Robbery requires threat, judge rules Accused allowed to plead to theft

By Joseph Brean
Post Media
Nov 12, 2014

When is a bank robbery not a bank robbery?

That was the riddle faced by a Toronto judge in the trial of Jorge Luis Oliveiros Ortega, who wrote a note announcing a robbery, gave it to a bank teller, demanded money, got $600 cash from the teller, and left the bank with it.

The Toronto police holdup squad, who caught their suspect a few weeks later, thought it was a robbery, and the Crown charged accordingly. But Justice Gary Trotter, in accepting Oliveiros Ortega’s guilty plea to a theft charge, ruled it was not a robbery because the answer to the riddle is that a bank robbery is only a bank robbery if the teller is scared.

“When someone walks into a bank and hands a teller a note demanding money, it is usually considered to be a robbery,” the judge wrote. “But in the unique circumstances of this case, it was just a theft.”

The case came down to the subjective experience of fear, and because the teller was not scared, a key element of the crime was not met.

Oliveiros Ortega, then 22, walked into the bank about 3:50 p.m., Sept. 14, 2012. Standing five-foot-four, weighing 120 pounds, he was wearing a grey Adidas jacket with the word Italia and the number seven. He was not disguised and gave no indication he was armed.

As the teller was about to serve him, he stepped back, spoke in Spanish to someone on his cellphone, then handed over the note, which read: “This is a robbery, give me the money, my mother is sick.”

“The teller initially hesitated because she could not believe what was happening,” the judge wrote. “In a calm voice, (Oliveiros Ortega) said: ‘Give me the money.’”

When the teller handed over the $600, he asked for more, but the teller refused. He asked her to put the money in an envelope. She did, and he left.

In her testimony, the teller said she felt no fear at all, neither for herself nor anyone else, and handed over the money “because he asked for it, and also because she felt sorry for him, given that he looked so young and his mother was sick.”

In the Crown’s view, the teller’s state of mind was irrelevant, and it only needed to prove Oliveiros Ortega’s conduct was objectively threatening, or that a reasonable person would be scared. It argued that requiring the teller to be scared “frustrates the operation of the provision.”

The Crown also argued Oliveiros Ortega’s actions “amounted to what everyone considers to be robbery,” and noted Oliveiros Ortega himself called it a “robbery” in his note.

Trotter was not persuaded. He pointed out the word “robbery” and its past tense “robbed” have many meanings in common parlance, from break and enter to financial fraud. “More colloquially, and beyond the realm of the criminal law, the term ‘robbed’ is sometimes used to describe great misfortune in other circumstances, including sporting events,” the judge wrote.

Robbery is defined in the Criminal Code like this: “Every one commits robbery who 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.”