ONTARIO COURT OF JUSTICE
Old City Hall – Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ORLANDO DI-FOLCA
A. Samberg
For the Crown
M. Engel
For the Defendant
Heard: March 16, 20 and 24, 2017
REASONS for JUDGEMENT
MELVYN GREEN, J.:
A. INTRODUCTION
[1] Around 4:40am on October 16, 2015, an uninvited man entered a Mazda stopped for a traffic light on Yonge Street in Toronto. In short order, the man is alleged to have demanded money, then taken the driver’s cell phone, then assaulted the driver as he struggled to retrieve his phone, and then escaped. A police officer arrested Orlando Di-Folca, the defendant, the next day and charged him with attempted fraud, robbery, assault, and three counts of failing to comply with probation orders. As the Crown lacked the necessary documentation to establish one of the fail-to-comply charges, it was dismissed at the close of the Crown’s case.
[2] The Crown called four witnesses: the complainant driver; the driver of a second car who drove past the altercation while his dashcam was activated; the police officer who first attended the scene, collected CCTV recordings from inside and outside a McDonald’s restaurant in close proximity to the incident, and who ultimately arrested the defendant; and a second officer who claimed to have overheard utterances made by the defendant Di-Folca in the course of the trial. Video and audio recordings supplement these testimonial accounts.
[3] The defence called no evidence. Its position, in brief preview, is that the Crown has failed to establish to the requisite standard that the defendant is the man who entered the Mazda. Any reasonable doubt as to identification necessarily results in the dismissal of all charges. If identification is adequately proven, the defence, in the alternative, says that neither the offence of attempted fraud or robbery is made out. The only offences to which the defendant would then be exposed to findings of guilt are common assault and the two remaining counts of failing to comply.
[4] As is always the case in criminal prosecutions, the Crown bears the burden of establishing each element of each of the offences with which the defendant is charged and on a standard of proof beyond reasonable doubt. Failure to meet this burden on any count necessarily results in acquittal of that charge.
B. EVIDENCE
(a) The Complainant’s Account
[5] Ik Soo (“Ken”) Kang manages a Chinese restaurant in Toronto. It closes at 4am. On October 16, 2016, as is his habit, Kang then drove an employee to the Bloor and Yonge subway station. Now alone in his Mazda, he headed south on Yonge Street. He stopped the Mazda at a red light near Wellesley Street. As the light changed to green, a large, young man stepped in front of the passenger side of his front bumper and said, “You just tried to kill me”. In direct examination, Kang was confident he had not hit the man. As he continued to drive slowly southbound, the man opened the rear passenger-side door and jumped into the back seat of the Mazda. “Give me $30”, he said. “No”, said Kang, “I’ll call the police”. “Go ahead”, said the man.
[6] As Kang began to call 911 the man reached over the back of the front seat and grabbed Kang’s phone. Kang’s credit cards were bundled with his phone and he jumped into the back seat to retrieve them. A struggle followed, with Kang trying to hang onto the man’s shirt. The man made his way out the rear passenger-side door. Kang tried to follow him, but the man kept slamming the rear door on Kang’s arm. Kang eventually got out of the car. He again tried to grab the man’s shirt as the struggle continued by the side and then rear of the car. The man, according to Kang, punched him more than 20 times on his left ear and on the left side of his mouth and eye. Others intervened after a minute or two. The man removed his T-shirt and ran away. A female bystander than returned Kang’s phone to him.
[7] Kang is of Korean descent. He described his assailant as “white” (as is the defendant), larger than himself (as, again, is the defendant), between 20 and 25 years of age, and wearing a dark T-shirt. On refreshing his memory through an officer’s notes of a statement he provided the police that evening, Kang identified the T-shirt’s colour as dark blue. He could not recall anything else about the shirt. He had not, he said, been able to get a good look at the man’s face and could not describe its features other than “white” and “long”. He did not see any facial hair. He was not asked and was otherwise silent as to whether the man wore a hat.
