This week’s top three summaries: R v Hawco, 2026 BCCA 69: #reasoning process, R v Weatherston, 2026 YKCA 5: 276 #judge responsible, R v AB, 2026 ONCA 116: s.7 silence
R v Hawco, 2026 BCCA 69
[February 24, 2026] Beyond a Reasonable Doubt: Explicit Reasoning Process Error [Reasons by Riley J.A. with Harris and Edelmann JJ.A. concurring]
AUTHOR’S NOTE: It is trite that not every individual fact in a criminal trial must be proven beyond a reasonable doubt. That standard applies only to the essential elements of the offence and the ultimate issue of guilt. However, efforts by trial judges to “map out” how juries should reason through the evidence must be undertaken with extreme caution. If framed improperly, such guidance risks importing a lower standard of proof into the core question of guilt.
That is precisely what occurred here. The trial judge instructed the jury in a manner that effectively imposed a fixed sequence of reasoning: first, to find facts (implicitly on a balance of probabilities), and then to assess whether those facts, taken together, established guilt beyond a reasonable doubt.
This approach is legally flawed. While it is not incorrect to say that individual factual findings may be made on a balance of probabilities, a jury must not be directed to follow a rigid, step-by-step process that risks elevating that standard into the determination of guilt. A reasonable doubt can arise not only from conflicting evidence, but also from an absence of evidence. Indeed, it may arise precisely where jurors cannot confidently determine what occurred.
The law is clear:
- There is no fixed route to a verdict;
- Jurors are not required to agree on specific intermediate factual findings; and
- Different jurors may arrive at reasonable doubt for different reasons, all of which are legally valid.
By imposing an artificial structure on the deliberative process, the trial judge created a real risk that the balance of probabilities standard would bleed into the ultimate assessment of guilt, undermining the Crown’s burden to prove the case beyond a reasonable doubt.
Introduction
[1] The appellant, Joshua Wayne Hawco, appeals his conviction for sexual assault following a trial by judge and jury. The conviction arises from an encounter between Mr. Hawco and the complainant, in her bedroom, in an apartment she shared with her roommate, WB. It is common ground that Mr. Hawco initially attended the apartment some time past midnight on the date in question to visit WB and that several hours later he entered the complainant’s room where he engaged in sexual activity with her. The complainant’s testimony was that she went to bed, fell asleep, and then awoke to find Mr. Hawco sexually assaulting her. In his testimony, Mr. Hawco admitted that he entered the complainant’s room without invitation but said that once he did so the complainant welcomed him into her bed and engaged in consensual sexual activity with him.
[2] Mr. Hawco advances two grounds of appeal.
[3] The first ground of appeal is that the trial judge erred in his charge to the jury, which included an instruction that if the jury found disputed evidence to be “probably true, or more probably true than not true” then they must take that evidence as “proof of a fact”. Mr. Hawco says this amounted to misdirection on the nature of the fact-finding process, leaving the jury with the impression that they could find him guilty on something less than proof beyond a reasonable doubt.
[5] As explained in greater detail below, I find merit in Mr. Hawco’s first ground of appeal. In the context of a trial focused on consent, in which the outcome almost certainly turned on the jury’s assessment of the credibility of the two central witnesses, the instructions as a whole left it open to the jury to follow a path of reasoning on which they may well have found Mr. Hawco guilty on a standard that was less onerous than proof beyond a reasonable doubt….
Facts
Trial Judge’s Instructions to the Jury
[34] The impugned portion of the jury instruction is found within the judge’s description of general principles (section (2) above), under the sub-heading “Definition of Reasonable Doubt”. It reads as follows:
[30] If you accept evidence as being probably true, or more probably true than not true, then you must take that evidence as proof of a fact. The application of the “beyond a reasonable doubt” standard comes in at a later stage in your analysis. It applies when you consider whether all of the evidence – both the facts you have found, based on the evidence you have accepted to be probably true, and the evidence you do not believe or have rejected or are uncertain about – has raised a reasonable doubt as to Mr. Hawco’s guilt.
[35] Counsel for Mr. Hawco also points to a passage within the judge’s summary of the deliberation process (section (8) above), under the sub-heading “Verdict”. It reads as follows:
[229] Here is a suggestion about a process that may assist you in arriving at your verdict:
(a) First, review all of the evidence, including all the exhibits you will have with you in the jury room;
(b) Second, list the particular pieces of evidence next to the applicable element or ingredient that makes up the offence as I described it to you;
(c) Third, decide what evidence you believe and what evidence you do not believe;
(d) Fourth, determine the facts you find from that evidence; and
(e) Fifth, apply the law that I gave you to the facts you find and decide whether they prove each element or ingredient that makes up the offence beyond a reasonable doubt or whether they raise a reasonable doubt as to the guilt of the accused. [Emphasis by PJM]
[36] After the trial judge finished charging the jury, he sought input from the parties as to whether there were any issues with the charge. Counsel for Mr. Hawco did not voice any concerns….
….The judge’s remarks included a general reminder of the burden of proof, in the following terms:
… It is the Crown’s obligation throughout this case to prove all elements of the charge. Mr. Hawco does not have to prove anything, and that includes the Crown’s obligation to prove beyond a reasonable doubt that Mr. Hawco did not have a reasonable belief that [KT] was consenting. …
Verdict
[37] The jury found Mr. Hawco guilty of sexual assault.
Analysis
Ground 1: Whether the Trial Judge Erred in His Jury Instructions?
