DATE: 20021120

DOCKET: C37061

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – CALVIN VICKERS (Appellant)

BEFORE: MACPHERSON, SIMMONS AND GILLESE JJ.A.

COUNSEL: Gregory Lafontaine for the appellant

Jamie Klukach for the respondent

HEARD: November 18, 2002

On appeal from the conviction dated September 28, 2001 and the sentence imposed on October 10, 2001 by Justice John F. Hamilton sitting with a jury.

E N D O R S E M E N T

Released Orally: November 18, 2002

[1] Unfortunately, this trial proceeded throughout on a shared misapprehension (by both counsel and the trial judge) that the appellant had been convicted of five criminal offences on three different dates involving three separate matters. This was simply not the case. In fact, the appellant had been convicted of at most four offences on two separate occasions arising from two separate matters. Indeed, it is possible, and perhaps even likely, that the Crown had established only that he was convicted of three offences on one occasion arising from one matter.

[1] In a criminal trial where the offences with which the appellant was charged related solely to an allegation that he committed perjury in relation to the existence of previous criminal convictions, the error respecting the number of those convictions was, in our view, crucial. This is particularly so in the context of a jury verdict which acquitted the appellant of one charge and convicted him of another charge where both charges seem to be very closely connected. In short, we have doubts that the jury’s verdict in this case is a safe one.

[2] Accordingly, the appeal is allowed and a new trial is ordered.

“J. C. MacPherson J.A.”

“Janet M. Simmons J.A.”

“E. E. Gillese J.A.”