R. v. Sabattis, 2012 NSPC 11

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Sabattis, 2012 NSPC 11 Date: February 10, 2012 Docket: 2331971- 2331973 Registry: Halifax Her Majesty the Queen v. Michael Sabattis Judge: The Honourable Judge Marc Chisholm Heard: January 31, 2012 Written decision: February 10, 2012 Charges: CC. 344, 145(3), 145(5.1) Counsel: Darrell Martin - Crown Attorney Josh Bearden - Defence Attorney By the Court : [ 1 ] Michael Sabattis stands charged that he, on or about July 1, 2011, at or near Halifax, Nova Scotia, did: unlawfully rob Alyson Bent, contrary to

Section 344 of the Criminal Code . And furthermore, at the same time and place aforesaid, did being at large on his Recognizance entered into before a Justice on the 7 th day of March 2011 and being bound to comply with a condition of the Recognizance directed by the said Justice fail without lawful excuse to comply with that condition, to wit., “(

a) keep the peace and be of good behaviour”, contrary to Section 145(3) of the Criminal Code . AND FURTHER, that he, at the same time and place aforesaid, did while being at large on his Undertaking issued on the 18 th day of June, 2011 entered into before an Officer in Charge and being bound to comply with a condition of said Undertaking did fail without lawful excuse to comply with a condition of said Undertaking to wit., “(

G) to abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription;”, contrary to Section 145(5.1) of the Criminal Code .

[ 2 ] During the trial, Mr. Sabattis through his counsel, indicated that there was no dispute on the second and third counts. During his evidence, Mr. Sabattis admitted to consuming alcohol on July 1, 2011 when he knew he was bound by the specified orders not to consume alcohol and to keep the peace. [ 3 ] Those charges have been proven beyond a reasonable doubt and a conviction is entered. [ 4 ] On the robbery charge the Crown urged the court to find the accused guilty of an attempted robbery because nothing was handed over to the accused. The Crown’s case rests upon the definition of robbery in s. 343 (

a) of the Criminal Code which specifies: “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;” [ 5 ] The Crown theory is that the accused demanded to be given food by a McDonald’s restaurant employee and at the time of the demand stated “or he would pull a fucking gun”. The employee did not respond to the demand, no food was given.

The Crown argued that the accused conveyed a threat to extort food and intended to do so. [ 6 ] The position of the Defence is that the evidence has failed to establish beyond a reasonable doubt that the accused’s words conveyed a threat or, in the alternative, that the accused given his state of intoxication intended that his words convey a threat. [ 7 ] I will begin by reviewing the evidence. [ 8 ] In this case the alleged offence was caught on video. The video is exhibit #2.

It shows that, at approximately 12:20 on July 1, 2011 the accused walked into the McDonald’s restaurant at 5675 Spring Garden Road, Halifax, NS. At that time there were perhaps 10 other customers and three employees present. A half dozen of the customers were in a line waiting to give their order to the one clerk who was taking orders. The second clerk and shift manager were at the food grill. The accused, after entering the store stopped and spoke, briefly, to a person at the end of that line of persons waiting to order food. Then he walked out of the camera view toward the washrooms area.

The accused was out of sight for a couple of minutes. When he re-entered the video, from the washroom area, he stepped between the persons in the line waiting to be served, and went to another spot at the counter where there was another cash register. There wasn’t a clerk taking orders at that register but there were two employees at the cooking grill a few feet behind the counter where the accused stood. They were not looking at the accused. They were not able to be seen in the video. [ 9 ] The accused put both hands on the counter. He had nothing in either hand.

He appeared to say something while looking straight ahead. His expression was unremarkable. There was no audio to the video recording. He is then seen putting both hands in the front pouch of the sweatshirt top that he’s wearing. He doesn’t appear to be speaking at this time. He moves his hands about in the pouch for a few seconds. No clerk appears in the camera view to respond to him. He moves away from the counter not having appeared to have spoken to the clerk again. He had been at the counter for 30 seconds or less. After moving away he is seen approaching and appearing to speak to some customers.

The conversations are but a matter of seconds each. Shortly thereafter, the accused leaves the restaurant. [ 10 ] In the Courts view the video shows the accused being somewhat unsteady on his feet and in his movements. He does not stumble, or stagger or lose his balance. [ 11 ] The Crown called 3 witnesses. [ 12 ] Cst. Mayer testified that he found the accused a short time after the alleged robbery passed out in front of a business on Brenton Street, which is a street off Spring Garden Road in downtown Halifax.