[8] Kang visited his family doctor after the incident. He took Tylenol, and the bumps and redness on his face disappeared in about two weeks. The assault had broken his dentures and he had to attend his dentist to have them repaired.
[9] In cross-examination, Kang expanded somewhat on his initial encounter with the man. He first saw him at the extreme passenger-side front of his vehicle when he began to slowly accelerate as the light turned green. He “hit the brakes” to avoid making contact with the man. He was sufficiently “concerned” that he considered getting out of the car to check on the man. He also considered turning on his four-way flasher to allow him some time “to think”.
[10] The man got into the rear of Kang’s car and asked for $20 (as appears in his police statement, and not the $30 to which he testified in chief). Kang said he thought the man was trying to rob him rather than seek compensation for any injury. In his statement to the attending officer, which he agreed was accurate, Kang told the police that, “A guy walked right in front of my car. I had to stop. He got into the back of my car. He asked for $20”. Kang agreed he had used the word “asked” when answering the police questions but insisted the man had said, “Give me $20”. Kang had reviewed his statement prior to testifying and had not asked to amend the word “asked”.
[11] The man began to strike Kang while they were in the back seat. The physical exchange outside the car was not a “fight”, Kang explained. It was more like being beaten up while he, Kang, did his best to hang on to his assailant.
[12] Kang was not asked whether he could identify anyone in court as the man who had assaulted him, nor did he voluntarily point out his assailant or reject the defendant as a potential candidate.
(b) The Second Driver’s Account
[13] Florin Peltea worked the overnight shift for a security company on October 16, 2015. He was driving northbound on Yonge, on his way to a routine company patrol, when he saw a southbound car stopped near Wellesley. Noises drew his attention to a fracas between an Asian man and a non-Asian man. A struggle in the back seat of the car migrated outside the vehicle. The Asian man was yelling, “Help! Help!” The non-Asian man wore a baseball hat. He was clearly the aggressor and he was punching the Asian man in the face. Peltea estimated this occurred between 4:30 and 5am.
[14] Peltea completed his patrol and returned to the scene. He advised an officer then in attendance that he might have a dashcam record (both audio and video) of the incident. He later sent the police an email link to the dashcam footage which, in turn, was entered as an exhibit.
[15] The time-stamp on the dashcam video indicates that the incident occurred at 4:45am. As displayed on the video, Peltea’s car comes to a stop behind a taxi in the centre northbound lane that has itself stopped parallel to Kang’s Mazda, facing southbound and immediately to the taxi driver’s left. This positioning affords about 30 seconds of fixed exposure of the events at the stopped Mazda. There is no vehicle parked in the southbound lane to the west of the Mazda. Other than a single person walking south on the east side of Yonge, there are no pedestrians in visual proximity of the Mazda.
[16] A tall man wearing a baseball cap can be seen be seen getting out of the passenger-side rear door of the Mazda. Amidst shouting, he tries several times to slam the door behind him. An item (likely Kang’s cell phone) traces an arc from the area of the rear door to the street, in front and to the right of the car. A man in the rear seat is struggling with the capped man who continues to slam the door shut. They exchange blows, although the capped man is patently the aggressor. Somehow, the man in the rear seat emerges from the car. He is shorter than the capped man. The final frames, as Peltea’s vehicle resumes its northbound motion, is of the two men continuing to struggle while standing near the rear passenger corner of the Mazda.
[17] Peltea did not identify the defendant, or anyone else, as the Asian man’s assailant. Nor did he eliminate the defendant – who was seated in a prisoner’s box approximately 20 feet away – as the non-Asian man involved in the altercation.
(c) PC Holmes’ Investigation
[18] PC Jason Holmes was working an overnight shift on October 16, 2016. He was driving south on Yonge when he spotted a man with a bloody mouth standing beside his parked car, just south of Wellesley and a little north of a McDonald’s restaurant. It was approximately 4:54am. The man identified himself as Ik Soo Kang, the complainant. He was, in Holmes’ words, “out of it”.
