R. v. Jean (A.), (2012) 330 B.C.A.C. 93 (CA)

• Judge: Finch, C.J.B.C., Garson and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 20, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 330 B.C.A.C. 93 (CA);2012 BCCA 448

R. v. Jean (A.) (2012), 330 B.C.A.C. 93 (CA);

    562 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. NO.036

Regina (respondent) v. Alex Jean (appellant)

(CA039468; 2012 BCCA 448)

Indexed As: R. v. Jean (A.)

British Columbia Court of Appeal

Finch, C.J.B.C., Garson and Harris, JJ.A.

November 20, 2012.

Summary:

The accused snatched $40 from an ATM machine as the victim was withdrawing it. As the accused attempted to flee, the victim grabbed him and forcibly restrained him until the police arrived. The accused fought to try to escape. The trial judge, in a three paragraph judgment, convicted the accused of robbery under s. 343(a) of the Criminal Code. The trial judge stated that the accused fell squarely within the definition of robbery, which required that the accused use violence or threats of violence to prevent or overcome any resistance to the stealing. The accused appealed, arguing that (1) the verdict was unreasonable because there was no evidence that he used or threatened to use violence; and (2) the trial judge's reasons were insufficient to permit meaningful appellate review.

The British Columbia Court of Appeal allowed the appeal and substituted a conviction for theft.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The trial judge, in a three paragraph judgment, found the accused guilty of robbery under s. 343(a) of the Criminal Code - The trial judge merely set out the definition of robbery under s. 343(a) and stated that the accused "falls squarely within that definition" - The British Columbia Court of Appeal, deciding the appeal on other grounds, stated that "while the record as a whole allowed review, the reasons were nonetheless lacking. [The accused] had a right to know why he was being convicted for robbery. The judge's reasons denied him that right." - See paragraphs 44 to 46.

Criminal Law - Topic 1722

Offences against property - Robbery - Elements of - [See Criminal Law - Topic 1726 ].

Criminal Law - Topic 1726

Offences against property - Robbery - What constitutes - The accused snatched $40 from an ATM machine as the victim was withdrawing it - As the accused attempted to flee, the victim grabbed him and forcibly restrained him until the police arrived - The trial judge found the accused guilty of robbery under s. 343(a) of the Criminal Code, which required a finding that the accused used or threatened to use violence to prevent or overcome any resistance to the stealing - The British Columbia Court of Appeal substituted a conviction for theft - The violence or threat must occur before or contemporaneously with the theft - When the victim attempted to stop the accused from fleeing, the theft was complete, without the accused using or threatening to use violence - Since the violence or threat of violence by the accused occurred after the theft was complete, in an attempt to escape, this violence or threat of violence could not elevate theft to robbery - See paragraphs 1 to 43.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 21].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 21].

R. v. Newell (R.S.) (2007), 263 Nfld. & P.E.I.R. 67; 798 A.P.R. 67; 2007 NLCA 9, refd to. [para. 26].

R. v. Downer (1978), 40 C.C.C.(2d) 532 (Ont. C.A.), refd to. [para. 29].

R. v. Noonan (S.T.) (2005), 248 Nfld. & P.E.I.R. 293; 741 A.P.R. 293 (N.L. Prov. Ct.), refd to. [para. 31].

R. v. Lieberman (1970), 5 C.C.C. 300 (Ont. C.A.), refd to. [para. 32].

R. v. Callihoo (F.M.), [2007] 4 W.W.R. 171; 410 A.R. 290; 2006 ABPC 347, refd to. [para. 34].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 45].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 343 [para. 22].

Counsel:

Peter Edelmann, for the appellant;

Megan Street, for the respondent.

This appeal was heard on October 18, 2012, at Vancouver, B.C., before Finch, C.J.B.C., Garson and Harris, JJ.A., of the British Columbia Court of Appeal.

On November 20, 2012, Finch, C.J.B.C., delivered the following judgment for the Court of Appeal.