This week’s top three summaries: R v Dowd, 2020 MBCA 23, R v Khill, 2020 ONCA 151, and R v JOL, 2020 ABCA 73.
R v Dowd (MBCA)
[February 20, 2020] Brown v Dunn - Judicial Ambush in Judgement - 2020 MBCA 23 [Reasons by Christopher J. Mainella J.A., with Jennifer A. Pfuetzner J.A., and Lori T. Spivak J.A. concurring]
AUTHOR’S NOTE: Justice Mainella marked the irony in the approach of the trial judge in this case. The judge invoked a rule meant to preserve trial fairness by preventing the ambush of witnesses, by ambushing the defendant in judgement. The rule in Brown v Dunn requires fairly placing significant contradictions in yet-to-come evidence before witnesses. However, the remedies for an alleged failure to do so also have to be imposed in a fair manner. Further, the remedies of re-calling witnesses are available before a trial judge makes an adverse credibility finding against an Accused on the issue. As a matter of fairness, the defence must be put on notice of the problem by the judge before a final ruling.
 The principal question raised by this appeal is whether a trial judge had the discretion to invoke the rule in Browne v Dunn (see Browne v Dunn (1893),  6 R 67 at 70-71 (HL (Eng))) (the rule) against an accused in assessing his credibility, in the absence of an objection by the Crown and the input of counsel, without compromising the fairness of the trial.
 The accused, a police officer, was tried summarily for sexual assault and sexual interference in relation to an off-duty incident involving a nine-year-old girl at a bonfire party in Manitoba’s Interlake. He was found guilty of both offences; the conviction for sexual interference was conditionally stayed (see Kienapple v The Queen, 1974 CanLII 14 (SCC),  1 SCR 729). A sentence of one year’s imprisonment and one year’s probation was imposed.
 ....He categorically denied the allegation. He said the only time he was ever alone with the complainant was when he took her to his motorhome to use the bathroom at the request of one of the female adults at the bonfire party, Mrs. K. or Mrs. M.
 To ensure credibility assessments are made as a result of a fair and orderly trial process, the rule requires that, where a party intends to later impeach a witness on a matter of significance to the facts in issue by contradictory evidence or in closing argument, the witness must be confronted with the contrary position during cross-examination so that he or she may have the opportunity of responding to it.
 In R v Lyttle, 2004 SCC 5, the Supreme Court of Canada confirmed that application of the rule is not “fixed” but, rather, is an exercise of discretion that must be tailored “taking into account all the circumstances of the case” (at para 65) (see also Palmer v The Queen, 1979 CanLII 8 (SCC),  1 SCR 759 at 781-82; and R v Paris (2000), 2000 CanLII 17031 (ON CA), 150 CCC (3d) 162 at paras 22-23 (Ont CA), leave to appeal to SCC refused, 2001 CarswellOnt 2137).
 The Crown did not raise any objection as to the rule being breached by the accused’s testimony at the trial. Nevertheless, without previously alerting counsel and giving them an opportunity to address the issue, in her reasons for decision, the trial judge found a breach of the rule and provided a remedy. As part of her adverse assessment of the accused’s credibility, she drew two “negative inference[s]” against him for the failure to cross-examine either Mrs. K. or Mrs. M. about asking him to take the complainant to the motorhome bathroom.
 The function of this Court hearing a second level of appeal is to determine whether the appeal judge erred in law in deciding that the fairness of the accused’s trial was not compromised by the trial judge’s application of the rule because she acted within her discretion (see R v Bagherli (A), 2014 MBCA 105 at para 59).
 The complainant’s evidence was that she left the fire pit with the accused for a second incident of stargazing as he wanted to show her a satellite in the sky. It is alleged at this time that the accused sexually touched her and then the two returned to the fire pit and were seen to do so by Mr. and Mrs. M. and the complainant’s father.
