Court File and Parties

Barrie Court File No.: CR-19-090 Date: 2020-03-16 Superior Court of Justice – Ontario

Between: Her Majesty the Queen, Respondent And: Jahson Sanderson, Applicant

Counsel: N. Riley, for the Crown W. Caven, for the Applicant

Heard: March 12, 2020

Reasons for Ruling re Motion for a Directed Verdict

Healey J.:

[1] The defence brought a motion for a directed verdict of acquittal on a charge of robbery under s.343(a) of the Criminal Code. Following argument the motion was granted, with reasons to follow.

[2] Count 4 on the indictment alleges as follows:

Jahson Anthony Sanderson stands charged that on or about the 21st day of November in the year 2018, at the Town of Bradford West Gwillimbury in the said Region, he did steal a motor vehicle from Ronald Kooiman and at the time thereof did use violence to Ronald Kooiman, contrary to the Criminal Code of Canada.

[3] The charge arose from the applicant driving away in Ronald Kooiman’s vehicle, which contained all his belongings. Ronald Kooiman’s ownership of the vehicle has been admitted. Neither the vehicle nor the belongings were ever returned to Mr. Kooiman. Before that occurred, the two men had left an apartment together and gone outside to where the vehicle was parked because Ronald Kooiman was going to drive the applicant to St. Catherines.

The Test to be Applied

[4] The test that must be applied on a motion for a directed verdict is that set out in United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080, and R. v. Arcuri, [2001] 2 S.C.R. 828, at para. 21, which is that the judge must determine whether there is sufficient evidence upon which the jury, properly instructed and acting reasonably, could convict. It is agreed by counsel that this is a low threshold to overcome.

[5] Where the Crown has not presented direct evidence as to every element of the offence, the trial judge must conduct a limited weighing of any circumstantial evidence to determine if a properly instructed jury could reasonably convict. This limited weighing involves assessing whether the circumstantial evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri, at para. 23.

[6] Arcuri makes clear, however, that it is not for the trial judge to measure the credibility of witnesses, draw inferences from facts, test the inherent reliability of the evidence, or ultimately weigh the evidence to decide whether he or she would find the accused guilty beyond a reasonable doubt (para. 23). These issues are to be left to the jury. As set out in The Law of Evidence in Canada, 4th ed., “the task of limited weighing does not consider the inherent reliability of the evidence itself but rather it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence”: see Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis Canada, 2014), at para. 5.27.

The Elements of the Offence of Robbery under s.343(a) of the Code

[7] Crown counsel confirmed that, although s.343 offers different routes to a robbery conviction, the Crown was relying only on subsection (a).

[8] Section 343(a) of the Criminal Code provides:

Everyone 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.

[9] Under s.343(a), the Crown is required to prove that the violence be administered or threatened for a proscribed purpose, which is:

i. To extort whatever is stolen; ii. To prevent resistance to the stealing; or iii. To overcome resistance to the stealing.

No other purpose will suffice.

[10] The purpose which accompanies the act of actual or threatened violence may be inferred from the circumstances surrounding the violence or its threat: R. v. Saunders, [1996] O.J. No. 518 (Ont. Gen. Div.), at para. 34; R. v. Gomes, 2011 ONSC 1808, at para. 12.

[11] Under this section the purpose of the violence is crucial. There must be a connection between the theft and the threatened violence before s.343(a) can apply and the elements of the offence be made out: Gomes, at paras. 14 and 16.

[12] The defence also provided R. v. Kulscar, 2009 BCCA 515 to illustrate these principles. The facts were that the appellant bicycled up to an apartment building where he found the complainant, who was afflicted with several health issues including wearing a knee brace and having the use of a portable oxygen unit. The complainant was sitting outside the building, waiting for her daughter to arrive. Her laundry, purse and camera sat next to her. The appellant buzzed someone who lived in the apartment building. That individual stepped out onto his balcony to talk to the appellant, then refused to let the appellant come in to the building. The appellant turned to the complainant and asked her to let him into the building. She refused. The complainant said that the appellant then asked her how far she thought she could run with the oxygen tank and the brace on her knee, while putting his fist about two or three inches from her face and cracking his knuckles. He then turned and buzzed another tenant, this time being told over the intercom that he had the wrong apartment. The appellant then left the area. After he was gone, the complainant noticed that her camera was gone. She thought that five to seven minutes had elapsed from the time that the appellant threatened her with his fist to the time that she noticed that her camera was missing.