[ 13 ] According to Cst. Mayer, the accused was moderately to highly intoxicated. He observed that the accused had to be awakened, there was a strong odour of alcohol on this breath, his speech was slurred, he had to be helped to his feet, he had difficulty standing on his own, and there was blood on his face. [ 14 ] He was searched - no weapons were found. Cst. Mayer couldn’t recall what if anything Mr. Sabattis had in his possession. [ 15 ] Cst. Mayer turned Mr. Sabattis over to Cst. Opalka who transported him to the police station where he was searched by her before being placed in a cell. Cst.

Opalka could not recall whether he had a wallet or keys in his possession. [ 16 ] The Court found it surprising that neither officer, investigating an alleged robbery made note of whether the accused had money sufficient to pay for the item demanded. Not that his having money would be conclusive but surely of relevance to the allegation. [ 17 ] Cst. Opalka stated that the accused was intoxicated.

As for the foundation for her opinion she said that at Brenton Street he was swearing at the police and belligerent, unsteady on his feet, had a strong smell of alcohol and glossy red eyes. [ 18 ] The Crown called one other witness, Ms. Alyson Bent (Forsythe), the alleged victim. I’ll refer to her by the name on the Information, Ms. Bent. Ms. Bent testified that she was swing manager - ie the shift manager at the McDonald’s on Spring Garden Road on July 1, 2011. She had several years experience working as a McDonald’s late shift manager.

She’d dealt with many intoxicated customers, many who were more intoxicated than the accused. [ 19 ] When the accused came to the counter she was in front of his position a few feet back from the counter, at the cooking grill. She stated that he was leaning on the counter. [ 20 ] It was her evidence that the accused asked her to give him a cheeseburger or he’d pull a fucking gun. She testified that he had his hands in his pockets. She couldn’t recall his tone of voice or volume. She didn’t comment on his facial expression.

When asked again what the accused said she testified that his words were give me a cheeseburger or a McDonald’s, she wasn’t sure which, or he’d pull a fucking a gun. She believed he had one hand in his pocket and one by his side. This was a change from her earlier evidence. She appeared to say that she had not been facing him when he spoke because she testified that when he spoke she “glanced over at him”. She said the accused seemed a little out of it. When asked to explain she said a sober person wouldn’t say that. [ 21 ] Ms.

Bent testified that she didn’t make any verbal response to the accused’s statement and that she turned her back to him. The accused didn’t say anything else and left the counter. She testified she didn’t believe he had a gun. She said his sweater pocket did not seem weighted down, other than by his hands. She didn’t believe he meant it. She didn’t give him food, which she would’ve done if she thought he had a gun. She was a little concerned for other employees so she called police to have him removed. She didn’t want to take any risk.

She stated that there was nothing threatening in the accused’s physical presentation. [ 22 ] Ms. Bent was then shown Exhibit #2, the McDonald’s restaurant video. [ 23 ] After watching the video she corrected her evidence - noting that the accused had both hands out of his pockets when he spoke to her. She said he put both hands into the sweatshirt pouch pocket within seconds of making the statement. [ 24 ] While she couldn’t recall the volume of the accused’s voice, she said it was loud enough for her to hear it clearly. She couldn’t say if others heard it. She didn’t note any reaction by other customers.

The video does not show any other customers reacting to the accused’s statement. [ 25 ] The accused was a stranger to Ms. Bent. There is no evidence of any bias on her part, for or against the accused. I found her evidence reasonable. She was in my view entirely credible but her recollection was not entirely reliable. [ 26 ] Her evidence of where his hands were when she glanced back at him was inconsistent and mistaken. She corrected her evidence

after watching the video, exhibit #2. [27] Her evidence left the Court uncertain exactly what she saw during that “glance back”. I am not certain that she saw him put hishands into his pocket. She may have seen that or she may be recalling what she saw on the video. [28] As to what the accused said, she wasn’t sure if he demanded a cheeseburger or McDonald’s. She couldn’t describe the volume ofhis voice or the tone of voice. There was no evidence what she observed in regard to his facial expression.

In my view, the words “pull afucking gun” are distinctive and are likely to leave an impression on the person to whom they are spoken and, therefore, likely to beremembered. Her recall of those words was consistent. I am persuaded beyond a reasonable doubt that his statement included “pull afucking gun” and that the thrust of his statement was as she testified. I am not persuaded beyond a reasonable doubt exactly what otherwords were spoken by him as her recollection was not entirely reliable. [29] The Defence elected to call evidence. The Defence called one witness, the accused. Mr.

