[September 29, 2020] Fabrication by Accused as After the Fact Conduct - Speculative Evidence [Majority Reasons by Fenlon J.A. with Saunders and Butler JJ.A. concurring]
AUTHOR’S NOTE: Courts often assess whether they believe the in-court testimony of the accused. As part of that assessment, they often get to examine inconsistencies in their statements to police or others. However, the police statement of the accused in this case was used for the unusual purpose of suggesting that because it was fabricated, he must have done it. In other words, his exculpatory version was suggested to be a lie calculated to free him from responsibility. The circular logic is apparent: if he admitted it, he was guilty; if he denied it, he was guilty too. Herein, the BCCA examined the legal requirements to actually use an exculpatory statement of the accused as circumstantial evidence of their guilt. The key is a requirement of evidence other than that used to prove the offence to prove the statement was false.
A great issue for future argument is what is that burden of proof on the Crown in relation to the fabrication. A lowered burden risks decreasing the overall burden of proof as proof of fabrication could substitute for proof of the offence in many circumstances. An essential element of finding falsehood would be to find guilt of the accused as the reason for the falsehood. This issue was outlined, but not decided by the case as it was unnecessary to the ultimate ruling here.
 On a warm August evening in 2010, the appellant Peter Beckett and his wife, Laura Letts-Beckett, were boating on Arrow Lake near the provincial park where they were camping. At some point Ms. Letts-Beckett—who could not swim and was not wearing a life jacket—entered the water, and drowned. One year later, Mr. Beckett was charged with first-degree murder. The first trial concluded with a hung jury. A second jury convicted Mr. Beckett in September 2017.
 The case against Mr. Beckett was entirely circumstantial; there was no forensic evidence that a crime had occurred. The central issue was whether Ms. Letts-Beckett’s death was the result of a tragic accident or murder.
 Mr. Beckett did not testify at the second trial, but the Crown put into evidence a statement he gave to the police within a few hours of his wife’s drowning. The Crown in closing submissions described the statement as “the most important evidence of Mr. Beckett’s guilt”, submitting he had intentionally fabricated his version of events in order to mislead the police.
 The full statement is attached to this judgment as Appendix “A”, but I will highlight the statement here. Mr. Beckett was asked to describe everything that took place from the time he woke up that morning. He said he went out fishing alone in the couple’s Zodiac at 5:30 a.m., visited with another camper, and then travelled into Revelstoke with his wife to run various errands. Mr. Beckett described returning to the campground, having lunch, the couple being sexually intimate, and then sometime before 4:00 p.m. the two of them going out in the Zodiac.
 Mr. Beckett said his wife was sitting in the front of the boat on top of her life jacket, which she had placed on a cooler, with a cushion on top. She was holding an open sun umbrella. He sat at the back on another cooler, facing away from his wife and toward the motor with two fishing rods out. They proceeded slowly down the lake for 2–3 miles. It was very hot. As the sun began to go behind the hills they moved closer to the shore to take advantage of the shade. Ms. Letts-Beckett said that her back was sore. Mr. Beckett then heard a splash and his wife and the umbrella went over the side. He grabbed his rod and started winding it in, a “stupid fisherman’s instinct” response. He got further away from Ms. Letts-Beckett and she went under more, panicking. He grabbed the other rod, threw it in or let it go and spun the boat around. He could see her under the water, turned the engine off and went over the side of the boat. He could not get down far enough to reach her underwater—Mr. Beckett is about six foot seven and 400 pounds. He swam to the shore, got a rock and swam back but could not find her initially until he saw some bubbles coming up. He used the rock to get down to her and managed to grab her hands and pull her up to the surface. He attempted resuscitation on the surface of the water as he pulled her to shore and continued on shore but her only response was gurgling. Mr. Beckett was unsure whether to continue or to leave to get help. He swam out to the Zodiac which had drifted out and brought it back to shore but was unable to lift her into it. He left to get help but then decided he did not want to leave her and returned to shore where he continued resuscitation and held her. He left again, drove the Zodiac fast out to a pontoon boat in the distance, and struck it. He and the occupants returned to the shore where the two men again attempted resuscitation, realized it was futile, and then lifted Ms. Letts-Beckett’s body into the pontoon boat to return to the campground.
 In response to follow-up questions put to him by the officer, Mr. Beckett said he had been going faster than normal for trolling, that his wife was not wearing a life jacket and went into the water on her side and back, with her feet leaving the boat last. He described her travelling half under the boat and said she was “just arms and legs and screaming” and moving out the back of the boat quickly. He thought that if he could get the rod in he could get around to her; he was winding the rod in but she was getting further behind him; when he threw the rod she was submerged ten feet and was not swimming. He tried to get down to her ten times before he left to get a rock from the shore to counteract his buoyancy.
The After the Fact Conduct
 ... The Crown’s theory was that Mr. Beckett, having taken steps to acquire accidental death insurance several weeks before Ms. Letts-Beckett’s death, likely knowing she was well-insured through her employer, and worried that she might decide to leave him in order to reconcile with her parents who had shunned her for marrying a divorced man, took her out on the Zodiac to a secluded cove, not visible from the highway or campground, with the intention of causing her to fall from the boat and drown....
