COURT OF APPEAL FOR ONTARIO

DATE: 20000124

DOCKET: C31466

RE: HER MAJESTY THE QUEEN (Respondent)

v. LEE FREDERICK PINE (Appellant)

BEFORE: ABELLA, ROSENBERG and MacPHERSON JJ.A.

COUNSEL: T.F. Baxter,
for the appellant

Scott C. Hutchison,
for the respondent

HEARD: January 19, 2000

On appeal from the conviction imposed by Whalen J. dated November

13, 1998 and on appeal from the sentence imposed by Whalen J.

dated January 18, 1999.

E N D O R S E M E N T

[1] The trial judge gave detailed and careful reasons for

finding that self-defence was not available to what he found to

be a separate act of throwing the rock. It was open to the trial

judge to make that finding of fact. The trial judge properly

applied the law in light of that finding. We do not agree that

he failed to consider the subjective elements of self-defence or

that he in any other way misdirected himself with respect to

s.34(2) of the Criminal Code.

[2] In view of the finding that the throwing of the rock was an

act of punishment not based on the necessity of self-defence, on

that ground alone s.34(1) of the Criminal Code was not available.

Accordingly, the appeal from conviction is dismissed.

[3] As to sentence, we agree with the trial judge’s reasons for

sentence and, in particular, agree with him that this was not a

proper case for a conditional sentence. Accordingly, the appeal

from sentence is also dismissed.

(Signed) "R. S. Abella J.A."

(Signed) "M. Rosenberg J.A."

(Signed) "J. C. MacPherson J.A."