[38] A challenge to the trial judge’s jury instructions is to be assessed as an alleged error of law under s. 686(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46: R. v. Abdullahi, 2023 SCC 19 at para. 30. The appeal court takes a “functional approach” to the review of jury instructions: R. v. Calnen, 2019 SCC 6 at para. 8; Abdullahi at paras. 34–36. The controlling question is whether, based on the “overall effect” of the jury instructions assessed in context, the jury was properly equipped to decide the case according to the law and evidence: Abdullahi at para. 36; Calnen at para. 8.
[39] There are six further legal principles informing the functional approach to the appeal court’s assessment of alleged legal error in relation to a jury charge.
[40] First, the appeal court must have regard for the “general sense” which the charge must have “conveyed, in all probability” to the jury: R. v. Daley, 2007 SCC 53 at para. 30; R. v. Araya, 2015 SCC 11 at para. 39; Abdullahi at para. 40.
[41] Second, there is no requirement for the judge’s charge to adhere to any formula. The particular words used by the judge and the sequence of the elements in the charge are matters within the discretion of the trial judge: Daley at para. 30; Calnen at para. 8.
[42] Third, the appeal court is not to hold the trial judge to a standard of perfection. The accused is entitled to a “properly instructed jury, not a perfectly instructed jury”: Daley at para. 31; Araya at para. 39.
[43] Fourth, the appeal court must consider the “charge as a whole”: Daley at para. 31; Araya at para. 39; Calnen at para. 8. The court must guard against analyzing “minute details of a jury instruction in isolation”, nor should the court descend into “dissection” by “[p]arsing the language in one particular sentence” of the instructions: Araya at paras. 39, 52. Further, a “single ambiguous or problematic statement in one part of a charge will not necessarily be an error of law where the charge as a whole equipped the jury with an accurate understanding of the relevant legal issue”: Abdullahi at para. 41. The court should consider where the alleged deficiency is situated within the overall organization and structure of the charge: Abdullahi at para. 42. It is the “overall effect” that matters: Daley at para. 31; Araya at para. 39.
[44] Fifth, the overall effect of the charge must be assessed in the context of the “trial as a whole”: Daley at para. 58; Araya at para. 39. This includes a consideration of the evidence, the closing arguments, and whether there was any objection to the content of the charge: Abdullahi at para. 59. A failure to object may say something about the seriousness of the alleged deficiency in the charge: Daley at para. 58.
[45] Sixth, it is important to maintain a conceptual distinction between determining the existence of legal error in the judge’s charge within the meaning of s. 686(1)(a) of the Criminal Code, and possible application of the curative proviso in s. 686(1)(b): Abdullahi at para. 33. The curative proviso is considered only if an error of law has been identified, and addresses whether the error can be “cured” because it does not justify setting aside the verdict. The curative proviso imposes a heavy burden on the Crown, which can only be satisfied where: (i) the error is harmless, or (ii) despite the error, the case against the accused is “overwhelming”: Abdullahi at para. 33, citing R. v. Sarrazin, 2011 SCC 54 at para. 25.
[46] Mr. Hawco submits that the impugned instruction, in which the trial judge effectively directed the jury to make findings on disputed facts based on a balance of probabilities, constituted a clear error of law in relation to the “fact-finding process” as discussed in R. v. Subramaniam, 2022 BCCA 141.
[48] In Subramaniam, the trial judge’s instructions included a passage that was quite similar to the impugned direction in the case at bar. In explaining the concept of reasonable doubt, the charge instructed:
If you accept evidence as being probably true, or more probably true than not true, then you must take that evidence as proof of a fact. The use of the “beyond a reasonable doubt” standard comes at a later stage of your analysis, when you consider whether all of the evidence – both the facts you have found, based on evidence accepted by you as probably true, and evidence you do not believe, or have rejected, or are uncertain about – leaves you with reasonable doubt as to Mr. Subramaniam’s guilt.
[Emphasis in original.]
[49] This Court concluded that the trial judge erred in law in his description of the “fact-finding process” in providing the above-noted instruction….
[50] The crux of the Court’s reasoning was that the charge as a whole could be taken to include an invitation for the jury to place evidence into two “piles”, the first comprising that which the jury accepted as probably true, or more probably true than not true, and the second comprising that which they did not accept. The judge’s instruction may well have left the jury with the impression that evidence falling into the former “pile” must be taken as proof of the fact to which it related: Subramaniam at para. 70. Thus, there was a “reasonable likelihood that the jury may have misapprehended the standard of proof” by concluding that a fact central to the accused’s guilt could be established on a balance of probabilities, rather than proof beyond a reasonable doubt: Subramaniam at para. 71.
[55]….in my view, the impugned instruction — which is indistinguishable in substance from the flawed description of the fact-finding process in Subramaniam — does not stand on its own. Its problematic approach is reinforced in the judge’s suggested “process” for deliberation. For ease of reference, I repeat para. 229 of the written charge, which reads as follows:
[229] Here is a suggestion about a process that may assist you in arriving at your verdict:
(a) First, review all of the evidence, including all the exhibits you will have with you in the jury room;
(b) Second, list the particular pieces of evidence next to the applicable element or ingredient that makes up the offence as I described it to you;
(c) Third, decide what evidence you believe and what evidence you do not believe;
(d) Fourth, determine the facts you find from that evidence; and
(e) Fifth, apply the law that I gave you to the facts you find and decide whether they prove each element or ingredient that makes up the offence beyond a reasonable doubt or whether they raise a reasonable doubt as to the guilt of the accused.
[56] This instruction bears some similarity to a model instruction found in Gerry Ferguson et. al., Canadian Criminal Jury Instructions, (Vancouver: The Continuing Legal Education Society of British Columbia, 2005…
[58] There are several material differences between the model instruction and the one given to the jury in this case. First, the model instruction explicitly informs the jury that there is no “fixed routine” they must follow in arriving at their verdict. By contrast, the instruction in the case at bar suggested a process, without any express language that would make it clear to the jury that there was no “fixed” order in which they must carry out their task of evaluating the evidence to determine whether the Crown had met its burden of proving guilt beyond a reasonable doubt. Indeed, as explained below, the judge’s erroneous instructions on reasonable doubt (written charge at para. 30) expressly invited the two-step process cautioned against in the footnote.
