R v Thompson, 2023 SKCA 66

Court of Appeal for Saskatchewan Docket: CACR3433 Citation: R v Thompson , 2023 SKCA 66 Date: 2023-05-31 Between: Tony James Thompson Appellant And His Majesty the King Respondent Before: Barrington-Foote, Kalmakoff and McCreary JJ.A. Disposition: Conviction appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Madam Justice McCreary On appeal from: 2021 SKPC 13 , Regina Appeal heard: February 23, 2023 Counsel: Brady Knight and Michelle MacDonald for the Appellant Grace Hession David for the Respondent Kalmakoff J.A. I.

Introduction [ 1 ] Following a trial in Provincial Court, Tony Thompson was convicted of eight Criminal Code offences, all of which stemmed from the fact that a loaded prohibited firearm was found in a backpack he had in his possession. The trial judge sentenced Mr. Thompson to a total of 49 months and 15 days in the penitentiary, in addition to 23 months and 15 days of credit for pre-sentence custody and prohibited him from possessing firearms for life. [ 2 ] Mr. Thompson appeals against both the convictions and the sentence. For the reasons that follow, I would allow the conviction appeal.

In my respectful view, the trial judge erred in law by treating Mr. Thompson’s interest in the outcome of the proceedings as a factor that negatively affected his credibility as a witness. This error had a clear impact on the verdict and, as a result, the convictions cannot stand; there must be a new trial. In light of that, it is unnecessary to address the sentence appeal. II. Background [ 3 ] The charges against Mr. Thompson arose out of events that occurred on June 5, 2019. That evening, Mr. Thompson, who was well known to police, was seen in downtown Regina by several on-duty, plainclothes officers.

When he was first spotted, Mr. Thompson was wearing a black backpack, leaning on a bicycle, and speaking to a woman outside a residence. The officers learned there was an outstanding warrant for Mr. Thompson’s arrest for violating the conditions of a release order. As Mr. Thompson rode away from the residence on the bicycle, one of the officers approached him and asked if he wanted to “take care of” the outstanding warrant. Mr. Thompson told the officer he was not interested in doing that and pedaled off down the street. [ 4 ] A short time later, another officer approached Mr.

Thompson, identified himself and told Mr. Thompson to stop. Mr. Thompson kept going. He rode down a back alley, out of the police officers’ view, and disposed of his backpack by throwing it into a recycling bin behind a business. Mr. Thompson was arrested a short time later, and the police officers recovered the backpack soon after that. Among the items inside it were a sawed-off shotgun with a live round in the chamber, other loose ammunition, 17 unused needles, a black glove, a toothbrush, men’s clothing and underwear, a cellular phone and some cologne. [ 5 ] The toothbrush in the backpack had Mr.

Thompson’s DNA on it. The handle of the firearm contained DNA profiles of mixed origin – at least one of which was from a male person – that were not of sufficient quality to permit comparison to a known sample. The needles in the backpack were not submitted for DNA analysis; they were destroyed because police officers did not believe them to have any evidentiary significance and viewed them as a potential biohazard. [ 6 ] The determinative issue at trial was whether Mr. Thompson knew the firearm and ammunition were in the backpack.

The Crown led no direct evidence respecting his knowledge; its case against him in that regard was circumstantial. [ 7 ] Mr. Thompson testified that he did not know the firearm or ammunition were in the backpack. He said he had received the backpack that evening from a woman named Jessica Parisian, with whom he had an “on-again off-again” relationship. Mr. Thompson testified that, in the days leading up to June 5, 2019, he had been staying elsewhere with another woman. He said he had contacted Ms.

Parisian that day and asked her to bring him his clothes and other personal items, and that she had given him the backpack, which he believed contained those items. He testified that, a short time after leaving the location where he had met with Ms. Parisian, he saw persons who he recognized as police officers, and they advised him that he had an outstanding warrant. He said he ran from the police because he did not want to be arrested on that warrant, and that he disposed of the backpack by throwing it into “a random garbage can”

because it was slowing him down, and he “didn’t want to get caught with it”. He elaborated on this explanation by saying that, as an Indigenous person, he had not had good experiences with the police, and he did not trust them to safeguard his property, so he decided to stash the backpack in the bin so he could retrieve it later. Mr. Thompson maintained that he never looked inside the backpack and that he did not know it contained a firearm or ammunition.