[19] Holmes took a statement from Kang regarding the alleged assault within 10 minutes of his arrival. Holmes also called an ambulance, interviewed a second witness and a mobile security officer (Florin Peltea) with a dashcam video of the incident, and unsuccessfully canvassed the area for the perpetrator. Holmes then attended at the nearby McDonald’s and, with the assistance of an employee, viewed CCTV video of events inside and outside the restaurant in the minutes preceding and surrounding the incident. (These videotapes have been entered as exhibits.)
[20] Holmes satisfied himself that a man clearly seen both inside and outside the McDonald’s was the same person as could be seen, if much more dimly, in an apparent altercation by Kang’s car. He left his contact information with the McDonald’s employee who called him the next evening to advise that the same man had just left the restaurant, heading south. Holmes immediately attended the location, spotted the man who had captured his attention in the videos, and arrested him. Defence counsel concedes that the man he arrested is the defendant Di-Folca. At the time of arrest, the defendant was about six feet tall, unshaven, with curly hair, a medium build and a long face. Di-Folca was then wearing a Blue Jays jacket and blue-grey Blue Jays cap. The defendant, said Holmes, had more facial hair and was somewhat thinner at the time of his arrest than he appeared in the prisoner’s box.
(d) The CCTV Identification Evidence
[21] Four brief CCTV video clips were entered through PC Holmes. The first is fixed on the front take-out counter inside the McDonald’s restaurant. The next three are sourced to a camera located outside, in front of the McDonald’s, with a streetscape of Yonge Street immediately in front and somewhat to the north of the restaurant. Viewed sequentially, these three outdoor clips represent one continuous (although not always clear) moving image that overlaps with many of the events captured by Peltea’s dashboard camera, although from a nearly opposing angle.
[22] In the first clip, shot inside the restaurant, a man appears carrying a large dark and light blue Blue Jays-branded, single-strap, medium-sized shoulder bag over his right shoulder at 4:34am, as indicated by the restaurant’s video time-stamp. He is wearing blue-grey jeans, a dark blue Blue Jays T-shirt (with the team’s crest on the upper left chest portion), a green Blue Jays hat and black, unlaced hightops. He has a very short dark beard and mustache. He waits for another customer to complete his transaction and then buys a drink, and possibly a second item, and pays for his purchase by way of an electronic transaction. The man is standing a few feet away, next to a condiments station, as the video ends at 4:36am.
[23] A second video is focused on the area immediately in front of the McDonald’s franchise and angled a little north. The same man, drink with straw in hand, emerges from the restaurant onto the sidewalk on the west side of Yonge at 4:36:40am. About 20 seconds later, after some apparent hesitation or indecision, he meanders north while swinging a lanyard. He is parallel to a black SUV stopped in the southbound curb lane as it disgorges a number of passengers, some of whom present as women in conspicuously abbreviated clothing. As they assemble themselves on the west-side sidewalk and begin to walk north, the man wearing the Blue Jays hat walks through their small group, then right, or east, onto Yonge Street behind the SUV (where he is lost from video view for about one second), and toward the east side of Yonge. He pauses in the centre southbound lane at about 4:37:42am as a dark southbound car approaches in the same lane. The man crossing Yonge abruptly jumps back towards the west side of the street. The southbound vehicle is indisputably the complainant Kang’s Mazda. The quality of the video imagery does not permit a firm determination of whether the Mazda made contact with the man, but it appears unlikely.
[24] The second outdoor video records the black SUV pulling away from the curb at 4:38am and heading south on Yonge. Kang’s Mazda does not move. Peltea’s security company vehicle appears on-screen approximately 25 seconds later, heading north and directly across from the McDonald’s. A tall man wearing a baseball cap gets out of the rear seat of the Mazda a few seconds later. He tries repeatedly to slam the rear door closed. A second, smaller man emerges from the same door a few seconds later and the two men scuffle by the rear, right corner of the Mazda.
