This week’s top three summaries: R v Rouse, 2026 SKCA 91: #complainant counsel, Sheppard v R, 2026 NBCA 95: #reckless discharge, R v Gauthier, 2026 ONCA 569: 24(2): unconnected #breaches

R v Rouse, 2026 SKCA 91

[August 21, 2026] Limiting the Role of Complainant Counsel and Allowing Cross-Examination on Sexual History [Reasons by McCreary J.A. with Caldwell and Kalmakoff JJ.A. concurring]

AUTHOR’S NOTE: Complainant’s counsel under the sexual history provisions of the Criminal Code has a limited role. That role is not to act as a second prosecutor. This case reinforces that when complainant’s counsel exceeds that scope, the trial judge is obligated to use their trial management powers to ensure trial fairness. Counsel for the complainant may not cross into advocacy on the merits or introduce social-science evidence from secondary sources.

Further, once sexual history evidence is admitted, the Court cannot artificially restrict cross-examination on the contents of that evidence or those records. When the Crown puts records into evidence for an inculpatory purpose, the defence must be permitted to challenge their inculpatory effect.

[3] The complainant was 15 years old at the time of the alleged offences. Mr. Rouse was a family friend. Between January and June of 2018, he lived at the complainant’s parents’ farm while helping to renovate the family’s home. The complainant alleged that Mr. Rouse touched her in a sexual manner on many occasions during this time.

[4] Between April and June of 2018, the complainant wrote Mr. Rouse three letters [Letters], which expressed, among other things, her feelings for him. One of the Letters contained sexually explicit comments.

[6] There were two key evidentiary issues at trial: (1) whether Mr. Rouse would be permitted to cross-examine the complainant respecting her sexual history and her other background; and (2) whether the Letters were admissible at trial and, if they were, to what extent Mr. Rouse could cross-examine her about them.

[9] On appeal, Mr. Rouse argues that the judge erred in his treatment of the Evidentiary Applications. He contends that the judge erred by permitting the complainant’s counsel to make submissions in respect of the Evidentiary Applications that went far beyond the scope of the complainant’s role, which influenced the judge’s decision-making and rendered the trial unfair. He also argues that the limitations the judge placed on the complainant’s cross-examination deprived him of his right to make full answer and defence, thereby causing a miscarriage of justice.

II. ANALYSIS – THE EVIDENTIARY APPLICATIONS

A. The judge’s rulings on the Evidentiary Applications

[17] Mr. Rouse and the Crown agreed that the Letters were documents in Mr. Rouse’s possession that related to the complainant and thus captured by s. 278.92 of the Code. The Letters expressed the complainant’s general feelings, her feelings towards Mr. Rouse, and her religious beliefs. They were dated April 22, 2018 [April Letter], May 18, 2018, and June 11, 2018. The May letter contained sexually explicit comments, which the judge reproduced in his decision respecting the Evidentiary Applications, as follows (R v Rouse, 2023 SKKB 240 [Admissible Evidence Decision]):

[7] … The letter dated May 18, 2018 is two pages. The letter dated June 11, 2018 is one page. The letters express the complainant’s friendship and love for the accused. The May letter expresses explicit sexual desire. (“I crave your touch and I feel strengthened when you give me a squeeze in your strong arms. Whenever I’m with you I just want you to fuck me. Yet I know that we must be careful and I must abide under the same rules that everyone else has to too.”).

[18] Mr. Rouse argued that the Letters were written contemporaneously with the occurrence of the alleged events giving rise to the charges and were consequently highly relevant to the complainant’s credibility. His position was that the complainant developed romantic feelings for him and tried to advance a sexual relationship, but that he rebuffed her. He advanced the theory that the complainant had a motive to lie about the alleged assaults because she had been rebuffed and was ashamed, embarrassed or angry. His position was that he did not tell the complainant’s parents about her conduct because they were extremely strict and he did not want her to be disciplined for her behaviour. Thus, he contended that he needed to adduce evidence respecting the complainant’s past sexual history and background, and needed to cross-examine her about the Letters, to demonstrate his theory of the case and test the complainant’s credibility.

