R. v. Shand (J.E.), (2011) 273 O.A.C. 199 (CA)

• Judge: Feldman, Rouleau and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 07, 2011
• Jurisdiction: Ontario
• Citations: (2011), 273 O.A.C. 199 (CA);2011 ONCA 5

R. v. Shand (J.E.) (2011), 273 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.011

Her Majesty the Queen (respondent) v. Jason Everton Shand (appellant)

(C47483; 2011 ONCA 5)

Indexed As: R. v. Shand (J.E.)

Ontario Court of Appeal

Feldman, Rouleau and Watt, JJ.A.

January 7, 2011.

Summary:

A jury found the accused guilty of breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder. The accused was sentenced to life imprisonment without eligibility for parole for 15 years. The accused appealed against his conviction and the period of parole ineligibility.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1265

Offences against person and reputation - Murder - General principles - Jury charge - General - [See eight and ninth Criminal Law - Topic 1267 ].

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the historical context and evolution of s. 229(c) of the Criminal Code and other related murder provisions - See paragraphs 92 to 122.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the proper interpretation of s. 229(c) of the Criminal Code, stating that "[t]here are two basic components to s. 229(c). The first is relatively straightforward. It requires that the perpetrator be pursuing an unlawful object. The second component is the doing of anything that the person knows is likely to cause someone's death." - See paragraphs 123 to 126.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the proper interpretation of s. 229(c) of the Criminal Code - There were two basic components to s. 229(c) - The first required that the perpetrator be pursuing an unlawful object - The unlawful object had to be "conduct which, if prosecuted fully, would amount to a serious crime, that is an indictable offence requiring mens rea." - The unlawful object was what the accused set out to do, his or her purpose or goal - Put otherwise, the unlawful object was the end that the accused sought to achieve - The accused might have more than one object, his or her objects might change, and new objects might be added during the commission of the offence - See paragraphs 127 to 144.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the proper interpretation of s. 229(c) of the Criminal Code - There were two basic components to s. 229(c) - The second component was the doing of anything that the person knew was likely to cause someone's death - The dangerous act had to be clearly identified and defined - It had to also be something that was done in furtherance of the unlawful object, though it need not constitute an offence in itself - Further, the dangerous act had to be a specific act that resulted in death - A series of closely related acts was included, as some allowance had to be made for a continuing transaction - 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 became apparent once the court turned to the need to prove that the accused knew death was likely - The Crown also had to establish an additional component of mens rea, the intent to commit the dangerous act, knowing that it was likely to cause death - Vague realization that death was possible would not be sufficient - Similarly, if the dangerous act was done as a reaction, and out of panic, this might tend to show that the required subjective foresight of death was not present at the time that the act was committed - For the act to constitute murder, the accused had to have known that death was "likely" - In this context, likely had to be understood as being "something more than an awareness of risk or a possibility or chance of death" - It was not sufficient that the accused foresee a danger of death - What was necessary was subjective knowledge that death was likely, which had to be present at some point during the acts committed by the accused that caused the death - See paragraphs 145 to 153.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The accused appealed his conviction for breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder - At issue was the constitutionality of s. 229(c) of the Criminal Code which provided a definition of murder that did not require proof of an intention to cause death or bodily harm - This section provided that a person was guilty of murder when, for an unlawful object, the person did anything that he or she knew was likely to cause death, and death ensued, notwithstanding that in carrying out the unlawful object, the person did not desire to cause death or bodily harm - The accused and intervenors asserted that it was unconstitutional to label an unintentional killing "murder" - They argued that s. 229(c) imposed an impermissibly low mens rea requirement for murder - Alternatively, the accused argued that s. 229(c) was unconstitutional on the basis that it was either vague or overbroad - The Ontario Court of Appeal held that s. 229(c) was constitutional - The court considered the Supreme Court of Canada decision in R. v. Martineau (1990) - The minimum mens rea for murder required by the Charter was the subjective foresight of death - Section 229(c) required an intent to further the pursuit of an unlawful object, which was itself an indictable offence requiring full mens rea - When the subjective foresight of death was combined with an ulterior intent that was itself sufficiently culpable, together they constituted a proper normative substitute for an intent to kill - The vagueness and overbreadth arguments were largely an adjunct to the Martineau argument and were likewise rejected - See paragraphs 154 to 187.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The Ontario Court of Appeal discussed the proper interpretation of s. 229(c) of the Criminal Code - The court stated that "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." - See paragraph 188.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The accused and his accomplices, including a youth, planned a home-invasion and drug "rip off" - The accused brought a gun with him and hid it on his person - The victim was shot and killed by the accused in a basement bedroom - The accused appealed his conviction for breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder (under s. 229(c) of the Criminal Code) - The Ontario Court of Appeal dismissed the appeal - The unlawful object was the robbery - It was upon entering the basement bedroom that the accused 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 - The dangerous act did not need to be distinct in the sense of being unrelated to the acts carrying out the unlawful object - As the text of s. 229(c) required that the dangerous act be committed for or in pursuance of the unlawful object, the dangerous act had to 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 might have discharged accidently while being used to that end did not remove these facts from the ambit of s. 229(c) - Therefore, there was an adequate factual basis for the trial judge to charge the jury on s. 229(c) - See paragraphs 189 to 199.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The accused and his accomplices, including a youth, planned a home-invasion and drug "rip off" - The accused brought a gun with him and hid it on his person - The victim was shot and killed by the accused in a basement bedroom - The accused appealed his conviction for breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder (under s. 229(c) of the Criminal Code) - The accused submitted 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) - The Ontario Court of Appeal dismissed the appeal - 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 - The trial judge further explained that the second unlawful act had to have been committed in order to advance the robbery - In his recharge, he told the jury that a conviction required that the accused "actually knew that the unlawful act was likely to cause someone's death" when he committed the unlawful act that caused the death - The charge clearly focused the jury's attention on the need for a dangerous act that caused the death and instructed the jury to assess the accused's state of mind at the moment that the dangerous act was committed - Moreover, the fact that the trial judge told the jury that the dangerous act had to be unlawful could only have inured to the benefit of the accused - The trial judge's reference to three potentially unlawful acts would not have confused the jury or prejudiced the accused - All three of the acts he suggested centered on the accused's decision to draw and use the gun upon entering the basement bedroom - More importantly, his instruction was coupled with clear directions that a key aspect of the accused's mens rea, the knowledge that his actions were likely to result in death, had to be assessed at the moment that the dangerous act was committed, and not earlier in the robbery - Finally, with respect to whether the jury properly understood that it was for them to determine what acts occurred, when the charge was 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) - See paragraphs 202 to 206.