 The accused denied there was a second stargazing incident. He testified that he was away from the fire pit at various times in the evening for a number of reasons (stargazing with Mrs. K. and the children, taking the complainant to the bathroom, eating, changing the music, gathering firewood and urinating outside). His position was that the observation of him being seen alone with the complainant and returning to the fire pit, after they both had been away from the bonfire party for an extended period, was a coincidence of him being near her while he was doing something else and she was returning from using the motorhome’s bathroom.
Brown v Dunn and Trial Fairness
 I agree with the observations of the appeal judge that “[t]he extent of the rule’s application is within the discretion of the trial judge” and that “[d]eference is owed to the trial judge’s exercise of discretion, absent an error in principle” (see R v RGB, 2012 MBCA 5 at para 67; R v Dexter, 2013 ONCA 744 at para 41; and R v Glays, 2015 MBCA 76 at para 11). The difficulty here, however, is more fundamental.
 An accused person must receive a fair trial, “one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused” (R v Harrer, 1995 CanLII 70 (SCC),  3 SCR 562 at para 45). Questions of trial fairness are reviewable on a standard of correctness (see R v Schmaltz, 2015 ABCA 4 at para 13).
 When an overall view of the trial is taken, given the importance of the accused’s credibility to decide the case, the procedure the trial judge embarked on to find a breach of the rule and to remedy the consequences of the breach, without objection by the Crown and any input from counsel, compromised the fairness of the trial. Because the fairness of the trial was compromised, the appeal judge erred in deferring to the trial judge’s exercise of discretion.
 The paradox here is that, while the trial judge was concerned about the unfairness of the accused’s testimony breaching the rule, the Crown was not. In fact, while the Crown describes the accused’s evidence that the only time he was alone with the complainant was when he took her to the motorhome bathroom, at the request of either Mrs. K. or Mrs. M., as “important”, at trial, no objection about the rule being breached was made, even after the trial judge raised a potential breach of the rule in relation to the complainant during closing arguments.
 For a trial judge, timely objection by the Crown as to an accused’s testimony breaching the rule is a relevant and important consideration in fashioning an appropriate remedy because “the accused should not be held responsible for defence counsel’s inadvertent or even deliberate failure to observe the rule” (Dexter at para 34). In Quansah, Watt JA stated (at para 124):
. . . Absence of a timely objection to an alleged breach of the rule is a factor for the trial judge to consider in determining the nature of the remedy, if any, best suited to respond to the breach. On appeal, the absence of a timely objection is also a factor to be taken into account in determining whether the lateness of the objection, coupled with the remedy applied, caused sufficient unfairness that a miscarriage of justice resulted.
(See also R v Wapass, 2014 SKCA 76 at paras 32-33; and R v Martin, 2017 ONCA 322 at para 13.)
 In Chandroo c R, 2018 QCCA 1429, Healy JA observed that, generally speaking, in the absence of a formal objection by a party as to a breach of the rule, before invoking the rule, a trial judge should solicit the submissions of counsel on whether the rule was breached or in deciding on an appropriate remedy for such a breach (see paras 15, 21). I agree.
Application of the Principles
 It was entirely appropriate for the trial judge to raise with counsel a potential breach of the rule on her own motion provided that a fair procedure occurred thereafter. In addition, like a jury, a trial judge deciding a case does not have to convey to counsel his or her impressions about the evidence or matters that the law requires must be considered before making findings of fact. However, the problem here is that the first time the parties learned about the application of a legal rule against the accused (which involves the exercise of considerable discretion) being relevant to the trial judge’s findings of fact was when she delivered her reasons for decision.
 The Crown’s submission that it was “unrealistic” for the trial judge to recall witnesses or hear further submissions after the closing arguments is unpersuasive. The trial judge could have advised counsel of her concern about a breach of the rule and possible remedies and decided on a procedure, bearing in mind the requirements of sections 650(1) and 800(2) of the Code. The Crown’s submission that it would have been inconvenient to reconvene the trial at all because it took place in the town of Ashern (roughly a two-hour drive from Winnipeg) is unconvincing.