[59] Second, the trial judge in the case at bar added a step to the suggested “process”. In subparagraph 229(c), the judge added the following: “[t]hird, decide what evidence you believe and what evidence you do not believe”. This reinforces the erroneous instruction on fact-finding, where the judge told the jury that if they accept evidence “as being probably true, or more probably true than not true”, then they must accept that evidence as proof of a fact….
[60] Third, I return to footnote (1) of the model instruction, which cautions that it is “wrong to instruct the jury to proceed in two steps”, by first deciding individual facts, and then determining in a separate step whether the legal elements of the charge have been proven beyond a reasonable doubt. This is precisely what the trial judge did in his erroneous instruction on fact-finding (written charge at para. 30). Immediately after telling the jury that disputed facts had to be determined on the basis of what was “probably true, or more probably true than not true”, the judge went on to say, “[t]he application of the ‘beyond a reasonable doubt’ standard comes in at a later stage in your analysis”.
[61] In my view, the erroneous instruction on fact-finding, coupled with the modifications to the model charge on the deliberation process, did not properly equip the jury to decide the case according to the law and evidence. As part of his general description of reasonable doubt, the judge told the jury that disputed facts had to be determined on the basis of probability, and that reasonable doubt was to be assessed “at a later stage in [the jury’s] analysis” (written charge at para. 30). In suggesting a “process” for determining their verdict, the judge invited the jury to “decide what evidence [they] believe and what evidence [they] do not believe”, then determine the facts they find from that evidence, then apply the law “to the facts [they] find”, and thereafter decide whether the elements of the offence are proven or “whether they raise a reasonable doubt” (written charge at para. 229). The idea that the jury ought to embark upon a two-step process of initial fact-finding followed by a separate determination of reasonable doubt based on the facts as found germinated in the instruction on fact-finding and was reinforced by the instruction on the deliberation process. [Emphasis by PJM]
[62] One must keep in mind that the key issues in this case were: (i) the credibility and reliability of the trial testimony of Mr. Hawco and KT, (ii) whether KT consented to the sexual activity, and (iii) alternatively, whether Mr. Hawco honestly believed that KT communicated her consent through her actions. Each of these issues involves disputed facts. The jury may well have been under the impression that they were obliged to make factual findings based on an assessment of what was probably more true than not true.
[64] On a functional reading of the instructions as a whole, I see a significant risk that the jury was left with the impression that they had an obligation to first make findings about contested facts on a balance of probabilities, and then take those facts as proven for the purposes of deciding whether the Crown had established the essential elements of the offence. This did not equip the jury to properly decide the case according to the law and the evidence.[Emphasis by PJM]
[65] I conclude that the trial judge erred in law in misdirecting the jury as to the fact-finding process they were to follow in reaching their verdict. I also find that this is not a proper case for the application of the curative proviso….
[66] I would allow the appeal, set aside the jury’s verdict, and order a new trial. Given this conclusion, it is unnecessary for me to address Mr. Hawco’s second ground of appeal, but I will discuss it briefly as it was a matter of importance between the parties.
R v Weatherston, 2026 YKCA 5
[March 20, 2026] Sexual Assault – s.276/Kinamore Sexual History and the Continuing Obligations of the Trial Judge [Reasons by Abrioux J.A. with MacPherson and Gomery JJ.A. concurring]
AUTHOR’S NOTE: This case turns not on the initial s. 276 ruling, which may itself have been questionable, but on the trial judge’s failure to properly manage sexual history evidence that emerged during the Crown’s cross-examination of the accused.
The defence had unsuccessfully sought to introduce evidence that the relationship between the accused and complainant was open, a fact directly relevant to the Crown’s theory that the accused reacted with rage to the complainant’s sexual encounter with another man and later obtained compliance through fear.
Despite that ruling, the Crown’s cross-examination ventured into precisely that territory. The accused was confronted with suggestions that:
- the complainant’s sexual activity with another man meant she would not be interested in sex with him; and
- the relationship was monogamous—a proposition the accused denied.
This line of questioning effectively opened the door to the very evidence that had been excluded under s. 276. At that point, the trial judge was required to revisit the admissibility issue through a further voir dire. Instead, the proceedings became mired in procedural uncertainty, and no proper reassessment occurred.
The ultimate remedy—an instruction directing the jury to ignore aspects of the accused’s evidence relating to the nature of the relationship—was inadequate. It left the accused unable to respond meaningfully to the Crown’s theory, particularly on the issue of motive and state of mind (i.e., why he would not have been angered by the complainant’s conduct if the relationship was, in fact, open).
By failing to conduct a renewed s. 276 analysis in light of how the evidence actually unfolded at trial, the judge deprived the accused of the right to make full answer and defence. The fact that both Crown and defence ultimately treated the issue as unobjectionable did not cure the error.
Introduction
[1] In September 2024, a jury found the appellant, Leslie Weatherston, guilty of one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. The conviction pertained to an incident that occurred while the appellant and the complainant were ending their long-term relationship.
[2] The appellant challenges his conviction on the basis that the trial judge erred in:…
….(2) failing to rectify adequately a Crown violation of the s. 276 order which occurred during the appellant’s cross-examination, such that his ability to make full answer and defence was compromised;….
