Shand accompanied two friends to a drug dealer's home with the intention of stealing some marijuana. At one point, Shand produced a gun and one of the persons in the home was shot and killed. One of Shand's companions claimed the shot occurred accidentally when the victim approached Shand while the pair argued. Another person present in the home claimed that Shand threatened the home's occupants with the gun before striking the drug dealer in the face with the gun, pointing the gun at the victim, and firing. The drug dealer told police that he heard the gun accidentally discharge as Shand struck him on the head with it, but testified in court that Shand grabbed him and pointed the gun at his head, causing him to stumble, and that the gun went off as he fell. The drug dealer's girlfriend gave a similar statement to police to her boyfriend's, later changing her story in court because she noted there were no bumps or bruises on Shand's head to show that he had been struck with the gun. Shand did not testify, but conceded that he was guilty of manslaughter and possession of a loaded, restricted firearm. The jury convicted Shand of breaking and entering with intent, armed robbery, and second degree murder. He was sentenced to life imprisonment with no parole eligibility for 15 years.
- Is s. 229(c) of the Criminal Code unconstitutional;
- because it permits a conviction for murder without proof of an intent to cause serious bodily harm to the victim?
- because it is vague?
- because it is overbroad?
- 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?
- Did the trial judge err in imposing a fifteen-year parole ineligibility period?
Rouleau, writing for a unanimous court, holds that the ruling by the Supreme Court in R v Martineau does not make s. 229(c) unconstitutional, but rather only the "ought to know" section. A reading of the decision to render the entire section unconstitutional would conflict with the pains Lamer CJ went to to clarify that section.
Finding the section constitutional, he then addresses the jury instructions. He finds no fault in the instruction that would have caused the jury to make an error as finders of fact. He does feel that some clarification on the term "likely" may have been helpful but does not find this to be fatal to the decision reached.
On the issue of the parole ineligibility the court rules that Shand's history of criminal activity and the lack of remorse expressed by the appellant warranted the fifteen-year ineligibility.
Section 229(c) of the Criminal Code is not unconstitutional as a whole; only the "ought to know" section should be read out.