 The Crown relied heavily on after-the-fact conduct including:
- Mr. Beckett’s statement which was argued to contain odd features, such as Mr. Beckett reeling in his fishing line after realizing his wife was in the water;
- evidence that he believed he would be entitled to his wife’s share of the estate of her wealthy parents when they died;
- Mr. Beckett’s concern that his wife’s will had been altered by Ray Barlow, the lawyer who prepared it;
- evidence that Mr. Beckett was concerned about how Google Earth worked and whether it recorded; and
- evidence that he wanted to retain an inmate he met while in pre-trial custody, Witness “A”, to “take care” of witnesses before trial.
Did the Trial Judge Err in Instructing the Jury on Fabrication?
 It is settled law that an accused’s conduct following a crime, such as flight from the scene, can constitute circumstantial evidence from which an inference of guilt may be drawn. False statements made by an accused are another type of post‑offence conduct: R. v. Arcangioli (1994), 1994 CanLII 107 (SCC), 87 C.C.C. (3d) 289 at p. 299 (SCC); R. v. Tessier (1997), 1997 CanLII 3475 (BC CA), 113 C.C.C. (3d) 538 at para. 24 (BCCA). However, the law draws a firm distinction between statements that are disbelieved and therefore rejected by the trier of fact, and those that are proved to be intentionally fabricated. The former have no evidentiary value; the latter are evidence from which an inference of consciousness of guilt may be drawn. If that inference is drawn, the trier of fact can use it in deciding whether the Crown has proved beyond a reasonable doubt that the accused committed the crime: R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 at para. 17 (C.A.); R. v. Witter, 1996 CanLII 4005 (ON CA), 105 C.C.C. (3d) 44 at paras. 52–53 (Ont. C.A.). In essence, if the trier of fact finds a statement has been fabricated, that fabrication can be used against the accused.
 The distinction between a statement that is not believed and one that is found to be fabricated is a subtle one, because in both cases the statement is rejected by the trier of fact as untrue: Ryan J.A. in Tessier at para. 67. But the distinction is an important one. Doherty J.A. explained why that is so in R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.):
15 This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic. In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony. The distinction made in Mahoney is, however, fully justified and, indeed, essential to ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. [Emphasis added.]
 Thus, even though it may be logical to infer, from an accused telling a story that is not true, that they have intentionally fabricated it, the law requires a further evidentiary step to safeguard against improper reasoning by the jury. In order to avoid convictions founded on disbelief of the accused’s version of events, the Crown is permitted to rely on a rejected statement as circumstantial evidence of guilt only if it has led evidence that the accused intentionally concocted the story in order to mislead—sometimes referred to as “independent evidence of concoction”: Tessier per Ryan J.A. at 556, per Southin J.A. at 561; Coutts at para. 15. The evidence supporting concoction must be “independent” in the sense that it is distinct from the evidence relied on to convince the jury that the accused’s version of events should not be accepted. As stated in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 at para. 99 (C.A.):… Having relied upon certain evidence to find that an alibi is false, the jury cannot, as a matter of course, turn around and use the same evidence to find that the alibi was fabricated ...In short, the trier of fact cannot use the same evidence to find both falsity and concoction: R. v. M.J.H., 2019 YKCA 15 at paras. 50–58; R. v. Hibbert, 2002 SCC 39 at para. 59; O’Connor at paras. 18, 19, 21, 23.
 As Ryan J.A. said in Tessier at para. 68, there are two reasons the law requires independent evidence of concoction. First, if the same evidence in support of falsity of the statement is used, the reasoning becomes impermissibly circular: the Crown’s repudiation of the accused’s version of events is convincing, so that must mean the accused is not telling the truth—if his version is not true, then the Crown’s version of what occurred must be. Second, because intentional fabrication of a statement suggests consciousness of guilt and can be used as part of the Crown’s case against an accused, there must be a solid evidentiary basis to support it. In Ryan J.A.’s words “it is not unreasonable to demand that this evidence be found independently of the other evidence of the proof of the crime.”
 ... The danger of improper reasoning—from disbelief of the accused’s version of events to guilt—is addressed by the requirement that, before the Crown can invite the jury to use their disbelief of the statement as evidence against the accused, it must show by way of a different body of evidence that the statement was intentionally concocted by the accused. It is that requirement that is determinative of this ground of appeal.
 The trial judge expressed some uncertainty on the question, but eventually determined that a fabrication instruction was appropriate. She instructed the jury that they could find Mr. Beckett had intentionally fabricated his statement to police. She adopted the model language in the Canadian Criminal Jury Instructions, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2005 (“CRIMJI”), saying (in part):
I want to make an additional comment about how you can use the statement made by Mr. Beckett on August 18, 2010. A false or misleading statement made by a person after a crime has been committed will, in some circumstances, be evidence from which it can be inferred that the person is attempting to mislead the police or others, and deflect suspicion away from himself or herself because the person actually committed the offence. In order to use the statement in this manner, it is not enough that you simply disbelieve the statement or that you believe the statement was false. You must first find that the statement was false, meaning that you reject Mr. Beckett’s statement that his wife fell into the water. You must then also find that the statement was concocted or deliberately fabricated with the intention of avoiding suspicion or culpability.