[3] For the reasons that follow, I would accede to the second ground of appeal, quash the conviction, and order a new trial
Background
[4] At the time of the alleged sexual assault, the appellant and complainant had been in a relationship for approximately four years. They did not live together. They each testified and had different accounts as to the circumstances of the alleged assault.
[6] According to the complainant’s testimony, she told the appellant on December 18, 2020 that she had been with another man, to make it clear that the relationship was over. He then became angry. She further testified that the appellant demanded to know the identity of the other man and threatened violence against him. She believed the appellant was capable of carrying out his threats; she testified that she had experienced mental abuse during the relationship, and the appellant had told her stories about things he had done in the past. This included an incident in which a man had stolen his truck at a party. According to the complainant, the appellant told her that he had beaten the man “until he bled”, and the man had been hospitalized as a result.[Emphasis by PJM]
[7] The complainant testified that she went to the appellant’s home a few nights later in order to seek closure of the relationship. When she entered the house, he was sitting on the couch. He did not say anything but was looking at her with “dead eyes”. According to the complainant, she could see “anger and madness”. The appellant told her to take her clothes off and go to the bedroom. She testified that she “froze” and thought about how the appellant had threatened the man with whom she had been unfaithful. She did what the appellant told her to do. He followed her into the bedroom, where the alleged sexual assault occurred.
[8] The complainant could only recall some details about the incident, explaining that she “was somehow not there anymore”….
[12] The appellant testified. He denied sexually assaulting the complainant and maintained that he believed the sexual encounter was consensual. He stated that a few nights before the alleged sexual assault, the complainant disclosed that she had been with another man but that she did not end the relationship with him at that time. He testified that learning of her infidelity made him sad, but he denied that he was angry or that he threatened to assault the other man.
[13] The appellant testified that he invited the complainant over to his home for dinner a few nights later. He described how, after the complainant removed her parka, he told her to take her clothes off and head to the bedroom. She said “yes, okay”, and went into the bedroom. The appellant testified that they undressed each other and embraced, leading to the alleged assault.
The Seaboyer and s. 276 pre-trial applications
[16]….The Crown sought to introduce evidence about what had occurred a few days before the alleged sexual assault—that is, that she told the appellant she had slept with someone else, and that upon hearing this, the appellant became angry and threatened to assault the other man.
[18]….The evidence was for the purpose of proving that the appellant knew the complainant had ended their relationship when she disclosed her infidelity. The Crown sought to limit the appellant’s cross-examination of the complainant to the conversation about the alleged infidelity, without eliciting any details about the alleged infidelity itself.
[19] The appellant filed a cross-application under s. 276 of the Code. On the condition that his proposed s. 276 evidence be admitted at trial, he did not oppose the admission of the Seaboyer evidence. He sought to adduce evidence that during the summer of 2020, he was taking medication that impacted his sexual function and his libido. As a result, he and the complainant had an “open relationship” at the time so she could have sexual relationships with other partners. According to his testimony, he was the one who suggested the open relationship.[Emphasis by PJM]
[20] In support of the appellant’s application, he filed an affidavit stating that he and the complainant agreed to the open relationship around August 2020. The appellant also said that:
he requested the complainant not tell him anything about the other relationships she was having;
in the autumn of 2020, the appellant’s medications were adjusted and his libido returned; and
after his libido returned, he and the complainant resumed being a monogamous couple.
[21] The appellant argued that if the Seaboyer application were granted, he should be permitted to testify about the open relationship, in order to explain why he did not become angry or threaten the other man upon learning of the complainant’s infidelity a few days before the alleged sexual assault. He did not seek to lead any details of the complainant’s other sexual relationships or whether she had engaged in any other sexual relationships at all.
[22] The judge granted the Seaboyer application but dismissed the appellant’s s. 276 application.
[24] In dismissing the s. 276 application, the judge found that, on the appellant’s own evidence as stated in his affidavit, he and the complainant had returned to a monogamous relationship by the autumn of 2020, prior to the date of the alleged sexual assault. Accordingly, “[t]he reason Mr. Weatherston gave to explain why he would not have gotten angry was no longer applicable”.
[25] The judge also observed that, by telling the appellant about her infidelity, “the complainant had violated Mr. Weatherston’s request that he not be told anything about who she was seeing or what they were doing together. The judge concluded that, “[t]he evidence cannot therefore be used to attack the complainant’s evidence that Mr. Weatherston got angry and she became frightened”, and was therefore irrelevant. Given her finding that the evidence was not relevant to an issue to be determined at trial, the trial judge did not review the factors in s. 276(3) of the Code for admission of the evidence.
Issues on Appeal.
Issue 1: Did the judge err in her s. 276 order?
[55] Regarding this first ground of appeal, I would conclude that it is not necessary to decide whether the judge committed a reviewable error in dismissing the s. 276 application. This is because the dismissal did play an important role in what later transpired during the trial, which brings me to the second ground of appeal and my conclusion that it should result, on a stand alone basis, in the appeal being allowed.
Issue 2: Did the judge err by not properly managing the trial following the Crown’s improper cross-examination such that the appellant’s right to make full answer and defence was compromised.
[56] The appellant testified at the trial. This ground of appeal arises as a result of what transpired during his cross-examination. The appellant submits that the judge erred in her management of the trial after the appellant was cross-examined in a manner that breached the s. 276 order. As I will explain, the Crown put questions to the appellant that the parties on appeal agreed inappropriately caused him to discuss the alleged agreement to have an open relationship. What the appellant was permitted to say was limited and unconvincing.[Emphasis by PJM]
[57] This ground of appeal includes whether the judge erred by :
a) failing to reconsider the s. 276 ruling on the basis there had been a material change of circumstances;….
Standard of review
[59] In R. v. Samaniego, 2022 SCC 9, Justice Moldaver explained:
[25]Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.
