Her Majesty the Queen - v. -, 2012 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 018 Date: January 20, 2012 Information: 44454066 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mark Robert Simpson Appearing: Roger De Corby For the Crown Noah Evanchuk For the Accused JUDGMENT B.

TOMKINS , J BACKGROUND [ 1 ] On September 6, 2011, Mark Robert Simpson pleaded guilty to the offence of robbery as follows: On or about the 8th day of June, A.D. 2010 at or near Regina, Saskatchewan did steal Canadian currency from A&W Restaurant and at the time thereof did threaten violence towards Hailey Stasuik and Krista Biggs, contrary to section 344(1) (

b) of the Criminal Code .

[ 2 ] The circumstances on which Mr. Simpson’s plea and consequent conviction are based are these. On June 8, 2010 at about 10:30 p.m., two members of the staff at an A & W restaurant in Regina, Saskatchewan observed two men drive by on bicycles. Shortly after, the two men entered the restaurant through the front doors. One, who was Mr. Simpson, stayed near the doors, while his co- accused, Dennis Thompson, approached the counter. [ 3 ] Mr. Thompson, talking very quickly, asked the attendants to open the till and give him the money.

When they said she would have to get the key, he said words to the effect that they should not “make him jump over the counter”. [ 4 ] At some point - it is not clear exactly when - he showed a knife and said “I have this, I have this.” Only Ms. Stasuik was shown the knife. It is not suggested that he raised the knife or directly threatened its use. [ 5 ] Eventually, one of the attendants was able to open the till without the key and gave Mr. Thompson the money in the till. He demanded more - “the rest”, he said.

The attendants went to the drive-through window to get the money there but by then, the two men had left the restaurant. $174.48 was stolen. [ 6 ] Mr. Thompson and Mr. Simpson were arrested shortly later. Upon being searched, Mr. Thompson had money in his pocket; the amount was not indicated but he said it was intended for groceries so I assume it was more than pocket change. Mr. Simpson had only a dollar and change in his possession. [ 7 ] Sentencing was adjourned until December 1, 2011. On that date the Crown made application pursuant to

section 752.1 of the Criminal Code for an Assessment Order for use in an application to have Mr. Simpson declared a Dangerous Offender or a Long- Term Offender. Mr. Simpson resists the Crown's application and says that the prerequisites for an Assessment Order have not been established. II. THE APPLICATION [ 8 ] The Crown's application is made under

section 752.1(1) which provides as follows: 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. [ 9 ] Thus the prerequisites for an order under

section 752.1(1) relevant in this case are: ∙ The accused is convicted of a “serious personal injury offence”; and ∙ The Court is of the opinion that there are reasonable grounds to believe the offender might be found to be a dangerous offender under

section 753 or a long-term offender under

section 753.1.

If these prerequisites are established, the court must order the assessment. A. Serious Personal Injury Offence [ 10 ] “Serious Personal Injury Offence” is defined in

section 752 of the Criminal Code . The part of the definition that applies in this case reads as follows: “serious personal injury offence” means

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more. [ 11 ] The

section raises, therefore, a number of issues. 1. Mr. Simpson was party to the offence and did not personally carry or use a weapon, nor did he otherwise personally threaten the restaurant attendants. In these circumstances, for purposes of

section 752 , is he responsible for Mr. Thompson's carrying and use of the knife or for the words he spoke? 2. There is no allegation that actual violence was used in the course of the robbery. The charge alleges that threats of violence raised what would otherwise have been theft to robbery. Do threats created by words and the presence of a weapon, satisfy the criteria in

section 752 regarding the use or attempted use of violence? 3. In the particular circumstances of this offence, did the conduct endanger the life or safety of another or was it likely to do so? 4. Did the conduct inflict severe psychological damage or was it likely to do so? 5. Is the offence one that is indictable and punishable by incarceration for ten years or more? 1. Parties [ 12 ] Because violence or threats thereof are essential elements of the offence of robbery, Mr. Simpson, by his guilty plea, has admitted that he was party to the actions of Mr.

Thompson in carrying the knife, showing it to the restaurant attendant and saying things such as “I have this” and “Don’t make me come over the counter.” These circumstances comprise the threats of violence on which the offence is grounded; unless that admission is implicit in the plea, Mr. Simpson could not be guilty of robbery but only of theft. [ 13 ] As party to an offence, Mr. Simpson's culpability is equal to that of the principal offender and his status as party does not

affect my decision whether he has committed a serious personal injury offence. In so concluding, I am mindful of the Court of Queen’s Bench decision in R. v. Keepness [1] where Mr. Keepness, who encouraged but was not present when principals committed offences of aggravated assault and manslaughter, was held to have committed a serious personal injury offence and ordered to undergo assessment under

section 752.1. [ 14 ] Therefore, in assessing whether Mr. Simpson’s offence is a serious personal injury offence, the analysis will not be affected by his role as party but instead, it will be considered no differently than if he was the principal offender. 2. Violence or Attempted Violence [ 15 ] The offence as described by the Crown and admitted by Mr. Simpson did not involve overt violence and no person was physically injured.

