R. v. Steele (J.M.), (2013) 288 Man.R.(2d) 304 (CA)

• Judge: Scott, C.J.M., Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 22, 2012
• Jurisdiction: Manitoba
• Citations: (2013), 288 Man.R.(2d) 304 (CA);2013 MBCA 21

R. v. Steele (J.M.) (2013), 288 Man.R.(2d) 304 (CA);

      564 W.A.C. 304

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MR.025

Her Majesty The Queen (appellant) v. John Melville Steele (accused/respondent)

(AR 11-30-07625; 2013 MBCA 21)

Indexed As: R. v. Steele (J.M.)

Manitoba Court of Appeal

Scott, C.J.M., Beard and Monnin, JJ.A.

March 13, 2013.

Summary:

The accused was convicted of robbery. The Crown applied for remand of the accused for an assessment under s. 752.1 of the Criminal Code to be used as evidence in support of an application by the Crown to have the accused declared a dangerous or long-term offender.

The Manitoba Court of Queen's Bench, in a decision reported at 267 Man.R.(2d) 91, dismissed the application for remand, holding that while the character of the threat of violence was sufficient to ground a s. 343(a) robbery conviction, it did not amount to "the use or attempted use of violence" sufficient to trigger a s. 752.1 dangerous/long-term offender assessment. The Crown appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 1722

Offences against property - Robbery - Elements of - [See third, fifth, sixth and eighth Criminal Law - Topic 6560 ].

Criminal Law - Topic 5720.1

Punishments (sentence) - Conditional sentence - General - [See ninth Criminal Law - Topic 6560 ].

Criminal Law - Topic 6509

Dangerous or long-term offenders - Detention - Remands - [See all Criminal Law - Topic 6560 ].

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The accused was convicted of robbery (Criminal Code, s. 343(a)) - The Crown applied to have the accused remanded for an assessment (s. 752.1) to support a dangerous or long-term offender application - The applications judge dismissed the application holding that the robbery for which the accused was convicted was not a "serious personal injury offence" as was required before the Crown could pursue dangerous or long-term offender status - The robbery (of a drug store) lasted approximately 39 seconds, a weapon was never seen and no injuries were sustained - The Crown appealed - The Manitoba Court of Appeal dismissed the appeal - Scott, C.J.M., for the court, stated that "the trial judge, on close examination of the facts, and after adverting to the correct legal principles, concluded that the nature and extent of the threat of violence in the circumstances before her was not sufficient to constitute 'the use or attempted use of violence'. Her factual findings were not challenged. As the threat of violence was not associated with either any imminent danger to another person or any, even minimal, overt physical act directed to another person, I am not prepared to say that the trial judge erred in law in arriving at the conclusion that, while the character of the threat of violence was sufficient to ground a s. 343(a) robbery conviction, it did not amount to 'the use or attempted use of violence' sufficient to trigger a s. 752.1 dangerous/long-term offender assessment".