You cannot come to that conclusion simply because you disbelieve the statement or because you are satisfied that the statement is false. There must be additional independent evidence that leads you to the conclusion that the statement was deliberately fabricated for the purpose of misleading the police or for the purpose of avoiding suspicion or culpability. That independent evidence may include the circumstances in which the statement was made. The circumstances in which the statement was given to Constable McLean, now Perreault, include the fact that at the time Mr. Beckett was not a suspect and had no reason to believe he was a suspect. You may also find that at least some of the information he provided was very detailed. Bear in mind also that the evidence that you heard from Constable Perrault that Mr. Beckett was sad, subdued and emotional when he gave the statement, and the evidence of Jacqueline Olsen, the retired staff sergeant, who described Mr. Beckett as shocky. [Emphasis added.]
 There is no doubt that the circumstances in which a statement is made may be used as evidence of fabrication: O’Connor at para. 26. However, in my respectful view, the judge in the present case erred in concluding that the detailed nature of Mr. Beckett’s statement and his status as a non‑suspect were probative of concoction in the circumstances of this case. The context in which the statements were made in the two cases is quite different.
 In contrast, in this case, Mr. Beckett was interviewed as the only witness to a drowning. Unlike O’Connor, he was asked to describe what he had been doing throughout the day. As to the amount of detail provided, the interview began with the police officer asking Mr. Beckett to explain “from the point that you guys woke up this morning everything that took … place”.
 Mr. Beckett, who was consistently described by witnesses as a “talker” and “an open book” proceeded to do just that. He began his statement with waking up at five in the morning and then proceeded to outline everything that he and Ms. Letts-Beckett had done that day. In this context, a detailed description of what had occurred leading up to the drowning and beyond cannot logically be probative of fabrication.
 As Ryan J.A. stated in Tessier, “there must be a solid evidentiary basis of fabrication” before a statement found to be untrue can be used as circumstantial evidence of guilt: at para. 68. The judge must bring a critical eye to assessment of the relevance and probity of the evidence the Crown relies on. Whether evidence is probative of deliberate fabrication will always depend on the context of the particular case.
 The misdirection here was all the more significant because the judge identified the aspects of the statement which might lead the jury to believe it was fabricated—the provision of very detailed information when he was not a suspectwithout providing the information that supported the statement being true. She reminded the jury that Mr. Beckett was “sad, subdued and emotional when he gave the statement” and that an officer had described him as “shocky”, but she did not remind the jury that Mr. Beckett had been asked to “start in the morning when he woke up” and to provide a description of “everything that took place”.
 The Crown submits that even if the circumstances of the statement to police do not constitute independent evidence of fabrication, the inconsistency between that statement and Mr. Beckett’s statements to Witness “A”, the jailhouse informant, filled the void. At trial, Witness “A” testified that on first meeting Mr. Beckett, he gave the following account of the events leading to Ms. Letts‑Beckett’s death:
[H]e explained to me that he was out boating in a Zodiac with his wife, and told me that he was positioned in a way where he was facing the stern of the boat, like, fishing. And his wife was up front, at the bow. And he said that he didn’t notice that she’d fallen off. And then as the boat travelled, he could see her flailing underwater.The Crown says there are significant differences between the two statements because in his police statement Mr. Beckett implies that he heard a splash and therefore noticed immediately that his wife had fallen off the Zodiac, whereas in the statement Witness “A” described, Mr. Beckett said he did not notice that she had fallen off and suggested she may have slid into the water “stealth-like”. Since Mr. Beckett gave contradictory statements, says the Crown, one of them must have been intentionally fabricated.
The Crown says there are significant differences between the two statements because in his police statement Mr. Beckett implies that he heard a splash and therefore noticed immediately that his wife had fallen off the Zodiac, whereas in the statement Witness “A” described, Mr. Beckett said he did not notice that she had fallen off and suggested she may have slid into the water “stealth-like”. Since Mr. Beckett gave contradictory statements, says the Crown, one of them must have been intentionally fabricated.
 The Crown made the same submission to the judge during discussions about the charge, but she did not accede to the request to put the inconsistencies between the police statement and what was said to Witness “A” to the jury as proof of concoction. In my view that was the right decision because the differences in the two descriptions are not significant enough to support an inference of fabrication—the versions are substantially the same: R. v. Hein, 2008 BCCA 109 at para. 56; R. v. Samuels (2005), 2005 CanLII 15700 (ON CA), 196 C.C.C. (3d) 403 at para. 39 (Ont. C.A.); R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 67 O.R. (3d) 257 at para. 116 (C.A.).