 The accused was not entitled to a perfect trial; however, it would be more than simple irony to conclude that a law designed to prevent trial by ambush could itself be deployed to the surprise of the parties by the Court on its own motion in a manner that affected the result of the trial. The fundamental fairness of the accused’s trial was compromised by the trial judge’s application of the rule. In such circumstances, it was an error for the appeal judge to dismiss the accused’s appeal because of appellate deference.
Curative Proviso on Appeal
 First, I question whether the curative proviso is available to this Court as an option on these facts as the error compromised the fairness of the trial. As Arbour J explained in Khan (at para 27):
In every case, if the reviewing court concludes that the error, whether procedural or substantive, led to a denial of a fair trial, the court may properly characterize the matter as one where there was a miscarriage of justice. In that case, no remedial provision is available and the appeal must be allowed. ]
 Second, even if the curative proviso is available, I am not persuaded the Crown has met its heavy burden to demonstrate that a conviction was inevitable (see R v Trochym, 2007 SCC 6 at para 82; R v Van, 2009 SCC 22 at para 36; R v White, 2011 SCC 13 at para 94; and R v Mayuran, 2012 SCC 31 at paras 45-50).
 It is well settled that the curative proviso should only be used for serious errors “in exceptional cases and then with great care” (R v McKelvey, 1995 CanLII 16178 (MB CA), 1995 CarswellMan 135 at para 10 (CA)). It may not be relied upon simply because the Crown has a “‘very strong’ case” or where it is “highly unlikely [for the error] to have affected the result” (R v Sarrazin, 2011 SCC 54 at para 26; see also R v Scott, 2013 MBCA 7 at paras 47-53; and R v McDonald, 2017 MBCA 72 at para 45).
R v Khill (ONCA)
[February 26, 2020] Summary of the Elements of Self Defence - 2020 ONCA 151 [Reasons by Doherty J.A. with G.R. Strathy C.J.O. and M. Tulloch J.A. concurring]
AUTHOR’S NOTE: The outcome for the accused in this case was a new trial being granted for the Crown. However, the elements of the self defence provisions of the code are clearly and usefully summarised by Justice Doherty. This case is a good place to look if Defence counsel wants to advance this defence in the future.
 The respondent, Peter Khill, shot and killed Jonathan Styres. He was charged with second degree murder. At trial, Mr. Khill testified that he shot Mr. Styres in self-defence, believing Mr. Styres was armed and about to shoot him.
 Mr. Khill and his then girlfriend, now wife, Millie Benko, lived in a single-story house in a rural area near Hamilton, Ontario. Mr. Khill was asleep at about 3:00 a.m. on February 4, 2016 when Ms. Benko woke him up and told him she had heard a loud banging. Mr. Khill listened and heard two loud bangs. He went to the bedroom window. From the window, he could see his 2001 pickup truck parked in the driveway. The dashboard lights were on indicating, to Mr. Khill, that some person or persons were either in the truck or had been in the truck.
 Mr. Khill had received training as an army reservist several years earlier. This training taught him to assess threat situations and respond to those situations proactively. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko. He decided to investigate the noises and, if necessary, confront any intruder or intruders. Mr. Khill loaded the shotgun he kept in the bedroom and, armed with the shotgun, went to investigate the noises.
 Mr. Khill suspected that one or more persons were in or near his truck. He quietly made his way to the back of the passenger’s side of the truck. The passenger door was open. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the passenger door. It was Mr. Styres. Evidence later gathered at the scene indicated that the lock on the front door of the truck had been punched out. It would appear that Mr. Styres was trying to steal the truck or the contents in the front cab of the truck.
 Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest. He died almost immediately.
 According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated that he had a gun and was turning to shoot Mr. Khill. Mr. Khill claimed that he believed that he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun.
Self Defence Summary
 Self-defence renders an act that would otherwise be criminal, not culpable. The nature of the defence is evident in the jury instruction routinely used in murder cases. Jurors are told to first decide whether the accused caused the victim’s death. If the jury is satisfied the accused caused the victim’s death, the jury goes on to decide whether the accused acted unlawfully in causing the victim’s death. In answering this question, the jury considers self-defence. An act done in self-defence is not unlawful and death caused by that act is not culpable: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 657 (Final 229-A).