[25] The third outdoor McDonald’s clip begins at about 4:39am with images of the taller man and the smaller man (undoubtedly Kang) fighting by the rear side of the Mazda. Their struggle quickly moves to the back of the car. The taller man is raining blows on Kang, all roundhouses and uppercuts, as Kang, now splayed against the trunk, clutches his opponent. A few men intervene within about 20 seconds and, very soon thereafter, someone, probably a woman, ventures off the westside curb of Yonge Street to retrieve an item to the southwest of the Mazda, likely Kang’s cell phone. Within about 10 further seconds, the taller man, now naked from the waist up, crosses to the east side of Yonge while carrying a bag of similar size to that shouldered by the man video-recorded in the Blue Jays cap inside the McDonald’s. He does not appear to be in any hurry. By 4:41am, a marked scout with activated flashers pulls in behind the Mazda. The tall man has by then disappeared from video view.
(e) The Defendant’s Utterances
[26] Det. Cst. Jamie Mackrell had no investigative role in the case. However, as “case manager” he had compiled the police brief and sat next to Crown counsel throughout the trial, approximately 10 feet, as measured, from the defendant’s position in the prisoner’s box behind him during the times at issue. Mackrell testified that he contemporaneously noted audible utterances made by the defendant as video tape evidence was played in court. The first utterance attributed to the defendant was made during sounds of someone yelling “Help!” in the course of the dashcam video. Mackrell says he overheard the defendant say, “That’s me screaming”. The defendant’s second alleged utterance, during the altercation captured in the same video, is composed of the words “two shirts”. In the third case, the defendant is alleged to have uttered the words, “that’s me” as a man with a bag, a baseball hat and a blue top appears in a CCTV video of the sidewalk outside the McDonald’s restaurant.
[27] As it transpires, in impressively short order the court reporters’ office was able to produce two sets of courtroom recordings of the occasions attributed to each of the three utterances: one (as best I understand it) produced from a compilation of the courtroom microphones and the second sourced to an isolated microphone closer to the defendant. (Unfortunately, a microphone in or at the prisoner’s box was not functioning on the day in question.) I cannot discern the first or third alleged utterances (allegedly, “that’s me screaming” and “that’s me”) on either recording. However, I can make out language very similar to the second utterance noted by Mackrell (“two shirts”) on the recorded feed from the isolated microphone; indeed, I hear the defendant (with whose distinctive voice I have become familiar over the course of the trial) say something very close to, if not exactly, “two shirts and then it comes off”.
(f) The Blue Jays T-Shirt
[28] Apart from his evidence as to the overheard utterances of the defendant, Mackrell produced a shirt that PC Holmes had collected from the street by the Mazda: a blue T-shirt with a Blue Jays insignia on the left, upper chest area. The defence conceded continuity. The T-shirt had not been submitted for forensic analysis.
C. ANALYSIS
(a) Introduction
[29] The first analytical focus is that of identification. For the reasons I soon develop, I am satisfied to the requisite standard that the defendant is the man who entered the Mazda on October 16, 2015 and stole the complainant’s phone and assaulted him. Accordingly, I then turn to whether the Crown has adequately established the offences of attempt fraud and robbery. As the allegation of assault is conceded upon proof that the defendant was the assailant, the only relevant issue is its proper legal treatment – a matter I defer until my determination of the charge of robbery. Similarly, while the two counts of fail-to-comply would require very little independent elaboration once the defendant is identified as the perpetrator of a substantive offence, even that burden is here eliminated by virtue of defence counsel’s concessions that the charge of common assault is adequately made out and that his client was indeed bound by two probation orders at the time it occurred.