 The Crown argues that Trotman and Polimac are analogous to the present case in which a detailed, disbelieved statement is given to police immediately after the alleged offence occurs. I concede that these cases are on their facts difficult to reconcile with “the bulk of the case law which requires independent proof that an alibi has been concocted by an accused before the notion of consciousness of guilt may be left with the jury”: Ryan J.A. in Tessiercommenting on R. v. Michaud, 1996 CanLII 211 (SCC),  2 S.C.R. 458, and R. v. Letourneau (1994), 1994 CanLII 445 (BC CA), 87 C.C.C. (3d) 481 (BCCA). Ryan J.A. postulated that it may be that in some cases the accused’s version of events standing alone is so improbable that it is safe for a jury to infer that the alibi has been concocted. The cases relied on by the Crown in the present case involve facts of that kind.
 In Polimac, there was clear forensic evidence that the victim’s neck had been broken on impact, that she died instantly, and that she would have been incapable of speaking, let alone screaming for help as described by the accused. Similarly, in Trotman, there were many witnesses, none of whom saw a third person, and the crime scene and forensic evidence strongly implicated the accused.
 In my view Polimac, Trotman, and Stevenson and the “alien” scenario are examples of statements and alibis in which the accused’s version of events was so implausible that an inference of concoction arguably could “be safely drawn”: Tessier at para. 66. However, if there is an exception to the general rule that independent evidence of concoction is required before the jury can be invited to use the disbelieved statement as evidence of guilt, this is not such a case. There was nothing in Mr. Beckett’s version of events that was impossible or even highly improbable.
 In summary on this ground of appeal, and with respect, I conclude that the judge erred in giving the jury a fabrication instruction inviting them to use Mr. Beckett’s statement as evidence of after-the-fact consciousness of guilt.
Burden of Proof of Fabrication
 Before turning to the curative proviso, I wish to address an alternative submission raised by the appellant at the hearing of the appeal. Mr. Fowler contended that a judge instructing a jury on fabrication must tell them that they must be satisfied beyond a reasonable doubt both that the appellant’s statement was false and that it had been concocted before they go on to consider the statement as evidence of guilt. The parties were granted leave to file supplemental submissions on this issue.
 ... Counsel for the appellant put it this way:
Simply telling a jury they can “find” a statement was false, and “find’’ a statement was fabricated to avoid culpability, without instructing the jury on the degree of proof required to make such a finding, undermines the most important principle of criminal law - that culpability be proven beyond a reasonable doubt. Furthermore, what is required, consistent with the law of circumstantial evidence, is that the jury be satisfied that the only reasonable inference is that the exculpatory statement was fabricated to avoid culpability. Relying on a concocted false statement is in exceptional circumstances a permitted shortcut to proving guilt. However, it must never be a shortcut to reducing the standard or burden of proving guilt.
 The appellant relies on para. 55 of White in which Major J. said:
 This does not mean that a jury may never be instructed to apply the reasonable doubt standard to evidence of post-offence conduct. In the rare case where evidence of flight or concealment is the only evidence or constitutes substantially all of the evidence of the Crown, it follows that such evidence must be proven beyond a reasonable doubt in order to support a conclusion of quilt, and it would not be error for the trial judge to make this clear to the jury. In addition, where evidence of post-offence conduct is so crucial to the Crown’s case that the final determination of guilt necessarily turns upon it, and the evidence is subject to two directly conflicting interpretations, the trial judge would be justified in telling the jury that in choosing which theory to believe with respect to that evidence, they should consider the record as a whole and give the benefit of the doubt to the accused. As in MacKenzie, however, such a charge would only be proper if it did not involve any significant departure from the standard of proof that the jury would properly apply in any event by virtue of the general instruction on reasonable doubt. [Emphasis added.]
 Given my conclusion that a fabrication instruction should not have been given at all, it is not necessary to decide this interesting issue in the present case. The issue may be of some consequence in other cases, however, and for that reason I have summarized the arguments at some length.
Curative Proviso and Fabrication
 I return now to the consequence of the misdirection on fabrication. For the following reasons, I conclude that this is not a case in which the curative proviso can be applied to uphold the verdict despite the error of law.
 The Crown’s case was not strong. The inference of consciousness of guilt from concoction was presented to the jury as the most important piece of evidence in the case. In closing submissions to the jury, Crown said:
i. Mr. Beckett’s statement is the most important piece of evidence in the case.
ii. You don’t need to go very far in the statement to get to that point” [proof beyond a reasonable doubt.]
iii. [You] can disbelieve what [Mr. Beckett] says in this statement and you can use that as independent evidence against him, as evidence supporting the crown’s theory that Mr. Beckett killed his wife.
iv. But, no, then you can find that this is concocted. This is fabricated.