 The present s. 34 came into force on March 11, 2013. It aimed at simplifying the previous law by replacing four different overlapping statutory definitions of self-defence with a single definition: Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2; Canada, Department of Justice, “Bill C-26 (S.C. 2012, c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners”, March 2013, at pp. 7-10; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 27-30; R. v. Evans, 2015 BCCA 46, 321 C.C.C. (3d) 130, at paras. 29-33.
 Self-defence, as defined in s. 34(1), has three elements:
- the accused must believe, on reasonable grounds, that force is being used or threatened against him: s. 34(1)(a) [the trigger];
- the act of the accused said to constitute the offence must be done for the purpose of defending himself: s. 34(1)(b) [the motive]; and
- the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c) [the response].
34(1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
 Section 34(1)(a) focuses on the accused’s state of mind. The accused must have a subjective belief that force is being used or threatened against them. Absent that belief, the defence is not available. That belief, however, does not itself trigger the defence. For the defence to be triggered, the belief must be based on “reasonable grounds”.
 The requirement in s. 34(1)(a) that the belief be based on “reasonable grounds” imports an objective assessment of the accused’s belief. Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility. To brand a belief as unreasonable in the context of a self-defence claim is to declare the accused’s act criminally blameworthy: see R. v. Cinous, 2002 SCC 29 (CanLII),  2 S.C.R. 3, at para. 210, per Arbour J. in dissent but not on this point; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 75; R. v. Philips, 2017 ONCA 752, at para. 98; George P. Fletcher, “The Right and the Reasonable” in Russell L. Christopher, ed., Fletcher’s Essays on Criminal Law (Oxford: Oxford University Press, 2013) 150, at p. 157.
 Canadian courts consistently interpreted the reasonableness requirements in the previous self-defence provisions as blending subjective and objective considerations. Reasonableness could not be judged “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances”: R. v. Charlebois, 2000 SCC 53 (CanLII),  2 S.C.R. 674, at para. 18. Instead, the court contextualized the reasonableness assessment by reference to the accused’s personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions. For example, an accused’s prior violent encounters with the other person or her knowledge of that person’s propensity for violence had to be taken into account in the reasonableness inquiry: see R. v. Pétel, 1994 CanLII 133 (SCC),  1 S.C.R. 3, at p. 13; R. v. Lavallee, 1990 CanLII 95 (SCC),  1 S.C.R. 852, at pp. 874, 899; Charlebois, at para. 14; R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190, at paras. 43-44 (Ont. C.A.), leave to appeal refused,  S.C.C.A. No. 410; R. v. Sheri (2004), 2004 CanLII 8529 (ON CA), 185 C.C.C. (3d) 155, at para. 77 (Ont. C.A.). Similarly, an accused’s mental disabilities were factored into the reasonableness assessment: see R. v. Nelson (1992), 1992 CanLII 2782 (ON CA), 8 O.R. (3d) 364, at pp. 383-384 (C.A.); R. v. Kagan, 2004 NSCA 77, 185 C.C.C. (3d) 417, at paras. 37-45.
 Not all characteristics or experiences of an accused were, however, relevant to the reasonableness inquiry under the previous self-defence provisions. An accused’s self-induced intoxication, abnormal vigilance, or beliefs that were antithetical to fundamental Canadian values and societal norms were not relevant to the reasonableness assessment: see R. v. Reilly,  2 S.C.R. 396, at p. 404; Cinous, at para. 130, per Binnie J. concurring; R. v. Boucher, 2006 QCCA 1079, at paras. 34-41; Pilon, at para. 75. For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account in determining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colour the reasonableness inquiry with racist views would undermine the very purpose of that inquiry. The justificatory rationale for the defence is inimical to a defence predicated on a belief that is inconsistent with essential community values and norms.
 Contextualizing the reasonableness inquiry to take into account the characteristics and experiences of the accused, does not, however, render the inquiry entirely subjective. The question is not what the accused perceived as reasonable based on his characteristics and experiences, but rather what a reasonable person with those characteristics and experiences would perceive: see Pilon, at para. 74.
