Robbery (Offence)

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Robbery
s. 344 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum 4, 5, or 7 years incarceration
Maximum Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to robbery are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
344 [robbery] Indictable Offence(s) No Yes

Offences under s. 344 are straight indictable. There is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 344, notice of increased penalty under s. 727 must be made.Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 344 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 344, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

Under s. 515(6)(a)(vii), offences charged under s. 344 have a reverse onus on bail where it has "been committed with a firearm".

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 344 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 344 are designated offences eligible for wiretap under s. 183.

Offences under s. 98.1 and 344 are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offences under s. 98.1 and 344 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "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 on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Robbery
343. 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;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.

R.S., c. C-34, s. 302.


CCC

Robbery
344. (1) Every person who commits robbery is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

...[(2) and (3)]...
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32; 2009, c. 22, s. 14.


CCC

Robbery to steal firearm
98.1 Every person who commits a robbery within the meaning of section 343 with intent to steal a firearm or in the course of which he or she steals a firearm commits an indictable offence and is liable to imprisonment for life.
2008, c. 6, s. 9.


CCC

Proof of the Offence

There are four different ways that a Robbery can be committed.

Proving robbery, violence to extort or overcome resistance under s. 343(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "steals" something from victim
  5. the culprit "uses violence" or "threats of violence"
  6. the violence was to "a person" or "property";
  7. the violence was for the purpose of "extorting" the item stolen or to "prevent or overcome" resistence to the theft; and
  8. the character of the item(s) taken including value and continuity

Proving robbery, personal violence at or near time of theft under s. 343(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "steals" something from the victim;
  5. the culprit "wounds, beats, strikes or uses any personal violence" upon the victim;
  6. the violence occurred "at the time", "immediately before" or immediately after the theft;

Proving robbery, assault with intent to steal under s. 343(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit assaults victim; and
  5. the culprit intended to steal from victim at the time of the assault.

Proving robbery, theft while armed under s. 343(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit steals something from the victim;
  5. the culprit is "armed" with an "offensive weapon" or "imitation" offensive weapon.
  1. R v Rudolph, 2012 SKQB 167 (CanLII) at para 8

Enhanced Penalties

For enhanced minimum penalties under s. 344(1)(a) or (a.1) to apply it must also be proven that:

  1. the offence was committed "using" a restricted or prohibited firearm;
  2. the offence was committed "using" any firearm and "for the benefit of, at the direction of, or in association with" a criminal organization; or
  3. the offence was committed "using" any firearm

Stealing

The term "steal" is defined in s. 2 as meaning "to commit theft". While "committing theft" is defined in s. 322:

Theft
322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

Time when theft completed
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
Secrecy
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
Purpose of taking
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
...
R.S., c. C-34, s. 283.

CCC

See also: Theft (Offence)

Violence or Threat of Violence: 343 (a)

The violence is made out by an unlawful assault. However, to make out robbery the assault must be for a specific intent.

Threats and Violence
An utterance threatening force will be sufficient to make out the violence element of the offence. There is no need to measure the degree of violence.[1]

A threat of violence need not be overt. A display of a knife while hooded and a demand for money is an implied threat of violence. [2]

Holding a person down to prevent resistance constitutes violence.[3]

What constitutes a threat comes from the case law of the charge of uttering threats under s.264. If the utterance meets the criteria, it is irrelevant whether the victim appreciated the threatening nature of the utterance.[4] To put it another way, the effect of the threat on the prospective victim is of no consequence.[5]

"Extort" is defined in the shorter Oxford English Dictionary in part as, "To wrest from a reluctant person by force, violence, torture, intimidation".

Passing a note requesting money to a bank teller can be sufficient to make out a threat of violence.[6]

Conduct alleging to be implicit in its violence or threat of violence is determined by whether a reasonable person would have felt or apprehended that violence was conveyed or threatened in the circumstances.[7]

Merely walking into a bank and giving a teller a note causing no fear for safety is not threat of violence or a robbery.[8]

Purpose of Threats or Violence
The violence or threats of violence must be for the purpose of taking whatever that is stolen and so it requires that the violence or threats be before or contemporaneous to the theft.[9]

If however the property was "stolen clandestinely" or "surreptitious[ly]", then the presence of violence or threats of violence to enable escape will not make out a robbery.[10]

Purse-snatching will not make out a robbery where the item was taken before the victim had a chance to resist.[11]

The violence can be used against a target other than the victim being robbed.[12]

Link Between Threats and Violence
There must be more than a temporal link between the threats and the violence.[13]

An assault or threat occurring after the completion of a theft, at least enough time has passed to make it a separate event, there can be no conviction for robbery under s. 343(a).[14]