This is a purposeful lie intended to deceive the police … to deceive her into thinking that … he was not guilty on [sic] offence when in fact he was, that he in fact had committed murder.
v. The circumstances of the statement lead to an inescapable inference. If you believe that Mr. Beckett isn’t telling the truth….the only inference you can draw, the only conclusion you can draw is that Mr. Beckett is purposeful [sic] not telling the truth.
vi. [Y]ou may be wondering why does Mr. Beckett give all these details which I’ve suggested to you are true, and indicative of guilt, right. They lead to the inference that he was guilty.
vii. [A]nd then think about what Mr. -- doesn’t Mr. Beckett say -- what he says in his statement could even hypothetically, even possibly be true in this context, and I’m going to suggest to you that you will find that what Mr. Becket says to you is -- what he says to the -- sorry, to Constable McLean who went through that statement, he says is a lie because he killed his wife, because he pushed her out and watched her drown.
[Internal footnotes omitted.]
Given the Crown’s emphasis on the statement as a fabrication, it cannot be said that the verdict necessarily would have been the same had the fabrication instruction not been given.
 The appellant argues that the trial judge erred in admitting evidence that had no probative value, and as a result, the jury was improperly invited to engage in speculation and conjecture: District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96; R. v. Rodgerson, 2015 SCC 38. This ground of appeal turns on whether the impugned evidence could logically support the inferences the Crown asked the jury to draw.
 An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that might, not must, be drawn in the circumstances. As Justice Watt has observed, “the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate”: R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 at para. 24 (S.C.J.), citing D. Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2005) at p. 108.
[Crown led evidence of a manager of the campground to contrast an earlier happy appearance with an incident where Mr. Beckett appeared less happy]
 In my view, the judge erred in admitting this evidence. A disagreement over firewood and a dirty look or stare down cannot logically lead to an inference about the state of the Becketts’ marital relationship.
 Mr. and Mrs. Hawkins were friends of the Becketts who testified for the Crown. They had spent time with the Becketts in the days leading up to Ms. LettsBeckett’s death. Mr. Hawkins testified that he “didn’t think [the Becketts] seemed quite as close as they used to be”. Mrs. Hawkins was asked how the Becketts were dealing with one another and said “I think they were dealing with each other okay, but this—as I said before the visit was—had a different feel to it. It’s nothing you can actually put your finger on, but it was—I do not know, it was different than the other visits we had …”.
 In my view, this evidence should not have been admitted. At most it amounts to a witness’s interpretation of demeanour and the kind of mind reading that courts routinely caution against: R. v. Anderson, 2009 ABCA 67 at para. 51; R. v. Trotta, 2004 CanLII 34722 (ON CA),  O.J. No. 4366 at paras. 40–41 (C.A.); R. v. Levert, 2001 CanLII 8606 (ON CA),  O.J. No. 3907 at para. 27 (C.A.). Such evidence is inherently unreliable and cannot be made reliable by pointing to other probative evidence.
 To establish motive, the Crown also relied on the Becketts taking out accidental death insurance about two months before Ms. Letts-Beckett’s death. The Crown’s case established that the insurance had been purchased following a sequence of promotional material sent to them by the Bank of Montréal advertising various insurance products. About a month after his wife’s death, Mr. Beckett wrote to the bank, advised of his wife’s death, stated that his wife had talked him into one of their insurance products and that he had not been able to identify, in the piles of mail, the policy with a premium that matched the amount being debited from his account. He asked about the type of insurance, and in particular whether it was disability insurance.
 The Crown submitted to the jury in closing that they should conclude that the letter was a contrivance, that the appellant could not have been confused about the nature of the policy, that it was written to divert suspicion and therefore was evidence of guilt....
 In my view, the problem here lies not with the admissibility of the letter and flyers, but with the inference the Crown asked the jury to draw. The letter to the bank and the flyers were admissible as evidence of how the insurance was obtained and Mr. Beckett’s understanding of that insurance. However, a logical inference could not be drawn from the letter or the retention of flyers relating to insurance products that a murder was being planned and a cover-up effected. The Crown’s reasoning is premised on a presumption of guilt and the evidence can only be relevant if interpreted from that perspective. In my opinion, the Crown’s argument was an invitation to the jury to engage in improper speculation.
 In summary, I conclude that the judge erred in admitting the evidence of Mr. Titsworth, the evidence of the Hawkins relating to the couple’s relationship, and in permitting the argument based on the letter to the bank and retention of junk mail. I find no error in the judge admitting the Google Earth evidence, the evidence relating to Mr. Beckett’s dealings with Mr. Barlow in relation to his wife’s will, or Witness “A”’s evidence in this regard.
[There were also various problems with Crown counsel's submissions on the case....]
 The appeal is allowed; the conviction is quashed and a new trial ordered.
[September 22, 2020] Credibility of Complainant - Lack of Embellishment as a Makeweight [Fairburn A.C.J.O., J.C. MacPherson J.A., S. Coroza J.A.]
AUTHOR’S NOTE: Lack of embellishment can be a matter of comment by a court assessing credibility, but it cannot amount to an enhancement of credibility in any way. Simply put, the complainant in a criminal case does not get any points for not exaggerating their account.
