DATE: 20041119

DOCKET: C40071

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. EMARK POLANCO (Appellant)

BEFORE:

DOHERTY, CRONK and JURIANSZ JJ.A.

COUNSEL:

Boris Bytensky

for the appellant

Howard Leibovich

for the respondent

HEARD:

ORALLY

RELEASED:

November 15, 2004

November 15, 2004

On appeal from the conviction entered by Justice R.A. Minard of the Ontario Court of Justice dated December 9, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of three counts of assault causing bodily harm by the discharge of a firearm. The charges arose out of a shooting outside of a nightclub. The appellant appeals his conviction only.

[2] At trial, the primary defence was identity. It was argued on behalf of the appellant that the Crown had not established beyond a reasonable doubt that the appellant was the shooter. The appellant did not testify.

[3] The trial judge gave extensive reasons for judgment. Those reasons are extremely well organized and complete. They were of considerable assistance to this court. On the findings of fact made by the trial judge after his extensive review of the evidence, the Crown’s case establishing that the appellant was the shooter, was overwhelming.

[4] On appeal, counsel abandoned the grounds of appeal relating to all issues except the issue of self-defence.

[5] At trial, counsel for the appellant had made only a brief reference to self-defence in his lengthy closing argument. The Crown had made an almost equally brief response. The trial judge considered and rejected the defence of self-defence. The trial judge’s reasons relating to self-defence are relatively brief. They reflect the nature of the argument put to him by counsel and the very minor role played by self-defence at trial.

[6] Having considered counsel’s arguments, we think it is doubtful that there was an air of reality to the defence of self-defence. However, since the trial judge considered the defence, we will approach the case on the basis that the defence was available. In the part of his reasons where he addressed self defence, the trial judge made several findings of fact. On those findings, the defence of self-defence as defined either in s. 34(2) or s. 37 of the Criminal Code could not assist the appellant.

[7] The appeal is dismissed.

“Doherty J.A.”

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”