C.C. (3d) 11 (Ont. 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 ss. 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 ss. 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 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 accuseds 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 Canadas decision in
Vasil
.  Mr. Vasils 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
    appellants evidence, he was resting in a house nearby and saw the victim wield
    a gun.  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) 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 courts view, stated at pp. 308-309:

[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 ss. 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 ss. 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.

[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 p. 482-83.

[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
    perpetrators 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 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 perpetrators subjective
    foresight at that point.  In doing so, the trier of fact must consider the
    perpetrators 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
    perpetrators 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.  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 interveners 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 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 interveners 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 interveners 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 respondents 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.

[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., writing for the majority, explained
    at p. 644 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.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. 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. 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.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, 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 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.Js 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. 648, to the
    effect that a person should not be labeled 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. outlined the effect
    of
Martineau
on the unlawful object murder provision.  At p. 648, 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. 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
Martineaus
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 enumerated list of offences.
    Responding to an argument raised by the accused, Lamer C.J. wrote, for the
    majority, at p. 703:

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.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, 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 appellants 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.

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.s reasons in
Martineau
may be
    susceptible to more than one interpretation.  The appellant and interveners
    argue that this passage, at pp. 645-6 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. 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:

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
Cambridge
    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 interveners 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.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. 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
LQR
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.

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 As
    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 Canadas codified law of murder has
    replaced with the intent to cause death contained in
s. 229(a).

[183]

Given that Lamer C.J. 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.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, 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 accuseds 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 interveners rely on.

D.

Vagueness and overbreadth

[186]

I consider the appellants 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 a
    slight relaxation in the
mens rea
required for a conviction as
    compared to s. 229(a)(i):
R. v. Cooper
, at p. 155.

[187]

With respect to the appellants 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
    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
    appellants 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 appellants 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 appellants subjective
    knowledge, relevant facts could include: the appellants knowledge of whether the
    gun was loaded and whether the safety of the gun was on or off; the appellants
    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 the victim.  On the appellants 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 appellants
    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.

[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 someones death when
    he committed the unlawful act that caused the death.

[204]

The charge clearly focused the jurys attention on
    the need for a dangerous act that caused the death and instructed the jury to
    assess the appellants 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 judges reference to three potentially unlawful acts would not have
    confused the jury or prejudiced the appellant.  All three of the acts he
    suggested centered on the appellants 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 appellants
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 appellants
    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 appellants 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 the term is not required unless the jury is having
    difficulty with it:
R. v. MacDonald
(2008), 92 O.R. (3d) 180 (C.A.) at
    para. 49;
R. v. Edelenbos
(2004), 71 O.R. (3d) 698 (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.
    295, 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 courts 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 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 Blows
    statement to the police was central to the defence theory that the gun had
    discharged accidentally, a
Vetrovec
warning would only serve to
    undermine the defences 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 Blows 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
(2006), 205 C.C.C. (3d)
    333 (Ont. C.A.)) the trial judge retains discretion over the decision whether
    to give a warning in the case of mixed witnesses: see
R. v. Gelle
(2009), 244 C.C.C. (3d) 129 (Ont. C.A.).  In this case, while Blow gave
    evidence that assisted the defence, he also gave evidence that incriminated the
    appellant.  At trial, Blows testimony was inconsistent with his earlier
    videotaped statement which suggested that the gun had discharged accidentally.
    Further, although Blows videotaped statement supported the defences 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 appellants 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 Blows evidence was, admittedly, not central to a finding of
    guilt against Hynes, there were elements of Blows 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 appellants theory of
    accidental discharge, also potentially helped to prove the appellants guilt.

[218]

The strong caution given by the trial judge with
    respect to Blows 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 appellants
    submission that the trial judge erred when he failed to refer the jury to
    evidence that was confirmatory of Blows original statement to the 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 Blows credibility.  Although
    the potentially confirmatory evidence was not reviewed as part of the
Vetrovec
instruction, it was discussed during the trial judges summary of the
    defendants 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] 1 S.C.R. 237, 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
    accuseds defence that the discharge was accidental was supported by Blows recorded
    statement to the police;

(ii)
    in his recharge, the trial judge gave a
W.D.-
type instruction, 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 Blows 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.

[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.

Paul
    Rouleau J.A.

I agree K. Feldman
    J.A.

RELEASED: January 7, 2011
    I agree David Watt J.A.

[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 the s. 229(c).