 At trial, there was no dispute that the appellant touched the complainant in a sexual manner. The issue was whether he continued to do so after the complainant withdrew her consent. According to the complainant, on March 8, 2017, she went to the appellant’s apartment and engaged in consensual sexual activity including vaginal intercourse. However, she verbally withdrew her consent when the sex became rough and started to hurt. The appellant ignored her, continued to touch her in a sexual manner, and unsuccessfully tried to anally penetrate her.
 The complainant called 911 and asked for police help in retrieving her belongings. She was told to wait for the arrival of a police officer. After waiting some time, she called 911 a second time and was told by the operator that because there was no life and death emergency there would be a delay. It was at this point that she disclosed that she had been sexually assaulted and falsely claimed it occurred just 10 minutes before the call. At trial, the complainant acknowledged that she lied to the operator about the timing of the assault because she believed that if she told the operator that the assault had just happened the police would respond quickly.
 The appellant did not testify at trial. His position was that the complainant was neither credible nor reliable because her evidence suffered from several flaws, including that she acknowledged lying to the police to retrieve her belongings. The trial judge disagreed. She accepted the complainant’s testimony that there was no consent to sexual intercourse once it became rough and the complainant told him to stop.
Enhancement of Credibility by Lack of Embellishment
 Turning to the first ground of appeal, the Crown concedes that the trial judge erred in finding that the complainant’s credibility was enhanced because she did not appear to exaggerate her allegations against the appellant. However, the Crown argues that the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 should apply.
 At trial, the Crown argued in its closing submissions that the lack of embellishment supported the complainant’s credibility. Defence counsel objected to this submission and argued that the lack of embellishment had no bearing on the complainant’s credibility. As defence counsel put it, “you don’t get points for not exaggerating”. Defence counsel expressly stated that their position was not that the complainant was so angry that she embellished her testimony. Rather, their case was that the complainant lied to the police on the spur of the moment to retrieve her belongings.
 When addressing why she believed the complainant, the trial judge explained: “[t]here are two important factors that I find enhance [the complainant’s] credibility”. One of those two important factors pertained to the view that the complainant had not embellished during her evidence. As the trial judge explained, although every allegation of sexual assault is serious the allegations made by the complainant were “relatively modest” and that the complainant “gave a measured description of what took place between them without apparent exaggeration.” The trial judge also emphasized that the complainant’s description of the assault was “understated”.
 To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true: R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.); R. v. L.L., 2014 ONCA 892, at para. 2; R. v. G. (R.), 2008 ONCA 829, 243 O.A.C. 1, at para. 20. Our colleague Paciocco J.A. put it this way in Kiss at para. 52:
On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Emphasis added.]
[17 ]In this case, the trial judge was not simply noting that the complainant’s evidence did not suffer from a problem of exaggeration or embellishment that diminished its weight in response to a defence argument that the complainant had embellished her allegations. Rather, the lack of embellishment was specifically noted as an “important” factor used to “enhance” the complainant’s credibility. Therefore, we agree with the Crown’s concession on this error.
 Notwithstanding the error, the Crown requests that we apply the curative proviso to uphold the conviction. Although there is no hard and fast rule that excludes the curative proviso in cases turning upon credibility, caution should be exercised prior to its application if credibility is the key issue at trial: R. v. Perkins, 2016 ONCA 588 at para. 32. In our view, the proviso is inapplicable in this case.
 The core issue at trial was the credibility of the complainant. While we acknowledge that the trial judge gave another reason for finding the complainant credible, the lack of embellishment was cited as one of two important reasons that enhanced the complainant’s credibility. We also note that the trial judge had some concerns about the complainant’s evidence, and we cannot say for certain that a conviction would have been inevitable had the judge not considered the lack of embellishment to be a positive factor going to the credibility of the complainant. As this court affirmed in Perkins, at para. 26, “as tracing the effect of the error on the verdict is necessarily a somewhat speculative exercise, any doubt as to the impact of the error must be resolved against the Crown”.
 The conviction appeal is allowed and a new trial on the sexual assault charge is ordered. In light of our conclusion on the conviction appeal, we do not reach the sentence appeal.
[September 18, 2020] – Mandatory Minimums in Robbery with a Firearm [ss.344(1)(a)(i) and 344(1)(a.1)] struck down [Majority: Jo'Anne Strekaf and Kevin Feehan JJ.A. - Dissent by Thomas W. Wakeling J.A.]
AUTHOR’S NOTE: Joining the wave of mandatory sentences stuck down after the Harper government's enactments, the ABCA herein confirmed that robbery with a firearm mandatory minimums of 4 and 5 years were a breach of s.12 of the Charter of Rights and Freedoms. Simply put, preventing judges from exercising discretion in appropriate factual circumstances was violation against the prohibition on cruel and unusual punishment.
 Ocean Hilbach pleaded guilty and was convicted that on June 9, 2017 at Edmonton, Alberta he committed robbery while using a prohibited firearm, contrary to s 344(1)(a)(i), and had in his possession that prohibited firearm while banned by reason of an order pursuant to s 109, contrary to s 117.01(1) of the Criminal Code, RSC 1985, c C-46.
