En matière de vol qualifié, la menace de violence n'a pas à être explicite : elle peut être implicitement déduite des gestes, des mots et du contexte global dès lors qu'ils créent raisonnablement un sentiment d'appréhension chez la victime

R. v. Hodson, 2001 ABCA 111

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[10]           The cases given to us on this issue are many and varied. Several are overburdened by their facts. Historically, robbery and theft were distinguishable from each other when the thief instilled fear in the property owner to facilitate the theft. Theft, of course, was usually surreptitious while robbery was confrontational. In early indictments for robbery fear was the pleaded gravamen of the crime. One indictment alleged, for instance, that “. . . A.B. did put H.M. in fear on the highway and took from him 3d – halfpenny”. The law soon tilted towards the victim on the proof of the surrounding threat of violence. See R. v. Tomlinson [1895] 1 Q.B. 706 where Wills J. observed;

 

“With regard to the doctrine that the threat must be of a nature to operate on a man of reasonably sound or ordinarily firm mind, I only desire to say that it ought, in my judgment, to receive a liberal construction in practice; otherwise great injustice may be done, for persons who are thus practised upon are not as a rule of average firmness; . . . ”  710.

 

[11]           It was recognized that threats of fear could be subtle as well as vocal. Smith and Hogan, Criminal Law, 6^th ed. (London, Butterworths, 1988) at 541 says flatly; “A threat of force may be implied as well as express.”

 

[12]           Canadian authority supports the more inclusive approach.

 

“. . . The question is whether the actions and words of the accused, in light of the context and circumstances in which they took place, could reasonably create a feeling of apprehension on the part of the victims.” R. v. Pelletier (1992) 1992 CanLII 12794 (QC CA), 71 C.C.C. (3d) 438 (Que. C.A.)

 

[13]            The required review was furthered by the analysis of Doherty P.C.J. expressed in R. v. Benekritis [1994] B.C.J. No. 1739, which I quote and respectfully adopt.

 

“18.      As I understand Mr. Cameron’s argument, he submits that the threat of violence as contemplated under section 343(a) must be expressed and anything less than a direct threat does not come within this section. I disagree.

 

19.      In my view, the threat of violence may be implicit and made up of words, writings, or actions, any or all three of which may be considered in the context of the event if they could reasonably create a feeling of apprehension on the part of the victim.”