The Crown argued that the circumstances nonetheless meet the criteria for the use or attempted use of violence against another person; the defence said they do not. [ 16 ] In support of its position, the Crown urged me to follow a line of cases from other jurisdictions which have held that overt violence or attempts thereat are not necessary to meet the criteria. In particular, the Crown referred me to the Ontario Court of Appeal decision in R. v.

Lebar [2] , a case in which the accused entered a liquor store, touched the cashier on the shoulder, produced a knife with a five-inch blade and, holding it close to her neck, said “This is a robbery.” On these facts the trial judge held that this constituted a serious personal injury offence as “The very nature of using a knife as a threat to induce a desired result, whether implied or real, is an act of violence.” The decision was appealed to the Court of Appeal on a number of grounds, including the trial judge’s finding that the offender's actions amounted to

an act of violence. [ 17 ] Epstein J.A. for the Court of Appeal held that the concept of violence must be given broad

interpretation and said: In my view, the meaning of “violence” in this definition must be informed by the entirety of the definition of a serious personal injury offence.

A serious personal injury offence is defined in part, either as an offence involving the use or attempted use of violence against another person, or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.” Taken together, and especially taking into account the far-reaching meaning of the word “safety”, these two clauses point to the legislature’s intention to cover a very expansive range of dangerous behaviour with the term “serious personal injury offence.” [3] [ 18 ] Justice Epstein upheld the trial judge's ruling that the circumstances of Mr.

LeBar’s offence constituted

an act of violence. The Crown suggested that the actions in Mr. Simpson’s case are similar to those in Lebar in that both involve the showing of a knife and an implicit threat that the knife might be used if the victim did not comply with the offender’s demands. [ 19 ] There are, however, distinctions between Lebar and the case before me. First, the issue of whether the actions were a serious personal injury offence in Lebar arose in the context of the availability of a conditional sentence for Mr. Lebar. The provisions of

section 742.1 provide that a conditional sentence is not available on conviction for a serious personal injury offence as defined in

section 752 . [ 20 ] The Crown urged that the distinction is irrelevant as both

section 742.1 and 752.1 rely on the same definition of “serious personal injury offence”. While the argument is initially attractive, Madam Justice Epstein defeats it in the course of her decision in Le Bar . [ 21 ] She referred to the Supreme Court of Canada’s decision in R. v. D.(C) [4] which considered the meaning of the word “violence” in the context of the Youth Criminal Justice Act . She conceded that the Supreme Court held that “violence is typically associated with either the application of force or the causation of harm or injury or both.” Epstein J.

A. said that the Supreme Court's conclusions were, in her view, driven by the fact that the issue in D.(C.) was whether violent offences ought to be defined by the harm attempted or caused

rather than the force applied. In the course of her reasons, she declined to follow the Supreme Court’s ruling and justified this by saying that: The decision in D.(C.) provides assistance in that it makes it clear that the concepts in the Code , such as violence, should be determined contextually. For the purposes of this appeal, the meaning to be ascribed to the “use or attempted use of violence” must be in the context of the provisions of the Code dealing with the availability of conditional sentences. ” ( Emphasis mine. ) [ 22 ] She went further. In considering an Alberta case where robbery was advanced as the predicate offence in support of an application for an assessment under

section 752.1, R. v. N.(L.C.) , Justice Epstein said: It is clear that the meaning given to violence in N.(L.C.) was coloured by the context of its being considered a gateway to the dangerous/long-term offender provisions. The Alberta court concluded that Parliament intended that only objectively serious violence and endangerment that involved a likelihood of material harm (physical or psychological) could constitute the predicate offence for a dangerous offender designation. [5] [ 23 ] She also noted that the Alberta court itself had taken a contextual view and stated in a later case that the definition applied in R. v. N.(L.C.) , which was a

section 752.1 case, should not be applied in

section 742.1 cases. [ 24 ] Therefore, the Ontario Court of Appeal held that the word “violence” might have differing meanings in differing contexts and that this may be so even when the same provision is referenced for different purposes such as here, where the definition in

section 752 is referred to for purposes of both applications for assessment under

section 752.1 and for determining the availability of a conditional sentence under