Background
[63] I will set out the sequence of the impugned cross-examination in its entirety:
Q So the — the truth is, though, that you knew that that day [the complainant] wasn’t coming over for sex, didn’t you?
A Can you —
Q That wasn’t the purpose of the visit.
A Can you repeat the question, please?
Q Sure
So you knew on that day that the purpose of [the complainant] was coming over that day wasn’t for sex, was it?.
A Not solely. That’s —
Q Well, you’d said that you invited her for dinner.
A That’s correct.
Q Okay. So she was coming over for dinner.
And you knew that she wasn’t coming over for sex because she just told you a short time earlier that she’d had sex with someone else, so she wasn’t interested in having sex with you.
A How do you know that? That’s untrue. You’ve made that up.
Q I’m just putting that question to you.
A Don’t put those — yeah. That’s not my words.
So I guess reframe the question so I can understand it.
Q Sure.
So you knew that [the complainant] wasn’t interested in having sex with you because she had told you that she’d had sex with another man.
A I did not know that.
Q But you did know she had sex with another man.
A That’s correct.
Q Okay. So by implication, then, she’s not interested in having sex with you. She’s —
A That is untrue.
Q And she didn’t want to be with you any more.
A That is untrue.
Q Is it untrue that she didn’t want to be with you any more or are you saying it’s untrue that you knew that when she came over?
A I knew that we were together at that point when she was coming over. I did not know that — I knew that she had slept with someone else. I did not know that she didn’t want to sleep with me.
Q But your — so you’ve said because she was coming over, you knew that you were together.
A Not for that reason. We were — I knew we were — we were still together. We didn’t break up until August 15th, 2021 — ‘2 — ‘1.
Q So — all right…..
So when she told you that she had sex with another man, you didn’t interpret from that anything suggesting that your relationship was in trouble, at the very least?….
A No.
Q So this was just a bump in the road, like nothing at all?
A What was a bump in the road?
Q That she’d been sexually involved with someone else? So this didn’t seem to suggest to you that there was an issue in the relationship, at the very least, that things were in trouble?
A There was issue with the relationship, but we had discussed her and her friend, her sexual partner, and I had no problem with it.
Q You did understand, though, your relationship to be a monogamous relationship at that time.
A No. That’s untrue.
Q The — I need to be somewhat careful here because, as you know, there were previous litigation regarding what could be discussed in this particular proceeding.
And I have here a copy of an affidavit that was sworn by you on — in April of 2024 that states that you were in a monogamous relationship, from your perspective, anyway, with [the complainant].
So I will show you this, but please review the document and let me know whether you agree with that or not. I’m just being careful here at this point in time. Please don’t read out loud any of the content of the document.
A Is the question whether — are you asking me whether [the complainant] and I were in a monogamous relationship? If so, the answer is no.
Q The question is that — and that I’ve now asked you — I know you answered that question, which I found rather surprising, because I am now going to show you a document, an affidavit that you swore in April 23rd, 2024 that suggests you were in a monogamous relationship with [the complainant].
A It suggests it or it says it?
Q Well, when you read it in its entirety, I would have to say that is the conclusion that is drawn.
So I’m going to show it to you to review.
[Emphasis added.]
[64] At this point, the appellant’s trial counsel, Mr. Campbell, objected and submissions took place in the absence of the jury.
[65] The Crown having elicited evidence about the nature of the relationship, that is monogamous or “open”, the appellant’s trial counsel expressed concern about the fairness of the trial. He explained that the purpose for which he had initially sought to adduce the s. 276 evidence was to rebut the complainant’s testimony that the appellant was angry when she told him she had been with another man. Without this evidence, the appellant did not appear to be credible. His counsel pointed out that the Crown asked the appellant whether he and the complainant were monogamous in December 2020, despite knowing that he was prohibited from fully explaining his answer due to the s. 276 order. This, the appellant submitted, was fundamentally unfair. The appellant requested that he now be permitted to adduce the s. 276 evidence in order to explain why he was not angry when the complainant disclosed her infidelity.[Emphasis by PJM]
[66] The judge noted that while she could revisit the s. 276 application, since “[w]ith change of circumstances, that’s not the issue”, she ultimately decided not to do so, in part because the complainant had completed her testimony. Accordingly, the judge suggested that the best approach would be to instruct the jury to ignore the Crown’s question and the appellant’s answer.
[67] The Crown took the position that, in the appellant’s affidavit on the s. 276 application, he had stated that he and the complainant resumed their monogamous relationship in the autumn of 2020. Thus, the appellant was inconsistent when he testified in cross-examination that they were not monogamous in December 2020.
[69] The judge then said she was of the view that there was no direct contradiction between what the appellant testified to on cross-examination and what was contained in his affidavit, since “autumn” covered a broad time period, including most of December….
[70] The judge asked the parties for suggestions as to how to proceed. Mr. Campbell suggested that although “[i]t leaves a big question mark in the jury”, he could, in re-examination, ask the appellant whether there was a reason why the appellant was not angry and devastated when the complainant disclosed her infidelity. The appellant could provide an answer but not get into any explanatory details. The judge could then give the jury a mid-trial instruction explaining that legal rulings had limited the appellant’s ability to state his reasons for not being angry or devastated about the infidelity. The Crown and the judge agreed with this proposal.
[71] At this point, the complainant’s counsel, Ms. Bogle, who had been observing the trial, advised the judge that she was concerned that any evidence that would now be put before the jury could impact the complainant’s privacy rights….
[73] The judge acknowledged that evidence of the complainant’s monogamy or non-monogamy could impact the complainant’s privacy rights and adjourned for the day to consider whether to reopen the application. In so doing, she described the issue before her as “absolutely not a 276 application at this point because, as Mr. Campbell said, it’s really a Seaboyer, an inadvertent Seaboyer, maybe, if all that makes sense”.