 The language of the present s. 34(1)(a), and in particular the phrase, “on reasonable grounds”, tells me that Parliament intended the same kind of reasonableness inquiry conducted under the previous self-defence provisions should be conducted under s. 34(1)(a). To the extent that Mr. Khill’s personal characteristics and experiences informed his belief that he was about to be shot by Mr. Styres, those characteristics and experiences had to be taken into account in assessing the reasonableness of his belief, unless excluded from that assessment by policy-based considerations.
 The second element of self-defence is set out in s. 34(1)(b):
A person is not guilty of an offence if,
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force.
 Section 34(1)(b) looks to the motive of the accused. Why did he do the “act” which is said to constitute the offence? This inquiry is subjective. The requirement that the “act which constitutes the offence” be done for defensive purposes was not explicit in the prior Criminal Code definitions of self-defence. It is, however, implicit in any legitimate notion of self-defence: see R. v. Craig, 2011 ONCA 142, at para. 35; David Paciocco, “Applying the Law of Self-Defence” (2007) 12 Can. Crim. L. Rev. 25, at p. 29. Absent a defensive or protective purpose, the rationale for the defence disappears. Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence.
 The third element of the s. 34 defence is found in s. 34(1)(c):
A person is not guilty of an offence if,
(c) the act committed is reasonable in the circumstances.
 This element examines the accused’s response to the perceived or actual use of force or the threat of force. That response – “the act” – which would otherwise be criminal, is not criminal if it was “reasonable in the circumstances”.
 Section 34(2) directs that, in determining the reasonableness of the accused’s act, the court must consider “the relevant circumstances of the person, the other parties and the act”. This language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations.
 The “relevant circumstances of the accused” in s. 34(2) can include mistaken beliefs held by the accused. If the court has determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable grounds, force was being used or threatened against him, that finding is relevant to, and often an important consideration in, the court’s assessment under s. 34(1)(c) of the reasonableness of “the act in the circumstances”.
 Other mistaken beliefs by an accused that are causally related to the “act” that gives rise to the charge will also be relevant to the assessment of the reasonableness of “the act in the circumstances”. Those beliefs may be reasonable or unreasonable. To the extent that the court determines that a mistaken belief causally related to the “act” is reasonable, that finding will offer support for the defence claim that the “act” was reasonable. However, if the court assesses a mistake as honest but unreasonable, that finding may tell against the defence assertion that the accused’s “act” was “reasonable in the circumstances”. For example, if the jury concluded that when Mr. Khill decided to arm himself and go outside to investigate the noises he mistakenly believed he and his wife were in danger, the jury’s assessment of the reasonableness of that mistaken belief would factor into their assessment of the reasonableness of the shooting under s. 34(1)(c).
 The factors listed in s. 34(2) as relevant to the determination of the reasonableness of the accused’s act include many of the considerations that were relevant to self-defence under the previous definitions of that defence....
 Section 34(2) does, however, make one important change in the law. Under the prior self-defence provisions, some specific factors identified in the definitions of self-defence were preconditions to the availability of the defence. For example, under the previous s. 34(1), the force used could not be “more than is necessary” for the purposes of self-defence. Under s. 34(2), the nature of the force used is but one factor in assessing the reasonableness of the act. The weight to be assigned to any given factor is left in the hands of the trier of fact: see Bengy, at paras. 46-47.
 The approach to reasonableness in s. 34(1)(c) and s. 34(2) renders the defence created by s. 34 more open-ended and flexible than the defences created by the prior self-defence provisions. At the same time, however, the application of the new provision is less predictable and more resistant to appellate review. Assuming the trier of fact is properly alerted to the relevant considerations, there would seem to be little direction or control over how the particular factors are weighed and assessed in any given case. Reasonableness is left very much in the eye of the beholder, be it judge or jury. Especially where the reasonableness assessment is reflected in the verdict of a jury, that assessment will be largely beyond the reach of appellate review: see Kent Roach, “A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions” (2012) 16 Can. Crim. L. Rev. 275, at pp. 286-287; The New Defense Against Force, at pp. 286-287; Alan Brudner, “Constitutionalizing Self-Defence”, (2011) 61 U. Toronto L.J. 867, at pp. 896-897.
