Court of Appeal for Ontario

Date: 2017-08-15 Docket: C61900

Judges: Doherty, LaForme and Rouleau JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Pammett Appellant

Counsel

Brian H. Greenspan and Peter R. Hamm, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: August 15, 2017

On appeal from the conviction entered by Justice Lisa Cameron of the Ontario Court of Justice on January 27, 2016.

Reasons for Decision

[1] The appellant was convicted of perjury. He appeals his conviction. Mr. Greenspan acknowledges that the appellant was deliberately "evasive" in his testimony and was in effect attempting to avoid telling the truth without actually lying. We accept Mr. Greenspan's characterization of the appellant's testimony. However, we agree with the trial judge that the appellant stepped over the line from evasiveness into falsehood.

[2] The Crown alleged that the appellant falsely testified to the effect that he did not associate the nickname "Carlito" with a person named Pierre Aragon. The appellant gave evidence at Aragon's trial on assault-related charges. He was questioned by the Crown about nicknames he knew Aragon to be associated with and he was questioned about persons he knew to be associated with the nickname "Carlito". He was not specifically asked whether he knew Aragon to be associated with the nickname "Carlito".

[3] In none of the answers given by the appellant to the questions did the appellant indicate that to his knowledge Aragon was known by or associated with the nickname "Carlito". Interestingly, at one point in his evidence, the appellant actually began referring to Aragon as "Carlito". When this was pointed out by counsel, the appellant quickly professed to be confused by the question.

[4] The connection between the nickname "Carlito" and Aragon was potentially of some significance at Aragon's trial in that it could connect Aragon to a certain motorcycle gang and therefore support the motive alleged for the attack on the victim in Aragon's trial.

[5] The appellant contends that even if the appellant knew at the time of Aragon's trial that Aragon was associated with the nickname "Carlito", the appellant's evidence was not false and could not be the subject of a perjury conviction. Counsel relies on the absence of any direct explicit falsehood in the appellant's testimony. He correctly points out that the appellant was never specifically asked whether he associated or connected the nickname "Carlito" to Aragon. Certainly, the Crown could have asked that question. Counsel submits that a witness's failure to volunteer all of the information that he or she might know in response to a broad non-specific question cannot be equated with giving false testimony for the purposes of a perjury charge.

[6] The trial judge appreciated that the Crown could not point to any express false answer in support of the perjury allegation. She considered the appellant's evidence as a whole in the context of the focus of the trial in which the appellant was testifying. She referred to the appellant's evidence concerning people he knew who used the nickname and nicknames he knew to be associated with Aragon. She referred to that evidence as "evasive" and "obfuscating". She then went on to say:

Mr. Pammett clearly knows a Carlito that he never mentions at that trial. It's fair to infer that he deliberately did not mention him. Mr. Pammett refers to his daughter dating Aragon in the summer of 2012. He states that he was in charge of the Loners Motorcycle Club in Peterborough. According to Mr. Pammett at that trial this was a group of a dozen or so individuals but he stated he couldn't remember if Aragon was part of that group or if Aragon hung around 285 Perry Street, the location the group frequented.

In my view all of this is patently disingenuous. Mr. Pammett never directly denies knowing Aragon by the nickname Carlito. He, in fact, is never asked directly about it but he never acknowledges it either. To not mention the Carlito that figured so prominently in his and Charlie's life in the summer of 2012 if not beyond, is avoiding the obvious and deliberately misleading.

[7] The findings in the above-quoted passage were open to the trial judge. On those findings, the appellant deliberately refrained from identifying Aragon as a person associated with the nickname "Carlito", despite knowing that the questions were directed at soliciting that information from him. In short, he was not only evasive, the answers he gave were deliberately misleading.

[8] The trial judge also relied on the appellant's inadvertent reference to Aragon as "Carlito" in his evidence and his "obvious attempt to cover up his own mistake", as further evidence that the appellant was deliberately attempting to mislead the court by his answers to the questions concerning the nickname "Carlito". The suggestion that the appellant was somehow confused by the question he was asked is thoroughly undermined by a review of the transcript.

[9] The trial judge's finding that the appellant gave false evidence was open to her on the evidence.

[10] The finding that the appellant gave false evidence at Aragon's trial was all but determinative of his guilt. The evidence that the appellant knew Aragon to be associated with the nickname "Carlito" was overwhelming. Indeed, the connection was so strong that the appellant could not help but refer to Aragon as "Carlito" during his testimony.

[11] This was also a case in which a finding of an intention to mislead flowed inevitably, as it often does when the accused does not testify, from a finding that the accused knowingly gave false evidence. The Crown established the requisite elements of the offence of perjury.

[12] The appeal is dismissed.

"Doherty J.A."

"H.S. LaForme J.A."

"Paul Rouleau J.A."