(b) The Identification Issue
[30] The McDonald’s video clips capture images of several minutes duration of the man in the Blue Jays cap both inside and immediately in front of the restaurant. Both videotaped areas are well illuminated and the images are clear. The defendant has sat directly in front of me, at a distance of no more than ten to twenty feet (depending on the courtroom), over the course of three days. I have no doubt that the man in the Blue Jays cap and shoulder bag at the McDonald’s counter is the same man as the one in the identical cap and shoulder bag on the street in front of the franchise, and that each of these videotaped men is in fact the defendant. The quality, clarity and resolution of the videotaped images reasonably permit me to independently make this determination. (See R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197; R. v. Abdi, 2011 ONCA 446.) Indeed, defence counsel fairly concedes that this finding is open to me on the videotape evidence, my own observations of the defendant in court, and my comparison of the two.
[31] The more difficult question is whether the Blue Jays-attired man standing in front of McDonald’s (that is, the defendant) is the same man who, about a minute later, is seen stepping east into the same lane of Yonge Street traffic along which the complainant is driving southbound. The images pertinent to answering this question are near the top-left of the video frame and not nearly as well illuminated as the area immediately in front of the McDonald’s. Further, as the defendant begins to walk north, away from McDonald’s, his back is to the camera. I am unable to distinguish any identifying facial or physical features once he is parallel to the black SUV. His identification, then, depends on the strength and consistency of a number of circumstantial factors.
[32] To be clear, the ultimate evidence of identification turns not on visual or facial or signature-feature recognition of Kang’s tall assailant as it does a close inspection of a videotaped tracking of the defendant (the Blue Jays-capped man in front of McDonald’s) as he makes his way from his first and, effectively undisputed, sighting on Yonge Street to the location of the Mazda. Accordingly, this is not, in the end, a classic eye-witness identification case that turns on fleeting observations of a stranger under adverse conditions. (See, for example, R. v. Turnbull, [1976] 3 All E.R. 549 (C.A.) and R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 844-45.) There are, indeed, reliability concerns, but they are here of a very different nature.
[33] Based on many repeated viewings, I am fully satisfied that the man who crosses Yonge Street in front of the approaching Mazda is the same person as the man in the Blue Jays cap and T-shirt who appears in the video both in- and outside the McDonald’s a minute or two earlier – that is, the defendant Di-Folca. Other than the several distinctive persons who leave the parked SUV and then head north on Yonge, there is no one other than a tall man in a baseball cap in that stretch of the west side of the street at that hour. His trajectory can be reliably followed: he heads north on Yonge, threads his way right through the passengers exiting from the SUV, momentarily disappears from view as he passes behind the SUV, and then immediately emerges in the lane occupied by the southbound Mazda and pulls back from the vehicle’s approach as it pulls to a stop and, seconds later, enters the car’s rear passenger-side door. Other than the members of the SUV group who have already headed north, there are no other pedestrians – and certainly none in a recognizable baseball-style hat – in the immediate vicinity.
[34] I appreciate that there is some inconsistent evidence on the issue of identification. Kang, for example, does not recall his assailant having facial hair and was silent on whether he wore any sort of hat. In fact, the defendant wore a baseball cap on the evening in question and, as evidenced by his video imagery in and in-front of McDonald’s and upon his arrest the next day, bore a distinct, if short, beard and mustache. While the failure to mention a cap can be characterized as an omission, the absence of facial hair is, at least arguably, a contrary distinguishing feature. However, the value of these distinctions needs to be read in the circumstances of Kang’s window of observation and his condition at the time and immediately following the event: the incident occurred at 5:00am, at end of long shift; it began abruptly and lasted only a minute or two; Kang was engaged in a physical altercation with a larger and conspicuously stronger man throughout; the immediate surroundings were very poorly illuminated; Kang was injured about the face and his dentures were fractured; the attending officer testified to Kang’s shock and disorientation; and Kang did not testify about the events until close to a year and a half after their occurrence. In these circumstances, I assign little defence-probative value to Kang’s misrecall of these two features.
