What are the defences for robbery?

Those charged with robbery may feel their world has been turned upside down. If a weapon was involved in the alleged incident, the penalty upon conviction could include time behind bars. There is also a social cost, with friends, family and business associates questioning if they can still trust you. An experienced defence lawyer can advise people in this situation on the best way forward. Here are some common defences.

I had no criminal intention

In order to be convicted for robbery, the Crown must prove that you specifically intended to commit robbery. Intoxication or other factors that impaired your state of mind at the time of the incident may allow your lawyer to argue you did not intend to commit a robbery. In those cases, it is possible your lawyer can negotiate to have you plead guilty to a lesser charge, such as theft.

Use of force must be proven

There are two basic elements of robbery: the theft of property that is not yours and the use of a weapon or an implied threat of violence.

If someone enters your house through an unlocked door or window but uses no force and they have no criminal intent, they could have a good defence against the charge of robbery. Perhaps they just wanted to get out of the cold.

Going into someone else’s house uninvited is still against the law, and a person may be charged with being unlawfully in a dwelling-house.

My Charter rights were violated

Robbery suspects are sometimes subjected to strenuous interrogations in an effort to obtain incriminating statements or confessions. If their rights, as guaranteed by the Canadian Charter of Rights and Freedoms, are violated during that interview, an application may be brought by their lawyer to exclude any evidence arising from that interview at trial.

Police must also have articulable cause to search the accused and/or his belongings. If police do not have reasonable cause, any search is illegal.

The right to counsel upon arrest is a constitutionally protected right under s. 10 (b) of the Charter. That section states “everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”

This is important, as it ensures that a detained or arrested individual knows both the nature of the charges and their legal options.

It wasn’t me

In order to find someone guilty of robbery, the Crown must prove beyond a reasonable doubt that the accused committed the offence. When a robbery occurs, it is easy for witnesses to become confused about the culprit’s physical appearance. Establishing identity beyond a reasonable doubt can be difficult. Though security cameras are everywhere today, suspects often have their faces concealed, with a scarf, face mask or a hood.

In some cases, there may be forensic evidence such as a cigarette butt found at the scene. That evidence is useless unless the Crown can prove such evidence was left at the exact time of the offence.

Fingerprints can also be problematic. If someone believes an acquaintance robbed them and that person’s fingerprints are found at the crime scene, the Crown still needs to show the  fingerprints could not have been left at another time other than the robbery.

Many suspects are wrongly identified

A working group of the Department of Justice (DOJ) reports that many people are falsely identified as suspects in serious crimes such as robbery. Their report states: “There is no denying the powerful impact at trial of a witness for the prosecution stating with confidence and conviction that the accused was the person observed committing the crime. However, experience has shown that erroneous and mistaken identifications have and do occur, resulting in the wrongful conviction of the factually innocent. The most well-meaning, honest and genuine eyewitness can, and has been, wrong.”

The DOJ report adds that the Innocence Project in New York City found that of the first 130 post-conviction exonerations based on new DNA evidence, 78 per cent involved mistaken identification.

Another report, Convicting the Innocent by Bruce A. MacFarlane, a former assistant deputy attorney general for Canada, states that eyewitness misidentification is “the single most important factor leading to wrongful convictions.”

“The danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere,” he writes.

To describe the impact of an eye-witness statement on a jury, he quotes cognitive psychologist Elizabeth Loftus as stating, “there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

If you have been wrongly identified as a suspect in a robbery, seek legal counsel immediately.

Did the crime even happen?

Sometimes it is fair to question if a robbery even occurred. The credibility of the alleged victim is key here, as perhaps they are just claiming they were robbed for self-serving reasons.

A 2018 Ontario Court of Justice case provides an example of that. According to court documents, a pharmacist learned that medical authorities were about to launch an investigation after he couldn’t account for about 5,000 patches of fentanyl.

To cover up this shortfall, he convinced a drug addict that he knew to “go to his premises armed with knife and appear to rob him,” the judgment reads.

The court sentenced the pharmacist to 14 years in prison for trafficking, as it turns out the drugs were being sold on the street. Part of the judgment reads, “The staging of the robbery is a significant aggravating factor … as is clear from the recorded conversation with [the addict, the pharmacist] was the directing mind of the staged robbery, discussing in detail how it would unfold … to complete the cover-up he defrauded his insurance company of over $36,000.”

In the Northwest Territories, police were called to a store after receiving a report about an armed robbery by a man with a knife, according to a news report. When officers arrived, the story states they were told the robber had fled with a large amount of money.

After an investigation, police charged two store employers with various offences.

In Newfoundland, police were called to a convenience store after a robbery was reported, a story states, where the cashier claimed to be a victim of a "minor physical assault" during the heist. After an investigation, charged two men, including the cashier, for staging the robbery as a way to conceal their actions.

Duress is not a defence

The Code only punishes voluntary criminal action, recognizing there are times when someone has no other option than to commit a criminal offence. Though their actions remain a crime, those in that situation may be able to rely on the defence of duress. That option is not available with the crime of robbery.

That is because s. 17 of the Code excludes the defence of duress from applying to serious offences, such as murder and robbery. A 1998 judgment from the Ontario Court of Appeal explains why.

“The principles of fundamental justice in s. 7 of the Charter preclude Parliament from defining criminal offences to permit the conviction of the morally innocent,” it reads. “Duress, however, is a defence, an excuse that rests not on moral innocence but on moral involuntariness. Persons whose conduct is morally involuntary are not morally blameworthy of the harm they have caused … the defence of duress has been described as a concession to human frailty. It reflects the law's compassion for those who have been forced by threats of death or bodily harm to commit a criminal act that they would not otherwise have committed.”

Call me first

Those accused of robbery, are often unsure about their options. Even if the Crown has significant evidence against you, I can examine it and find weaknesses or inconsistencies that may be helpful in exonerating you or at least reducing the charges. If the police want to talk to you about a robbery, contact me first for a free consultation so we can discuss your case and explore what options are available.

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