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment where there were reasonable grounds to believe that an offender, who was convicted of a "serious personal injury offence" (SPIO), might be declared to be a dangerous or long-term offender - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal stated that the principles of statutory interpretation suggested that the difference in wording of the provisions was significant - First, a consideration of the meaning of the alternative wording within each of the phrases raised the presumption against tautology - Secondly, the presumption that the use of different language suggested that the legislator intended different meanings and the related principle that the same words throughout a statute had the same meaning - The court stated that the combination of those fundamental principles of statutory interpretation led inexorably to the conclusion: "(1) that, while there may be some overlap, not every threat of violence under s. 343(a) constitutes the use of violence; and (2) that not all robberies constitute 'the use or attempted use of violence' within the definition of an SPIO" - Parliament did not intend that every robbery would be an SPIO - See paragraphs 28 to 36.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment where there were reasonable grounds to believe that an offender, who was convicted of a "serious personal injury offence" (SPIO), might be declared to be a dangerous or long-term offender - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal analysed the constituent elements of robberies and SPIOs, including the meaning of the phrase "uses violence" in the predicate offence of robbery - The court stated that it saw no reason why the reach of s. 343(a), and specifically the definition of violence, would not be given its most expansive meaning, being that it included both violence by the application of force and violence by the causation of harm - See paragraphs 37 to 41.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment for a dangerous/long-term offender application of a person convicted of a "serious personal injury offence" (SPIO) - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal analysed the constituent elements of robberies and SPIOs, including the meaning of the phrase "use of violence" in the definition of SPIO - The court stated that there was no reason to limit or restrict the meaning of "violence" as it appeared in the definition of an SPIO - Therefore, the court adopted and expanded the meaning of "violence" to include both violence and the application of force and violence by the causation of harm - The court stated that the "use" of violence in a robbery constituted the "use" of violence for an SPIO - See paragraphs 42 to 47.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment for a dangerous/long-term offender application of a person convicted of a "serious personal injury offence" (SPIO) - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal analysed the constituent elements of robberies and SPIOs, including the meaning of the phrase "threats of violence" in the predicate offence of robbery - The court listed the types of threats that could support a conviction of robbery - See paragraphs 48 to 56.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment for a dangerous/long-term offender application of a person convicted of a "serious personal injury offence" (SPIO) - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal analysed the constituent elements of robberies and SPIOs, including the meaning of the phrase "attempted use of violence" in the definition of SPIO - The court stated that not all threats of violence under s. 343(a) constituted the use or attempted use of violence within the definition of an SPIO - The court discussed the circumstances in which a threat of violence might constitute an attempted use of violence - See paragraphs 57 to 78.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The robbery (of a drug store) lasted approximately 39 seconds, a weapon was never seen and no injuries were sustained - The Crown applied for remand of the accused for an assessment under s. 752.1 of the Criminal Code to be used as evidence in support of a dangerous or long-term application, arguing that the accused had committed a serious personal injury offence (SPIO) (i.e., robbery (s. 343(a)) - The Manitoba Court of Appeal stated that the sequential approach to be taken in this situation was: "(1) regarding the charge under s. 343(a), determine whether the acts constituted the use of violence or a threat of violence; (2) if there has been a finding of the use of violence to a person, this will also constitute the use of violence within the definition of an SPIO; and (3) if the acts are sufficient to constitute a threat of violence to a person but not an act of violence to a person, it will be necessary to determine whether they also constitute an attempted use of violence within the definition of an SPIO" - See paragraph 76.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment for a dangerous/long-term offender application of a person convicted of a "serious personal injury offence" (SPIO) - SPIOs included indictable offences involving the "use or attempted use of violence against another person" (s. 752) - Section 343(a) described the violence necessary for robbery as "uses violence or threats of violence to a person or property" - The Manitoba Court of Appeal interpreted these provisions - The court stated that "One further observation. In my view, the use of phraseology such as an "implied threat" (also used by the trial judge in this instance) is not helpful. Conceptually, there is no difference between a threat of violence and an implied threat. Furthermore, it is potentially confusing as the definition of robbery in s. 343(a) does not speak of an 'implied' threat of violence; indeed, the phrase 'implied threat of violence' is not found anywhere in the Code. Either it constitutes, in the end, on an objective standard, a threat of violence or it does not. Adding an additional component to the analysis, in my opinion, is unnecessary" - See paragraph 63.

Criminal Law - Topic 6560

Dangerous or long-term offenders - Detention - Protection of the public - Personal injury offences - The Criminal Code, s. 752.1(1), allowed the Crown to apply for a remand for an assessment for a dangerous/long-term offender application of a person convicted of a "serious personal injury offence" (SPIO) - The Manitoba Court of Appeal discussed SPIOs and the distinction between long-term or dangerous offender cases and conditional sentencing cases - Scott, C.J.M., for the court stated that "While the distinction, if any, between the interpretation to be given to the meaning of an SPIO for a conditional sentencing purpose will be only of academic interest in the future, I am not convinced that there is any significant difference between the interpretation of an SPIO in dangerous offender/long-term offender applications as opposed to the availability of a conditional sentence under s. 742.1, as it formerly stood, because of the different potential consequences to an accused person. In my view, there is no good reason why the ordinary statutory presumption should not prevail  ..." - See paragraphs 82 to 84.

Statutes - Topic 2269

Interpretation - Presumptions and rules in aid - Different phrases have different meaning - [See second Criminal Law - Topic 6560 ].

Statutes - Topic 2271

Interpretation - Presumptions and rules in aid - Against tautology (every word must have a meaning) - [See second Criminal Law - Topic 6560 ].

Words and Phrases

Attempted use of violence - The Manitoba Court of Appeal considered the meaning of the phrase "attempted use of violence" as used in the definition of "serious personal injury offence" in s. 752 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 57 to 78.

Words and Phrases

Threats of violence - The Manitoba Court of Appeal considered the meaning of the phrase "threats of violence" as used in s. 343(a) (the robbery provision) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 48 to 56.

Words and Phrases

Use of violence - The Manitoba Court of Appeal considered the meaning of the phrase "use of violence" as used the definition of "serious personal injury offence" in s. 752 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 42 to 47.

Words and Phrases

Uses violence - The Manitoba Court of Appeal considered the meaning of the phrase "uses violence" as used in s. 343(a) (the robbery provision) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 38 to 41.

