R. v. Scorcia (R.), 2011 ONCA 17

• Judge: Moldaver, Feldman and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 04, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 17;(2011), 272 O.A.C. 335 (CA)

R. v. Scorcia (R.) (2011), 272 O.A.C. 335 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.015

Her Majesty The Queen (respondent) v. Robert Scorcia (appellant)

(C50717; 2011 ONCA 17)

Indexed As: R. v. Scorcia (R.)

Ontario Court of Appeal

Moldaver, Feldman and MacFarland, JJ.A.

January 4, 2011.

Summary:

The Ontario Superior Court, sitting with a jury, convicted the accused of robbery, assault with a weapon and use of an imitation firearm while committing robbery. The trial judge had approached the issue of self-defence from the perspective that the accused was involved in a pre-emptive strike to a threat he perceived "as always hanging over his head". She concluded that there was no air of reality to the defence of self-defence on that basis and instructed the jury accordingly. The accused appealed.

The Ontario Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (incl. preventing assault) - [See Criminal Law - Topic 4370 ].

Criminal Law - Topic 1176

Offences against public order - Firearms - Using firearm while committing indictable offence (incl. imitation) - [See Criminal Law - Topic 4370 ].

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - [See Criminal Law - Topic 4370 ].

Criminal Law - Topic 1725

Offences against property - Robbery - Jury charge - [See Criminal Law - Topic 4370 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - A judge, sitting with a jury, convicted the accused of robbery, assault with a weapon and use of an imitation firearm while committing robbery - The trial judge approached the issue of self-defence from the perspective that the accused was involved in a pre-emptive strike to a threat he perceived "as always hanging over his head" - She concluded that there was no air of reality to the defence of self-defence on that basis and instructed the jury accordingly - The Ontario Court of Appeal set aside the convictions and ordered a new trial - There was a basis for leaving the defence of self-defence with the jury on the accused's evidence as to what occurred just before he pulled out his replica firearm and pointed it at the complainant; in cross-examination, he stated that he had brought the firearm with him because he was fearful of the complainant; and there was a basis in the record to substantiate his fear - Taking the accused's evidence "at its highest", 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 could not stand - The accused was charged with robbery on the basis that he assaulted the complainant with intent to steal; if the accused's use of force was justified under s. 37, that conviction could not stand - The same held true for the charge of using an imitation firearm while committing a robbery.

Counsel:

Crystal Tomusiak, for the appellant;

Emile Carrington, for the respondent.

This appeal was heard and decided on January 4, 2011, by Moldaver, Feldman and MacFarland, JJ.A., of the Ontario Court of Appeal. The following endorsement was released orally.