DATE: 20040128

DOCKET: C39605

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – RONALD JAMES LAWRENCE (Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Richard Posner for the appellant

Leslie Paine for the respondent

HEARD:

January 26, 2004

On appeal from the conviction and sentence imposed by Justice Sidney N. Lederman of the Superior Court of Justice dated June 24 and August 8, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] We see no error in the trial judge’s finding that the Crown disproved self-defence. The trial judge’s factual findings are entitled to deference and, in our view, he was entitled to conclude that third element of self-defence under s. 34(2) had been disproved. Without warning that he had a lethal weapon, the appellant stabbed his assailant in the chest in circumstances where, on the trial judge’s finding, he could have extricated himself by escaping into his vehicle.

[2] As for the necessity defence to impaired driving, we agree with the trial judge that having entered his vehicle and driven to the parking lot, it was no longer necessary for him to drive.

[3] The Crown concedes that the sentence of one year concurrent for impaired diving was excessive. We would allow the sentence appeal, but only to the extent of reducing the sentence for impaired driving to four months concurrent. Given the high degree of deference to be accorded the trial judge on the question of conditional sentence, we see no reason to interfere with his conclusion that given the serious nature of this assault, a conditional sentence was not appropriate.