[20] At the second stage of the Evidentiary Applications, the complainant was represented by legal counsel. Complainant’s counsel filed a 61-page brief of law and made oral submissions at the hearing. The complainant’s brief of law attacked the defence theory of the case. It contained argument respecting sexual assault law, opinion social-science evidence and psychological theories about why the twin myths of sexual assault have been propagated in Canadian society. In addition, it contained criticisms of Mr. Rouse’s lawyer’s law firm.

[21] Mr. Rouse objected to the complainant’s submissions. He argued that they exceeded the scope of submissions complainants are entitled to make in respect of applications brought to adduce evidence of sexual history and/or records in the possession of the accused….

[22] The judge dismissed Mr. Rouse’s objection,….

[23] The judge went on to dismiss Mr. Rouse’s application to cross-examine the complainant about her sexual history. He found that the application was deficient in all ways, noting that it was “broad ranging and unspecific” (Admissible Evidence Decision at para 55). The judge noted that while some of the proposed questioning would elicit sexual activity evidence, other questions would not. However, he concluded that the “intent or inevitable result” of the application was twin myths reasoning (at para 66)….

[24] ….The judge agreed that the Letters were admissible, but he refused Mr. Rouse’s request to broadly cross-examine the complainant on their contents. Instead, he limited cross-examination to the following questions: (1) whether the complainant had written the Letters; (2) whether the content of the Letters reflected her own thoughts at the time; (3) why the Letters ere written, including whether Mr. Rouse requested the letters; and (4) whether Mr. Rouse had replied to the Letters in writing or otherwise.

C. The judge erred in limiting cross-examination on the Letters

[41] At trial, the Letters were tendered as part of the Crown’s case and, in direct examination, the Crown asked the complainant only the questions that had previously been articulated by the judge.

[42] During defence counsel’s cross-examination of the complainant, the Court paused to discuss the scope of questioning regarding the Letters. Crown counsel reminded the Court of its prior limitations on this line of inquiry. Defence counsel acknowledged that the Letters “speak for themselves to a certain degree,” but indicated he had additional questions. When asked to explain the purpose of further questioning, he said he was entitled to clarify the evidence and eliminate ambiguity. The judge declined to modify his earlier ruling, and defence counsel was not permitted to ask anything further about the content of the Letters.[Emphasis by PJM]

44] The judge then permitted defence counsel to ask the complainant questions about sexual activity she testified had occurred, but which she did not mention in the Letters. Defence counsel suggested to the complainant that she had pursued Mr. Rouse, and had tried to get him to touch her, but that he had rebuffed her and had not touched her. The complainant denied this. Further, defence counsel put to the complainant that Mr. Rouse had never taken advantage of her, and she disagreed with that.

[45] This line of questioning culminated in defence counsel’s suggestion to the complainant that she did not mention in the Letters any sexual activity that she later testified had occurred. He put to her that this was because the sexual activity had not happened. The complainant disagreed. In his closing submissions to the jury, defence counsel submitted that the Letters’ silence on sexual activity suggested that nothing sexual had occurred.

[46] While the questioning I have just described was permitted, Mr. Rouse argues that the judge still erred by limiting cross-examination on the Letters as he did. He says that the Letters raise critical questions about the complainant’s credibility, which the judge prevented him from exploring, thus severely hampering his ability to make full answer and defence.

[47] I agree that the judge erred by limiting cross-examination on the Letters in the manner he did. It was an error to allow the Crown to introduce the Letters as part of its case, and then to disallow cross-examination respecting most of their contents. This unfairly restricted Mr. Rouse’s right to make full answer and defence. In sum, it was unfair to Mr. Rouse for the judge to allow the Crown to use the Letters for inculpatory purposes, but not to allow Mr. Rouse to cross-examine on the Letters to attempt to undermine their inculpatory effect and to use that evidence for exculpatory purposes.[Emphasis by PJM]

[48] Most critically, Mr. Rouse was not permitted to use the Letters to demonstrate to the jury, by putting it to the complainant directly, that she had made a statement in the Letters that was inconsistent with her testimony. In the April Letter, the complainant wrote to Mr. Rouse: “you never took … advantage of me even when the opportunity was there”. During cross-examination, defence counsel put to the complainant that Mr. Rouse “never took advantage of you”. She responded, “That isn’t true. I disagree with you”. However, after receiving that response, the effect of the judge’s ruling was that defence counsel was not permitted to put the contradictory statement in the April Letter to the complainant to directly demonstrate the inconsistency in her testimony.[Emphasis by PJM]

[50] In my view, the judge erred by restricting cross-examination to the point that it prevented defence counsel from cross-examining the complainant on a prior inconsistent statement….