section 742.1. [ 25 ] Justice Epstein's view of contextual

interpretation allowed her to deviate from the definition of violence found by the Supreme Court of Canada in D.(C.) and she stated directly that the meaning she ascribed to the “use or attempted use of violence” was limited to the conditional sentence provisions. [ 26 ] In effect, therefore, the Crown has asked me to find that the Ontario Court of Appeal was wrong in its conclusion that the application of the

section 752 definition of “serious personal injury offence” is contextual depending on the purpose for which it is being considered but that the Court was correct nonetheless to deviate from the decision in D.(C.) . I cannot do that. [ 27 ] In any event, I do not find it convincing to suggest that the facts in Le Bar parallel those in Mr. Simpson’s case. There is a very substantial difference between showing a knife and holding a knife to someone’s neck while demanding cash. [ 28 ] The Crown further referred to R. v. McLeod [6] , another Ontario case. In this case, on two consecutive days, Mr.

McLeod went to a gas station and gave the attendant a note saying, in effect, “I have a gun. Hand over the money now.” On each occasion he was given cash. It was later learned that he did not have a gun on either occasion. The issue was whether a conditional sentence was available in these circumstances. [ 29 ] Following and relying extensively on Madam Justice Epstein's reasoning in Le Bar , Judge Forsyth concluded that Mr. McLeod's offences involved the attempted use of violence.

He was therefore not eligible for a conditional sentence. [ 30 ] The McLeod case is not helpful, therefore, as it relied on the contextual basis set out in Le Bar and must be restricted in its application to cases respecting the availability of conditional sentences. [ 31 ] A similar fate affects the Crown's reliance on R. v. Griffin [7] , a decision of the Nova Scotia Court of Appeal.

[ 32 ] On the other hand, Saskatchewan's Court of Appeal has ruled on this issue in R. v. Roy [8] . Mr. Roy pleaded guilty to assaulting a peace officer and possessing a weapon for a dangerous purpose and the Crown brought application for an assessment under

section 752.1. [ 33 ] The circumstances of Mr. Roy's offences were that police officers came upon a group of people, one of whom - Mr. Roy - was hitting the victim with a baseball bat. The police instructed Mr. Roy to drop the bat and to stop. Mr. Roy did stop but he ran away with the bat in his hand. The police commenced pursuit. [ 34 ] In the course of the pursuit, Mr. Roy stopped once or twice and confronted the police officers. At the first stop, Mr. Roy raised the bat in a threatening manner and may have swung it at the officer but from a distance where actual contact would not occur.

It is agreed that no one was physically harmed. When he was finally stopped, he again raised the bat to the police officers but was taken down and arrested. [ 35 ] He was initially charged with three offences but the charge of aggravated assault did not proceed. Mr. Roy pleaded guilty to assaulting a police officer for brandishing the bat at the police officer. He also pleaded guilty to possessing a weapon for a dangerous purpose. Upon these convictions, the Crown made application under

section 752.1 . [ 36 ] Assaulting a police officer, while indictable, is not punishable by imprisonment for ten years or more and therefore, cannot constitute a serious personal injury offence for purposes of

section 752.1 . The application proceeded on the predicate offence of carrying a weapon for a purpose dangerous to the public peace only. [ 37 ] The trial judge concluded that Mr. Roy's actions did not constitute a serious personal injury offence. While brandishing the bat was technically an assault, he did not actually strike any police officer and, the judge found, did not try to strike any police officer. Nor did he lunge at them. The trial judge concluded that Mr.

Roy did not use or attempt violence and that his actions did not endanger the life or safety of either of the officers, nor in the circumstances were they likely to. She did not order an assessment. The Crown appealed. [ 38 ] The Court of Appeal accepted the trial judge’s conclusions as reasonable and dismissed the appeal. [ 39 ] Madam Justice Jackson, writing for the Court, said: Thus, the issue was whether Mr. Roy (

i) used violence against Cst. Kinzel; or (ii) attempted to use violence against Cst. Kinzel. Again, the sentencing judge ’ s decision that Mr. Roy had not used “ violence ” against her cannot be seriously questioned. Courts are naturally reluctant to provide a definitive definition of a word like violence. The determination of whether a person has used violence will usually be intertwined with a consideration of the evidence.

I note however that s. 752 itself draws a distinction between “ violence ” and “ attempted violence. ” Given this it would not do a disservice to the word “ violence ” to look at its traditional definition. Black ’ s Law Dictionary defines violence to be “ the use of physical force, usually accompanied by fury, vehemence, or outrage; especially, physical for unlawfully exercised with the intent to harm. ” Mr. Roy brandished a bat, he menaced Cst. Kinzel, but this does not amount to proof that he used violence in these terms.

