COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2012 ONCA 163

DATE: 20120316

DOCKET: C52649

Rosenberg, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Eddy Leonard Thompson

Appellant

Counsel:

Candice Suter, for the appellant

Catrina Braid, for the respondent

Heard: February 10, 2012

On appeal from the conviction entered on April 16, 2010 and the sentence imposed on May 4, 2010 by Justice Johanne Morissette of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] Following oral argument, the court gave the disposition of the appeal from conviction and sentence with reasons to follow.

Count #1 Possession of methamphetamine for the purpose of trafficking

[2] The appellant conceded that he was in possession of methamphetamine but testified that he did not have it for the purpose of trafficking. The easiest route to conviction on this count was on the theory that the appellant knowingly transported Vollett’s share of the drug. Vollett radically changed his testimony between the preliminary hearing and the trial in a way favourable to the appellant. At the preliminary hearing, Vollett testified that the appellant knew that Vollett’s share of the drugs was in the appellant’s car. At trial, he testified that the appellant did not know. The trial judge erred in her treatment of this evidence. She summarized Vollett’s evidence as if he had adopted his preliminary inquiry evidence. It is not at all clear that he did so; at least that part in which Vollett testified that the appellant knew Vollett’s drugs were in the appellant’s vehicle.

[3] The trial judge also erred in her treatment of the defence evidence by failing to relate the principles in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to the defence evidence. Rather, she left the impression that the W. (D.) principles applied only to the appellant’s testimony. She dealt with the other exculpatory defence evidence in a binary way; that the jury’s choice was either to accept or reject that evidence. However, if that evidence taken with the other evidence in the case raised a reasonable doubt, the appellant could not be convicted of the full offence.

[4] Accordingly, the appellant’s conviction on the full offence cannot stand. Ordinarily, we would order a new trial. However, Crown counsel agreed that given the time already served the appropriate disposition would be to dismiss the appeal from conviction and substitute a conviction for simple possession. The sentence is varied to time served.

Count #2

[5] The trial judge imposed a sentence of four years imprisonment less time served in pre-sentence custody. Given our disposition on the other charges, that sentence cannot stand. Leave to appeal sentence is granted, the appeal is allowed and the sentence on count #2 is reduced to time served.

Count #3

[6] The trial judge’s error with respect to the treatment of the defence evidence also applies to this conviction for possession of morphine for the purpose of trafficking. With the agreement of Crown counsel, we make the same disposition and dismiss the appeal and substitute a conviction for simple possession. The sentence is varied to time served.

Convictions on Counts 5 and 6

[7] Crown counsel pointed out that there is no offence of simple possession of the drugs named in these counts. Accordingly, the appeal is allowed and the convictions for simple possession entered in relation to counts 5 and 6 are quashed and acquittals entered.

Count #7

[8] The undisputed evidence was that the appellant had a legitimate source of income. The Crown led no evidence capable of supporting the theory that the items identified in this count were purchased from the sale of drugs rather than from the appellant’s legitimate source of income. The conviction on this count is unreasonable and must be quashed.

Count #9

[9] This count charged the offence of money laundering alleging that the appellant used property ($5,130.00 and U.S. $40) with intent to convert the proceeds. The trial judge, however, directed the jury that the appellant could be convicted if he used the property with intent to convert or conceal the property. On the facts of this case, this was an error. More importantly, there was no evidence from which a jury properly instructed could convict of this offence. At its highest, the evidence might have shown possession of property obtained by crime. It did not show commission of the offence under s. 462.31 of the Criminal Code. Accordingly, the conviction on this count must be quashed.

Count #10

[10] The appeal from sentence for this offence must, like the sentence on count #2, be allowed and the sentence reduced to time served.

Conclusion on the Sentence

[11] For the sake of clarity and simplicity we have reduced the sentence on the offences for which the appellant remains convicted to time served. We make two observations. First, the trial judge erred in principle in imposing a sentence of 4 years imprisonment without regard to the facts of the individual counts and without assigning a sentence to each individual count. Second, in reducing or imposing the sentence of time served, we should not be taken as agreeing that a sentence of that length would have been appropriate if imposed originally for the offences. In particular, such a sentence would have been excessive for the offences of simple possession.

Signed: “M. Rosenberg J.A.”

“E. A. Cronk J.A.”

“H. S. LaForme J.A.”