R. v. Larmondin, 2013 ONSC 778

CITATION: R. v. Larmondin, 2013 ONSC 778 COURT FILE NO.: 114-12 DATE: 20130201 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN ) ) HER MAJESTY THE QUEEN Respondent – and – Trevor Larmondin Appellant ) ) ) ) ) ) ) )) Martin Tooke, for the CrownTerry P. Waltenbury, for the Appellant ) ) HEARD: December 13, 2012 DECISION ON APPEAL Del Frate J.: [1] The appellant appeals against the conviction made by His Honour Justice W. F.

Fitzgerald of the Ontario Court of Justice atSudbury, Ontario on April 13, 2012 on a charge of assault. [2] Firstly, the appellant argues His Honour failed to give sufficient consideration to a crucial part of the evidence andadditionally failed to apply the principles enunciated in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26. Secondly, the learnedjustice did not satisfy the requirements stipulated in R. v.

Sheppard, 2002 SCC 26 , [2002] 1 SCR 869, where the Supreme Courtof Canada stated that meaningful reasons must be given so that the parties understand the decision and so that an appellate court mayreview the correctness of the decision. Background [3] The case at issue arose out of an altercation between the appellant and his then common-law partner.

The complainanttestified that on December 2, 2010, the appellant, among other things, approached her in a threatening fashion with his fist close to herface and stated “You want this, don't you?". [4] It was and remains common ground that the appellant did not follow through and strike the complainant, and also that thecomplainant did strike the appellant on several occasions over the course of the altercation. [5] The appellant testified and denied all of the allegations made by the complainant, including the allegation that he approachedher in a threatening fashion with his fist close to her face.

He also denied making the statement as alleged by the complainant. [6] In his reasons at pages 86 and 87 of the transcript, His Honour addresses the definition of assault and states: Now assault is defined a number of ways, one of which indicates a person commits an assault when, (b), he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, orcauses that other person to believe on reasonable grounds that he has, present ability to effect his purpose. [7] The learned justice goes on to state: What was described by Ms. Lalonde with the accused bringing his fist to her face in the circumstances under which she experienced it atthe material time and place and articulated in her evidence today constitutes an assault in the criminal law as I understand it.

True, theaccused may well be quite correct that there was no physical application of force, but the circumstances are such that the definition, theessential elements are clearly before me in the evidence here. This is not a question of deciding whether I am believing one witness andnot believing another. This is a question of looking at all of the evidence to determine whether the essential elements are proved beyonda reasonable doubt, and I am so satisfied. There is a finding of guilty for those reasons. Position of the Appellant

[8] The appellant submits that the learned justice erred in law in not applying the principles enunciated in R. v. W.(D.). (SCC), [1991] 1 S.C.R. 742 at para 28: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [9] Further, he submits that the learned judge failed to analyze and articulate his conclusions with respect to the essentialelement of the offence, being the raising of the fist in a threatening fashion. While the complainant stated that the appellant raised hisfist, the appellant denied that allegation.

The appellant submits that it was incumbent on the learned justice to analyze the crucialconflicting evidence and give reasons as to why he rejected the appellant's testimony. Not only is this analysis necessary per R. v. W.(D.), he argues, it was also mandated by R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, which established that the trialjudge must give reasons that permit the parties to understand the result and allow for effective appellate review. Position of the Respondent [10] The respondent submits that although the learned justice did not explicitly repeat the mantra enunciated in R. v.

W.(D.), whenthe reasons are analyzed contextually, including the closing submissions of counsel, it is clear that he was alive to the issues presented bythe evidence. This, the Crown argues, was apparent when the learned justice analyzed the essential elements of the offence and stated: [T]his is not a question of deciding whether I am believing one witness and not believing another.

This is a question of looking at all ofthe evidence to determine whether the essential elements are proved beyond a reasonable doubt, and I am so satisfied. [11] The respondent also submits that a trial judge’s verdict should not be overturned merely because he or she failed to discusscollateral aspects of the case. Discussion [12] It is accepted that a trial judge is not required to state each and every step taken in arriving at a conclusion.

It is also a well-established principle that, wherever possible, deference must be given to the trial judge's assessments. [13] However, in this case it is my view that the trial judge did err in law in two ways. [14] First, the R. v. W.(D.) issue.

Where the evidence is as contested and contradicted as in this particular case, an analysis of whyhe did not accept the appellant's denial of the incident as stated by the complainant should have been entertained. [15] Although he discusses some of the actions alleged by the complainant and denied by the appellant, he makes no specificreference to the appellant’s denial of the fist incident in his reasons. In my view this particular piece of the evidence ought to have playeda crucial role in arriving at a conclusion.

Some explanation should have been given as to why he rejected the appellant's denial,especially when credibility was an essential issue. [16] Second, as enunciated in R. v. Sheppard, an accused is entitled to know why the trial judge is left with no reasonable doubt. Here, the learned justice states: [T]his is not a question of deciding whether I am believing one witness and not believing another.

This is a question of looking at all ofthe evidence to determine whether the essential elements are proven beyond a reasonable doubt, and I am so satisfied. [17] In my view, this statement was insufficient to inform the accused as to why his evidence has not raised a reasonable doubt,and further, such a statement does not permit proper appellate review on these facts. [18] Accordingly, the appeal is allowed. [19] In view of the numerous credibility issues that are raised by the evidence, a new trial is ordered. [20] Order to issue as per reasons. Mr. Justice Robert G.S. Del Frate Released: February 1, 2013

CITATION : R. v. Larmondin, 2013 ONSC 778 COURT FILE NO.: 114-12 DATE: 20130201 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – Trevor Larmondin Appellant DECISION ON APPEAL Del Frate J. Released: February 1, 2013