R. v. Callihoo, 2006 ABPC 347 (CanLII)
[53] Set out below is relevant jurisprudence to the meaning of “personal violence” as found in s. 343(b).
[54] In R. v. Burden (1973),11 C.C.C. (2d) 491 (Ont. C.A.)(Burden) the complainant fell asleep on a bench. He awoke to find that the accused had removed his wallet. He chased the accused and got him in a bear hug. The accused struck him in the side. The robbery was analyzed pursuant to s. 302(b)[ now s. 343(b)]. Gale C.J.O. held that, if there was a reasonable doubt that the accused was defending himself, this amounted to a defence to robbery. Self defence in the circumstances would only apply if the purpose of the accused in administering blows to make the complainant from hurting him; however, if the blows were for the purpose of allowing the accused to escape this would not amount to self defence. The Chief Justice concluded that the blows were for the purpose of escape; thus did not amount to self defence. The accused’s movement o f the complainant’s arms to get at the wallet did not amount to “personal violence”; however, the striking of the complainant at the time of the escape did amount to “personal violence.”
[55] In R. v. Lew (1978), 40 C.C.C. (2d) 140 (Ont. C.A.) the Court indicated that to satisfy robbery under s. 302(b) “something more than a mere assault was needed.” Thus, an accused who pushed a woman after removing a wallet from her purse was guilty of theft and not robbery.
[56] In R. v. Downer (1978), 40 C.C.C. (2d) 532 (Ont. C.A.) the accused was charged with robbery pursuant to s. 302(b). The accused entered the complainant’s residence and pushed him against the wall demanding money. The complainant took money out of his pockets but the accused demanded more. He then began slapping and pushing the complainant. He broke glass jars and took the money. The trial judge directed the jury that they must find that the violence was in furtherance of the theft. The jury acquitted of the robbery but found the accused guilty of theft. The Court of Appeal ruled that the trial judge misdirected the jury. Martin J.A. held that the words of the section were clear and unambiguous by which Parliament meant to ignore the motive and purpose of the accused in inflicting personal violence proximate to the theft: see p. 540. At p. 541 he added:
“In the vast majority of cases the infliction of criminally culpable violence on the victim proximate to the theft will be for the purpose of facilitating the theft, or the escape of the offender, or the offender by the use of unlawful violence will have created a situation which enabled him to commit the theft or to escape afterwards. There is little, if any, difference, however, in the culpability of one who uses personal violence to the victim for the purpose of facilitating the theft, and that of one who inflicts on the victim criminal and gratuitous violence of the kind specified in s. 302(b), during the commission of the theft or immediately before or immediately thereafter, whatever the motive prompting its infliction may have been. It is, in my view, sound penal law policy to equally discourage the use of such violence in either case.”
[57] In R. v. Oakley reflex, (1986), 24 C.C.C. (3d) 351 ( Ont. C.A.) Martin J.A. wrote at p. 365:
“ In our view, the words “personal violence” in s. 302(b)[ now s. 343(b)] takes colour from the preceding words “ wounds, beats, strikes.” A mere technical assault does not constitute personal violence under s. 302(b) . . .”
[58] The jurisprudence related to the “violence” and “threats of violence” set out in s. 343(a) is set out below.
[59] In R. v. Picard (1976), 39 C.C.C. (2d) 57 (Que. Sess. Ct.) the accused was charged with aggravated theft contrary to s. 302(a). Picard and an accomplice grabbed a handbag from a woman’s shoulder before she could offer any resistance. The trial judge acquitted the accused of theft but convicted of theft under. At p. 60 Berube J. wrote:
“In the present case, there was theft but, was there assault? Let us eliminate assault with bodily harm. Plain assault? Could the simple act of pulling on a handbag constitute assault? Could it be an act of violence?
Violence, according to the "Petit Larousse,” is the manifestation of an intense impetuous force; it is maltreatment, brutality against a person. Where is the brutality of the assault in the present case.