When asked to explain what he thought had been in the backpack, given its substantial weight, he surmised that it might have been a laptop computer or a Bluetooth speaker. [ 8 ] Ms. Parisian also testified for the defence. Her testimony confirmed several aspects of Mr. Thompson’s story. In particular, she said she had packed the backpack with his things, which had been located at her residence, at his request. She claimed that the shotgun and ammunition found inside the backpack belonged to her, as did the needles and the black glove.

She said she had forgotten that the shotgun was in the backpack and had inadvertently packed the rest of Mr. Thompson’s items in there with it because she was “in a rush” that day. She said that she did not realize she had given Mr. Thompson her firearm until a few days later when she spoke to him and learned that he was in jail. [ 9 ] The trial judge ultimately rejected the testimony of Mr. Thompson and Ms. Parisian and found that the circumstantial evidence proved all the necessary elements of the offences – including Mr. Thompson’s knowledge of what the backpack contained – beyond a reasonable doubt. III.

The conviction appeal A. Issues [ 10 ] Mr. Thompson’s arguments on the conviction appeal take issue with the way in which the trial judge assessed his credibility, and that of Ms. Parisian. [ 11 ] Under s. 675(1)(

a) of the Criminal Code , a person convicted of an offence prosecuted by indictment may appeal against the conviction on any ground of appeal that involves a question of law alone. Credibility findings generally involve questions of fact, not law ( R v W.H. , 2013 SCC 22 at paras 33–34 , [2013] 2 SCR 180 [ W.H. ]).

However, where a trial judge’s assessment of credibility rests on irrelevant or inappropriate considerations, or is based on a wrong legal principle, that constitutes an error of law and opens the door to appellate intervention under s. 686(1)(a)(ii) ( R v J.M.H. , 2011 SCC 45 at para 36 , [2011] 3 SCR 197; R v Adebogun , 2021 SKCA 136 at para 22 , [2022] 1 WWR 187; R v Boyer , 2018 SKCA 6 at para 56 , [2018] 6 WWR 322; and R v R.I.G. , 2020 SKCA 26 at para 27 ). [ 12 ] Mr. Thompson alleges that the trial judge made four legal errors in finding that neither he nor Ms.

Parisian were credible witnesses. [ 13 ] First, he argues that the trial judge improperly considered his self-interest in being acquitted as a factor that negatively affected the credibility of his testimony. Second, he says the trial judge drew inferences that were based on improper stereotypes or ungrounded assumptions about ordinary human behaviour. Third, Mr. Thompson contends that the trial judge erred in his treatment of evidence concerning Ms. Parisian’s character when assessing her credibility.

Fourth, he asserts that the trial judge failed to properly consider how the Crown’s disposal of certain items found in the backpack ought to have affected the overall credibility assessment. [ 14 ] As I will discuss, it is only necessary to deal with Mr. Thompson’s first argument, as it is dispositive of the appeal. B. The trial decision [ 15 ] In his reasons for conviction, which were delivered orally, the trial judge began by stating that “the only real issue in this case is whether or not Mr.

Thompson was aware that the firearm was contained in the backpack he was carrying on the evening of June 5, 2019” ( R v Thompson (14 October 2020) Regina, Provincial Court (Sask) [ Trial Decision ]). He then reviewed and summarized the evidence given by the witnesses who testified for the Crown. The trial judge followed that by recounting the evidence given by Ms. Parisian and Mr. Thompson. As part of this review, the trial judge considered and assessed the credibility of their testimony. In short, he found neither of them to be credible. [ 16 ] The trial judge gave several reasons for why he rejected Ms.

Parisian’s testimony, including that it was fraught with internal inconsistencies and contradictions, the fact that many of her responses to questions were vague or illogical, and that, at points, she “struggled for answers and seemed to be making up her answers as she went along”. He also observed that she was a “person of questionable character”, as she was an admitted member of a street gang, had a criminal record for a variety of offences, and was incarcerated when she testified. The trial judge stated that “for all the reasons outlined, I find Ms.