[51] Canadian courts have recognized how critical allowing thorough cross-examination of a central Crown witness is when credibility is at issue. Failing to do so creates significant unfairness to the accused. For example, in R v Lyttle, 2004 SCC 5, the Supreme Court noted:

[1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

[2] That is why the right of an accused to cross-examine witnesses for the prosecution — without significant and unwarranted constraint — is an essential component of the right to make full answer and defence.

(Emphasis in original)(Emphasis in original)

[52] The crucial effect of cross-examination on the right to a fair trial was articulated in R v Seaboyer; R v Gayme, 1991 CanLII 76, [1991] 2 SCR 577 at p 608 (SCC), as follows:

The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. …

In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. …

Indeed, the right to cross-examine is so fundamental that it may take on a constitutional dimension in a criminal context, because it is the safeguard that ensures a fair trial through full answer and defence (see R v Khelawon, 2006 SCC 57 at para 47).

[53] ….as noted by the British Columbia Court of Appeal in R v Avila, 2025 BCCA 5, in the context of a sexual assault case, whose reasoning I adopt here:

[27] As recently affirmed by this Court in R. v. Hart, 2024 BCCA 181:

[21] The right to cross-examine is an essential truth-seeking element of a criminal trial: R. v. Lyttle, 2004 SCC 5 at para. 1 … Counsel, particularly where credibility is in issue, are afforded “a wide latitude” in cross-examination: Fanjoy [1985 CanLII 53, [1985] 2 SCR 233 (SCC)]; R. v. Krause, [1986 CanLII 39, [1986] 2 SCR 466 at 474 (SCC)]; R. v. Lawrence, 2015 BCCA 358 at para. 69.

[28] This includes “wide latitude” in the use of prior inconsistent statements, a longstanding, well-established, and sometimes compelling basis upon which counsel can seek to challenge a witness’s veracity. In my view, the judge erred in not allowing the defence to explore this aspect of the complainant’s testimony with reference to her police statement. Any undue prejudice arising from the cross-examination, including the dangers of hearsay evidence or moral prejudice, could have been addressed through an ameliorative instruction to the jury.

[54] Thus, once the Letters were ruled admissible, it was an error to restrict their use in the way that the judge did. When Mr. Rouse was not permitted to cross-examine the complainant on her prior inconsistent statement in the April Letter, it undermined the fairness of the trial because it limited the defence’s ability to expose contradictions. It violated the right to test the key issue in the case – credibility. Limiting Mr. Rouse’s right to evaluate credibility in this manner restricted the jury from having information that would allow them to properly weigh the evidence. This all amounts to an error of law.

D. The judge erred by allowing the complainant to make submissions exceeding the scope of her participatory rights, and by relying on those submissions

1. Overview

[56] I agree that the complainant’s submissions exceeded the scope of her allowable role….

2. The scope of a complainant’s role in applications to admit evidence of past sexual history or evidence of private communications

[58] A complainant’s right to take part in a s. 278.94 hearing of an application to admit evidence of past sexual history or of a private record relating to the complainant in a sexual assault trial arose from amendments to the Criminal Code set out in Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, 42nd Leg, 1st Sess, 2018, SC 2018, c 29. Bill C-51 was designed to extend protections to complainants’ privacy and dignity by creating a new procedure to determine whether the complainant’s private records in the hands of the accused would be admissible evidence at trial. This process gave complainants “additional participation rights in admissibility proceedings” of this type (J.J. at para 9).

[59] Complainants are permitted to participate in the hearing so that they have an opportunity o give their “unique perspective on the impact that the admission of the evidence will have on their privacy and dignity” (J.J. at para 178). As the Supreme Court recognized in J.J., these are constitutionally protected interests (see paras 44-45).

