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Judge orders a new trial in assault case

A judge has ordered a new trial for Toronto criminal lawyer Peter Thorning’s client and ruled that the trial judge “improperly intervened” and compromised the fairness of the proceedings.

“He usurped the function of Crown counsel,” Justice Robert F. Goldstein wrote in his decision. “He intervened improperly in the cross-examination.

“Regrettably, he also failed to properly apply the appropriate principles for dealing with the evidence of an accused person.”

Thorning, partner at Brauti Thorning Zibarras LLP, represents Jimmy Vlachos, who was convicted at trial of assault. 

Court documents for R. v. Vlachos, 2015 ONSC 1700 (CanLII), show that on Dec. 10, 2012 Vlachos had an altercation with Michael Day, a cyclist. Vlachos was driving his car and then got out to confront Day. He chased Day down and either tried to apprehend him, or beat him up for damaging his car, depending on which version of events to believe, say court documents.

The files state that the altercation was caught, at least in part, by a surveillance camera. Vlachos was charged with assault with a weapon and simple assault. The trial judge acquitted him of assault with a weapon on the basis that he did not intend to strike Day with his car. 

“In cross-examination, Mr. Day was confronted with various inconsistencies between his trial evidence and the call he made to 911,” says the court documents.

The judge did, however, convict Vlachos of simple assault.

On appeal, Thorning argued that the trial judge made three interventions that caused him to compromise the fairness of the proceedings: first, the trial judge conducted what amounted to a judicial pre-trial after the accused pleaded not guilty; second, the trial judge, rather than Crown counsel, conducted the examination-in-chief of Day and elicited most of his evidence; and third, the trial judge impermissibly opened a line of questioning of the accused after Crown counsel had completed the cross-examination.

The appellate court judge agreed with Thorning, saying “these interventions would cause a reasonable person to think that the accused had not received a fair trial.”

Goldstein also agreed that the trial judge “erred in law by failing to properly apply the test in R. v. W.(D.), 1 SCR 742, 1991 CanLII 93 (SCC).”

He ordered a new trial.

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