[75] The judge proposed a plan as to how to proceed, stating she would allow submissions from counsel on her proposal. She explained that, in re-examination, defence counsel could ask the appellant a direct question:
The cat is out of the bag, so what — subject to what everybody says, what my suggestion is that Mr. Campbell specifically say — specifically ask him about that under the yes/no basis and state something along the lines of, “On cross-examination, you denied being overly upset about [the complainant] being with someone else. You also testified that you were non-monogamous. Is that why you were not overly upset; yes or no?
[Emphasis added.]
[76] The judge also proposed that she would then provide a limiting instruction to the jury about the use they could make of the appellant’s evidence that he and the complainant were in a non-monogamous relationship.
[77] The Crown then advised that the parties had conferred and agreed to a different solution than the one suggested by the judge:
MS. LAURIE: So we — this — we had actually spoken — counsel had an opportunity to speak yesterday about this and our proposal was going to be a different one.
THE COURT: Go ahead.
MS. LAURIE: And that was to provide an instruction — a limiting instruction or mid-trial instruction, I should say, that that last portion, so the question and the answer and then I started to begin to frame another question, of course, afterwards, must be disregarded.
THE COURT: Okay.
MS. LAURIE: — and one of the main reasons being is that, otherwise — none of that has been put to the complainant to respond to and also.
THE COURT: And I recognize that.
MS. LAURIE: Yeah. And of course, it does — as Ms. Bogle had raised yesterday, that insinuation that that was the nature of their relationship does, of course, engage her privacy interests.
So essentially, that’s what the proposal was going to be so that we were no longer then — so obviously, then, not reopening, you know, the Seaboyer issue or anything of that nature, backing away from.
THE COURT: So the — okay. So the non-monogamy would be completely eliminated at that point.
MS. LAURIE: Right.
THE COURT: It would be disregarded.
And Mr. Campbell, you’re on board with that?.
MR. CAMPBELL: Yes. And I would — and my friend and I — well, I wrote out a question and reviewed it with — which is essentially the first part of what you said.
THE COURT: Okay
MR. CAMPBELL: So I’m —
THE COURT: That is fine, then
THE COURT: So if you are all content to — to have the jury disregard that, then we can have you have that question.
Okay. That works for me.
The parties’ positions
[83] The appellant argues that the Crown’s breach of the order arising from the Seaboyer/s. 276 Ruling underscores why the evidence of the appellant and complainant’s open relationship agreement ought to have been admitted from the outset…..
….During cross-examination, the Crown “effectively cornered” the appellant, suggesting that he would have been angry because he and the complainant had returned to a monogamous relationship by December 2020. Relying on T.W.W. at para. 27, the appellant says that in these circumstances, the evidence of the agreement to have an open relationship was clearly necessary “to respond to a specific issue at trial that could not be addressed or resolved in the absence of that evidence”. This was, he argues, precisely the kind of situation contemplated under the s. 276 regime.
[84] The appellant also argues:
a) The remedy proposed by the parties and which was accepted by the judge did nothing to cure the prejudice that had already occurred.
b) Similarly, the re-examination of the appellant did not remedy the prejudice, and arguably exacerbated it.
c) The Crown spent a significant portion of her closing address on the issue of the appellant’s alleged anger upon learning of the complainant’s infidelity. The judge’s final instructions to the jury did not alleviate the prejudice.
Legal framework
[89] The framework which applies to this ground of appeal is well established. Judges have an inherent discretionary trial management power to control the court’s process and ensure that trials proceed in an effective and orderly fashion: R. v. Samaniego, 2022 SCC 9 at para. 20.
[90] This includes a discretionary power to declare a mistrial where inadmissible evidence is disclosed to the jury in a way that affects trial fairness: R. v. Chiasson, 2009 ONCA 789 at para. 14. However, the power to declare a mistrial should only be exercised where there is a “real danger” that trial fairness has been compromised: R. v. Barra, 2021 ONCA 568 at para. 147. A mistrial should only be declared in the “clearest of cases” where there has been a “fatal wounding of the trial process” which cannot otherwise be remedied: R. v. Dueck, 2011 SKCA 45 at para. 30.
[91] Trial fairness is intrinsically linked with, and derives from the same procedural concerns as the ability for an accused to make full answer and defence: R. v. J.J., 2022 SCC 28 at para. 123.
Discussion
Analysis
[97] While the circumstances are different in this case than those in R. v. Avila, 2025 BCCA 5, Justice DeWitt-Van Oosten’s comments, in my view, also apply here:
[77] I agree with the appellant that the Crown-led evidence of other sexual activity was not properly managed at the trial. After opposing the s. 276 applications, Crown counsel should not have elicited the evidence of other sexual activity that it did and, importantly, seek to use that evidence in support of an inference of guilt without first seeking a Seaboyer voir dire. Furthermore, as the gatekeeper of the trial and having twice rejected a s. 276 application brought by the defence, the judge should have more closely monitored this aspect of the Crown’s cross-examination, stopped it when it began to move into other sexual activity, and canvassed the necessity of a Seaboyer inquiry: R.V. at para. 78. The law is clear that the considerations underlying s. 276 of the Criminal Code apply “… irrespective of which party has led the prior sexual activity evidence”: Barton at para. 80; R.V. at para. 78. It is the responsibility of the trial judge to independently “… guard against twin-myth reasoning as well as prejudice to the complainant, the trial process and the administration of justice”: R.V. at para. 78.
[Underline emphasis in original; italics emphasis added.]