Application to the Facts
 The jury was not told that they must consider Mr. Khill’s conduct during the incident that ended with Mr. Styres’ death and Mr. Khill’s responsibility for the confrontation when assessing the reasonableness of Mr. Khill’s shooting of Mr. Styres. The trial judge did review the evidence concerning Mr. Khill’s conduct. However, without a clear instruction, I do not think the connection between Mr. Khill’s role in the incident leading up to the shooting and the reasonableness of the shooting itself would necessarily be clear to the jury. Instead of considering reasonableness in the broader context of the incident ending with the shooting, the jury may have focused on the reasonableness of Mr. Khill’s act judged exclusively by reference to what he reasonably believed was about to happen when he opened fire.
 I appreciate there was no objection to the charge. I also appreciate that this is a Crown appeal. Appellate courts should be reluctant to set aside acquittals based on legal arguments that were not made at trial. There is, however, no suggestion that the failure to object to the charge was in any way a tactical consideration. Given the very real possibility that a jury could have given substantial weight to Mr. Khill’s conduct leading up to the shooting when assessing the reasonableness of the shooting, and given that s. 34 gives the jury a virtually unfettered discretion in weighing the various factors to be taken into account, I am satisfied that the Crown has met its burden to show that, “in the concrete reality” of this case, the non-direction with respect to Mr. Khill’s role in the incident had a material bearing on the verdict: R. v. Barton, 2019 SCC 33, at para. 160.
Noteworthy Caselaw on W(D) in Self-Defence
 Counsel relies heavily on Reid. In Reid, at para. 72, Moldaver J.A., as he then was, set out a modified W.(D.) instruction that could be used to explain the burden of proof as applied to self-defence:
If you accept the accused’s evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.
Even if you do not accept the accused’s evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. [Emphasis added.]
 The trial judge’s instructions do not contain the phrase “acting in self-defence as I have defined that term”, or any equivalent instruction. Clearly, the instruction in Reid is preferable in that it expressly alerts the jury to the need to apply the definition of self-defence provided by the trial judge when deciding whether the testimony of the accused, or the evidence as a whole, leaves the jury with a reasonable doubt in respect of that defence. As the definition of self-defence includes objective components, the jury must understand that the availability of that defence cannot be determined exclusively by an assessment of Mr. Khill’s credibility.
 I would allow the appeal, set aside the acquittal, and order a new trial on the charge of second degree murder. [Granted on the issue Self-Defence misdirection]
R v JOL (ABCA)
[February 21, 2020] – Jury Instructions: Motive to Fabricate Testimony - Requirement for Proper Instruction on Admitted of Out-of-Court Statements– 2020 ABCA 73 [Peter Costigan J.A., Thomas W. Wakeling J.A., Dawn Pentelechuk J.A.]
AUTHOR’S NOTE: An instruction on motive to fabricate on behalf of a complainant in a sexual assault matter is mostly likely going to be required where the case depends on credibility of the complainant. This case provides ammunition for Defence counsel to request one. Further, when out of court statements are admitted, even where the Defence wants them, there needs to be a thorough instruction to the jury limiting the use of the statement to its intended purpose. Here, all parties proceeded through without turning their mind to the bad character evidence effect of admitting an out of court utterance by a separate alleged victim of sexual assault blaming the accused (even though no charge flowed from that complaint and an inconsistent statement was given to police).
 Between 2014 and January 2016, the appellant and the complainant were in an intimate relationship and shared an apartment. The complainant’s good friend LS came to visit on December 24, 2015 and stayed at the apartment until she returned home on January 17, 2016. After driving LS to the airport, the complainant returned to the apartment. That night, she and the appellant agreed to end their relationship.