Parisian not to be a credible witness, and there was little, if any, of her testimony that I found believable”. [ 17 ] The trial judge then moved on to Mr. Thompson’s testimony, reviewing and analyzing it in detail, and referring to several aspects of it that he found to be implausible, inconsistent, or unbelievable. Ultimately, the trial judge rejected Mr. Thompsons’ assertion that he did not know what was in the backpack, stating: In my view, Mr. Thompson was well aware that the backpack was heavy because he was well aware that it contained a loaded sawed-off shotgun and ammunition.

His actions that evening spoke volumes as to his knowledge. For example, number 1, as soon as he spots police, he begins to run notwithstanding the fact that he testified he was doing nothing illegal in his opinion at that moment. Two, Mr. Thompson then rides through the downtown area on his bike with the backpack on his back for nearly 15 minutes before throwing the backpack in a dumpster as police are closing in and less than a minute prior to his arrest and at a point when he was very near his destination of Ms. Parisian’s father’s place. In the Court’s view, Mr.

Thompson knew he could not get caught with that backpack because he knew full well what it contained, and he

knew full well what the consequences would be if the police caught him with it. An explanation that he dumped it because it was heavymakes no sense when he drove around for 15 minutes previously and only dumped it when police were closing in. His alternativeexplanation that he dumped it because the police are always losing his stuff also made no sense because he placed the bag in what hethought was a dumpster which means the items in the bag would be lost forever somewhere out in the landfill. Mr.

Thompson of courseknew this, and this was his hope, not because he was worrying about the police losing his stuff but because he was worried about thepolice finding his stuff, including the loaded sawed-off gun. This is the only rational conclusion to arrive at from Mr.

Thompson’s actions. [18] The trial judge next referred to, and quoted from, the Supreme Court of Canada’s decision in R v Villaroman, 2016 SCC 33,[2016] 1 SCR 1000 [Villaroman] as a self-instruction on the manner in which to assess a case based on circumstantial evidence, and inrecognition of the need to consider other plausible theories in determining whether the guilt of the accused is the only logical inference tobe drawn. After doing that, he said: This Court has considered alternatives to what possible lawful reason Mr.

Thompson may have had the shotgun in his backpack, and noneof them meet the test in Villaroman. The only logical conclusion based on the known actions of Mr. Thompson that evening is that he wasfully aware of the shotgun in the backpack and was trying to hide this evidence by placing the bag in the dumpster. Assessing Mr. Thompson’s credibility I note the following: One, he is obviously motivated by self-interest. Two, he has at least somehistory of dishonesty. He referenced a conviction for armed robbery out of Saskatoon. Three, Mr.

Thompson had problems keeping hisstory straight and had many inconsistencies in his testimony. Four, his evidence contradicted more credible evidence, for example, theweight of the bag and something hard being in it. Constable Nicholson’s evidence was far more reliable and credible in that regard.Ambiguity in answers. Mr. Thompson was all over in cross-examination and had numerous inconsistencies. Six, the overall likelihood ofevents unfolding as he testified to were inconsistent with human experience. (Emphasis added) [19] The trial judge also stated that he did not believe Mr.

Thompson because his testimony was inconsistent and his explanation forwhy he had disposed of the backpack in the bin was not logical. [20] After saying this, the trial judge repeated that the case against Mr. Thompson came down to the question of whether the Crownhad proven beyond a reasonable doubt that he knew of the presence of the firearm in the backpack and that this determination, in turn,hinged on credibility.

He then cited the relevant portions of R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], and R vMcKenzie (1996), (SK CA), 141 Sask R 221 (CA) [McKenzie], as a self-instruction in regard to assessing credibilityand, after doing so, repeated that he did not believe the testimony given by either Mr. Thompson or Ms. Parisian, and that their evidencedid not leave him with a reasonable doubt about Mr. Thompson’s guilt. He determined that the evidence he accepted satisfied him beyonda reasonable doubt of Mr. Thompson’s guilt, because he concluded that Mr.

