R. v. McKay (J.R.), (2014) 433 Sask.R. 34 (CA)

• Judge: Lane, Jackson and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 20, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 433 Sask.R. 34 (CA);2014 SKCA 19

R. v. McKay (J.R.) (2014), 433 Sask.R. 34 (CA);

    602 W.A.C. 34

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.074

Joseph Randall McKay (appellant) v. Her Majesty the Queen (respondent)

(CACR2311; 2014 SKCA 19)

Indexed As: R. v. McKay (J.R.)

Saskatchewan Court of Appeal

Lane, Jackson and Ottenbreit, JJ.A.

January 20, 2014.

Summary:

The accused and another ran out of an off-sale store with a bottle of whiskey. An employee followed them. After about 100 metres of pursuit, the accused turned, waved a knife at the employee and threatened him. The employee backed off. Police arrived and arrested the accused shortly after. The accused was charged with robbery (s. 343(a) of the Criminal Code).

The Saskatchewan Provincial Court convicted the accused of robbery and sentenced him to 36 months' imprisonment less five months' credit for remand time. He appealed from both the conviction and the sentence.

The Saskatchewan Court of Appeal allowed the appeal, setting the robbery conviction and sentence aside and entering a conviction for theft (s. 322(1)) with a sentence of time served.

Criminal Law - Topic 1641

Offences against property - Theft - Theft defined - [See Criminal Law - Topic 1726 ].

Criminal Law - Topic 1726

Offences against property - Robbery - What constitutes - The accused and another ran out of an off-sale store with a bottle of whiskey - An employee followed - After about 100 metres of pursuit, the accused turned, waved a knife and threatened the employee - The employee backed off - Police arrested the accused shortly after - The accused was charged with robbery (s. 343(a) of the Criminal Code) - The trial judge convicted the accused of robbery on the basis that the threat was made to overcome resistance to the theft - The accused was sentenced to 36 months' imprisonment less five months' credit for remand time - He appealed from both the conviction and the sentence - The Saskatchewan Court of Appeal allowed the appeal, setting the robbery conviction and sentence aside and entering a conviction for theft (s. 322(1)) with a sentence of time served - Where a theft and an assault were two separate events, a conviction for robbery could not be sustained - Here, the theft was complete before the threat was made - The court rejected the Crown's argument that the facts allowed the court to impose convictions for theft, armed robbery and assault with a weapon - The Crown had elected to proceed under s. 343(a), not s. 343(b) - The knife was not used in the theft's commission - Only a conviction for theft was appropriate - The accused had served 14 months of his sentence, including his remand credit - A sentence of time served was appropriate for the theft.

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 1726 ].

Cases Noticed:

R. v. Downer (1978), 40 C.C.C.(2d) 532 (Ont. C.A.), refd to. [para. 12].

R. v. Newell (R.S.) (2007), 263 Nfld. & P.E.I.R. 67; 798 A.P.R. 67; 2007 NLCA 9, agreed with [para. 20].

R. v. Daughma, [1989] O.J. No. 1765 (C.A.), refd to. [para. 22].

R. v. Jean (A.) (2012), 330 B.C.A.C. 93; 562 W.A.C. 93; 293 C.C.C.(3d) 66; 2012 BCCA 448, refd to. [para. 24].

R. v. Lieberman (1970), 5 C.C.C. 300 (Ont. C.A.), dist. [para. 28].

R. v. Saunders, [1996] O.J. No. 518 (Gen. Div.), dist. [para. 28].

R. v. Callihoo (F.M.), [2007] 4 W.W.R. 171; 410 A.R. 290; 2006 ABPC 347, dist. [para. 28].

R. v. Gomes (A.), [2011] O.T.C. Uned. 1808; 2011 ONSC 1808, dist. [para. 28].

R. v. Desjarlais (1985), 38 Sask.R. 144 (Q.B.), refd to. [para. 35].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 322(1) [para. 14]; sect. 343(a), sect. 343(b) [para. 13].

Counsel:

Joseph McKay, appearing on his own behalf;

W. Dean Sinclair, for the respondent.

This appeal was heard on January 20, 2014, by Lane, Jackson and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The court rendered its decision orally on January 20, 2014. Lane, J.A., delivered the following written reasons for judgment for the court on February 21, 2014.