





CITATION: R. v. Scorcia, 2011 ONCA 17



DATE: 20110107



DOCKET: C50717



COURT OF APPEAL FOR ONTARIO



Moldaver, Feldman and MacFarland JJ.A.



BETWEEN:



Her Majesty The Queen



Respondent



and



Robert Scorcia



Appellant



Crystal Tomusiak, for the appellant



Emile Carrington, for the respondent



Heard and released orally: January 4, 2011



On appeal from conviction entered by Justice Gisele Miller of
          the Superior Court of Justice, sitting with a jury, dated February 20, 2009.



ENDORSEMENT



[1]

The appellant was convicted by a court composed of judge and jury of
    robbery, assault with a weapon and use of an imitation firearm while committing
    robbery.

[2]

Based on the position advanced by the defence at trial, the learned
    trial judge approached the issue of self-defence solely from the perspective
    that the appellant was involved in a pre-emptive strike to a threat he
    perceived as always hanging over his head. On the evidence led at trial, the
    trial judge concluded that there was no air of reality to the defence of
    self-defence on that basis and she instructed the jury accordingly. The essence
    of her instructions in this regard is found at p. 73 of the charge as follows:

Defence counsel in his closing address, suggested
    to you that although Robert Scorcia did everything that is required for you to
    find him guilty of assault with a weapon, that Mr. Scorcia was somehow
    justified in doing so, as a pre-emptive strike to a threat he perceived as
    always hanging over his head. I must tell you, and you must take the law from
    me, that there is no basis in our law for a defence or justification or of
    self-defence in the circumstances of this case, and you should put any
    suggestion to that effect from the defence out of your mind.

Joseph Lamanna presented no immediate threat to
    Robert Scorcia. Apart from whether Robert Scorcias perception of the threat
    Joseph Lamanna posed was grounded in reality, this is a case in which Robert
    Scorcia took steps to seek out Joseph Lamanna. He created the confrontation and
    Mr. Lamanna did nothing that would justify Robert Scorcia pulling out a
    gun, real or fake, and pointing it at Mr. Lamanna.

[3]

Leaving the issue of a pre-emptive strike aside, on the appellants
    evidence as to what occurred just before he pulled out his replica firearm and
    pointed it at the complainant, we think there was a basis for leaving the
    defence of self-defence with the jury.

[4]

On the appellants evidence, he pulled out the replica firearm, which he
    said was unloaded, only after the complainant said to him Oh, so you want to
    fight. According to the appellant, the complainant then started just making a
    motion towards me, walking towards me because he wanted to fight me and I
    pulled out the BB gun. In cross-examination, the appellant stated that he had
    brought the replica gun with him because he was fearful of the complainant: I
    was deathly scared of fighting him. This man has countless experience fighting.
     I have never been to a fight in my life. I was very scared.

[5]

There was clearly a basis in the record to substantiate the appellants
    fear. According to the evidence of the appellant and other witnesses, the
    complainant had a reputation for aggression and violence. He had engaged in
    bullying behaviour towards the appellant for a significant period of time and had
    threatened him with death or serious injury on numerous occasions. That is the
    backdrop against which the appellants evidence must be assessed, at least
    insofar as deciding whether there was an air of reality to the defence of
    self-defence.

[6]

In our view, taking the evidence of the appellant at its highest, as we
    must, we think that on this record, he was entitled to have the defence of
    self-defence left with the jury under s. 37 of the
Criminal Code
. That
    being so, the conviction for assault with a weapon cannot stand.

[7]

With respect to the robbery charge, the appellant was charged on the
    basis that he assaulted the complainant with intent to steal. If the
    appellants use of force was justified under s. 37, that conviction cannot
    stand. The same holds true for the charge of using an imitation firearm while
    committing a robbery.

[8]

Accordingly, for these reasons, the appeal is allowed, the convictions
    are set aside and a new trial is ordered.

Signed:           M. J.
    Moldaver J.A.

K.
    Feldman J.A.

J.
    MacFarland J.A.