[35] More important, I find, are two sources of corroboration for my identification of the defendant as the man who entered the rear door of the Mazda and engaged in the altercation with Kang, the car’s driver. First of these is the Blue Jays T-shirt PC Holmes located in the immediate vicinity of the Mazda. I appreciate that that there is nothing distinctive about a Torontonian sporting the colours of the local baseball team. Considered in context, however, the item has considerable circumstantial force. While there are many variants of Blue Jays T-shirts, the one worn by the man, the defendant, both inside McDonald’s and on the threshold of the restaurant is physically identical – colour, design, branding – as the one Holmes found by the Mazda. Further still, the complainant Kang testified that his assailant removed his T-shirt at the rear of the Mazda before he ran away. Further still, video imagery confirms that the taller man removed his top garment at the trunk of the same car before walking to the east side of Yonge Street. And finally, the man then video-captured standing on the east side of Yonge Street immediately following the physical altercation is naked above his waist. Even apart from my confidence in the defendant’s identification through the continuous tailings he and his baseball cap cast in the various video clips, these tightly-knitted strands of evidence powerfully support the inference that the Blue Jays-attired man at the McDonald’s doorstep – who is undoubtedly the defendant – is the same man who entered the Mazda and fought with its driver, the complainant.
[36] The defendant’s utterances add a further layer of confirmatory evidence. I do not doubt DC Mackrell’s honesty, but the reliability of his recall of the defendant’s in-court utterances is here ultimately measured by the audio recordings of the same instances. As I have earlier noted, on review of these recordings I hear the defendant utter words, exactly like or closely proximate to, “two shirts and then it comes off” during the video presentation of the altercation at the rear of the Mazda. The defence position is that the evidence of the defendant having made this statement (or only the words “two shirts” that Mackrell attributes to him) is simply unreliable. I find otherwise. There may, of course, be benign explanations for this utterance and the defence is under no obligation to advance any, but in the absence of other than a fanciful conjecture I infer that the defendant’s recorded in-court comments reflect his personal familiarity with the events at issue – thus allowing the further inference, which I draw, that he was not only at the scene but was Kang’s adversary in the altercation. While not as potent as the chain of circumstantial reasoning that flows from the discovery of the Blue Jays T-shirt, this utterance adds further incriminatory substance to the defendant’s identification as the man in the physical struggle with Mazda driver.
(c) The Attempt Fraud Charge
[37] At simplest, as put in the germinal case of R. v. Olan, Hudson and Hartnett, 1978 CanLII 9 (SCC), [1978], 2 S.C.R. 1175, the essential elements of the offence of fraud are dishonesty and deprivation. A risk of prejudice or detriment to ones’ economic or financial interests, if founded on a dishonest representation or course of conduct, is sufficient to meet the standard of “deprivation”. Although no money or other valuable is said to have here passed as a consequence of any alleged dishonesty, the standard necessary to meet the second branch of the test for fraud is here of greatly reduced significance as the Crown has, in any event, particularized an “attempt” rather than realized fraud.
[38] By statutory definition (see Code s. 380(1)), the commission of a “fraud” turns on proof of a “deceit, falsehood or other fraudulent means” – the first, or “dishonesty”, half of the fraud equation. The alleged false representation in this case, as fleshed-out in Crown counsel’s able submissions, is that the defendant in effect claimed that Kang, the driver of the Mazda, had hit him with his car or otherwise jeopardized his life or safety. The defendant’s position is that there is no proof of a false representation and, accordingly, an acquittal should follow on this count.
