DATE: 20031020

DOCKET: C38369

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

[1] The 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.

[2] In 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.

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