  1. R v Lecky, 2001 CanLII 6026 (ON CA), (2001), 157 CCC (3d) 351
    R v Steele, [2014] 3 SCR 138, 2014 SCC 61 (CanLII)
  2. R v Griffin 2011 NSCA 103 (CanLII)
    R v Douglas, 2012 MBQB 197 (CanLII)
  3. R v Trudel (1984), 12 CCC (3d) 342(*no link)
  4. R v Carons, 1978 ALTASCAD 206 (CanLII), (1978), 42 CCC (2d) 19 (Alta. C.A.)
  5. R v Nabis, [1975] 2 SCR 485, 1974 CanLII 179 (SCC)
  6. R v Katrensky (1975), 24 CCC (2d) 350(*no link)
  7. R v MacCormack (2009), 241 CCC (3d) 516, 2009 ONCA 72 (CanLII)
    R v Sayers, (1983) 8 CCC (3d) 572 (ONCA)(*no link)
    R v Pelletier, 1992 CanLII 3819 (QC CA), (1992) 71 CCC (3d) 438
    see also Reasonable Person Test
  8. R v Ortega, 2014 ONSC 6414 (CanLII) per Trottier J.
  9. R v Newell, 2007 NLCA 9 (CanLII) at para 32
    R v Jean, 2012 BCCA 448 (CanLII)
  10. R v Downer (1978), 40 CCC (2d) 532(*no link), Martin J.A. at para 14 ("If property was stolen clandestinely, violence or threats of violence to enable the thief to escape, or to prevent the re-taking by the owner of what had been stolen, did not have the effect of escalating larceny into robbery") see also para 25
    R v McKay, 2014 SKCA 19 (CanLII) - violence used to escape following surreptitious theft is not robbery under s. 343(a)
  11. R v Picard, 1976 CanLII 1058 (QC CQ), (1976) 39 CCC (2d) 57
  12. R v Newell, 2007 NLCA 9 (CanLII)
  13. e.g. R v Kulscar, 2009 BCCA 515 (CanLII) at para 12
  14. R v McKay, 2014 SKCA 19 (CanLII)

Stealing with Personal Violence: 343 (b)

Any "violence" that occurs after the theft is complete may support a charge of robbery under s. 343(b) but not 343(a).[1]

"violence" in this section means more than a technical assault.[2] It is determined using a subjective/objective test.[3]

A theft is not a continuing act that includes the escape.[4]

  1. R v Jean, 2012 BCCA 448 (CanLII) at para 34 ("Violence occurring after the theft is complete may however amount to robbery where the charge is laid under s. 343(b) and the elements of the offence in that subsection are proven")
  2. R v Lew (1978), 30 CCC (2d) 140 (ONCA)(*no link)
  3. R v Bourassa (2004), 189 CCC (3d) 438, 2004 NSCA 127 (CanLII)
  4. R v Jean at para 36

Assault with Intent to Steal: 343 (c)

Assault has the same meaning as s. 266. This includes technical assaults[1]

There is no need to prove that a theft actually occurred.[2]

  1. R v Lew (1978), 40 CCC (2d) 140(*no link)
  2. R v Allison (1983), 33 C.R. (3d) 333 (ONCA)(*no link)

Stealing while Armed: 343 (d)

See also: Definition of Weapons

The "use" of an offence weapon is not an essential element.[1]

Weapon
Under s. 343(d) the "weapon" must be either (1) an actual firearm; (2) an imitation firearm; or (3) an offensive weapon. Simply using one's hand to imitate a firearm is not sufficient.[2]

Armed
"Armed" must be the actual possession of a weapon. This does not include simulating possession of a weapon.[3]

  1. R v Robinson, 2014 ONSC 3125 (CanLII), at para 105
    see R v Moore, 2012 ONCA 770 (CanLII)
  2. R v Delage (2001) 154 CCC (3d) 85 (Que CA), 2001 CanLII 2656
  3. R v Sloan (1974), 19 CCC (2d) 190 (BCCA)(*no link)
    R v Gouchie (1976), 33 CCC (2d) 120(*no link)

As Opposed to Theft

Given that robbery is a form of theft, there can be cases where the proximity and connection between theft and violence is limited. A theft where there is violence after the completion of the theft can be treated as distinct from robbery.[1]

This distinction is most seen in robbery under s. 343(a) which requires violence or threats to "overcome resistance to stealing". Where the threats are made after the completion of the theft, such as after a shoplifter leaves a store and is followed by staff, threats or violence may be found as only for the purpose of escape and not the purpose of preventing stealing which is already complete by this point.[2]