Sabattis testified and admitted to beingon the orders not to drink and to keep the peace. He admitted to being an alcoholic. He also stated he was a type two diabetic. He statedthat he worked on June 30, 2011 and that after work he went to a friend’s house and that they, together, consumed a 24 bottle case ofbeer and a quart of Crown Royal. The friend did not give evidence. The accused testified that he has no recollection of leaving hisfriend’s house or anything he did that night. He testified that he has no recall until awaking at the police station the next morning.

Hestated that he has experienced similar blackouts during the last few years. [30] He commented on the video of the event, exhibit #2. [31] He described himself as staggering in and staggering around and talking nonsense to other customers. I interpret this as hisobservation of what he saw on the video rather than he recalling what he did. He said he had a wallet with $85.00 on him and the keys tohis boss’ truck. He believed this because he says he received these items back through corrections as items taken from him when he wasarrested. If he had money at the time of the alleged offence he never took any out.

He did not say in which pocket he normally kept hiswallet and/or money. He said he had no intention to rob anyone. This statement I viewed as a belief on his part and not a statement thathe recalled the event and what his intention was at that time. He had no idea how he got the cut to his face and the blood on his face. [32] The accused’s evidence was generally consistent with the evidence of other witnesses. His evidence was generally credible. I findthat the accused’s claim of the blackout - a lack of memory of the event may be so.

A lack of memory does not preclude the Courtfinding that the accused had, at the time of the offence alleged, the requisite intention. Findings of Fact: [33] Exhibit two, the video of the incident, establishes beyond a reasonable doubt what the accused physically did. I accept the videoevidence as an accurate depiction of what the accused did. [34] In terms of what he said and how he said it, there is also the evidence of Ms. Bent. [35] I am satisfied beyond a reasonable doubt that Ms.

Bent heard the accused make a statement which included a demand for foodand words including or he’d pull a fucking gun. [36] I’m satisfied beyond a reasonable doubt that the accused was not in an extreme state of intoxication akin to an automaton asdiscussed in R v. Daley 2007 SCC 53 , [2007] 3 S.C.R. 523. [37] The accused entered a business premises that sells food. His demand was for food. His demand was made when standing at theorder counter. His demand was directed to a restaurant employee. His demand was loud enough for her to hear.

Failing compliance withhis demand for food without payment he said he’d pull a gun. Whether for emphasis or to intimidate or perhaps by way of habit he addedthe word “fucking” before gun. His hands were on the counter at the time of his demand. Within seconds he put his hands in his pocket.This action may have been done with the intention of bolstering the credibility of his statement that he’d pull out a gun. He may havebeen looking for money. These actions appear logical and goal oriented. They are not consistent with a finding of extreme intoxication.

[38] The accused’s state of intoxication is a relevant consideration for the Court when assessing whether or not the accused conveyeda threat and intended to do so. In addition to the foregoing facts I have considered the following evidence. [39] Both police officers opined that the accused was intoxicated. I have considered their opinions and their observations in supportthereof. I have considered the accused’s evidence of his consumption of alcohol and medical condition and his blackout.

I haveconsidered that within the time of the alleged offence and time of arrest, shortly thereafter, the accused had passed out. I have consideredMs. Bent’s opinion regarding the accused’s condition and her observations of him. I have considered the video tape evidence/theaccused’s movement in the McDonald’s restaurant. [40] While the evidence satisfies me beyond a reasonable doubt that the accused was not in a state of extreme intoxication I find thatat the time of the alleged robbery he was intoxicated by alcohol and his functioning affected by his intoxication. [41] The court also accepts the evidence of Ms.

Bent that she did not believe he had a gun. She was not concerned for her safety, thatshe did not believe that he meant his statement to her, and she did not perceive that she had been threatened. The Law: [42] The submissions of counsel focussed on the test to be applied under

section 343(

a) both as to the actus reas and the mens rea. Ihave identified two questions: 1. Were the accused’s statement, actions, gestures a threat? And 2. Did the accused intend that his statement convey a threat? [43]

Section 343(

a) states: “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 threatsof violence to a person or property;” The Jurisprudence: [44] What is a threat? What must the Crown prove to establish a threat was conveyed? [45] In the context of a charge under s. 264.1(1)(

a) of the Criminal Code, the Supreme Court of Canada in R v. McCraw (SCC), [1991] 3 S.C.R. 72 stated the issue to be determined is whether, looked at objectively, in the context of all the words writtenand having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm. [46] In 1994, when, again, considering a charge under s. 264.1 the Supreme Court of Canada in R v.