Thompson’s actions that evening, in running from the policeand throwing the backpack into the dumpster were “clearly the actions of a guilty mind”, that evinced his knowledge of the contents of thebackpack. C. Analysis [21] As Mr. Thompson’s arguments allege that the trial judge made a legal error in assessing the credibility of witnesses, it is usefulto briefly examine some of the legal principles that govern appellate review where such an allegation is made. [22] There are two aspects of a witness’s evidence that a trial judge must consider: credibility and reliability.

Credibility has to dowith the veracity of a witness’s testimony; reliability has to do with its accuracy. Trial judges must recognize this distinction and mustconsider both aspects of a witness’s testimony when making factual findings. A witness who is not credible cannot give reliable evidence(R v H.C., 2009 ONCA 56 at para 41, 241 CCC (3d) 45; R v Schaff, 2017 SKCA 103 at para 43).

However, even a witness who is crediblemay provide unreliable evidence because honest witnesses can misperceive events, have poor memory, or just be wrong (R v Wolff, 2019SKCA 103 at paras 38–39, 380 CCC (3d) 223). [23] In this case, the trial judge rejected the evidence given by Mr. Thompson and Ms.

Parisian because he found that neither ofthem was credible. [24] The generally deferential approach to appellate review of credibility assessments recognizes that the assessment of credibility isno simple task and is one that involves more than simply scrutinizing the words spoken by a witness in response to questions put bycounsel. As such, the principles that govern appellate review of credibility assessments begin from the assumption that trial judges enjoyan advantage as a result of having seen and heard the witnesses first-hand.

It is also important to bear in mind that assessing credibility isnot a science, and it may be “very difficult for a trial judge to articulate with precision the complex intermingling of impressions thatemerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (R v Gagnon, 2006 SCC 17 atpara 20, [2006] 1 SCR 621.

See also: R v G.F., 2021 SCC 20 at para 81 [G.F.]; and R v A.Y., 2022 ONCA 864 at para 9). [25] An allegation that there has been a legal error in assessing the credibility of a witness calls upon the appellate court to carefullyexamine the reasons given by the trial judge.

However, as the Supreme Court observed in R v Chung, 2020 SCC 8, 386 CCC (3d) 523,appellate courts “should not parse the reasons of the trial judge in a line by line search for errors” but, instead read the reasons “as awhole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions forwhich they are delivered’” (at para 13, citations omitted). [26] Mr. Thompson contends the trial judge improperly relied on the fact that he was “obviously motivated by self-interest” as areason for rejecting his evidence. Mr.

Thompson says this statement is indicative of a legal error in the trial judge’s reasoning process,because the assumption that an accused person will lie to secure an acquittal “flies in the face of the presumption of innocence”. Insupport of this argument, he cites R v Laboucan, 2010 SCC 12, [2010] 1 SCR 397 [Laboucan]. [27] Laboucan instructs that it is improper for a trier of fact to assume that an accused person will lie to secure an acquittal. To putthat another way, it is an error of law to reason that testimony given by an accused person is inherently less worthy of belief just because

that person has an obvious interest in being acquitted.

In that regard, writing for a unanimous Court, Charron J. stated that although the“fact that a witness has an interest in the proceedings is, as a matter of common sense, a relevant factor, among others, to take into accountwhen assessing the credibility of the witness’s testimony” (at para 11), it must not be given undue weight, especially when that witness isan accused person testifying in their own defence: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence.

The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused hasa greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the faceof the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v.

B.(L.) (1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent dangerin considering the accused’s motive arising from his or her interest in the outcome of the trial. In an often-quoted passage, she stated asfollows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in theoutcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused.

The accused is obviously interested in being acquitted. In order to achieve that result he may have to testifyto answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted,unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in hisevidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie.

The explanation for a lie,however, cannot be turned into an assumption that one will occur. (Emphasis added by Charron J.) [28] However, the Court in Laboucan did not go as far as to create an absolute rule that would prohibit trial judges from everreferring to, or taking account of, an accused person’s interest in the outcome of the case when assessing credibility.

In that regard,Charron J. wrote: [15] An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure anacquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidencethat provide special protection to the accused.

