Court of Appeal for Ontario

Citation: R. v. Scorcia, 2011 ONCA 17

Date: 20110107

Docket: C50717

Before: Moldaver, Feldman and MacFarland JJ.A.

Between:

Her Majesty The Queen

Respondent

and

Robert Scorcia

Appellant

Counsel:

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 Scorcia’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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.”