 The complainant and the appellant were the only witnesses called at trial. Later that evening, after agreeing to end their relationship, the complainant testified that she was sexually assaulted by the appellant. The appellant admitted he had sexual intercourse with the complainant on January 17, 2016, but testified it was consensual. Credibility played a central role in the trial.
 The parties continued to share the apartment until May 15, 2016, when the complainant moved out.
 As anticipated and discussed before the commencement of trial, the complainant testified in chief that on May 24 or 25, 2016, LS told her that the appellant had sexually assaulted her three times during her visit in December 2015 and January 2016. For simplicity, we will refer to this as “the conversation with LS”.
 After the conversation with LS, the complainant went to the apartment she previously shared with the appellant, confronted him about the conversation with LS and slashed some property with a knife.
 In July 2016, the complainant reported to the police that the appellant had sexually assaulted her on January 17, 2016.
 After the complainant completed her evidence in chief, Crown counsel read and entered as an Exhibit, an Agreed Statement of Facts which stated:....
2. [LS] was contacted by the Edmonton Police Service on July 22, 2016. She told the police officer that she had consensual sex with the Accused three times during her stay, and that she was never sexually assaulted by the Accused.
 The appellant testified that he had consensual sex with the complainant and had consensual sex three times with LS during her visit.
 The jury convicted the appellant of sexual assault of the complainant.
Admissibility of Out-of-Court Statement
 It is trite law that all evidence must be relevant to a material issue in the case. This was explained in R v Johnson, 2010 ONCA 646 at paras 81-82, 262 CCC (3d) 404:
The fundamental rule that underpins the law of evidence in Canada is that all evidence that is logically probative to some material issue at trial is relevant, and therefore admissible unless excluded by some particular rule of law: R v Abbey, 1982 CanLII 25 (SCC),  2 SCR 24, at p 40; Morris v The Queen, 1983 CanLII 28 (SCC),  2 SCR 190, at p 201.
 We accept that the Crown did not lead evidence of the conversation with LS to show the appellant had sexually assaulted LS. We are also mindful that defence counsel wished to use this evidence to challenge the complainant’s credibility and to show a motive to fabricate. However, there was a significant risk the jury would engage in propensity reasoning by hearing this highly prejudicial evidence. In relaying her conversation with LS, the complainant referred to “rape” or “rapist” eight times.
 Given that the evidence was admitted, it was critical for the jury to be clearly and expressly instructed on the permissible and prohibited uses of that evidence: R v Starr, 2000 SCC 40 at para 184,  2 SCR 144. As stated in R v Rockey 1996 CanLII 151 (SCC),  3 SCR 829 at para 38, 140 DLR (4th) 503, “. . . trial judges charging juries on out-of-court statements must instruct them on how they may use the statements - whether as evidence of the truth of their contents or for some other purpose, such as credit.”
 Again, evidence of a credible belief in the true occurrence of a sexual assault on LS as being a logical basis for the complainant fabricating a story of her own sexual assault by the same person is hard to grasp. It is difficult to see how this could be explained to the jury in a comprehensible manner. It would be equally difficult to explain to the jury that they should not infer that the appellant was a person of bad character and deserving of punishment, nor infer that the appellant had a propensity to commit sexual assault and therefore the complainant was probably telling the jury the truth. In a situation such as this, the jury would need, at the very least, a limiting instruction and a caution: see R v White, 2011 SCC 13 at para 60,  1 SCR 433. The trial judge could have expected, but did not receive help in designing such a combination. We doubt that the trial judge could have done so. As we outline below, the instruction was deficient and this error in its own right demands a new trial.
The Instructions to the Jury
 Following the examination-in-chief of the complainant, the Agreed Statement of Facts was tendered by the Crown. After a brief recess, the trial judge provided the following mid-trial instruction, which was essentially repeated in the final instructions:...