[98] In my view, the evidentiary landscape had changed significantly from when the s. 276 application was dismissed—which was before the trial proceeded in the presence of the jury—to the point when the Crown’s impugned cross-examination occurred.
[99] At the time of the Seaboyer/s. 276 Ruling, the nature of the relationship, on the appellant’s own affidavit evidence, was determined by the judge not to be relevant to an issue at trial.
[100] By the time of the appellant’s cross-examination, the complainant had testified and the Crown had closed its case. The complainant had testified to the appellant’s anger when she told him of the affair—her evidence was that, on the evening of the alleged sexual assault, she could see “anger and madness”.[Emphasis by PJM]
[101] For his part, in direct examination the appellant testified he felt “sad” when the infidelity was disclosed to him.
[102] When one considers the entirety of the transcript of the Crown’s crossexamination leading to the admitted improper questioning, counsel’s ultimate goal in the line of questioning is clear. The Crown was attempting to impeach the appellant’s statement that he “had no problem” with being advised of the affair and to show that he was, in fact, angry or in a rage with the complainant.
[103] The Crown’s attempt to impeach the statement is evidenced by the impugned exchange between Crown counsel and the appellant about the affair….
[104] Crown counsel then stated that she needed to be “somewhat careful here because, as you know, there was previous litigation as to what could be discussed in this particular proceeding”. It was at this point in the cross-examination that Crown counsel identified the appellant’s affidavit in support of the s. 276 application. She told the appellant that the affidavit “states you were in a monogamous relationship,from your perspective anyway”. She said she was going to provide a copy to him, and told him not to read it out loud.
[105] Then, the following exchange occurred:
A Is the question whether — are you asking me whether [the complainant] and I were in a monogamous relationship? If so, the answer is no.
Q The question is that — and that I’ve now asked you — I know you answered that question, which I found rather surprising, because I am now going to show you a document, an affidavit that you swore in April 23rd, 2024 that suggests you were in a monogamous relationship with [the complainant].
[106] The affidavit was thus referred to not once, but twice by Crown counsel. First, when the nature of the relationship was referenced as “a monogamous relationship, from your perspective anyway”, and on a second occasion within the context of “a document … that suggests you were in a monogamous relationship with [the complainant]”.
[107] Accordingly, the judge was required to deal with defence counsel’s concerns as raised in his objection. On that basis, the circumstances now differed from how they stood at the time of the s. 276 application. Crown counsel had now made the non-monogamous nature of the relationship relevant to an issue at the trial, that is the appellant’s reaction when advised by the complainant of the affair with the other man. The evidence of non-monogamy was not being advanced for the purposes of twin myth reasoning, but rather to assess the credibility of the parties’ testimony about the appellant’s reaction to being advised of the affair—that is, whether he was “sad” as he had just stated in his direct examination or “angry”, “in madness”, or in a “rage” as stated by the complainant in her evidence.[Emphasis by PJM]
[109]….The remedy that was implemented: (1) did not instruct the jury to disregard the Crown’s reference to “previous litigation”; (2) still failed to give the appellant a proper opportunity to respond about why he felt “sad” rather than “angry”; and (3) left the jury with a prejudicial impression of the appellant, which the judge herself had recognized and described as “Mr. Weatherston has looked to be not particularly credible with regards to not being upset and he has now stated they were not in a monogamous relationship..
[115] And, at this juncture, the Mid-Trial Instruction itself bears repeating:
You heard testimony yesterday from Mr. Weatherston that he and [the complainant] were in a non-monogamous relationship. Please disregard the Crown’s question with regards to that and Mr. Weatherston’s answer.
I will also remind you at this point that what counsel says is not evidence. Only what the witnesses say is evidence. [Emphasis by PJM]
[116] Notably, the Mid-Trial Instruction did not specifically instruct the jury to disregard the references to the “previous litigation regarding what could be discussed in this particular proceeding”, or to the references to the appellant’s affidavit. It only addressed the issue of non-monogamy being before the jury and did not allow the appellant to give evidence that could arguably repair the obvious credibility issues he faced. [Emphasis by PJM]
[117] Following the Mid-Trial Instruction and the completion of the Crown’s crossexamination, the defence re-examination took place. The last impression the jury had of the appellant was the following interaction:
Q …Without getting into the reason of why you were not feeling angry or betrayed, et cetera, can you tell us if there was a reason why you did not feel angry, betrayed?
A Yes, there was a reason that I was not upset, angry. Yes.
Q Okay. Thank you.
Those are all my questions. [Emphasis by PJM]
[118] Thus completed the remedy—being the Mid-Trial Instruction and limited question put to the appellant in re-examination. In my view, this fell short of safeguarding the appellant’s right to make full answer and defence. [Emphasis by PJM]
[119] On appeal, the appellant submits that the re-examination did not remedy the prejudice, and arguably exacerbated it. I agree. A simple assertion by the appellant that he had a reason for not being angry—without being permitted to explain that reason—did not enable the jury to properly assess his credibility on this issue. On the contrary, it may well have invited speculation as to what the reason was and why it had not been disclosed. The jury may have drawn a negative inference against the appellant, concluding that, because he did not provide his reason, it must not be one that could assist him.
[126] But the appellant did have the right to provide that explanation, nonetheless. As a result, I would conclude that, in the circumstances, the appellant was deprived of his right to make full answer and defence. His purported anger or rage was central to the Crown’s case. He was not given the opportunity to provide an explanation as to why he was not angry or in a rage and as a result, the jury could not properly assess his credibility on this central issue.[Emphasis by PJM]
[127] Respectfully, the judge erred in failing to appreciate that the Mid-Trial Instruction and the limits on the re-examination of the appellant would not adequately protect trial fairness. There was a “real danger” to trial fairness such that a mistrial could have been warranted in these circumstances: Barra at para. 147.
