COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – KERRY WILLIAM SHAYNE (Appellant)
BEFORE:
ABELLA, FELDMAN and ARMSTRONG JJ.A.
COUNSEL:
Matthew T. McGarvey
for the appellant
Gillian Roberts
for the respondent
HEARD AND ENDORSED:
October 16, 2003
On appeal from the conviction entered by Justice P. Lalonde of the Superior Court of Justice, sitting with a jury, on December 3, 2001 and from the sentence imposed by Justice P. Lalonde of the Superior Court of Justice on May 16, 2002.
A P P E A L B O O K E N D O R S E M E N T
1The main witness against the accused was an accomplice. The accused gave evidence and contradicted the accomplice’s evidence. In his charge, the trial judge, at pp. 50-51, stated:
You, as triers of fact, have to decide whom you believe. …You’re required to determine if Mr. Kerry W. Shayne’s version of the events are true or could reasonably be true.
2In our view, notwithstanding that a proper W.D. charge was also given to the jury, this instruction constitutes reversible error. In light of this conclusion, it is unnecessary to deal with the other grounds of appeal.
3Accordingly, the appeal is allowed, the conviction is set aside, and a new trial ordered.