It is true that a certain force was exercised, rather a certain pressure to snatch the handbag, to seize it abruptly but, in my humble opinion and in the opinion of some authors whom I shall cite later, this does not constitute assault.”
[60] In R. v. D’Ovidio and Anderson (unreported 28 March 1980)(Ont. Co. Ct.) Whealey J. wrote:
“ It is clear that the gravamen of the offence [robbery] is a theft accompanied by “violence or threats of violence” used for the purpose of accomplishing the theft. I suppose every pick-pocket has some minimal contact with the victim and thus, possibly, the accusation of “violence” accompanied by theft. In my view, the incidental and minimal bodily contact is not what is aimed at by s. 302(a); rather the level of violence must be of a substantial nature, clearly identifiable as a separate act from the theft.”
[61] In R. v. Sayers and McCoy reflex, (1983), 8 C.C.C. (3d) 572 (Ont. C.A.)(Sayers) Sayers entered a bank with McCoy. Sayers jumped on a counter. He pointed with two fingers of each hand and said “This is a robbery in progress. Just empty your drawers and give me the money.” He told the customers to keep back. Sayers jumped from the counter and approached three tellers. He took money from each one. The second teller’s drawer was locked and he told her to open the till; she did so. McCoy stood watch. The trial judge acquitted the two men because he found that the Crown had not proven a robbery pursuant to s. 302(a)[now s. 343(a)] because there were no violence or threats of violence. The Court of Appeal convicted both individuals of robbery because they found that actions of the accused came within the definition of “threats of violence.” LaCourciere J.A. wrote at p. 575:
“The two cases referred to by the learned trial judge include helpful discussions of the meaning of the words "threats of violence.” We agree with the learned editor of Snow's Criminal Code of Canada, 6th ed. (1955), p. 250, that to constitute robbery all that is necessary is "some act of ... violence or some demonstration from which physical injury to the person robbed may be reasonably apprehended.” In order to conclude that such reasonable apprehension exists it is necessary to look at the totality of the conduct of the accused.
Applying this test to the admitted facts, the words used by the respondent referred to a "robbery in progress,” together with the respondent's gestures and the manner in which the respondent Sayers spoke or screamed his commands to the tellers, could only have the effect of causing a reasonable apprehension of physical harm unless the tellers complied with the demand. The predictable reaction of the tellers was one of concern and of fear.
In our view, the learned trial judge erred in his interpretation of the robbery section and in failing to find that the respondent's words and conduct came within the legal meaning of the words "threats of violence" as used in s. 302(a).”
[62] In R. v. Trudel reflex, (1984), 12 C.C.C. (3d) 342 (Que. C.A.)(Trudel) the accused was charged with a number of offences, including robbery contrary to s. 302(a). The accused and a companion entered a store where he yelled “This is a holdup.” His companion immobilized the store owner by holding her arms while Trudel grabbed money. The trial judge convicted of theft. The Court of Appeal substituted a conviction for robbery. The Court agreed something more than a mere assault was needed for the purposes of ss. (b). However, the Court held that jurisprudence interpreting ss. (b) was not applicable to ss. (a). The Court implied that a lesser degree of force might support threats of violence for the purpose of ss. (a).
[63] In R. v. Fleury reflex, (1984), 57 A.R. 239 (Alta. C.A.)(Fleury) the Court held that when the accused pulled at the purse which the woman victim had around on shoulder and yanked her to the ground this was a robbery. McGillivray C.J.A. said at para. 2:
“The facts are that there was an assault; we are not concerned with the nature of the assault. We with deference do not agree with the decision of Berube, J., in R. v. Picard where he looks to the common law and concludes that there must be something intimidating about what took place. We think that the Code speaks for itself; that there was an assault here; that it was an assault with intent to steal; and that robbery was accordingly committed.”