Criminal Law - Topic 1267

Offences against person and reputation - Murder - General principles - Murder resulting from act for unlawful object - The accused and his accomplices, including a youth, planned a home-invasion and drug "rip off" - The accused brought a gun with him and hid it on his person - The victim was shot and killed by the accused in a basement bedroom - The accused appealed his conviction for breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder (under s. 229(c) of the Criminal Code) - The accused submitted that the trial judge erred in failing to define the term "likely" in his instructions of murder pursuant to either ss. 229(a) or 229(c) - The Ontario Court of Appeal dismissed the appeal - The trial judge was not required to elaborate on what was meant by the term "likely" in s. 229(c) - The accused's trial counsel did not ask that likely be further defined, and the jury did not ask for an explanation of the term - Moreover, this court had previously stated that "likely to cause" was "clear and straightforward," and that further explanation of the term was not required unless the jury was having difficulty with it - See paragraphs 207 to 212.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused and his accomplices, including a youth, planned a home-invasion and drug "rip off" at Blow's residence - The accused brought a gun with him and hid it on his person - The victim was shot and killed by the accused in a basement bedroom - The accused appealed his conviction for breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder - The accused argued that a Vetrovec warning ought not to have been given with respect to Blow - Since Blow's 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 defence's position - The accused submitted that, although Blow was called as a Crown witness, he was for all intents and purposes a defence witness - This was apparent when, in final submissions, the Crown urged the jury to reject Blow's evidence - The Ontario Court of Appeal dismissed the appeal - The trial judge had discretion over the decision whether to give a warning with respect to mixed witnesses - While Blow gave evidence that assisted the defence, he also gave evidence that incriminated the accused - At trial, Blow's testimony was inconsistent with his earlier videotaped statement which suggested that the gun had discharged accidentally - Further, although Blow's videotaped statement supported the defence's theory of accidental discharge, it was nonetheless evidence on which the jury could find liability for murder - The court also refused this ground of appeal on the basis that the accused's interest in not having a Vetrovec warning conflicted with the interests of his co-accused - Finally, Blow was an unsavoury witness who dealt in drugs and lied about his activities - See paragraphs 213 to 221.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility (incl. jury recommendation) - The accused and his accomplices, including a youth, planned a home-invasion and drug "rip off" - The accused brought a gun with him and hid it on his person - The victim was shot and killed by the accused in a basement bedroom - A jury found the accused guilty of breaking and entering with intent to commit an indictable offence, robbery while using a firearm and second degree murder - The accused was sentenced to life imprisonment without the possibility of parole for 15 years - The accused appealed the period of parole ineligibility, asserting that the 15-year parole ineligibility period was unreasonable - The Ontario Court of Appeal dismissed the appeal - Even assuming that the gun discharged accidently, the period of parole ineligibility imposed by the trial judge disclosed no error in principle and did not constitute an unfit sentence - The accused's extensive criminal record showed a pattern of unlawful conduct, including resort to violence and drug crimes - After the victim was shot, the accused fled from the scene while the victim bled to death - Rather than express remorse for the enormity of his act, the accused hid his weapon and attempted to avoid arrest - In light of these circumstances, the parole ineligibility period was not an unfit sentence - See paragraphs 222 and 223.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5855