Cases Noticed:

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 10].

R. v. Moquin (T.D.) (2010), 251 Man.R.(2d) 160; 478 W.A.C. 160; 2010 MBCA 22, refd to. [para. 10].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 253 C.C.C.(3d) 351; 2010 MBCA 35, refd to. [para. 11].

R. v. Neve (L.C.) (1999), 237 A.R. 201; 197 W.A.C. 201; 1999 ABCA 206, refd to. [para. 12].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 193 C.C.C.(3d) 354; 2005 SKCA 12, refd to. [para. 13].

R. v. Lebar (S.M.) (2010), 260 O.A.C. 169; 252 C.C.C.(3d) 411; 101 O.R.(3d) 263; 2010 ONCA 220, refd to. [para. 13].

R. v. Roy (D.W.) (2008), 307 Sask.R. 276; 417 W.A.C. 276; 2008 SKCA 41, refd to. [para. 15].

R. v. Thompson, 2009 ONCJ 359, refd to. [para. 15].

R. v. McLeod, 2010 CarswellOnt 6209; 2010 ONCJ 354, refd to. [para. 15].

R. v. Jolicoeur (R.) (2011), 265 Man.R.(2d) 225; 2011 MBQB 129, refd to. [para. 15].

R. v. Griffin (E.M.) (2011), 309 N.S.R.(2d) 250; 979 A.P.R. 250; 2011 NSCA 103, refd to. [para. 18].

R. v. Ponticorvo (R.) (2009), 448 A.R. 275; 447 W.A.C. 275; 246 C.C.C.(3d) 48; 2009 ABCA 117, refd to. [para. 19].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 20].

R. v. K.I. (2011), 268 Man.R.(2d) 1; 520 W.A.C. 1; 2011 MBCA 11, refd to. [para. 26].

Ste. Rose & District Cattle Feeders Co-op v. Geisel (2010), 255 Man.R.(2d) 45; 486 W.A.C. 45; 2010 MBCA 52, refd to. [para. 31].

Garlicki (Bankrupt), Re (2010), 258 Man.R.(2d) 35; 499 W.A.C. 35; 2010 MBCA 73, refd to. [para. 31].

R. v. Roussin (B.) (2011), 270 Man.R.(2d) 11; 524 W.A.C. 11; 2011 MBCA 67, refd to. [para. 31].

R. v. Bogdanski (P.J.), [2011] O.T.C. Uned. 5912; 2011 ONSC 5912, refd to. [para. 32].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63, refd to. [para. 33].

Hydro Electric Board (Man.) v. Consumers' Association of Canada (Man.) Inc. et al. (2012), 275 Man.R.(2d) 60; 538 W.A.C. 60; 2012 MBCA 1, refd to. [para. 33].

R. v. MacCormack (C.J.) (2009), 245 O.A.C. 271; 2009 ONCA 72, refd to. [para. 50].

R. v. Johnson (F.) (2012), 291 O.A.C. 350; 2012 ONCA 339, refd to. [para. 51].

R. v. Pelletier (R.) (1992), 44 Q.A.C. 168; 71 C.C.C.(3d) 438 (C.A.), refd to. [para. 52].

R. v. Hodson (B.S.) (2001), 281 A.R. 76; 248 W.A.C. 76; 92 Alta. L.R.(3d) 262; 2001 ABCA 111, refd to. [para. 53].

R. v. Pearson (R.R.) (2012), 538 A.R. 236; 2012 ABQB 240, refd to. [para. 64].

R. v. Mohamed (M.M.), [2012] O.T.C. Uned. 3072; 2012 ONSC 3072, refd to. [para. 65].

R. v. Smith (R.), [2012] O.A.C. Uned. 514; 2012 ONCA 645, refd to. [para. 73].

R. v. Nikolovski (A.) (2005), 194 O.A.C. 258 (C.A.), refd to. [para. 80].

R. v. S.M. (2005), 196 O.A.C. 127 (C.A.), refd to. [para. 80].

R. v. Tremblay, 2010 ONSC 486, refd to. [para. 81].

R. v. Hopley (R.P.), [2012] B.C.T.C. Uned. 1329; 2012 BCSC 1329, refd to. [para. 81].

R. v. Walker (W.R.) (2000), 137 O.A.C. 293 (C.A.), refd to. [para. 81].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 752.1 [para. 5].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 210 [para. 30]; 214 to 218 [para. 32].

Counsel:

C.L. Sholdice and C.A. Vanderhooft, for the appellant;

J.D. Soper, for the respondent.

This appeal was heard on March 22, 2012, before Scott, C.J.M., Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court on March 13, 2013, by Scott, C.J.M.