[May 31, 2023] Credibility of the Accused: Interest in the Outcome of the Trial [Reasons by Kalmakoff J.A. with Barrington-Foote and McCreary JJ.A. concurring]
AUTHOR’S NOTE: The assessment of the accused's testimony in this case began with the following statement, "One, he is obviously motivated by self-interest." While the judge piled on other reasons, the Court of Appeal could not shake the thread that the trial judge has discounted the evidence of the accused simply because he was charged with a crime and decided to testify in his own defence. This method of assessing the testimony of any accused person undermines the fundamental principle of the presumption of innocence. A trial judge is not permitted, in law, to assume any discount of credibility to the testimony of an accused simply because of their interest in securing an acquittal. While the law does not make an accused's motive to secure an acquittal completely irrelevant, such a consideration cannot undermine the presumption of innocence. In practice, it is difficult to imagine a set of circumstances in which anything but a passing reference to the interest of an accused in securing an acquittal in the assessment of their credibility could withstand appropriate appellate review.
 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.
 …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.
 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.
 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.
 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 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.
 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.
 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.
 The trial judge ultimately rejected the testimony of Mr. Thompson and Ms. Parisian…
B. The trial decision
 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.
 The trial judge gave several reasons for why he rejected Ms. Parisian’s testimony…
 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 heavy makes no sense when he drove around for 15 minutes previously and only dumped it when police were closing in. His alternative explanation that he dumped it because the police are always losing his stuff also made no sense because he placed the bag in what he thought was a dumpster which means the items in the bag would be lost forever somewhere out in the landfill. Mr. Thompson of course knew this, and this was his hope, not because he was worrying about the police losing his stuff but because he was worried about the police finding his stuff, including the loaded sawed-off gun. This is the only rational conclusion to arrive at from Mr. Thompson’s actions.
 The trial judge next referred to, and quoted from, the Supreme Court of Canada’s decision in R v Villaroman, 2016 SCC 33,  1 SCR 1000 [Villaroman] as a self-instruction on the manner in which to assess a case based on circumstantial evidence, and in recognition of the need to consider other plausible theories in determining whether the guilt of the accused is the only logical inference to be 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 none of them meet the test in Villaroman. The only logical conclusion based on the known actions of Mr. Thompson that evening is that he was fully 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 some history of dishonesty. He referenced a conviction for armed robbery out of Saskatoon. Three, Mr. Thompson had problems keeping his story straight and had many inconsistencies in his testimony. Four, his evidence contradicted more credible evidence, for example, the weight 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 of events unfolding as he testified to were inconsistent with human experience.
 The trial judge also stated that he did not believe Mr. Thompson because his testimony was inconsistent and his explanation for why he had disposed of the backpack in the bin was not logical.
 As Mr. Thompson’s arguments allege that the trial judge made a legal error in assessing the credibility of witnesses, it is useful to briefly examine some of the legal principles that govern appellate review where such an allegation is made.
 There are two aspects of a witness’s evidence that a trial judge must consider: credibility and reliability. Credibility has to do with the veracity of a witness’s testimony; reliability has to do with its accuracy. Trial judges must recognize this distinction and must consider 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 credible may provide unreliable evidence because honest witnesses can misperceive events, have poor memory, or just be wrong (R v Wolff, 2019 SKCA 103 at paras 38–39, 380 CCC (3d) 223).
 In this case, the trial judge rejected the evidence given by Mr. Thompson and Ms. Parisian because he found that neither of them was credible.
 Mr. Thompson contends the trial judge improperly relied on the fact that he was “obviously motivated by self-interest” as a reason 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”. In support of this argument, he cites R v Laboucan, 2010 SCC 12,  1 SCR 397 [Laboucan].
 Laboucan instructs that it is improper for a trier of fact to assume that an accused person will lie to secure an acquittal. To put that 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 account when assessing the credibility of the witness’s testimony” (at para 11), it must not be given undue weight, especially when that witness is an accused person testifying in their own defence:
 The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.) (1993), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger in considering the accused’s motive arising from his or her interest in the outcome of the trial. In an often- quoted passage, she stated as follows (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 the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to 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 his evidence, 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.)
 However, the Court in Laboucan did not go as far as to create an absolute rule that would prohibit trial judges from ever referring 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:
 An absolute rule prohibiting the trier of fact from considering that an accused may have a motive to lie in order to secure an acquittal, regardless of the circumstances, would artificially immunize the accused in a manner inconsistent with other rules of evidence that provide special protection to the accused. Courts have consistently rejected prohibitive rules that would result in a trier of fact acting upon 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 motive to 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)
 …“[a]t the end 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.
 Laboucan makes the point that the determination of whether a trial judge commits an error of law by referring to, or taking account of, an accused’s motive to lie depends largely on context. In that case, the Supreme Court found that the trial judge had not erred by taking account of Mr. Laboucan’s self-interest when assessing his credibility, because the central pillar of his defence had involved challenging 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 in other proceedings or to minimize their participation in the crime” (at para 21). As Charron J. explained:
 In these circumstances, where the defence theory rested on the contention that each witness who implicated Mr. Laboucan lied out of self-interest, it was entirely appropriate for the trial judge to consider that the witnesses would have had no, or less reason, to be untruthful on particular points of evidence in respect of which Mr. Laboucan provided radically inconsistent testimony….
 The contextual underpinning of Mr. Thompson’s case was nothing like the situation in Laboucan. The evidence was very different, the parties’ respective theories of the case were different, and the legal issues in play were different. Unlike in Laboucan, the Crown’s case against Mr. Thompson involved six witnesses who were police officers and one who was a civilian member of the RCMP; it did not hinge on witnesses who were complicit in the crimes with which Mr. Thompson was charged. There was also no suggestion by Mr. Thompson that any of the Crown’s witnesses had fabricated, embellished, or slanted their testimony against him out of self- interest. In conducting 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 simply because of his status as an accused person.
 In saying this, I recognize that the trial judge also mentioned several legally valid reasons that caused him to be concerned about Mr. Thompson’s credibility. For example, the trial judge identified a number of instances where he found Mr. Thompson’s evidence to 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.
 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.
 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:
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.
 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.
 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.
IV . CONCLUSION
 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.