DATE: 2001425

DOCKET: C35084

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT NORMAN PAMMETT (Appellant)

BEFORE: CATZMAN, ABELLA and FELDMAN JJ.A.

COUNSEL: Irwin A. Koziebrocki for the appellant Alison Hurst for the respondent

HEARD: April 17 and 18, 2001

On appeal from the conviction by Mr. Justice H.R. McLean dated April 12, 2000 and sentence of October 3, 2000

E N D O R S E M E N T

Released Orally: April 18, 2001

[1] The Crown called two eye witnesses to speak to the issue of perjury.

[2] This raised the possibility that the jury might convict based on the evidence of only one of the two witnesses. Indeed, the trial judge charged the jury that:

In order to convict you do not have to be satisfied, beyond a reasonable doubt, that both of them correctly identified the accused. It is the totality of the evidence that must prove, beyond a reasonable doubt, that Mr. Pammett is guilty of the offence charged

This charge invited the jury to convict based on the evidence of only one of the two eye witnesses.

[3] In our view, the trial judge was required to instruct the jury in accordance with s. 133 of the Criminal Code that no person can be convicted of perjury on the uncorroborated evidence of only one witness. The fact that the defence did not object does not obviate the need to comply with the clear statutory requirement in s. 133. The failure to give the mandatory charge is a fatal error, and we are, therefore, of the view that it is not appropriate to apply the proviso.

[4] The appeal is allowed, the conviction is set aside and a new trial is ordered.

“M.A. Catzman J.A.”

“R.S. Abella J.A.”

“K. Feldman J.A.”