[60] However, there are limits to a complainant’s standing. A complainant’s submissions must be restricted to commenting on the admissibility of the evidence that the accused seeks to admit (see J.J. at para 99). The complainant is not given notice of the first stage of the hearing, where the court considers whether the proposed evidence is “likely relevant” (at para 294, quoting R v Mills, 1999 CanLII 637 at para 139, [1999] 3 SCR 668 (SCC)), and thus has no participatory rights at that stage (see J.J. at para 89). Indeed, the trial judge retains discretion to exclude the complainant entirely when it would be unfair to allow them to participate “based on a party’s or the judge’s own concerns about the impact of disclosure on trial fairness” (at para 96).[Emphasis by PJM]

[61] If the complainant participates at the second stage of the hearing, where admissibility is determined, the judge is tasked with controlling the complainant’s role in the hearing (see J.J. at paras 97-98). Importantly, complainants are not parties to the dispute. They may not lead evidence, nor may they cross-examine the accused (see paras 100-102 and 106). Complainants have limited standing, which is restricted to addressing the issue of the admissibility of evidence that the accused seeks to introduce, not to addressing the guilt or innocence of the accused. In short, the complainant’s participation does not extend to allow them to comment on the merits of the criminal case (see para 99).[Emphasis by PJM]

3. The judge’s trial management powers

[63] Trial judges must ensure the trial is fair (see R v Rose, 1998 CanLII 768 at para 130, [1998] 3 SCR 262 (SCC)). To this end, arising out of the trial court’s inherent jurisdiction to control the trial process is an array of powers, one of which is trial management (see R v Cunningham, 2010 SCC 10 at para 18; see also I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23:1 Current Legal Problems at pp 23-52). The trial management power engages “three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently” (R v Samaniego, 2022 SCC 9 at para 21 [Samaniego], citing R v John, 2017 ONCA 622 at para 47, and R v Polanco, 2018 ONCA 444 at para 22 [Polanco]). A judge’s power to control the process in a voir dire is a trial management power (see R v Kinamore, 2025 SCC 19 at paras 45-50 and 54).

[68] Whether a trial has been conducted unfairly is a question of law. A judge is required to intervene if it is necessary to ensure that the trial stays fair. Thus, the question that arises in this case is whether the judge erred by failing or declining to control the proceedings such that the complainant was allowed to stray outside her prescribed role.

4. The complainant exceeded her role</4>

[69] In this case, a sizeable portion of the complainant’s submissions exceeded what is allowable in a hearing under s. 278.94 of the Criminal Code.

[70] As I have explained, a complainant’s role in that type of hearing is to make submissions respecting the admissibility of evidence as it relates to their privacy and dignity interests. Submissions respecting the admissibility of evidence in a s. 278.94 hearing will relate to relevance and materiality, and to the specific factors governing admissibility that are enumerated under ss. 276(3) and 278.92(3) of the Criminal Code. These include the accused’s right to make full answer and defence; society’s interest in victims reporting sexual assaults and of encouraging complainants to obtain treatment; whether the evidence is necessary to determine a just outcome; the need to remove discriminatory beliefs or bias from the fact-finding process; the risk that the evidence may unduly prejudice the jury; the risk of violating the complainant’s dignity and privacy; and the right of the complainant and every person to personal security and to the protection of the law.

[71] The complainant’s submissions, both written and oral, went well beyond a discussion of admissibility within the parameters I have just articulated. Beyond admissibility, the complainant’s submissions raised the following areas of argument:

(a) that the defence’s theory of the case had no air of reality and there was no evidentiary basis to support it;

(b) that Mr. Rouse’s submissions were “disingenuous”;

(c) arguments predicated on social science opinion evidence, including, but not limited to:

(i) suggestions that Mr. Rouse’s applications to admit the evidence at issue, and criminal defence applications of this type, are aimed at trying to shame “children and youth with evidence of their own sexuality” in the context of a discussion of “Freudian influence”;

(ii) a discussion of the general memory capacity of youth;

(iii) submissions respecting how legal scholar John Henry Wigmore improperly conceptualized female complainants in sex assault cases in his textbook regarding evidence; and

(iv) argument premised on social science opinions provided in the following academic articles: R. Summit, “The Child Sexual Abuse Accommodation Syndrome” (1983) 7 Child Abuse and Neglect; D. Galenas, “The Persisting Negative Effects of Incest” (1983) 46 Psychiatry; and D. Finklehor & A. Browne, “The Traumatic Impact of Child Sexual Abuse: A conceptualization” (1985) 55 American Journal of Orthopsychiatry.

