Vol qualifié ou mendicité agressive : l'intention de voler doit s'évaluer en analysant le contexte global de l'événement et l'exploitation d'un climat de peur chez la victime

R. v. Ajang, 2012 ABCA 364

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[3]               The complainant had left her apartment and was getting into her car. She was approached by two very intoxicated men, one of whom was the respondent. One of the men blocked the door with his knee preventing the complainant from closing the door. The respondent leaned into the car putting his face close to the complainant’s causing her to move towards the passenger seat.

 

[4]               He asked for money and she told him she had none. He then asked for alcohol. The complainant felt threatened and started to scream. The men cursed her and told her to stop screaming.

 

[5]               The respondent “persistently requested money” (Transcript at 383/35), and the complainant eventually gave him a change purse she had in her car. The respondent emptied the purse and returned it to the complainant. A passerby stopped his vehicle, told the men to leave the complainant alone, and called 911. The two men resumed their walk and were apprehended by the police, a short distance away. The respondent had $21.55 in his pockets. He was charged with robbery.

[11]           Section 343(c) states that a robbery is committed when there is an assault “with an intent to steal”. Whether an intent to steal has been proven requires the judge to consider the entire context: R v Hodson, 2001 ABCA 111, 281 AR 76.

[12]           This contextual analysis requires the trial judge to assess whether the offence was carried out “in an atmosphere of apprehension which was exploited by the thief, including, but not confined to, his spoken words?”: Hodson at para 15. And, as the Nova Scotia Court of Appeal held in R v Bourassa, 2004 NSCA 127, 227 NSR (2d) 173, a trial judge must “examine the entire sequence of events through the eyes of a reasonable observer who happened upon the scene” to determine, objectively, whether the complainant’s fear was reasonable: para 15.

 

[13]           The complainant did not give the respondent the money from the change purse “under some sense of largesse” (Hodson, ibid). As the trial judge found, she did so because she “feared for her safety” and was “terrified for her safety”: Transcript at 383/32-33.

 

[14]           Moreover, here there were “reasonable observers who happened upon the scene” (Bourassa). One passerby stopped his vehicle to find out what was going on because he observed “some trouble”. He got out of his vehicle, told the men to leave the complainant alone and dialled 911. Another witness observed the complainant crying for help. The trial judge did not mention this as part of the context.

 

[15]           The Crown also cites a panhandling case, R v Lecky (2001), 2001 CanLII 28398 (ON SC), 152 CCC (3d) 418, aff’d (2001), 2001 CanLII 6026 (ON CA), 157 CCC (3d) 351; 51 WCB (2d) 101 (Ont CA). There the Court concluded that the panhandler’s demands were more than a request to voluntarily part with assets and convicted the accused of robbery. The salient difference between panhandling and robbery is explained at paras 28-29:

 

It seems to me that when [the accused] made his first demand for money and was refused by [the complainant], the accused was nothing more or less than a nuisance begging for money from citizens on the street.

 

The issue for resolution, on an objective assessment of the evidence, is whether the accused by his acts and words has been proven to have evolved from being a common beggar into a robber who, by threat, intentionally coerced money from an unwilling citizen. ...

 

[16]           The trial judge found there was an assault. He also found that the respondent and his accomplice’s demands for money were repeated and aggressive. He also found that the complainant gave the respondent money because she felt threatened. A man driving past was sufficiently disturbed by what he observed that he stopped, got out of his vehicle and called 911.

 

[17]           The trial judge posed this question to himself. Was this aggressive panhandling or was it a botched robbery? Because he had some doubt, he gave the accused the benefit of the doubt and characterized the events as aggressive panhandling. However, his conclusion failed to consider the entire context of the event which was characterized by the appellant’s repeated, aggressive and threatening conduct toward the victim.

 

[18]           In our view, the elements of the offence of robbery exist. The trial judge erred in not entering a verdict which reflected those found facts.