[13] The appellant was convicted at trial of robbery pursuant to s.343(a), which the parties had agreed was the only route to conviction. On appeal, the robbery conviction was set aside and a conviction for theft substituted. The reasoning of the appellate court is found at para. 12 of its decision:

…While the threat and the stealing might be linked in time – the theft, taking place five to seven minutes after the threat – there is no other link between the two acts. Thus there was no evidence before the court from which to draw the inference that the appellant used the fear he had created in the complainant to prevent her from resisting his stealing her camera. The appellant had snatched the camera, which was a short distance from the complainant, and was off on his bike before she knew it was gone. In my view it cannot be said that the appellant used the threat to obtain the camera.

[14] There are similarities between the facts in Kulscar and the facts of this case, as will become apparent.

The Evidence

[15] The parties agree that Mr. Caven accurately summarized the evidence given by Ronald Kooiman during his examination in chief, as follows:

Shortly after 5:00 p.m., Jahson Sanderson arrived at the apartment at 220 Holland Street in Bradford. The apartment was rented by Ronald Kooiman’s friends “Krista” and “Rick”. Ron had been staying with them for the past few days as he was homeless at the time. Ron was sitting on the couch watching TV. He had not seen Jahson since mid-September, and was not expecting to see him that day. Ron did not see Jason arrived, but could hear the tone in Krista’s voice. She sounded scared, and he concluded that Jahson forced his way into the apartment. He could also hear Jahson talking to Rick and Krista at the front door but he could not hear what they were saying or the words they were using. However, the tones are unfriendly.

Approximately five minutes later Jahson approached Ron where he was sitting on the couch. Jahson’s demeanour, in Ron’s words, was very upset and unfriendly. Ron anticipated that he was going to get in trouble or get beaten up. Ron stayed where he was seated and did not make any aggressive moves. Jahson called him names, referring to Ron as a “snitch” and a “rat”. He did not know what Jahson was talking about. Jahson was standing about 2 feet away from him. This went on for a couple of minutes and Ron did not respond. He just sat there and did not make any aggressive moves.

Unprovoked, Jahson took a swing with his left hand and connected with Ron’s face. Ron felt a cut on his chin and felt the metal of a sharp object against his skin. He did not see the object. After this Jahson went back to the kitchen. Jahson said nothing after he hit him. Ron put his hand to his face, saw blood, and went to the bathroom to clean himself up. Ron remained in the washroom for 5 to 7 minutes.

When he came out of the bathroom Jahson was in the kitchen cooking up crack cocaine. Ron sat back down on the couch and continued watching TV. He said that he sat there waiting for Jahson to finish and to find out why he had come to the apartment.

After about 10 minutes, Jahson came out of the kitchen and asked Ron to drive him to St. Catherines. During that 10 minute interval there was no interaction between Ron and Jahson. Jahson’s tone when asking to be driven to St. Catharines was aggressive and demanding. Ron was not sure if Jahson would assault him further. Jahson did not say why he wants to go to St. Catherines. Ron perceived this to be more of a demand than a request, based on the tone of Jahson’s voice. Ron was concerned that if he refused to drive him to St. Catherines he would be assaulted again, so he agreed.

Ron then had to wait for some time for Jahson to be ready to go. During this time Ron continued to sit on the couch and watch TV. He did not get up to leave because he is afraid that Jahson would retaliate or be aggressive again.

Ron’s initial timeline was that the time between the demand for the drive to St. Catherines, and the time that they left, was 30 to 45 minutes. In cross-examination Ron was shown a video showing activity in the hallway outside of the apartment. That video, and an Agreed Statement of Fact, establishes that he and Jahson left the apartment at 8:22 p.m. Ron adopted that timing during his cross-examination. He did not change his evidence about Jahson arriving at 5 p.m., and Jahson’s time of arrival at the apartment was never contradicted because it was not captured on the video. This evidence seems to establish that they were in the apartment together for approximately three hours.

Between the request for the drive to St. Catherines and the time that the two men left the apartment, there is no evidence of any further interaction between them. When Jahson indicated that he was ready to go, there is no evidence of what was spoken, if anything, or how he indicated that it was time to leave.

Ron said that they left the apartment together. This is confirmed on the video, including the two men going down a stairwell just outside of the apartment.

Ron testified that it took them about five minutes to walk to his vehicle, which was parked on a side street. They did not talk to one another from the time they left the apartment until they arrived at the truck. Ron said that he was just going along with things. He did not want to drive Jahson to St. Catherines, but he agreed to go along with it because he did not want to rile him up.