[39] I am inclined to agree with defence counsel’s construction, although not for quite the same reasons as he advances. While I do not assign much if any weight to the semantic distinction between the words “give me” and “asked” in the immediate context and under the rubric of a fraud inquiry, I do find sufficient ambiguity to leave me with a reasonable doubt as to whether the defendant’s claim, however actually expressed, was false – that is, whether there is reason to doubt that the claim of physical damage or risk was a dishonest pretext to wrest $20 from the complainant or (although the alternative need not be established) whether it was more akin to a plea for summary street-compensation for a near or threatened injury. The video imagery of incident suggests that the defendant walked mindlessly in the path of an approaching vehicle and that the vehicle, the Mazda, did not make contact with him. However, the video evidence does not permit me to decisively conclude an absence of contact. Indeed, Kang’s testimony leads me to infer that he himself had doubts as to whether there had been some physical connection between his car and the defendant. On his evidence, even before the defendant entered the rear seat he stopped his Mazda, he felt he needed some time to process the events, he thought about leaving his car to more closely inspect what happened, and he considered turning on his four-way flashers – in anticipation, I surmise, of a protracted stop at the intersection.
[40] In all these circumstances, I am left uncertain as to whether the defendant’s claim of being hit or jeopardized was in fact false or dishonest. Accordingly, I find the defendant not guilty of the charge of attempt fraud.
[41] Without in any way meaning to pre-try the issue, it may have been to the Crown’s advantage to frame the alleged offence as one of extortion (s. 346) rather than fraud.
(d) The Robbery Charge
[42] Put broadly, the offence of robbery involves the use or threat of violence or other assaultive behaviour towards a person in the commission of a theft from that person. The item here alleged to be stolen is Kang’s cellphone. The issue here is not so much the taking of the cell phone without consent (the complainant never being challenged on this point) but whether the circumstances of the theft amount to robbery in law.
[43] Four means of committing robbery are set out in the relevant provision, s. 343 of the Code:
Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.
The first two definitions of robbery mandate proof of an act or threat of “violence”. The third, sub-s. (c), speaks of “assault” rather than “violence”. And the final definitional approach, which has no factual bearing to the immediate case, requires that the thief be armed with an offensive weapon or its imitation.
[44] The common defining element of robbery, as set out in each of the modalities by which robbery may be committed, is the word “steal” – which, simply, “means to commit theft”: Code, s. 2. “Theft”, in turn and for the purposes at hand, means in essence a dishonest taking of anything without colour of right and, as further defined in sub-s. 322(1), “with intent, to deprive, temporarily or absolutely, the owner of it” (emphasis added). As even a temporary deprivation amounts to “theft”, there is no traction in law for the already somewhat muted defence suggestion that any taking of the cellphone was motivated by an intention to only momentarily interrupt Kang’s 911 call rather than permanently deprive him of the device.
[45] The Crown here expressly relies on the third alternative mode of committing robbery. As particularized, the defendant, it is alleged, “did assault Ik Soo Kang with intent to steal from him, and thereby commit robbery, contrary to Section 343, clause (c) of the Criminal Code” (emphasis added). And here, from the defence perspective, lies the real rub.
[46] In brief, the defendant’s position is that the assault perpetrated on Kang followed rather than preceded or accompanied the theft of his phone. Accordingly, the argument continues, the impugned conduct is readily captured by sub-sections (a) or (b) of the s. 343 definition of robbery, but not by the provision under which the Crown has elected to pursue the prosecution. Restated, as there is no temporal concurrence or identity between the “theft” and the “assault”, there is no robbery within the compass of s. 343(c). Put more implicitly, and by way of a near-silent alternative argument, any assaultive conduct involved in the taking of the cellphone was so incidental or trivial (especially as compared to the violence that followed once the theft was complete) as to be of no moment to an offence of robbery. Thus, findings of guilt for theft and/or assault may lawfully lie, but not for robbery as defined in the provision upon which the defendant was arraigned.
[47] The evidence of the theft itself comes entirely from Kang, and it is unchallenged. As he testified on more than one occasion, the man I am satisfied is the defendant “grabbed” the phone from his hand as he began to call 911. At no time does he testify that the defendant wrestled it out his hand or otherwise exerted physical force on any part of his body. There was then, on the defence construction, no correspondence of an assault with the intention to steal the phone.
