



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Miarecki, 2019 ONCA
    1019

DATE: 20191224

DOCKET: C63184

MacPherson, Sharpe and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Konrad Miarecki

Appellant

Konrad Miarecki, in person

Ian Smith, duty counsel

Benita Wassenaar, for the respondent

Heard: December 11, 2019

On appeal from the conviction entered on June 14, 2016
    and the sentence imposed on January 5, 2017 by Justice Robert Wadden of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

We do not accept the submissions that the trial judge erred in rejecting
    the s.35(1) defence of property defence. The appellant had invited the
    complainants son to return his property to be paid for work he had done. The
    complainants accompanied their son to the appellants property. The appellant
    did not testify at his trial.

[2]

Even if the appellant believed that the complainants were about to enter
    his home without being entitled to do so, we agree with the trial judge that
    the appellants act in pointing a gun at the head of the female complainant and
    pulling the trigger was unreasonable in the circumstances. The trial judge
    found that the appellants actions went well beyond what would be reasonable
    in the circumstances as required by s. 35(1)(d).

[3]

This case is distinguishable from
R. v. Weare
, (1993) CCC (3d)
    494, where the accused pointed a gun at strangers who were about to enter his
    home. In this case, the appellant had invited the son to return and he knew
    precisely why the complainants appeared at his door and that they posed no
    unlawful threat.

[4]

The appeal is dismissed. The sentence has been served and is dismissed
    as moot.