Clemente (SCC), [1994] 2 S.C.R. 758, stated: “In determining whether or not the accused’s statements were a threat, the words are to be viewed objectively in the context orcircumstances in which they were spoken, the issue being whether they would convey a threat of serious bodily harm to a reasonableperson. The mens rea of the offence is that the words be spoken or written as a threat to cause death or serious bodily harm; this is, theywere meant to intimidate or to be taken seriously. Words spoken in jest or in such a manner that they could not be taken seriously could

not lead a reasonable person to conclude that the words conveyed a threat. There is no requirement that the intended victim of the threatbe aware of the threat: R v Clemente (SCC), [1994] 2 S.C.R. 758, 91 C.C.C. (3d) 1.” [47] What is the relevance of the alleged victim’s reaction to the statement? [48] In R v. Carons [1978] A.J. No. 692 (Alberta Supreme Court Appellate Division) the accused, when intoxicated, spoke to his,then estranged girlfriend, by telephone saying “I’m going to kill you and your hippie son”. A police officer was listening in on the callwith the complainant’s consent.

At the time of trial the complainant and the accused were back together. On the trial the complainant,who at the time of the call was also under the influence of alcohol, testified that she didn’t take the statement as a threat. The trial judgefound that the crown must prove beyond a reasonable doubt that the statement was taken serious - perceived as a threat, by the person towhom it was spoken. He acquitted. [49] On appeal, the trial decision was overturned. The Court of Appeal, following the decision of the Supreme Court of Canada in Rv.

Nabis (SCC), [1974] 18 C.C.C. (2d) 144 held that the effect of the threat on the prospective victim is of noconsequence. [50] In R v. McClarty [1984] N.S.J. No. 327 (Nova Scotia Court of Appeal) the accused went to a teller’s wicket in a bank. He put abrown paper bag on the counter in front of the teller. He told her to fill it up quickly and quietly, all you got. [51] The teller hesitated but then filled the bag with money and gave it to him. She testified that when she looked at him she realizedthat he was serious. He appeared nervous, he spoke very low, he wasn’t smiling just sort of glaring.

She said that she was scared to deathand felt that if I didn’t do it, something would happen. [52] The trial judge instructions to the jury were: “The Crown must show conduct which amounted to a threat to a person and which was related to and facilitated the theft and I think it isnot merely a subjective consideration.

In addition to demonstrating that the conduct of the accused constituted a threat in the sense thatthe victim felt threatened thereby, the Crown must show that she had reasonable and probable grounds for her fear - the Crown must, inother words, prove beyond a reasonable doubt that his conduct...was such that it could reasonably be regarded as a threat or threats.” [53] The Court of Appeal, at p. 14 stated: “The trial judge instructed the jury that the Crown had to establish not only that Ms.

Harvey (the teller) felt threatened by the conduct ofthe appellant, but that such a fear was reasonable under the circumstance. Such direction compelled a consideration by the jury of all therelevant evidence and to my mind was not erroneous in law. Indeed it may have been overly favourable to the appellant.” [54] And at p. 17: “A jury may well apply a partly subjective and partly objective test in deciding if the Crown has established beyond a reasonable doubtany particular fact in issue”. [55] In R v. Bourassa 2004 NSCA 127 , [2004] N.S.J.

No. 379 the Court of Appeal reviewed the decision of the trial judgeon a bank robbery charge wherein one of the issues was the nature of the test regarding 343(a). [56] In Bourassa, the accused approached a bank teller wearing a jacket with the hood up, he put sunglasses on, he pulled out a noteand told her - not so much with words but with motions, in a grunting fashion that he wanted her large bills. He kept his right hand in hispocket at all times. She stated that she believed that he moved his hand in his pocket. She testified that she assumed he had a weapon ofsome sort. She froze.

He jumped over the counter, stole the money, and ran out.

[ 57 ] The trial judge stated: “To constitute robbery under s. 343 (

a) of the Criminal Code all that is necessary is some act of violence or some demonstration from which physical injury to the person robbed may be reasonably apprehended. To conclude that such reasonable apprehension exists, it is necessary to look at the totality of the conduct of the accused.” [ 58 ] After referring the relevant actions of Mr. Bourassa the judge stated: “The Crown is required to prove not only that Ms. Miller (the teller) felt threatened, but also that she had reasonable, probable grounds for her fear.

In the present case, the implied threat of violence caused by the accused having his hand in his pocket would reasonably and probably cause a victim to feel threatened if she did not comply with the demand.” [ 59 ] The Court of Appeal in upholding the decision of the trial judge cited with approval the Courts earlier decision in McClarty that in coming to it’s determination the trier of fact may well apply a partly subjective and partly objective test. [ 60 ] At paragraph 15 the Court of Appeal stated: “Ms. Miller (the teller) said she was frightened and angry to find herself again the victim of a bank robbery.