(d) that Mr. Rouse had groomed the complainant;

(e) that the complainant was a credible and reliable witness, as opposed to Mr. Rouse; and

(f) that the “candour” of defence counsel was questionable, including accusations that defence counsel had improperly or unethically advanced an application that notice of the second stage of the hearing should not be provided to the complainant, despite the fact that this type of application is entirely permissible (see J.J. at para 96).[Emphasis by PJM]

[72] None of these areas of argument relate to the admissibility of the evidence that was at issue in this case. On the contrary, while the submissions were seemingly tendered to provide context in relation to admissibility, this sort of context did not relate to questions of materiality or relevance, nor to the complainant’s privacy and dignity interests, nor to the factors to be considered under ss. 276(3) and 278.92(3)…..

[73] Further, and more critically, it seems to have been overlooked that a complainant is not permitted to adduce evidence in a s. 278.94 hearing. Nevertheless, the complainant relied on academic social science articles to found many of her arguments. The articles in question constituted evidence. Quite simply, this evidence was patently inadmissible. Reference to it should not have been permitted, and any reliance placed on it by the judge was improper.[Emphasis by PJM]

[74] ….While a complainant can make submissions about many points that are relevant to admissibility, including the factors enumerated under ss. 276(3) and 278.92(3) of the Criminal Code, they are not permitted to step into the fray to argue the merits of the charges facing the accused. That is the exclusive role of the Crown. The complainant’s role is limited and, in this case, the restrictions of that role were patently surpassed….

….In the context of this trial, as I will later explain, the error gives rise to the perception that a miscarriage of justice has occurred.

6. Miscarriage of justice

[81] Mr. Rouse alleges that the complainant’s improper participation in the Evidentiary Applications caused a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, because the judge relied on complainant’s counsel’s submissions, which exceeded their allowable scope, rendering the trial unfair. I agree that this occurred.

[82] Verdicts resulting from trials lacking in fairness or the appearance of fairness can be set aside on appeal as a miscarriage of justice. The miscarriage of justice framework is flexible, and “comprehends a range of situations” (R v Moosomin, 2008 SKCA 168 at para 25). While the burden is on the accused to show an error rising to the level of a miscarriage of justice (see R v Davey, 2012 SCC 75 at paras 50-51 [Davey]), the accused does not need to show any legal error (see R v Theodore, 2020 SKCA 131 at para 80, leave to appeal to SCC refused 2021 CanLII 37628). Instead, a miscarriage of justice can arise from an “irregularity” or a set of irregularities in a trial that render it unfair in substance or form (Theodore at para 80, citing Davey at paras 50-51, and Khan at para 69). It also functions as a “residual” category, allowing for an appellate court to intervene where errors not easily classified as errors of substantive law result in an unfair trial to the accused, even if such errors “find their root” in an error of law (Khan at para 61).

[83] The standard the unfairness must rise to depends on whether actual unfairness, or only the appearance of unfairness, is alleged (see R v Vandewater, 2025 SKCA 8 at paras 21-26; see also Davey; Tayo Tompouba at para 72; and R v Kahsai, 2023 SCC 20 at para 68). Where actual unfairness is alleged, the question is simply whether there was a procedural irregularity rendering the trial unfair (see Khan at para 73; see also Vandewater at para 25). The accused must establish an irregularity that “was enough to ‘create such a serious appearance of unfairness it would shake the public confidence in the administration of justice’ from the perspective of a reasonable and objective person, having regard for the circumstances of the trial” (R v R.C.M., 2024 SKCA 6, citing Kahsai at para 67). In such cases, the accused also needs to show actual prejudice, i.e., that this serious irregularity in fact violated their right to a fair trial, although these errors will usually be prejudicial by nature (see Tayo Tompouba at paras 56 and 81; see also R v Wong, 2018 SCC 25 at paras 5 and 39).