  1. R v Newell, 2007 NLCA 9 (CanLII)
  2. see R v Daughma, [1989] O.J. No. 1765(*no link) - in this case, threats occurred outside of store after accused steals a bottle of wine. c.f. R v Morgan, 2013 ABCA 26 (CanLII) - offender pointed a gun at guard in the parking lot while offender was getting into his car. Judge found it was a robbery

Dangerous Offenders and Long-Term Offenders

Robbery is classified as a "serious personal injury offence" (s. 752) where there is violence or threats of violence involved.[1]

  1. R v Lebar 2010 ONCA 220 (CanLII)
    R v Griffin 2011 NSCA 103 (CanLII)- court found threat of violence and SPIO where offender wore a disguise and tapped a knife on the counter while asking for money
    R v Steele, 2014 SCC 61 (CanLII)

Included Offences

The following have been found to be included offences:

  • Assault[1]
  • Assault causing bodily harm [2]
  • Theft[3]
  1. R v Luckett, [1980] 1 SCR 1140, 1980 CanLII 185 (SCC)
  2. R v Horsefall, 1990 CanLII 1039 (BC C.A.)
  3. R v Boisvert (1991) 68 CCC (3d) 478, 1991 CanLII 3039 (Que CA)

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of robbery.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles and factors of violence and assault-based offences, see Violent and Assaultive Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 344 N/A life in custody

Offences under s. 344 are straight indictable. The maximum penalty is life.

Minimum Penalties

Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. s.344(1)(a) [rest./prob. firearm use or firearm use with crim. org]
From May 1, 2008
N/A 5 year custody 7 years
s. s.344(1)(a.1) [firearm use]
From May 1, 2008
N/A 4 year custody Same


A conviction for robbery with a firearm carries with it a mandatory minimum of 5 years.

The 5 year minimum has been found to be constitutional and does not violate the right against cruel and unusual punishments under s. 12 of the Charter.[1]


Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 344 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 344 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 344 are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

The primary objective in sentencing for a home invasion robbery is deterrence which is necessary to protect the public.[2]

A home invasion robbery sentence should have a "higher starting point sentence than the armed robbery of a bank or commercial institution".[3]

Factors

General Factors

  • Planning and Deliberation
  • Major Role in the Offence
  • Prior Criminal Record (esp. related offences)
  • Prevalence of Offence in Community
  • Public Abhorrence of Type of Crime
  • Offender was in a Position of Trust
  • Victim was Vulnerable (Due to Age, Position of Trust, etc. see 718.2)
  • Significant Risk or Actual Harm to Victim
  • Offence motivated on Hate towards certain groups (s. 718.2)
  • Offence Committed as Part of Organized Crime or Terrorist Group
  • Remorse
  • Youthfulness
  • Support Network (family and friends)
  • Positive Employment History
  • Presence of a Mental Disorder or Addiction (*)
  • Risk of Deportation

Key Factors[4]

  • use of a weapon
  • use of a mask
  • awareness of elderly or otherwise vulnerable victims
  • injuries to victim
  • opportunity to reconsider plan
  • measure of violence
  • use restraints on victims
  1. R v Stocker, 2017 BCSC 542 (CanLII)
  2. R v Fraser, 1997 CanLII 9927 (NS CA) at paras 20-33
  3. R v Matwiy, 1996 ABCA 63 (CanLII), at para 26
  4. R v Brogan, 1999 BCCA 278 (CanLII) at para 10

Ranges

In most provinces the case law has set the starting point for robbery in general start at 3 years.[1] The sentence is adjusted from that starting point either up or down based on the circumstances of the offence and the circumstances of the accused. The normal range is in excess of 2 years.[2]

In Manitoba, there is no starting point for robberies.[3]

In Alberta, The starting point for a mugging robbery is 12 to 18 months.[4]

Robberies involving stabbings are frequently in the four to five years range.[5]

As with most robberies and break and enters, the primary focus is deterrence and denunciation, thus, characteristics of the offender may be of limited to no relevance.