He assaulted her, in the technical sense of the word, but he did not use force against her, and this, too, is what the sentencing judge found. [9] [ 40 ] Madam Justice Jackson then went on to consider the trial judge’s conclusion that Mr. Roy did not attempt to use violence. She concluded that the findings made by the trial judge in support of his conclusions were available and not unreasonable.

The trial judge’s conclusion on this issue was accepted and the appeal was dismissed. [ 41 ] In this case, the trial judge clearly accepted that in order to constitute a serious personal injury offence, there must be actual or attempted violence in the ordinary senses of the words. The Court of Appeal did not disagree and in fact, affirmed the trial judge’s decision by adopting the definition of “violence” set out in Black's Law Dictionary . If Mr. Roy’s actions in “brandishing” a baseball bat and “menacing” the police officer do not constitute violence or attempted violence, it is difficult to conceive that Mr.

Thompson's action of showing an knife without brandishing it or otherwise directly menacing with it could constitute violence or an attempt thereat.

[ 42 ] In so concluding, I assume that the Court of Appeal might view Mr. Roy’s actions as threatening or intimidating. Indeed, Madam Justice Jackson used the word “menacing”; this word is defined in the Oxford English Dictionary as meaning “threatening”. Having concluded that Mr. Roy’s actions were, therefore, threatening, she nonetheless concluded that his actions did not constitute a serious personal injury offence.

It is implicit in this that actions which threaten violence are not or are not necessarily acts of violence or attempted violence. [ 43 ] The Roy decision is, in this regard, consistent with an earlier Court of Appeal decision in R. v.

Goforth [10] where Justice Cameron wrote: The difficulty is made even more acute by the absence of any adjective modifying the word “ violence ” . . . [.] The dictionary meaning of the word “ violence ” is “ behaviour involving physical force intended to hurt, damage, or kill. ” [ Reference omitted. ] Hence, to speak of the use of violence against another person, as in paragraph 752(a), is to speak of using physical force against another with intent to hurt, injure or kill the other. [11] [ 44 ] While these words were written in the context of a discussion of whether the trial judge in a

section 752.1 application is to assess the degree of seriousness of the violence, his words appear to me to apply equally to the issue under consideration in this case. Indeed, Justice Cameron also stated that the definition is exhaustive and “[w]hile this does not preclude

interpretation of the words of the definition, it does serve to exert a restraining influence in adding to the definition by implication .” [ Emphasis mine. ] This is exactly what the Crown has asked me to do. [ 45 ] Concluding that the definition of “serious personal injury offence” includes threats of violence is not a matter of

interpretation, especially given the Court of Appeal's conclusions as to the meaning of “violence” in both Roy and Goforth . Therefore, the Crown has asked me to conclude that threats of violence, while not included in the exhaustive definition, are nonetheless there by implication. This, our Court of Appeal has said, I cannot do. [ 46 ] In light of the matters discussed above, I am not satisfied that Mr. Thompson’s actions in exposing his knife accompanied by the words he said can be found to constitute

an act of violence or an attempt of violence. Mr. Simpson, as party to his actions, has not committed an offence involving violence or an attempt thereat. [ 47 ] I am supported in my conclusion by reference to the provisions of the Criminal Code itself. Parliament has acknowledged and has used the distinction between actual, attempted and threatened violence. In this regard, one might consider

section 184.2(2), where reference is made to “actual, attempted or threatened bodily harm”; a similar wording might have been used in

section 752 had that been the intention. [ 48 ] It is also clear that Parliament is aware that threats of violence can have similar impact to actual violence; it is presumably for this reason that theft becomes robbery in the face of either. [ 49 ] Yet Parliament did not set out threats of violence as grounding for a serious personal injury offence. It appears to me that had this been intended, the

section would have so specified. Instead, the requirements of this part of

section 752 are confined to violence itself - actual or attempted. I have no basis to depart from the wording of the statute. 3. Endangering Life or Safety of Another Person [ 50 ] I turn now to the alternate

definitions of serious personal injury offence; that is, conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, pursuant to subsection (a) (ii) of

section 752. [ 51 ] In Mr. Simpson’s case, it was not directly argued that the predicate offence was one that endangered or was likely to endanger

the life or safety of another person. However, the Crown did submit the case of R. v. Wright [12] , a decision of the Saskatchewan Court of Queen’s Bench and it may be implicit in this submission that the Crown urges consideration of that aspect of the definition. [ 52 ] Mr. Wright was resident in a federal half-way house in Regina. After using cocaine outside the residence, he found a sawed- off rifle and brought it back to the half-way house. The police were advised. [ 53 ] Four police officers and a commissionaire attended to Mr. Wright’s room, which was dark.