 Curtis Zwozdesky pleaded guilty and was convicted that on September 13, 2016 at Caslan, Alberta he used a firearm, as a party to the offence, in the course of a robbery contrary to s 344(1)(a.1) and on September 20, 2016 at Beaver Lake, Alberta committed robbery, again as a party to the offence, contrary to s 344(1)(b) of the Criminal Code.
 Mr Hilbach was sentenced to imprisonment of two years less a day on each count to be served concurrently. Mr Zwozdesky was sentenced to three years’ imprisonment for robbery with a firearm and one year imprisonment for the second robbery, to be served consecutively.
 Section 344(1)(a)(i) of the Criminal Code has a mandatory minimum sentence, in the case of a first offence, of five years. Section 344(1)(a.1) has a mandatory minimum sentence of four years. In the Hilbach case, the sentencing judge held that the mandatory minimum sentence was grossly disproportionate to the fit and proper sentence for the offender; and in both the Hilbach and Zwozdesky cases, to the appropriate sentence in other reasonably foreseeable applications of the law. Therefore the mandatory minimums in those sections contravened s 12 of the Canadian Charter of Rights and Freedoms, Part 1, the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. They were not justified under s 1 of the Charter, and therefore pursuant to s 52(1) of the Constitution Act, 1982 were declared unconstitutional and of no force and effect.
 The appeal with respect to Mr Zwozdesky is dismissed. We determine that the sentences imposed on Mr Zwozdesky are fit and proper. The appeal with respect to Mr Hilbach is allowed in part. We determine that the sentence imposed on Mr Hilbach is not fit and proper, and impose a sentence of three years for robbery with a prohibited firearm and six months for violation of the firearms prohibition order, for a global sentence of three and one-half years. However, given that a significant period of time has elapsed since Mr Hilbach was sentenced and he has served his full original sentence, we do not find it in the interests of justice to re-incarcerate him at this time. We confirm the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and (a.1) of the Criminal Code are unconstitutional and of no force and effect.
Analysis of s.12 of the Charter
 Section 12 of the Charter provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. Each of the sentencing judges in these appeals correctly identified the stringent test as to whether a mandatory minimum sentence constitutes such cruel and unusual punishment. The law is clear that a sentence will infringe s 12 if it is “grossly disproportionate” to a fit and proper sentence, having regard to the nature of the offence and the circumstances of the offender: R v Smith, 1073 (SCR); Lloyd, para 22; Nur, para 39, EJB, para 68. To be considered grossly disproportionate, the sentence must be “so excessive as to outrage standards of decency” such that Canadians “would find the punishment abhorrent or intolerable”: R v Ferguson, 2008 SCC 6, para 14,  1 SCR 96; Morrisey, para 26; Lloyd, para 24; R v Al-Isawi, 2017 BCCA 163, para 16, 348 CCC (3d) 524. It must be not merely an excessive sentence but one which would “shock the conscience of Canadians”: EJB, para 69; Newborn, para 41; Ookowt, para 32; Itturiligaq, para 44.
 The Supreme Court of Canada has said repeatedly that mandatory minimums are particularly vulnerable to s 12 Charter remedies. In Nur, para 44, it said:
Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They may modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.
 The Supreme Court of Canada in Nur, paras 46, 56, 57, 62, 65, 77, confirmed in Lloyd, set out a detailed procedure for a s 12 analysis. See also Goltz, 515 (SCR);Ford, para 10; Newborn, paras 42-44; Ookowt, para 36:
1) The court must determine what constitutes a proportionate sentence for the individual offender having regard to the objectives and principles of the sentencing provisions in the Criminal Code;
2) The court must then ask whether the mandatory minimum requires the judge to impose a sentence upon that individual offender that is grossly disproportionate to the fit and proper sentence;
3) If the answer to step 2 is yes, the mandatory minimum provision is inconsistent with s 12 and will fall pursuant to s 52(1) of theConstitution Act, 1982 unless justified under s 1 of the Charter;
4) If the answer to step 2 is no, the court then may consider how the law might impact on third parties in other reasonably foreseeable applications of the law: is it reasonably foreseeable that the mandatory minimum will impose sentences that are grossly disproportionate to some people’s situations, grounded in judicial experience and common sense, excluding fanciful or remote situations and mere speculation;
5) If the answer to step 4 is yes, the mandatory minimum provision is inconsistent with s 12 and will fall pursuant to s 52(1) of theConstitution Act, 1982 unless justified under s 1 of the Charter; and
6) If the answer to step 4 is no, the mandatory minimum sentence will withstand Charter scrutiny.
 As this Court said in R v Stephenson, 2019 ABCA 453, paras 17-18, 382 CCC (3d) 285, if a court determines that a mandatory minimum is not grossly disproportionate to a fit and proper sentence for the individual offender, the court may, but need not, go further “where it can have no impact on the sentence in the case at issue.”