Such evidence was clearly subjective, but was certainly relevant to the determination of whether she felt threatened by the conduct and whether such fear was reasonable under the circumstances.” [ 61 ] As a matter of stare decisis I am of course bound by decisions of the Nova Scotia Court of Appeal and the Supreme Court of Canada. [ 62 ] Before me are decisions of the Nova Scotia Court of Appeal wherein the Supreme Court of Canada decisions in Clemente and Nabis were not considered. While dealing with a different

section of the Criminal Code these cases all dealt with the question of what test is to be applied in determining whether a threat was conveyed. [ 63 ] I am of the view that the test as to whether a threat has been conveyed ought not differ in terms of it being objective or subjective or mixed, based on the

section under which the charge is laid. In my respectful view a trial judge ought to interpret the decisions of binding appellate courts in a manner that they are complimentary, not inconsistent, whenever a reasonable complementary

interpretation is possible. In my view an

interpretation of these decisions that, while the test is objective, the subjective reaction of the alleged victim, while not an element of the offence (and in that sense of no consequence), is, nevertheless, relevant and ought be considered as part of the overall evidence, is both reasonable and complementary. [ 64 ] I draw the following principles/conclusions from the cases I have considered. · The test for whether a threat was been conveyed under s.264.1 or 343 (

a) of the Criminal Code is the same in terms of the subjective/objective nature of the test. · The test is objective. · Under s. 343(

a) the Crown must prove beyond a reasonable doubt that the conduct of the accused amounted to a threat to a person to facilitate a theft. · The conduct may be

an act of violence or demonstration or words which would convey to a reasonable person in the position of the alleged victim that physical injury may be reasonably apprehended if they fail to comply with the accused’s demand. · The Court must consider the entirety of the evidence in determining whether a threat was made.

· The Crown is not required to prove that the alleged victim perceived a threat. · Evidence of the alleged victim’s perception, while not an element of the offence, is relevant and ought to be considered as part of the entirety of the evidence. · Where the Crown proves that the alleged victim perceived a threat from the accused’s conduct the Crown must also prove that the alleged victim’s belief was objectively reasonable. [ 65 ] I have applied these principles to the facts of this case. [ 66 ] On first consideration, the accused’s actions and words, viewed objectively, appear to convey a threat of physical harm if he isn’t given food.

However, the Court must be persuaded of that beyond a reasonable doubt on the totality of the evidence. In this case the accused was moderately to highly intoxicated, being found passed out on a street nearby shortly afterwards. The item demanded was a hamburger or cheeseburger, an item worth a dollar or two. There was no evidence that the accused’s tone of voice or volume of voice was aggressive. There was no evidence that his facial expression was “serious” (contrary to the facts in McClarty ).

Upon being ignored by the clerk, he did not repeat his statement and within seconds walked away from the counter - apparently abandoning his demand. Putting his hands in his pocket may have been intended to add credence to his statement or may have been to search for money as me may have had a wallet and $85.00 cash on his person. [ 67 ] The alleged victim, who was in the best position to observe the accused’s behaviour, did not believe he was serious. She did not feel threatened by the accused’s conduct. She did not believe he meant what he said.

She did not believe he had a gun, in spite of his putting his hands into his pocket after threatening to pull a fucking gun. The accused was previously unknown to her. She said his sweatshirt pocket didn’t seem weighted down by anything other than his hands. She did not note his tone or volume of voice. She said his physical presentation wasn’t threatening. Ms. Bent did not observe that he appeared nervous (unlike the teller in McClarty ). I have considered that Ms.

Bent’s experience working late night shifts in a McDonald’s restaurant in an area of bars and having to deal with many intoxicated persons may have de-sensitized her to the types of behaviour exhibited by intoxicated persons. On the other hand her experience may have provided her with an enhanced ability to assess the seriousness of persons who are intoxicated. I found her evidence reasonable. Ms. Bent’s evidence was subjective. Her beliefs and perceptions, while relevant are not determinative of whether the accused conveyed a threat and/or intended to do so. The test is objective.

Would a person, in those circumstances, reasonably apprehend a threat of violence from the accused’s conduct and words? [ 68 ] While an initial consideration of the facts is a somewhat compelling case for the crown when I consider the totality of the circumstances, the Court is left with a reasonable doubt as to whether the accused conveyed a threat or had the requisite intention to do so. For those reasons the Court finds Mr. Sabattis not guilty of the charge of robbery or any included offence. Judge Marc Chisholm Judge of the Provincial Court of Nova Scotia