Once they arrived at the truck Ron used his remote to unlock it. Ron got in the driver’s seat and Jahson got into the passenger seat. For the first time since indicating that it was time to leave the apartment, Jahson spoke. He asked Ron to turn the car on because he was cold. Ron turned on the car. Ron did not testify that he started the car because he was afraid that Jahson would get violent. He said that he turned it on because it was, in fact, cold out. Other than complaining of the cold, Ron confirmed that Jahson did not say anything else.

Ron then got out of the truck to brush the snow off. Ron was clear that it was his decision to wipe the car free of snow because it had been sitting there for several days and was covered in snow. In a matter of seconds, before he could walk from the driver’s door to the back of the truck to get the snow brush out of the hatch, Jahson jumped over the console into the driver’s seat and drove away.

The Position of the Applicant

[16] The argument of the defence is that, although there is evidence of both physical violence and a threat or perceived threat of further violence in this case, such violence was not linked to any of the proscribed purposes set out in s.343(a). There is no evidence from which an inference could properly be drawn that the applicant used any fear that he created in Ronald Kooiman to extort the vehicle, or to prevent or overcome his resistance to the stealing. The theft of taking the truck seemingly came out of nowhere, without warning. While the evidence may be able to establish that a theft occurred, and to establish a real or perceived threat of violence much earlier in their interactions in the apartment, the evidence is insufficient to establish that the violence or threat of it was carried out for one of the three listed purposes under s.343(a).

The Position of the Crown

[17] The position of the Crown is that it is open to the jury to infer from the evidence of aggression and violence that Ronald Kooiman was afraid of the applicant. This fear arises not only from what occurred in the apartment, but from two alleged assaults perpetrated by the applicant against him during the summer of 2018. This atmosphere of fear of real and potential harm had the effect of facilitating the applicant to carry out one of the purposes listed in s.343(a), specifically, to prevent any resistance to the stealing of the car.

Analysis

[18] I am of the view that neither the violent act of hitting Ronald Kooiman in the face, nor the applicant’s tone of voice while soliciting the ride from Ronald Kooiman, nor even the threat or perceived threat of violence if he refused or failed to acquiesce, is enough to satisfy the elements of s.343(a). On the same analysis used in Kulscar, it cannot be said that the appellant used the violence or threat of it to obtain the vehicle.

[19] The only evidence in relation to the punch to the face is that immediately preceding the punch, the applicant called Ronald Kooiman names. He did not mention the vehicle at the time. The purpose of the punch to the face seems to be some sort of retribution or an expression of anger.

[20] When the applicant asked in an aggressive or demanding tone to be driven to St. Catherines, there is no evidence that his purpose was anything other than to secure the ride to that city.

[21] There is no evidence arising from their interactions within the apartment to establish that the purpose of the applicant acting aggressively or threateningly was to facilitate the theft of the vehicle, either to overcome or prevent resistance, or to extort obtaining possession of the vehicle. The only role the vehicle played up until the point that the men left the building was as a means of transportation to St. Catherines.

[22] There is some temporal connection between the violence and the theft, but there is an absence of interaction during significant periods of time. Ten minutes elapsed between the punch and the request for a ride. There is a further longer period, either 30 to 45 minutes or, as the video shows, more likely closer to three hours when there is no interaction between them until the applicant somehow indicates that he is ready to leave. And there is no evidence of interaction between the two men after leaving the apartment as they walked down the stairwell and outside to the car.

[23] The only interaction in the area of the car is the applicant’s request to have the car turned on, which Ronald Kooiman did not perceive as threatening in any way.

[24] Accordingly, there is no evidence that this theft was anything other than an impulsive act, similar to the appellant in Kulscar snatching the camera after being frustrated in his attempts to gain access to the apartment building. Up until the time that the applicant jumped over the console, the plan had always been for Mr. Kooiman to drive him to St. Catherines. There is no evidence to the contrary. The applicant did not say or do anything to coerce, threaten or trick Mr. Kooiman to step out of the truck to remove the snow. It was Mr. Kooiman’s decision to wipe the snow off.

[25] There is no evidence that the applicant ever demanded the truck itself; he only demanded the ride. The evidence supports that the aggressive voice and perceived or real threat of violence is connected only to securing the ride. There is no evidence at any point that Mr. Kooiman resisted the applicant’s efforts to take the truck, because up to the time that he jumped over the centre console there is no evidence of effort to take the truck. There is no evidence that the applicant used violence or threats of violence to overcome resistance to him taking the truck, because Mr. Kooiman never had an opportunity to resist. The required link between violence or threat of violence for one of the listed purposes of effecting the theft does not exist.

[26] As the evidence does not support a potential conviction for robbery under s.343(a) the motion for a directed verdict was granted.

Healey J. Released: March 16, 2020