[85] While we cannot know exactly how the complainant’s improper submissions may have led the judge to err concerning the restrictions he imposed on cross-examination about the Letters, the fact that the judge allowed those unacceptable submissions to be made, coupled with the error in respect of the Letters, interfered with Mr. Rouse’s right to make a full answer and defence before a trial with judge and jury. The result is that Mr. Rouse was prejudiced to such an extent that public confidence in the fairness of the trial is called into question. This constitutes a miscarriage of justice.

E. Remedy

[86] Given the foregoing conclusions, the convictions must be set aside. In the circumstances of this case, the appropriate remedy is a new trial.

IV. CONCLUSION

[131] In the result, I would allow the appeal and quash Mr. Rouse’s convictions. A miscarriage of justice occurred when the judge failed to restrict the complainant’s submissions such that they far exceeded the scope of her allowable role, resulting in the judge unfairly limiting cross-examination on the Letters and failing to allow Mr. Rouse to cross-examine the complainant on her prior inconsistent statement in the April Letter. This all caused significant trial unfairness and prejudice to Mr. Rouse. I would remit the matter to the Court of King’s Bench for a new trial. As the convictions have been quashed, the Crown’s sentence appeal has been rendered moot.

Sheppard v R., 2026 NBCA 95

[August 13, 2026] Criminal Code s.244.2(1)(b): Elements of Reckless Discharge of a Firearm [Reasons by Richard C.J.N.B. with French and LeBlanc JJ.A. concurring]

AUTHOR’S NOTE: This case sets out the elements of reckless discharge of a firearm contrary to s. 244.2(1)(b). The key takeaways concern the risk created by the accused’s conduct. First, the accused must have subjectively appreciated the risk. It is not sufficient that the accused ought to have been aware of it. Second, the risk created must be objectively substantial and unjustified. This requires consideration of the extent of the risk, the nature and seriousness of the potential harm, the social value of the conduct, and the ease with which the risk could have been avoided.

[1] On April 24, 2022, Bryan Sheppard was walking along the road near his home while Garrett Dewar was riding his motorcycle up and down the same road. The evidence differed as to who initiated the dispute that ensued. What is clear, however, is that shortly thereafter Mr. Dewar followed Mr. Sheppard to his residence for the purpose of “confronting him” and parked his motorcycle at the entrance to Mr. Sheppard’s driveway. Both men were yelling at one another. A neighbour, Austin Anderson, then arrived and parked his vehicle behind Mr. Dewar’s motorcycle, further obstructing the driveway. Mr. Anderson testified that both men were yelling and throwing rocks at each other. Mr. Sheppard then fired a single shot from his rifle in the direction of Messrs. Dewar and Anderson. After the shot was fired, a cloud of dust appeared approximately 10 feet from Mr. Dewar. Mr. Dewar and Mr. Anderson immediately got into Mr. Anderson’s truck and left the scene.

II. Analysis

A. The mens rea for recklessness under s. 244.2(1)(b) cannot be assessed objectively

[5] In instructing the jury on the essential elements of the offence of reckless discharge of a firearm, the trial judge provided the following definition of recklessness:

A person acts recklessly with respect to the discharge of a firearm in circumstances where they know — or it can be reasonably inferred that a reasonable person in their circumstances would realize — that their actions were placing the safety or well-being of another person at risk….

[6] Mr. Sheppard submits that the jury may have convicted him based on what he ought to have known about the risk created by his conduct rather than on what he knew. The Crown agrees, conceding that the portion of the instruction emphasized above erroneously conveyed to the jury that Mr. Sheppard’s conduct could be assessed using either a subjective or an objective standard. I also agree.

[8] As a matter of first principle, there is a presumption that Parliament intends criminal offences to require a subjective fault element (see, for example, R. v. A.D.H., 2013 SCC 28, [2013] 2 S.C.R. 269, at para. 23).

