



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pammett, 2017 ONCA 658

DATE: 20170817

DOCKET: C61900

Doherty, LaForme and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Pammett

Appellant

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 convictions 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. Greenspans characterization of the
    appellants 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 Aragons 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 Aragons 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 Aragons trial.

[5]

The appellant contends that even if the appellant knew
    at the time of Aragons trial that Aragon was associated with the nickname
    Carlito, the appellants 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 appellants 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 witnesss 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 appellants evidence as a whole in the context of the focus of
    the trial in which the appellant was testifying.  She referred to the
    appellants 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.  Its 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 couldnt 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 Charlies 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 appellants 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 judges finding that the appellant gave false evidence was
    open to her on the evidence.

[10]

The finding that the appellant gave false evidence at
    Aragons 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.


