Court of Appeal for Ontario

Date: 2019-12-24 Docket: C63184 Judges: MacPherson, Sharpe and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Konrad Miarecki Appellant

Counsel

Konrad Miarecki, in person Ian Smith, duty counsel Benita Wassenaar, for the respondent

Heard: December 11, 2019

Appeal Information

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 appellant's 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 appellant's 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 appellant's "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.