[10] More recently, in R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, the Supreme Court reiterated that recklessness requires that the accused subjectively understood the risk inherent in the criminal act:

This second component can also be met by showing that the accused was reckless. Where, as here, a higher requirement of “wilfulness” or “intent” is not indicated by the text or nature of an offence, recklessness is generally included in subjective mens rea (see Sault Ste. Marie, at pp. 1309-10; R. v. Buzzanga (1979), 25 O.R. (2d) 705 (C.A.), at p. 71). Recklessness requires that accused persons be aware of the risk of not complying with their condition and proceed in the face of that risk (Josephie, at para. 30; Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 584). Knowledge of risk is key to recklessness. Therefore, the accused must still know of their bail conditions in order to be aware of any risk of non-compliance. The accused must also be aware of the risk that the factual circumstances requiring them to act (or refrain from acting) to comply with their bail conditions could arise and continue with their course of conduct despite the risk. Recklessness is not, and should not through misapplication, become the same as negligence. Recklessness has nothing to do with whether the accused ought to have seen the risk in question, but whether they subjectively saw the risk and continued to act with disregard to the risk. [Emphasis added; para. 117]

[11] Finally, the Court of Appeal of Manitoba in R. v. Barca, 2022 MBCA 80, [2022] M.J. No. 177 (QL), applied Sansregret to the offence of reckless discharge of a firearm:

Under section 244.2(1)(b), the Crown must prove, beyond a reasonable doubt, that, in intentionally discharging a firearm, the accused was reckless as to the life or safety of another person. Applying Sansregret, the Crown must prove that the accused knew that there was a risk that his conduct (intentionally discharging the firearm in the circumstances known to him) could bring about the prohibited result (danger to the life or safety of another person) and he proceeded despite that risk. [para. 120]

[12] I agree with the Crown’s statement that the charge in this case left the jury with the impression that they could convict Mr. Sheppard solely based on whether a reasonable person in Mr. Sheppard’s circumstances would believe discharging the firearm was reckless, rather than whether Mr. Sheppard subjectively perceived that risk and proceeded despite the risk.

[14] In this case, the mental element of the offence was not properly explained. It cannot be said that the jury was adequately equipped to decide the case according to the law. A new trial is therefore required. Because Mr. Sheppard was acquitted of discharging a firearm with intent to endanger the lives of Messrs. Dewar and Anderson (s. 244(1) of the Criminal Code), and because the error related solely to the included offence of reckless discharge of a firearm under s. 244.2(1)(b), the new trial must be limited to that offence.

B. Under s. 244.2(1)(b), the risk of harm must have been substantial and unjustified

 

[15] ….The parties submit that the charge failed to address the degree of risk required to establish liability under s. 244.2(1)(b). In other words, the jury was not instructed on the degree of probability of harm to Messrs. Dewar and Anderson that must be foreseen before criminal liability may attach.

[16] Not all risky conduct attracts, or ought to attract, criminal liability. The degree of risk required for criminal liability based on recklessness, however, has not always been expressed in the same terms. Consider, for example, the passage from Sansregret cited above. In explaining recklessness in the context of sexual assault, McIntyre J. stated that recklessness “is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk” (p. 582). The use of the word “could” appears to suggest that even a relatively low degree of risk may suffice.

[18] The issue returned to the Supreme Court in Zora. In considering the degree of risk required to establish liability for failing to comply with a release order, Martin J., writing for the majority, stated:

….The risk cannot be far-fetched, trivial, or de minimis. The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations….

[19] Morris Manning and Peter Sankoff, in Manning, Mewett & Sankoff: Criminal Law, 5th ed. (Toronto: LexisNexis, 2015), cited by Martin J. in Zora, assists in parsing out what is meant by “unjustified”:

But to be reckless the risk taken must also be “unjustifiable”, which imports an objective aspect into the analysis. This control mechanism recognizes that subjectively proceeding in light of particular risks is occasionally desirable, even though an illegal consequence might result. A doctor may need to take some invasive measures in order to treat a patient, and in doing so, entail some risk, but this does not make his or her conduct “reckless”. So long as there is a sound basis for proceeding, the mental element of recklessness is not satisfied.

While the aforementioned analysis seems difficult to dispute, there has been very little discussion in the jurisprudence pinpointing what constitutes an “unjustifiable risk”, though it is generally agreed that the test is objective, and does not consider the accused’s view of whether the risk was worth taking. Obviously, a major factor in the analysis is the likelihood of the risk occurring. Justice Dickson in the excerpt above from Sault Ste. Marie mentioned that the risk had to be “substantial” in order to be reckless….