In Alberta, the starting point for robbery of a bank by use of a note is 4 years incarceration.[6]

In Nova Scotia, financial institution robberies are in the range of 6 to 10 years.[7] While regular robberies start at 3 years.[8]

In the rare cases, robberies can include suspended sentences.[9]

  1. R v Johnas, 1982 ABCA 331 (CanLII), (1982), 32 C.R. (3d) l (Alta. C.A.)
  2. R v Wozny, 2010 MBCA 115 (CanLII)
  3. R v Sorensen, 2006 MBCA 38 (CanLII) at para 19
  4. R v Nerling, 2011 ABPC 371 (CanLII) at para 6 appealed to 2012 ABCA 114 (CanLII)
    R v Carter, 1992 ABCA 190 (CanLII), [1992] AJ No 561 (CA) (no record, no injuries, low value)
    R v Nyland, [1991] AJ No 1136 (CA)(*no link) (no record, no injuries, low value)
    R v Saeed, 2004 ABCA 384 (CanLII) (no record, no injuries, low value)
  5. R v Biln, 1999 BCCA 369 (CanLII)
  6. R v Brennan, 2003 ABCA 330 (CanLII), [2003] A.J. No. 1366 (Alta. C.A.)
    R v Jenkins, 2004 ABPC 48 (CanLII)
    R v Earl, 1985 ABCA 241 (CanLII), [1985] A.J. No. 168
    R v Trudell, 1984 ABCA 257 (CanLII), [1984] A.J. No. 932
    c.f. R v Hung, 1990 ABCA 347 (CanLII), (1990), 113 A.R. 205, [1990] A.J. No. 1074 (QL) (Alta. C.A.), at 214: "the starting‑point for any sentence involving robbery of a financial institution is five years in the penitentiary"
  7. R v Brewer (1988), 81 NSR (2d) 86(*no link)
    R v Leet (1989) 88 NSR (2d) 161(*no link) per Chipman
  8. R v Johnson, 2007 NSCA 104 (CanLII)
  9. see R v Carver, [1980] M.J. No. 257 (C.A.)(*no link)
    R v Ramsay, [1985] M.J. No. 417 (C.A.)(*no link)
    R v Bartlett, [1961] M.J. No. 2 (C.A.)(*no link)

With Firearm

Under s. 343(1)(a.1), a robbery with a firearm requires a minimum of 4 years.

It is not necessary that the pleading specify the use of a firearm to invoke the increased minimum penalty.[1]

  1. R v Watson, 2008 ONCA 614 (CanLII)

Subsequent Offences

344.
...
Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32; 2009, c. 22, s. 14.


CCC


Home Invasion

The term “home invasion” can be applied to wide range of offences and so can be misleading to assume they are all similar cases.[1]

Alberta has required a home invasion is a robbery to include:[2]

  1. plan to commit robbery in a home where offender expects to be found in dwelling
  2. arms self with weapon
  3. enters dwelling that is reasonably known to be occupied
  4. confines occupants
  5. threaten occupants
  6. steals money or valuable property

There is some suggestion that a similar invasion of a victim's vehicle, such as in a car-jacking, holds equal gravity as the home.[3]

Ranges
In Nova Scotia, private dwelling robberies are in the range of 6 to 10 years. [4]

In British Columbia, the range of sentence for home invasions involving serious violence is 8 to 12 years.[5]

In Newfoundland,the "low end" of the acceptable range is 18 months.[6]

  1. R v A.J.C.; R v Joseph, 2004 BCCA 268 (CanLII) at 1
  2. R v Matwiy, ABCA 63 (CanLII),[1996] A.J. No. 134 (C.A.)
  3. R v daSilva and Metropolit, [2000] O.J. No. 739 (Ont. S.C.), Locke J at para 21 ("Protection and the securing of home and family must receive very high priority in our criminal justice system. If it were otherwise, the confidence of Canadians in that system would evaporate. I see little difference between a home invasion and a car-jacking invasion. In the reality of the present daily life in this country, our cars are extensions of our homes.")
  4. R v Leet (1989) 88 NSR (2d) 161(*no link) per Chipman
  5. R v DAW, 2002 BCCA 336 (CanLII), [2002] BCJ 1156 (CA)
  6. R v PJB, 1999 CanLII 18938 (NL CA), (1999), 182 Nfld. and P.E.I.R. 14 (NLCA)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 344 or 98.1
Weapons Prohibition Orders s. 344
  • On conviction under s. 344 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • For offences under s. 344 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 344 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 98.1 or 344
  • Periods of imprisonment of 2 years or more for convictions under s. 98.1 or 344 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

The current version of s. 344 was in force from October 2, 2009 after being amended by the An Act to amend the Criminal Code (organized crime and protection of justice system participants), 2009, c. 22.

2008 to 2009

On May 1, 2008 part of the Tackling Violent Crime Act, S.C. 2008, c. 6, entered into force amending s. 344 of the Code to read as follows.

Robbery
344. (1) Every person who commits robbery is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of the offence.

However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149; 2008, c. 6, s. 32. [new sections underlined]


CCC

1995 to 2008

Robbery
344. Every person who commits robbery is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

R.S., 1985, c. C-46, s. 344; 1995, c. 39, s. 149.


CCC


See also