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
1The 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.
2At 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.
3The 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.
4On appeal, counsel abandoned the grounds of appeal relating to all issues except the issue of self-defence.
5At 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.
6Having 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.
7The appeal is dismissed.
“Doherty J.A.”
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”