R. v. Steele  (Criminal law — Sentencing — Dangerous offender)

On appeal from the judgment of the Court of Appeal of Manitoba, 2013 MBCA 21, 288 Man. R. (2d) 304, affirming a decision of McKelvey J., 2011 MBQB 181.

Steele robbed a drugstore, telling the cashiers that he had a gun. There is no evidence that he actually had a gun or that physical force was used. No one was injured. One of the cashiers testified that she had been scared during the robbery, while the other described her reaction as one of shock. Steele was convicted of robbery under s. 343 (a) of the Criminal Code  on the basis that he had “use[d] . . . threats of violence to a person”. The Crown applied to the court to remand him for assessment pursuant to s. 752.1(1)  of the Criminal Code . Both the trial judge and the Court of Appeal found that a threat of violence does not on its own constitute “the use or attempted use of violence” in accordance with subpara. (a)(i) of the definition of “serious personal injury offence” in s. 752  of the Criminal Code .

Held (7:0):  The appeal should be allowed and an order issued that Steele be remanded for assessment pursuant to s. 752.1(1).

This case concerns the scope of the definition of a “serious personal injury offence” (SPIO) and, consequently, the threshold for entry into the dangerous and long‑term offender system. A threat of violence that suffices to ground a conviction for robbery under s. 343 (a) does indeed constitute the use of violence against another person within the meaning of subpara. (a)(i) of the definition of an SPIO set out in s. 752.

Indeterminate detention and long‑term supervision are exceptional sentences which are reserved for individuals who pose an ongoing threat to the public. There are a number of procedural steps and substantive requirements before a court can find that an offender is a dangerous offender or a long‑term offender. Before the court remands an offender for assessment, it must be satisfied that the offender has been convicted of an SPIO as defined in s. 752. There also must be reasonable grounds to believe that the offender might be found to be a dangerous offender under s. 753 or a long‑term offender under s. 753.1. Thus, the SPIO requirement plays a crucial role in the operation of the dangerous and long‑term offender scheme.

The primary rationale for both indeterminate detention and long‑term supervision under Part XXIV is public protection, and an overly narrow construction of the gateway provision would indeed undermine this purpose. However, the specific purpose of the SPIO requirement is to link the sentence to the predicate offence, and an overly broad construction would undermine this purpose and violate the fundamental principle of sentencing, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The SPIO requirement helps safeguard the constitutionality of the scheme. In interpreting the definition of an SPIO, effect must be given to the overall protective purpose of Part XXIV, while also furthering the specific purpose of the SPIO requirement by tying the punishment to the predicate offence and safeguarding the objective of proportionality.

Subparagraph (a)(i) of the definition in s. 752  does not invite a court to assess the seriousness of the violence the offender used or attempted to use; any level of violence is sufficient. The words “use or attempted use of violence” must be read in their grammatical and ordinary sense, having regard to their statutory context. Neither the purpose of the SPIO requirement nor that of Part XXIV warrants reading in a qualitative minimum level of violence. This interpretation is consistent with the gatekeeper function of the SPIO requirement.

Unless the context or the purpose of the statute suggests a different approach, the prevailing definition of “violence” is a harm‑based one that encompasses acts by which a person causes, attempts to cause or threatens to cause harm and not a force‑based one. This is not to say that the definition of violence must be a harm‑based one in every case. Context will be paramount and there may be situations in which the presumption of consistent expression is clearly rebutted by other principles of interpretation and, as a result, the intended meaning of violence may vary between statutes and even, in some circumstances, within them. The scope of the expression “use or attempted use of violence” must ultimately be determined having regard to the context in which it is used.

There is no indication that the various parts of the definition of an SPIO in s. 752  are mutually exclusive. The fact that a proposed interpretation would bring some offences within the ambit of more than one part of the definition in s. 752  should not, in itself, justify narrowing the definition to avoid such overlaps. Subparagraph (a)(i) concerns violent acts — “the use or attempted use of violence” — and requires violent intent on the offender’s part. This part of the definition will apply to an offender who intentionally causes, attempts to cause or threatens to cause harm. Threats are included by virtue of the speaker’s intent that they be taken seriously. Subparagraph (a)(ii) relates solely to the effects of the conduct and, as such, will include offences involving negligence. Therefore, a harm‑based approach to subpara. (a)(i) according to which threatening violence constitutes a form of use of violence is not inconsistent with the endangerment and psychological damage aspects of the definition in subpara. (a)(ii).

The exclusion of robbery from the offences listed in para. (b) of the definition is not relevant to the determination of legislative intent. There is no indication that Parliament intended to create an exhaustive list of all offences constituting SPIOs in all cases.

The Court of Appeal relied on the presumption that the use of different language suggests that the legislature intended different meanings and the principle that the same words have the same meaning throughout a statute; however, it failed to take into account the full context in which the expressions “uses violence” and “use of violence” appear in s. 343  and subpara. (a)(i) of the definition of an SPIO in s. 752 . The two provisions are in unrelated parts of the Criminal Code , and they have distinct purposes and legislative histories. The Court of Appeal’s approach is also inconsistent with the principles of statutory interpretation and would result in untold difficulties for trial judges seeking to establish the elusive dividing line between threats that are inherently violent and those that are not. It is moreover incompatible with the plain meaning and the purpose of the provision. All threats of violence are themselves violent, even though the seriousness of the violence may be quite limited. In seeking to distinguish violent from non‑violent threats, courts are in effect reading in an objective minimum level of violence. The Court of Appeal’s interpretation is inconsistent with the clear language of subpara. (a)(i) of the definition, which requires violence, not serious violence, and it risks undermining the overall purpose of Part XXIV by precluding courts from remanding potentially dangerous offenders for assessment.

Threats of violence to a person that are sufficient to ground a conviction for robbery under s. 343 (a) meet the “use . . . of violence” criterion in subpara. (a)(i) of the definition of an SPIO in s. 752 . By threatening to harm his victims while committing robbery, S used violence against them. Since the other requirements of the definition are clearly met, his offence qualifies as an SPIO.

Reasons for judgment written by Wagner J. Neutral citation 2014 SCC 61. No. 35364.