[129] First of all, the judge could and should, in my view, have revisited the s. 276 ruling based on there being, at this stage of the trial, a material change in circumstances. While the judge did refer to a “change in circumstances” (see para. 66 above), she did not consider further the material change of circumstances requirement and apply that framework to the circumstances that existed at the time, being the Crown’s violation of the s. 276 ruling.
[130] As the Chief Justice explained in Kinamore:
[57] The judge may, either on their own initiative or at the request of either party, revisit this admissibility ruling when there is a material change in circumstances, such as when a witness’s testimony evolves during the course of a trial (T.W.W., at para. 51).
[Emphasis added.] [Emphasis by PJM]
[131] Respectfully, I do not understand how the judge could not have appreciated that what she was required to do was to consider “on her own initiative” whether she should revisit the s. 276 ruling. [Emphasis by PJM]
[134] The reality of what had occurred was this. In response to the Crown’s improper questioning of the appellant, he requested that he be permitted to call evidence that he had previously been told in the s. 276 ruling he could not adduce, that is evidence of the open relationship. Logically, in my view, no matter how it was characterized by defence counsel, this was a request to re-open the s. 276 application. As a result of its impugned cross-examination of the appellant, the Crown had opened the door, in the presence of the jury, as to the nature of the relationship between the parties, that is monogamous or “open”, which amounted to a material change in circumstances: Kinamore at para. 57.
[137] I am also of the view that what occurred after the Mid-Trial Instruction and the appellant’s re-examination only aggravated the situation in that the trial remained fundamentally unfair.
[138] In her closing address, counsel for the Crown referred in some detail to the issue of the appellant’s alleged anger upon learning of the complainant’s infidelity:
He asks you to believe that when he found out the woman he loved had sexual relations with another man behind his back he was sad and upset, but not very upset, that he did not feel betrayed, that he did not feel he’d been wronged, that he did not even feel she’d broken his trust, and that aside from being curious as to who the man was, he had no interest in him whatsoever. But this is no honest answer.
Mr. Weatherston was, in fact, furious that [the complainant] had been with another man, but he’s covering that up because he’s worried that it will make him look bad. He’s telling you what he thinks you want to hear, not what is true.
[Emphasis added.]
[139] At no point did the Crown suggest to the appellant during cross-examination that he was lying about his reaction to the infidelity to avoid “look[ing] bad” at trial. Moreover, it was unfair for the Crown to suggest to the jury that the appellant was being dishonest for this reason, while fully aware that he had an explanation he was prohibited from adducing due to the s. 276 order, and the judge’s mid-trial attempts to otherwise remedy the situation.
[142] Moreover, the judge also instructed the jury that they may consider the impact of the purported infidelity on the complainant’s relationship with the appellant:
You may use the evidence that [the complainant] told Mr. Weatherston that she had been with someone else, but only to help you decide the impact that statement had on the relationship, how Mr. Weatherston reacted at the time of the revelation and afterwards, and Mr. Weatherston’s understanding of the state of the relationship on the evening in which the sexual activity for which he is charged took place.
You may not use this evidence for any other purpose. Specifically, you may not use this evidence to infer that, because of the sexual nature of what happened earlier in the relationship, [the complainant] is more likely to have consented to the sexual activity with which Mr. Weatherston is charged or that [the complainant] is less worthy of belief. These inferences are based on myths on sexuality that have no place in our law.
[Emphasis added.]
[143] The problem with this instruction is apparent. How could the jury consider “the impact that statement had on the relationship” and “how [the appellant] reacted at the time of the revelation and afterwards”, without knowing whether the nature of the relationship was monogamous or not, in whole or in part at the material time?
[148] I acknowledge that the appellant’s trial counsel agreed to the proposal that the judge ultimately implemented. The appellant also did not object to the Crown’s submissions in which she outlined his theory of the alleged sexual assault. Nor did he object to the Mid-Trial Instruction or the portion of the charge to which I have referred. All this, however, is secondary to the trial judge’s overall responsibility to manage the trial and ensure that it remains fair—regardless of whether a party fails to object at trial: R. v. Khill, 2021 SCC 37 at para. 144. Nor is a party’s consent to a particular jury instruction determinative of whether the charge was appropriate in the circumstances of the case: R. v. Barton, 2019 SCC 33 at para. 49; R. v. Pirko, 2023 BCCA 120 at para. 67. It remained the judge’s responsibility to ensure that trial fairness was restored and preserved. [Emphasis by PJM]
[149] Accordingly, I would conclude that the judge’s errors—in: (1) failing to revisit the s. 276 application; (2) providing an inadequate Mid-Trial Instruction; (3) allowing a re-examination that did not provide the appellant with the opportunity to give evidence that the jury needed to assess his credibility; and (4) providing a jury instruction that allowed them to consider the impact of the relationship between the parties without having evidence before them as to the nature of the relationship— rendered the trial unfair and prevented the appellant from presenting a full answer and defence to the offence with which he was charged. As Justice McLachlin (as she then was) observed in Seaboyer at 608:
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. As one writer has put it:
If the evidentiary bricks needed to build a defence are denied the accused, then for that accused the defence has been abrogated as surely as it would be if the defence itself was held to be unavailable to him.
(Doherty, supra, at p. 67).
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. [Emphasis by PJM]
[150] In my view, the errors in question were ones of principle and resulted from an unreasonable exercise of the judge’s trial management powers. Accordingly, they are not entitled to deference.
[158] This ground of appeal, standing alone, warrants a new trial.
Disposition
[160] On the basis of the second ground of appeal, I would allow the appeal, quash the conviction for sexual assault, and order a new trial.
