|
Criminal - Robbery. R. v. Moreira
In R. v. Moreira (Ont CA, 2023) the Court of Appeal considers variations on robbery, here while considering a jury charge on appeal:[68] It is important to remember that the robbery charge in this case was pursuant to s. 343(c) not s. 343(b) of the Criminal Code, which raises important distinctions: assault with intent to steal under s. 343(c) of the Criminal Code does not require a “major” assault or a particular level of violence; even a trivial or “mere” assault is sufficient: Manning, Mewett and Sankoff, Criminal Law, 5th ed., (LexisNexis, 2015), at § 22.70; R. v. Lew (1978), 1978 CanLII 2262 (ON CA), 40 C.C.C. (2d) 140 (Ont. C.A.). (I also note that the de minimis defence has never been definitely endorsed by this court.)
[69] In Lew, by contrast, this court overturned a conviction for robbery pursuant to s. 302(b) of the Criminal Code (the identical precursor to s. 343(b)). The accused in that case had bumped or nudged a woman while taking her wallet from her purse: Lew, at para. 2. In finding that this did not rise to the level of violence required under s. 302(b), the court compared the provision to s. 302(c) (the identical precursor to s. 343(c)):The violence contemplated by the section [s. 302(b)] is more than a mere assault which is contemplated by s. 302(c). On the material before us, this case appears to be a case of a nudge and that is no more than a mere assault.
While it may be that if he had been tried on a charge of robbery, pursuant to s. 302(c), the same result [a conviction] would have occurred, that is not the issue here. [70] Similarly, in R. v. Chiang, 1999 BCCA 503, 138 C.C.C. (3d) 522, the British Columbia Court of Appeal upheld a conviction for robbery under s. 343(c) of the Criminal Code where the assault consisted of the accused sticking his hand in the victim’s pocket and attempting to remove his wallet. The trial judge specifically considered whether this met the definition of assault and found that there was “sufficient force…to cause [the victim] to stop walking and to crouch or squat down and to shift his hips around” while trying to get away: Chiang, at para. 1. The court, at paras. 1 and 3, accepted the trial judge’s reasoning that even benign touching, combined with an intent to steal, was sufficient to make out the offence of robbery:That each offence set out in the Criminal Code covers a range of behaviour is obvious. The range of actions which falls within the definition of assault is vast, from relatively benign touching, spitting on another, causing another to move out of fear, to quite serious physical violence at the other end of the range. When any of these actions are combined with an intent to steal, the Criminal Code dictates by the definition section that a robbery has been committed. [Emphasis added.]
|
