Law Times

Law Times ��� March 25, 2013 Page 5 NEWS Retrial ordered over insufficient review of evidence Case considers judges��� duty to answer jurors��� questions without offering opinion BY YAMRI TADDESE Law Times T he Ontario Court of Appeal has set aside a lower court���s decision to send a Toronto man to prison on aggravated assault charges after finding a trial judge who was reluctant to give his opinion on the case didn���t give the jury a sufficient review of the evidence. On the second day of deliberations after Michael Larmond���s trial, the jury had asked Superior Court Justice Edward Belobaba to describe what reasonable doubt means, specifically in the case at hand. In his pre-charge comment, Belobaba had given instructions ���that were only 25 minutes long,��� according to Larmond���s counsel���s factum in the appeal. ���Because the instructions were so brief, the jury found it necessary to ask questions in order to obtain additional assistance.��� The defence lawyer told Belobaba the jury was asking ���for more than just the standard reasonable doubt��� and encouraged him to consider expressing an opinion. But the judge responded only by reiterating the customary instructions on the presumption of innocence. On March 12, the appeal court found Belobaba had erred by failing to review the evidence with the jury and ordered a new trial. Larmond received a sentence of 4-1/2 years in prison in October 2011 after a jury found him guilty of shooting a man at a plaza in Toronto���s west end. William McCallum was shot in the stomach after his drug dealer, Tricia Richards, and her friend confronted him about money he owed her. After a conversation with Larmond, Richards and her friend left the store. McCallum told police a third man then walked into the store and shot him. The identity of the third man was an issue at trial as Richards and two other friends said it was Larmond, who they said was in the car with them as they drove to the plaza. Larmond argued he wasn���t in the car with the trio, that Marketplace OFFICE SPACE FOR LEASE 2,000 sq. ft. premium office space for lease in rejuvenated historic Don Jail building at site of new Bridgepoint Hospital (Gerrard & Broadview) To arrange viewing: Mark.Walker@ plenarygroup.com ��� 416.902.2921 he never went into the store, and that he didn���t shoot McCallum. According to the defence, the description McCallum gave of the shooter didn���t match Larmond���s. But McCallum was able to give accurate descriptions of everyone else he saw before the shooting, the defence submitted. McCallum described the shooter as being quite short. Larmond is much taller than McCallum described, according to Delmar Doucette, counsel for the appellant. Adding doubt to Larmond���s guilt, the defence said, one of the witnesses, Jennifer Simmonds, who was also in the car that day, testified that she was only ���pretty sure��� Larmond was the shooter. Asked if she was sure of Larmond���s presence, she replied, ���Well, I don���t know even know who ��� I don���t even know who this guy was.��� Doucette���s factum suggested Belobaba was likely hesitant to review the evidence because he didn���t want to bias the jury. ���A reading of the record as a whole strongly suggests . . . that Justice Belobaba was concerned that, if he related the relevant evidence, he would reveal that in his opinion the appellant should be acquitted,��� Doucette wrote in his factum. The appeal court found the judge didn���t have to give his opinion but he ���should have at least identified those parts of the evidence, such as the critical importance of McCallum���s original identification and Simmonds��� identification evidence.��� The appeal court noted: ���As the trial judge and the parties interpreted the question, it could be answered by pointing to the critical evidence in the case, without expressing an opinion.��� Toronto criminal lawyer Robb MacDonald was surprised at the Court of Appeal���s decision to set aside the judge���s ruling. Robb MacDonald says he was surprised by the appeal court���s decision to set aside Belobaba���s ruling as he���s ���one of our most respected Superior Court justices.��� But according to MacDonald, ���The rights of an accused are always paramount and the Court of Appeal is right to order ENHANCE YOUR EXPERTISE ��� AND YOUR VALUE ��� WITH A PROFESSIONAL LLM FROM OSGOODE. Put the focus on what interests you most. 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LIMITED SPACES AVAILABLE FOR FALL 2013 SPECIALIZATIONS: > Administrative Law > Alternative Dispute Resolution > Bankruptcy and Insolvency Law > Business Law > Civil Litigation and Dispute Resolution > Constitutional Law a new trial when there���s evidence that an accused���s trial was affected by a trial judge���s failure to explain the law to a jury.��� The decision reinforces the general��rule that, when a jury asks a question, the trial judge must answer it, according to Doucette. ���This was particularly important in Mr. Larmond���s case where, after a relatively��short trial, the jury was in its second day of deliberations and was clearly having difficulty understanding how to relate the evidence to the concept of��reasonable doubt,��� he says. ���Justice Belobaba could have struck the right balance in this case,��� he notes. ���The proper instruction would have reviewed the critical evidence that went to the issue of��reasonable doubt . . . while at the same time explaining that they, the jury, as the triers of facts, were the ones who had to decide whether there was a reasonable��doubt.��� LT reflecting on your specialty reflects well on you > Energy and Infrastructure Law > Family Law > General LLM > Intellectual Property Law > Real Property Law > Tax Law Professional legal education the way it was meant to be. To learn more or to register for an Information Session, visit www.osgoodepd.ca today. A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING Upcoming Info Sessions: Onsite (Toronto) - April 3, 2013 @ 5:30pm Webinar - April 16, 2013 @ 2:00pm EDT/EST To advertise call 416-649-8875 Untitled-1 1 www.lawtimesnews.com 13-03-22 10:13 AM

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