Courts have consistently rejected prohibitive rules that would result in a trier of fact actingupon a misleading view of a case. …[W]hether or not it is appropriate for the trier of fact to consider that the accused may have a motiveto lie because of his or her interest in the trial will depend on the evidence and the issues raised at trial. (Italicized emphasis in original; underlined emphasis added) [29] Justice Charron went on to say that an absolute rule of that sort “would also be contrary to established principles of appellatereview” that require a trial judge’s reasons to be read as a whole and in the context of the entire trial (at para 16).

She stated that, inreviewing a trial judge’s reasons for disbelieving an accused, appellate courts must be careful not to read impugned portions in isolation;rather, any reference to an accused’s motive to lie “must be placed within the context of the trial and the reasons as a whole” and, “[a]t theend of the day, the determining question is whether the trial judge’s comments undermined the presumption of innocence” (at para 18).See also: R v Sium, 2022 SKCA 102 at paras 22–28. [30] Laboucan makes the point that the determination of whether a trial judge commits an error of law by referring to, or takingaccount of, an accused’s motive to lie depends largely on context.

In that case, the Supreme Court found that the trial judge had not erredby taking account of Mr. Laboucan’s self-interest when assessing his credibility, because the central pillar of his defence had involvedchallenging the credibility of each of the Crown’s main witnesses – who were all involved to some extent in the events that led to Mr.Laboucan being charged - “on the basis that they had a motive to lie and fabricate evidence against him, either to exculpate themselves inother proceedings or to minimize their participation in the crime” (at para 21).

As Charron J. explained: [22] In these circumstances, where the defence theory rested on the contention that each witness who implicated Mr. Laboucan lied out ofself-interest, it was entirely appropriate for the trial judge to consider that the witnesses would have had no, or less reason, to be untruthfulon particular points of evidence in respect of which Mr. Laboucan provided radically inconsistent testimony. The trial judge’s careful anddetailed review of the evidence belies any contention that Mr.

Laboucan’s testimony was inappropriately isolated and subjected to greaterscrutiny than the other witnesses on the basis of his status as an accused. Further, Mr. Laboucan’s testimony and position regarding thewitnesses had implications for the co-accused, Mr. Briscoe. Therefore, unlike Rowbotham J.A. who concluded that the impugnedcomments were “harmless and unnecessary” (para. 63), it is my view that, within the context of this trial, it was a crucial and unavoidableaspect of determining the credibility issues that the trial judge consider Mr.

Laboucan’s own motives. (Emphasis in original) [31] The contextual underpinning of Mr. Thompson’s case was nothing like the situation in Laboucan. The evidence was verydifferent, the parties’ respective theories of the case were different, and the legal issues in play were different. Unlike in Laboucan, theCrown’s case against Mr. Thompson involved six witnesses who were police officers and one who was a civilian member of the RCMP; itdid not hinge on witnesses who were complicit in the crimes with which Mr. Thompson was charged. There was also no suggestion byMr.

Thompson that any of the Crown’s witnesses had fabricated, embellished, or slanted their testimony against him out of self-interest. Inconducting his credibility assessments, the trial judge made no reference to any witness other than Mr. Thompson being motivated by self-interest. In that respect, and considered in that context, it is extremely difficult to read the trial judge’s reference to Mr.

Thompson being“obviously motivated by self-interest” as anything other than a conclusion that his evidence had to be viewed with suspicion simplybecause of his status as an accused person. [32] In saying this, I recognize that the trial judge also mentioned several legally valid reasons that caused him to be concernedabout Mr. Thompson’s credibility. For example, the trial judge identified a number of instances where he found Mr. Thompson’s evidenceto be either internally inconsistent, self-contradictory, or simply implausible. However, in addition to making such findings, the trial judge

also said this: In the Court’s view, Mr. Thompson knew he could not get caught with that backpack because he knew full well what it contained, and he knew full well what the consequences would be if the police caught him with it. … He dumped the bag in the dumpster because he knew exactly what was in the backpack, and he could not risk getting caught with it in his possession, given that he was under a lifetime ban for possessing firearms not to mention a loaded prohibited weapon. [ 33 ] In my view, these portions of the trial judge’s reasons confirm the error in his approach. Having already referred to Mr.