Sentence - Robbery - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Roks (A.) (2010), 275 O.A.C. 146; 2010 ONCA 182, refd to. [para. 7].

R. v. Magno (J.) et al., [2005] O.T.C. 864; 2005 CanLII 35684 (Sup. Ct.), affd. (2006), 212 O.A.C. 16; 210 C.C.C.(3d) 500 (C.A.), leave to appeal refused (2006), 362 N.R. 397; 228 O.A.C. 397 (S.C.C.), refd to. [para. 8].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 25].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281, consd. [para. 40].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321, consd. [para. 40, footnote 1].

R. v. Vasil, [1981] 1 S.C.R. 469; 35 N.R. 451, consd. [para. 62].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 81].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 81].

R. v. Serné et al. (1887), 16 Cox C.C. 311, refd to. [para. 99].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 107].

R. v. Blackmore (1966), 4 N.S.R. 1965-69 509; 1 C.R.N.S. 286 (C.A.), refd to. [para. 108].

R. v. Downey, [1971] N.Z.L.R. 97 (C.A.), refd to. [para. 109].

R. v. Hughes (1951), 84 C.L.R. 170 (Aust. H.C.), refd to. [para. 110].

R. v. Tennant and Naccarato (1975), 7 O.R.(2d) 687; 23 C.C.C.(2d) 80 (C.A.), refd to. [para. 110].

R. v. Quaranta (1975), 24 C.C.C.(2d) 109 (Ont. C.A.), refd to. [para. 112].

R. v. Desmoulin (1976), 30 C.C.C.(2d) 517 (Ont. C.A.), refd to. [para. 112].

R. v. DeWolfe (1976), 13 O.R.(2d) 302 (C.A.), consd. [para. 112].

R. v. Sit, [1991] 3 S.C.R. 124; 130 N.R. 241; 50 O.A.C. 81, refd to. [para. 122].

R. v. Meiler (M.) (1999), 120 O.A.C. 227; 136 C.C.C.(3d) 11 (C.A.), refd to. [para. 134].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 146].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 153].

R. v. Arkell, [1990] 2 S.C.R. 695; 112 N.R. 175, refd to. [para. 171].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 173].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 180].

R. v. MacDonald (2008), 92 O.R.(3d) 180 (C.A.), refd to. [para. 208].

R. v. Edelenbos (2004), 187 C.C.C.(3d) 465; 71 O.R.(3d) 698 (C.A.), refd to. [para. 208].

R. v. Gelle (A.) (2009), 248 O.A.C. 23; 244 C.C.C.(3d) 129 (C.A.), refd to. [para. 215].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 220].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 229 [para. 39].

Authors and Works Noticed:

Arvay, Joseph J., Developments in Criminal Law and Procedure: The 1980-1981 Term (1982), 3 S.C.L.R. 171, p. 190 [para. 101].

Coke, Edward, The Third Part of the Institutes of the Laws of England (4th Ed. 1669), p. 56 [para. 96].

Cross, Rupert, The Mental Element in Crime (1967), 83 L.Q.R. 215, pp. 217 [paras. 179, 181]; 218 [para. 181].

Fletcher, George P., Rethinking Criminal Law (1978), pp. 238, 276 [para. 95]; 282 [para. 99].

Foster, Michael, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry and of Other Crown Cases. To which are Added Discourses Upon a Few Branches of the Crown Law (1762), p. 258 [para. 98].

Kaye, J.M., The Early History of Murder and Manslaughter (Part I) (1967), 83 Law Q. Rev. 365, p. 377 [para. 95].

Stephen, James Fitzjames, A History of the Criminal Law of England (1883), vol. 3, p. 75 [para. 100].

Counsel:

James Lockyer and Brian Snell, for the appellant;

John Pearson and Alison Wheeler, for the respondent;

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

Marie Henein and Matthew Gourlay, for the intervenor, John Magno.

This appeal was heard on May 4 and 5, 2010, by Feldman, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Rouleau, J.A., on January 7, 2011.