When a flashlight was shone toward him, the police could see that he was holding the weapon. They quickly exited the room but the commissionaire did not. She sat on one of the beds while the police, from outside the room, called to Mr. Wright to put the rifle down. He didn't. Some negotiation took place but Mr. Wright did not put the weapon down. [ 54 ] After about 25 minutes, the commissionaire left the room unharmed. At no time did Mr. Wright point the weapon at the commissionaire, nor did he use any force or threaten her. [ 55 ] A SWAT team attended. During negotiation, Mr.

Wright indicated that he thought the police might shoot him and that this might be an acceptable end for hm. Eventually, he put the rifle down and was arrested. [ 56 ] On these facts, the Crown brought application to have Mr. Wright assessed pursuant to

section 752.1 . Justice Gunn ordered the assessment after concluding that Mr. Wright’s actions endangered the life or safety of another. He held a loaded, restricted weapon in the course of lengthy negotiations and was unwilling to surrender the weapon until his requests - such as for cocaine - were met. She also concluded that this conduct was likely to inflict severe psychological damage, even though the commissionaire did not in fact suffer such damage. [ 57 ] In Mr.

Simpson’s case, the Crown did not argue that the actions endangered or likely endangered the health or safety of another person and no information was submitted showing that they did. [ 58 ] I am reminded of Justice Jackson's conclusion in Roy which is, I think, appropriate here.

As to endangerment and the likelihood thereof, she said that “[w]hile brandishing a weapon like a gun may constitute endangerment, the judge’s conclusion that brandishing a bat, in the face of unknown intent and at a distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is a reasonable conclusion.” [ 59 ] We must remember that Mr. Wright was a possibly suicidal man who had taken cocaine and who persisted in his possession of a loaded, prohibited weapon whereas Mr. Roy’s weapon, although brandished, was outside range for physical contact.

The circumstances of Mr. Simpson’s offence most closely parallel and are, at least arguably, less dangerous than, those in Mr. Roy’s case. [ 60 ] I cannot conclude that Mr. Simpson’s offence endangered or was likely to endanger the health or safety of another without engaging in speculation as to reactions and intent in circumstances other than those we know to have occurred. I have no basis for such speculation. 4.

Inflicting or Likely to Inflict Serious Psychological Damage [ 61 ] No evidence has been advanced to suggest that the conduct inflicted or was likely to inflict severe psychological damage on another person, nor has argument been advanced under this subsection.

5. Indictable Offence Punishable by Imprisonment for Ten Years or More [ 62 ] Robbery, the offence for which Mr. Simpson has been convicted, is an indictable offence punishable by a maximum of imprisonment for life. Thus the fifth criterion for a finding that he committed a serious personal injury offence is satisfied. 6. Conclusion [ 63 ] For these reasons, I am not satisfied that the predicate offence involved the use or attempted use of violence or that it endangered or was likely to endanger the health or safety of any person or that it inflicted or was likely to inflict serious psychological damage.

I am therefore not satisfied that the June 8, 2010 robbery for which Mr. Simpson has been convicted is a serious personal injury offence for purposes of

section 752.1 . [ 64 ] Therefore, I will not order an assessment pursuant to that section. B. Possibility Mark Robert Simpson Might Be Found To Be A Dangerous or Long-Term Offender [ 65 ] Arguments presented in support of and in opposition to the Crown's application in this case have essentially been limited to the issues discussed above. I will not, therefore, reach any decision as to the possibility that Mr.

Simpson might be found to be a dangerous or a long-term offender. [ 66 ] In the event that it becomes necessary to turn my attention to this aspect, I will invite further argument directed in that regard and decide the matter separately. IV CONCLUSION [ 67 ] For all of these reasons, the application for an assessment order under

section 752.1 of the Criminal Code is refused. _______________________ B. Tomkins, J [1] 2010 SKQB 118 [2] 2010 ONCA 220 , 252 C.C.C. (3d) 411 [3] At paragraph 49 [4] 2005 SCC 78 , [2005] 3 S.C.R. 668 , 34 C.R. (6 th ) 323 [5] At paragraph 61 [6] 2010 ONCJ 354

[7] 2011 NSCA 103 [8] 2008 SKCA 197 [9] At paragraph 31 [10] 2005 SKCA 12 , 193 C.C.C. (3d) 354 , 257 Sask. R. 123 [11] At paragraph 22 [12] 2007 SKQB 350