If you find that the complainant has reliably reported any or all of what [LS] said on or about May 24th to 25th, 2016, you may use those parts of the complainant’s testimony to help you to decide the case. Do not use what you conclude the complainant has not reliably reported. If you accept this evidence, you may only use it for very limited purpose in deciding this case....,
You must not use this evidence to prove that what [LS] said to the complainant actually happened. You must not assume or conclude the accused is a bad person and is guilty of the offence charged because someone stated he has done similar things in the past. You are also prohibited from assuming or concluding the accused has had a propensity to commit sexual assault because someone said, again, allegedly he has done similar things in the past.[Emphasis added]
 Parts of this instruction are superfluous. There was no evidence about “the condition of [LS] and the complainant at the time of the conversation”, nor any evidence about “the circumstances in which the conversation took place.” The jury should have been alerted to the contradictory out-of-court statement contained in the Agreed Statement of Facts and that they could use this fact, which they must accept as proven, as part of their assessment of the reliability of the evidence regarding the conversation with LS.
 Second, the jury was instructed the sole purpose they could use the evidence was to explain why the complainant acted as she did when she attended the apartment. They were not told they could use this evidence in assessing the complainant’s credibility.
 In light of the complainant’s repeated references to the appellant having “raped” LS, we are not satisfied that the limiting instruction provided adequately addressed the significant risk of the jury engaging in propensity reasoning. First, the limiting instruction came after the jury was told that if they conclude the complainant reliably reported what she was told, they “may use those parts of the complainant’s testimony to help [them] to decide the case.” The broad wording of this initial instruction is problematic. It is reasonable to conclude the jury may well have embarked on improper reasoning, believing that their job was to decide whether the complainant reliably reported the conversation with LS and if they so concluded, that they could use the evidence (that the appellant had sexually assaulted LS) to help them decide whether the appellant sexually assaulted the complainant.
 While a limiting instruction follows, we are not satisfied it adequately ameliorated the prejudicial nature of the evidence nor that it adequately addressed the risk the jury would engage in propensity reasoning. If it was agreed that the appellant did not sexually assault LS, but had consensual sex with her, the jury needed to be told that in clear and direct language. If the out-of-court statements were tendered simply to show they were made, it was crucial that the jury be reminded of the two contradictory statements of LS. One must be accepted as proven (that LS reported to police she had consensual sex with the appellant), and one could be accepted or rejected as having been told to the complainant (that LS was assaulted by the appellant).
Motive to Fabricate
 The jury received no instruction on the evidential weight of the Agreed Statement of Facts or how they were to approach this contradictory evidence in light of the complainant’s evidence. They were never instructed that they may use the admission to assess the credibility of the complainant and the reliability of her evidence concerning her conversation with LS.
 Finally, the trial judge provided no instructions to the jury on the complainant’s possible motive to fabricate. As noted, credibility was central to this trial. At the outset of the trial, defence counsel clearly indicated her intention to argue the complainant had a motive to fabricate her assault upon learning of the appellant’s infidelity with LS.
 We agree the trial judge erred in refusing defence counsel’s request to provide a specific instruction regarding motive to fabricate. While not determinative, the existence of a motive to fabricate is relevant to assessing credibility: R v CEK, 2020 ABCA 2 at para 26; R v Zapeda, 2018 ABCA 425 at para 10; R v Batte, 2000 CanLII 5751 (ON CA), 49 OR (3d) 321 at paras 119-121, 134 OAC 1 (CA). This applies to all matters, including sexual assault trials.
 Both trial counsel bear responsibility for failing to clearly articulate the purpose for which the conversation with LS and the Agreed Statement of Facts were tendered. Any agreement reached cannot be discerned from the record. In turn, the trial judge failed to ascertain the purpose for which the evidence was tendered (simply to show the statement was made or to prove the truth of its contents), and failed to engage in an assessment of probative value versus prejudicial effect. Taken in their entirety, the jury instructions colored the jury’s perception of the evidence and we are satisfied there exists a real risk that a miscarriage of justice occurred. Further, the appellant was entitled to the requested instruction on motive to fabricate as this was clearly relevant to the jury’s assessment of credibility.
 On these grounds, we are satisfied that the verdict reached is unsafe and a new trial must be ordered. It is therefore unnecessary to address the appellant’s fourth ground of appeal.