 That determination by the sentencing judge requires that we examine whether two years less a day is a fit and proper sentence for Mr Hilbach’s crimes. The relevant factors in this determination were set out in Goltz, 499-500 (SCR), Morrisey, paras 27 and 28, and Newborn, para 43, as “possible considerations..., but are not required parts of a rigid test”: R v Boudreault, 2018 SCC 58, para 48,  3 SCR 599:
1) the gravity of the offence;
2) the particular circumstances of the case;
3) the personal characteristics of the offender;
4) the actual effects of the sentence on the individual;
5) penological goals and sentencing principles upon which the sentence is fashioned;
6) the existence of valid alternatives to the punishment imposed; and
7) a comparison of punishments imposed for other crimes in the same jurisdiction.
Gross Disproportionality for the Individual Offenders
 The sentencing judge in R v Zwozdesky held that the mandatory minimum of four years in s 344(1)(a.1) was not grossly disproportionate to the fit and proper sentence for him, three years for robbery with a firearm and one year for the second robbery, to be served consecutively. We do not disagree.
 The issue with respect to Mr Hilbach is whether the mandatory minimum of five years in s 344(1)(a)(i) is grossly disproportionate to the fit and proper sentence for him, three years for robbery with a prohibited firearm. Is the additional two-year sentence “so excessive as to outrage standards of decency” that reasonable, well-informed Canadians “would find the punishment abhorrent or intolerable”? The application of this test must evaluate the perception of a reasonable person “properly informed of the philosophy of the legislative provisions, the values set out in the Charter, and the full circumstances of the case.” The reasonable person “is a thoughtful person not prone to emotional reaction, who has knowledge of the circumstances of the case” (R v Bentley, 2017 ABQB 221, para 53), considering whether the punishment is necessary to achieve a valid penal purpose and whether there are valid alternatives to the punishment: Boudreault, para 48.
 In this case, the five-year mandatory minimum is so high that many cases will attract the minimum sentence and even aggravated cases may frequently not result in a sentence higher than the minimum, such that mitigating factors are lost. The mandatory minimum also elevates the sentencing principles of denunciation and deterrence to such an extent as to minimize objectives of rehabilitation, the imposition of a just sanction, and special considerations for Indigenous offenders: Boudreault, paras 80-83.
 We conclude that a reasonable, properly informed Canadian, taking into account all of these considerations, would find the mandatory minimum five-year sentence imposed upon Mr Hilbach, compared to a fit and proper sentence of three years, to outrage standards of decency, and find the sentence abhorrent or intolerable. An additional two years in jail over and above a fit and proper sentence would shock the conscience of the reasonable person.
 As a result, we find the five-year mandatory minimum in s 344(1)(a)(i), Criminal Code, breaches s 12 of the Charter as being cruel and unusual punishment.
Gross Disproportionality for Other Reasonably Foreseeable Applications
 With respect to other foreseeable applications, Mr Zwozdesky proposed a scenario of Adam, a 22-year-old Cree man with drug problems and schizophrenia. While meeting with his drug dealer in a parking lot he pulls out an airsoft pistol, points it at his dealer, and takes some methamphetamines. After his arrest, he receives treatment for his psychosis and drug cravings, and pleads guilty before trial.
 The next proposed scenario is based in part upon R v Smart, 2014 ABPC 175,  11 WWR 757. Brian, a 21-year-old with no criminal record, suffering from alcoholism and Fetal Alcohol Spectrum Disorder, is extremely intoxicated and lying face down in a snowbank when a Good Samaritan stops to help him. He grabs the woman, reaches into his waistband, displays a BB gun, and snatches her purse. The BB gun is operable and could put an eye out but is not loaded. Brian pleads guilty at his second appearance in docket court.
 In considering these other proposed scenarios we consider that the cases of Lodoen and Link are reasonably foreseeable applications, both of which merited sentences well below the mandatory minimum in s 344(1)(a.1). We also consider that the scenarios proposed with respect to Adam and Brian are reasonably foreseeable applications of the law which would in any event attract sentences well below the four-year mandatory minimum as fit and proper sentences.
 Based upon these other reasonably foreseeable applications of the law, we find that the mandatory minimum in s 344(1)(a.1) is grossly disproportionate to the imposed and probable fit and proper sentences given the specific circumstances of each instance.
 We conclude that a reasonable, properly informed Canadian, taking into account all of these scenarios and considerations, would find the mandatory minimum four-year sentence imposed to be an outrage to standards of decency, and find the mandatory minimum sentence abhorrent or intolerable. It would be perhaps double a fit and proper sentence. An additional year and a half to two years in jail beyond a fit and proper sentence would shock the conscience of the reasonable person.
 We uphold the decisions of the sentencing judges that the mandatory minimum sentences in ss 344(1)(a)(i) and 344(1)(a.1), Criminal Code, contravene s 12 of the Charter, are not justified under s 1 of the Charter, and are therefore, pursuant to s 52(1) of the Constitution Act, 1982, declared unconstitutional and of no force and effect.