….The approach recognizes that some form of risk-taking may be extremely low in terms of likelihood of occurrence, but nonetheless be reckless because of the potential gravity of harm being posed. A test that takes a combination of factors into account can consider all relevant matters. [pp. 228-229]

[20] Further examples of the application of this standard were provided by Martin J. in Zora:

….For example, in the context of a condition requiring an accused to answer the door to police during their curfew, an accused would not be reckless if they took the minimal and justified risk of taking a short shower during their curfew whereas they could be reckless if they disconnected their doorbell or wore earplugs around their house….

[22] I would go one step further than the Court did in Barca and hold that the “substantial and unjustified” standard does apply to the offence of reckless discharge of a firearm under s. 244.2(1)(b). I also agree that whether a risk is substantial and unjustified is to be assessed objectively (Barca, at para. 123). I pause to emphasize that these reasons should not be understood as establishing a universal standard applicable whenever recklessness is at issue.

[23] In Zora, Martin J. concluded that the “substantial and unjustified” standard was necessary, in part, to ensure that ordinary daily activities, such as taking a shower, would not attract criminal liability in the context of release conditions. The same concern does not arise in the context of reckless discharge of a firearm. For most people, discharging a firearm is not an everyday activity. Nevertheless, I believe the “substantial and unjustified” standard remains appropriate.

[24] The following factors will inform whether the substantial and unjustified standard is met:

a) the extent of the risk;

b) the nature of the harm;

c) the social value of the conduct creating the risk; and

d) the ease with which the risk could have been avoided. (see Zora, at para. 118; Manning & Sankoff, at p. 229.)

[26] By way of example, a person may intentionally discharge a firearm while appreciating some risk to the life or safety of another person yet not be criminally liable. Consider the case of a person engaged in lawful hunting, target shooting, or animal control in circumstances where other persons are known to be in the broader vicinity. Such a person may appreciate a remote possibility that an unforeseen event could result in harm to another. Depending on the circumstances, however, the risk may not be substantial. Moreover, the conduct may carry sufficient social value to render the risk justified.

[27] Similarly, there may be circumstances in which a person intentionally discharges a firearm for a legitimate purpose and, in doing so, creates a substantial risk to the life or safety of another person. Whether such conduct attracts criminal liability will depend upon the objective assessment described above. The existence of a substantial risk does not, by itself, satisfy the requirements of s. 244.2(1)(b). The trier of fact must also determine whether the risk was unjustified, having regard to the nature of the conduct, its social value, and the availability of reasonable alternatives.

[29] In summary, the offence under s. 244.2(1)(b) has three components:

a) the accused must have intentionally discharged a firearm;

b) the accused must have been aware that doing so created a risk to the life or safety of another person; and

c) the risk created must have objectively been substantial and unjustified, having regard to the factors identified in Zora, at para. 118.[Emphasis by PJM]

[30] Although that threshold may be relatively low in the context of firearm offences, the jury was not instructed on the degree of risk required to establish criminal liability. As a result, the instructions left open the possibility that the jury may have concluded that the mere existence of some risk was sufficient to ground a conviction. That, too, constitutes an error requiring a new trial.[Emphasis by PJM]

[31] In the context of this case, the jury should have been instructed that, to prove the offence of reckless discharge of a firearm, the Crown must establish beyond a reasonable doubt each of the following elements:

1. Mr. Sheppard intentionally discharged a firearm;

2. at the time he discharged the firearm, Mr. Sheppard was aware that doing so created a risk to the life or safety of another person; and

3. the risk created by the discharge of the firearm was substantial and unjustified.

 

C. The jury should have been instructed on defence of property

 

[36] Finally, the evidence disclosed an air of reality to Mr. Sheppard’s claim of defence of property. Mr. Dewar followed Mr. Sheppard to his residence. There was evidence that Mr. Dewar threatened him, threw rocks at his home, and damaged his mailbox. There was some evidence that Mr. Sheppard and his partner asked Mr. Dewar to leave the property. In addition, Mr. Sheppard’s residence was in an area without cellular service, he had no landline telephone, and the driveway was blocked by Mr. Dewar’s motorcycle and Mr. Anderson’s truck.

[38] For these reasons, I joined my colleagues in allowing the appeal, setting aside Mr. Sheppard’s conviction under s. 244.2(1)(b) of the Criminal Code, and ordering a new trial on that charge.