[64] This decision is binding upon me. However, the negative commentary of the Chief Justice related to Picard must be put into proper perspective. In Fleury the Court decided that a robbery had been proven pursuant to s. 302(3) [now s. 343 (c)]. Section 343(c) defines robbery as, “assaults any person with intent to steal from him”; hence, all the Crown needs to prove is an assault as opposed to violence.
[65] In R. v. Malzfewski [1987] B.C.J. No. 2520 (B.C.C.A.) the accused entered a store and took the money the store clerk from the cash drawer. When the store clerk confronted him, he pushed her to the ground with considerable force. The defence pointed out that s. 302 (a)[ now s. 343(a)] did not apply because the theft was complete. She then argued that s. 302(b)[now s. 343(b)] did not apply because the quality of violence was greater to support ss. (b) than (a). Hutcheon J.A. disagreed:
“I see no reason to conclude that a different quality of violence is contemplated under subsection (a) than under (b).
In the present case the judge used this language, and it is fully supported by the evidence: “She was pushed to the ground violently.” An then further on: She referred to the physical confrontation in part ‘he twisted me down’, and so on. There would be a considerable force used by her.”
[66] In Pelletier the accused entered the bank and jumped over the counter where the tellers worked. The accused ordered the manager to get to his office. The tellers moved back and the accused gathered the money. He remained silent throughout. When frustrated because a drawer would not open, he threw a cash drawer on the floor. The trial judge convicted of robbery pursuant to s. 343(a). The Court of Appeal agreed that the actions of the accused constituted threats of violence. Proulx J.A. observed at p. 441-2:
“In its ordinary meaning, a "threat" remains a "tool of intimidation which is designed to instil a sense of fear in its recipient": R. v. McCraw, Supreme Court of Canada, unreported, September 26, 1991 [since reported 66 C.C.C. (3d) 517, [1991] 3 S.C.R. 72, 7 C.R. (4th) 314]. In the context of s. 343(a), a threat of violence is characterized by conduct which reflects an intent to have recourse to violence in order to carry out the theft or to prevent resistance to the theft: R. v. Broughton, [1986] 1 N.Z.C.R. 641 at p. 643 (C.A.) (the provision creating the offence in the New Zealand Crimes Act contains the same constituent elements as in Canada).
A threat may be express or implicit and made by means of words, writings or actions.
It is essentially the threatening act which is more important than the effect that it creates, and in this sense, one must consider that threats of violence are made even though they do not create any fear at all, just as one must admit that even if the victim of the theft experiences momentary fear, it does not necessarily follow that threats were made to him: R. v. Broughton, supra, at p. 643:
The actual presence or absence of fear on the part of the complainant is not the yardstick. It is the conduct of the accused which has to be assessed rather than "the strength of the nerves of the person threatened" ( R. v. Smith, [1849] 2 Car + Kir 882, 887; R. v. Pacholko (1941), 75 C.C.C. 172, 175).
As the courts have reiterated on numerous occasions, the threats must be considered in an objective manner, that is from the perspective of a reasonable ordinary person: R. v. Provencal (1988), 21 Q.A.C. 129 (C.A.), where my colleague Tyndale J.A. wrote [at p. 137]: "Appellants argue, correctly, that the subjective reaction of Lamoureux is not alone sufficient to make of the thief's behaviour a threat of violence within the meaning of the article; his fear must be reasonable in the circumstances."
When it is a question of determining whether objectively the impugned conduct constitutes threats of violence, it is appropriate to consider the conduct as a whole, that is, by taking into consideration the context, circumstances, and persons threatened: R. v. Provencal, supra, at p. 140, quoting R. v. Sayers and McCoy reflex, (1983), 8 C.C.C. (3d) 572, 1 O.A.C. 239 (C.A.): '"In order to conclude that such reasonable apprehension exists it is necessary to look at the totality of the conduct of the accused.”