Thompson’s self-interested motivation as a factor that bore negatively on his credibility, the trial judge effectively doubled down on that point by identifying the additional consequences that Mr. Thompson knew he would face, due to the fact that he was also subject to a lifetime firearms prohibition order, as a reason for finding that his testimony lacked credibility. By doing so, the trial judge considered Mr.

Thompson’s interest in the outcome of the proceedings in a way that undermined the presumption of innocence. [ 34 ] To close the loop on this, I will point out that I recognize the impugned comments regarding Mr. Thompson’s self-interest must be considered in light of the trial judge’s express recognition of the need to apply the principles set out in W.(D.) and McKenzie in assessing credibility. However, he also said this: There is no simple yardstick by which credibility can be determined with any assurances.

Assessing credibility is the essence of the application of careful observation, judgment, and experience. In some instances, the process can be reversed, that is determining whether witness testimony should be discredited or -- or considered unreliable.

In … assessing credibility, I must consider any inconsistencies in previous statements or testimony including as between evidence-in-chief and cross-examination; partiality or motivation due to self-interest ; character, including history of dishonesty; capacity to observe, remember, and communicate; contradictory evidence which is more credible; hesitancy and ambiguity in answers, particularly in cross- examination; equivocation in responses; qualified responses; inability to clearly testify to significant collateral details; apparent selective memory; inconsistencies or suspicious behaviour on the witness stand.

In addition to the credibility of the witness qua his or her own person, I must consider the essential credibility of their testimony in light of the overall likelihood of events unfolding as testified, inconsistencies with human experience, and inconsistency with verifiable surrounding events. (Emphasis added) [ 35 ] The foregoing passage is not a wholly inaccurate statement of the law; partiality and motivation due to self-interest are relevant factors when assessing the credibility of non-accused witnesses.

However, Laboucan makes it quite clear that trial judges must be alive to the specific concerns that apply when making determinations about the credibility of accused witnesses, and that it is improper to reason as though an accused person’s interest in securing an acquittal makes them more likely to lie. In other words, when assessing the evidence of an accused witness, factors such as partiality and motivation due to self-interest are not to be considered in the same way they are considered for non-accused witnesses.

When I read the trial judge’s reasons as a whole and in the context of the trial, I am unable to conclude that he recognized, or applied, that distinction. [ 36 ] In short, based on the evidence and the issues that were raised at trial, this was not a case in which it was appropriate for the trier of fact to consider Mr. Thompson’s interest in the outcome of the trial as providing a motive to lie that affected his credibility. In my respectful view, the trial judge treated Mr. Thompson’s interest in being acquitted as providing such a motive and, by doing so, erred in law.

This error had an obvious bearing on the verdict. [ 37 ] Having reached that conclusion, in my view, Mr. Thompson’s convictions must be set aside, and a new trial ordered. In some instances, where a legal error of the nature I have identified here has been made, an appellate court may nonetheless sustain the conviction under the curative provision in s. 686(1)(b)(iii) of the Criminal Code if it is “of the opinion that no substantial wrong or miscarriage of justice has occurred”.

However, the jurisprudence is clear that “[t]he Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error” ( R v Van , 2009 SCC 22 at 34, [2009] 1 SCR 716). The Crown did not raise the applicability of the curative provision in either its factum or in oral argument. Accordingly, it cannot be applied in this case. [ 38 ] In light of that result, it is unnecessary to consider Mr. Thompson’s remaining arguments, or to address the sentence appeal. IV.

Conclusion [ 39 ] I would allow the conviction appeal, set aside the convictions resulting from the Trial Decision , and order a new trial. The sentence appeal is moot. [ 40 ] Mr. Thompson was detained in custody pending his trial under an order made by a Provincial Court Judge pursuant to ss. 515(5) and 524(4) of the Criminal Code . He shall remain in custody pursuant to that detention order until either: (

i) he is brought before the Provincial Court to be dealt with under

Part XVI of the Criminal Code ; or (ii) he makes application to a judge of this Court to be dealt with in accordance with s. 679(7.1) of the Criminal Code . A warrant remanding him may be issued by the Registrar of this Court to that effect. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “McCreary J.A.” McCreary J.A.