[48] The difficulty with this argument lies not with its ingenuity but with the meaning statutory ascribed to the word “assault”. As defined in s. 265(1)(a) of the Code, a “person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly” (emphasis added). If Kang’s cellphone had been on the seat or otherwise unattached from his person at the time of it was taken, the defence theory might find some legal purchase. The difficulty with this argument, however, is that Kang was holding the phone and in the process of calling the police when it was removed from his possession. Irrespective of how modest the defendant’s application of force, it was intentional, it was conducted without Kang’s consent (as forcefully affirmed by his immediate efforts to retrieve his phone), and, if not a “direct” it was certainly an “indirect” application to Kang of the prohibited conduct, “force”, that defines the offence. Imagine, for the moment, a thief who intentionally steals a handbag from a woman as he whips by her on the street, dislocating her shoulder in the process of grabbing the bag’s strap and tearing it from her arm. He may never have “directly” touched the woman, but his “indirect” application of force is sufficient to warrant a finding of guilt for the offence of assault (and, most likely, one occasioning bodily harm) – and of robbery if the Crown prosecuted it as such, as in the case of R. v. Fleury, 1984 ABCA 302.
[49] The defendant’s position is not materially different. His application of force to Kang, albeit “indirect”, at the very the time he intentionally deprived him of his phone makes out the offence of robbery under s. 343(c) of the Code.
[50] Nor does the relatively minor nature of the applied force remove the offence from the scope of the same provision. As is well settled, a “mere assault”, rather than any display of violence, is sufficient to establish the offence under s. 343(c). In R. v. Lew (1978), 1978 CanLII 2457 (AB SCAD), 40 C.C.C. (2d) 505, a man was convicted of robbery pursuant to then s. 302(b) (the identical precursor to now-s. 342(b)) of the Code. The accused was alleged to have “nudged” a woman as he removed a wallet from her purse. The Court of Appeal reversed the conviction on appeal, Brooke J.A. writing, at paras. 2-3:
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. [Emphasis added.]
Without, of course, pre-determining the matter, the Court then added:
While it may be that if he had been tried on a charge of robbery, pursuant to s. 302(c), the same result [i.e., a finding of guilt] would have occurred, that is not the issue here.
See, also, R. v. Fleury, supra; R. v. Chiang (1999), 1999 BCCA 503, 138 C.C.C. (3d) 522, per Braidwood, J.A., at para. 10; and R. v. Murray, 2008 ABPC 170.
[51] In the end, the offence of robbery is established to the requisite standard.
(e) The Assault Charge
[52] Irrespective of the legal character of the thief’s behaviour in taking the cellphone, the defence rightly concedes that the taller man assaulted the complainant Kang once he, the thief, left the Mazda. As I have found that the thief and the defendant are one, that concession extends to the defendant and his culpability for the offence of assault. The appropriate legal treatment of this offence is determined by the doctrine of double jeopardy, resulting, in my view and that of Crown counsel, in the entry of a stay of proceeding.
(f) The Fail-to-Comply Charges
[53] Here, again, defence counsel properly acknowledges that if I find, as I have, that the defendant was the man who stole Kang’s cellphone, then he, the defendant, is guilty of failing to comply with the “keep the peace and be of good behaviour” condition of two probation orders by which he was then bound.
D. CONCLUSION
[54] In short, and consistent with these reasons, I find the defendant not guilty of the attempt fraud charge upon which he was arraigned and, at the invitation of the Crown, similarly not guilty of failing to comply with a probation order issued out of Newmarket, Ontario. I do find him guilty of robbery, two further counts of failing to comply with probation orders, and the single count of assault. With the consent of Crown counsel, I stay the entry of finding of guilt on the charge of assault upon application of the “Kienapple principle”.
[55] In the final result, the defendant is guilty of robbery and two counts of non-compliance with probation orders.
Released on April 11, 2017
Justice Melvyn Green