[67] Proulx J.A. continued at p. 443 where he added:
“The fact of brutishly getting behind the bank counters by jumping over them and at the same time telling the bank manager to get out of his office and then throwing the first cash drawer on the floor is evidence of particularly bold and determined action which obviously created an element of violence.
At the very least, it was an intimidating act directed toward persons who, because of their functions and their working environment, are always susceptible to being victims of intrusions of this sort and therefore become very vulnerable when such situations arise. Such conduct cannot leave any doubt as to its author's intentions should there be resistance and it is not surprising that the three tellers had the same reaction of fear and believed that they did not need anything else in order to convince them to back away and let the intruder go about and take the money from the cash drawers.”
[68] In R. v. Bourassa 2004 NSCA 127 (CanLII), (2004), 189 C.C.C. (3d) 438 (N.S.C.A.)(Bourassa) the accused entered a bank wearing a jacket with the hood up. He put his sunglasses on. He asked her for her large bills. He kept his hands in his pockets at all times. The teller assumed he had a weapon. She froze; the accused came across the wicket and reached into the till taking the money. He then left the bank. The Crown relied upon s. 343 (a). The trial judge convicted. The Court of Appeal upheld the conviction. Saunders J.A. wrote the decision of the Court. At para. 7 Saunders J.A. observed:
“From the definitions and the jurisprudence which has considered them, one sees in simplistic terms the difference between “ robbery” and “theft” is that robbery by confronting and intimidating the person whose property is taken, whereas theft is committed without of violence, and often occurs secretly, such that the victim is left unaware of being relieved of their property.”
[69] At para. 13 Saunders J.A. added:
“Here, the question for Cacchione J. to decide was whether, on all of the evidence, the Crown established beyond a reasonable doubt that the conduct of the offender amounted to using threats of violence. In coming to that determination the trier of fact may well apply a partly subjective and partly objective test. “
[70] At para. 15 Saunders J.A. continued:
“Ms. Miller said she was frightened and angry to find herself again the victim of a bank robbery. Such evidence was clearly subjective, but was certainly relevant to the determination of whether she felt threatened by the conduct and whether such fear was reasonable under the circumstances. To simply isolate one or two actions of the thief as the appellant suggests, presents a distorted view. The better approach is to examine the entire sequence of events through the eyes of a reasonable observer who happened upon the scene. When assessing, objectively, whether such fear was reasonable, many features of the incident would be especially persuasive, for example: the individual had the hood of his jacket up over his head as he approached the wicket; then after putting his sunglasses on, and keeping his right hand in his pocket, passed the teller a note, and by some gesture and grunting sounds made it clear that he wanted the large bills. When the teller froze and was unable to react, he reached across the till, grabbed the money and fled.”
[71] In R. v. Hodson [2001] A.J. No. 601 (Alta. C.A.) the accused was charged with robbery but was convicted by the trial judge of theft. The Court of Appeal substituted a conviction for robbery. The accused entered a Dairy Queen staffed by two teenage girls. The accused told them to give him all the money. He repeated the demand telling them to give him all the ten and twenty dollar bills on hand. They gave the money to him. He left the premises. At paras. 11- 13 McClung J.A. observed:
“It was recognized that threats of fear could be subtle as well as vocal. Smith and Hogan, Criminal Law, 6th ed. (London, Butterworths, 1988) at 541 says flatly; "A threat of force may be implied as well as express."
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 reflex, (1992) 71 C.C.C. (3d) 438 (Que. C.A.)
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."
[72] McClung J.A. held that the trial judge erred by not weighing all of the intimidating aspects of the accused’s demands. The time, place, absence of customers and a repeated demand may well induce a feeling of apprehension in the young clerk. He ruled that the trial judge had ignored the essential question whether the offence was carried out in an atmosphere of apprehension exploited by the thief or whether the employer’s money was given away by some sense of largesse. In other words, was it extracted from her because of fear as opposed to being merely importuned? The judge was required to survey the whole scene so that the actual offence can be truly characterized when the actual offence was committed: see para. 15.
