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The Defence Toolkit – January 10, 2026: After the Fact Demeanour

Accused Exculpatory Testimony - Fabrication | After the Fact Conduct | Bad Character Evidence

Posted On 10 January 2026

This week’s top three summaries: R v Townsend, 2025 BCCA 459: #after the fact, R v ZML, 2025 ONCA 872: accused #fabrication, R v Meeko, 2025 NUCA 12: #bad character

R v Townsend, 2025 BCCA 459

[December 22, 2025] After the Fact Conduct: Post Offence Demeanour [Reasons by Justice MacNaughton with Horsman and Fleming JJ.A. concurring]

AUTHOR’S NOTE: Frustration is an inherently ambiguous human emotion. It may arise from culpable conduct, but it may just as readily result from any number of ordinary, non-criminal interactions. In this case, the trial judge placed outsized weight on evidence that the accused punched a house in frustration, treating that conduct as consistent with having sexually assaulted the complainant.

The problem, as the appellate court identified, is that this conduct was equally consistent with innocent explanationsadvanced by the accused. When circumstantial evidence is equivocal in this way, it cannot ground an inference of guilt. As a matter of law, ambiguous after-the-fact behaviour is incapable of supporting a conviction, because it fails to exclude reasonable alternative explanations.

This decision reinforces the principle that emotional reactions—without more—cannot substitute for proof beyond a reasonable doubt.

Introduction

[1] The appellant, William Townsend, seeks to overturn his conviction for sexual assault, following a judge alone trial in the Supreme Court.

[4] On appeal, Mr. Townsend argues that the trial judge committed several errors of law in assessing the credibility of his evidence.

[5] For the reasons that follow, I would allow the appeal and order a new trial.

Factual Background

[6] L.D. was born and raised in Moberly Lake and had known Mr. Townsend since she was about 10 years old, but they were never friends. Mr. Townsend, who was several years older, testified that he did not know L.D. before the night in question.

[8] Once at Mr. Townsend’s home, the group sang Karaoke, and then played Sociables, a drinking game. They all consumed more alcohol as part of the game.

[9] L.D. said that, after a few more hours, she was tired and felt very intoxicated, and she asked Mr. Townsend if there was somewhere she could lie down. Mr. Townsend showed her to a bedroom where she could do so. T.P. followed them.

[10] L.D. and T.P. laid down on the bed. After about 15–20 minutes, T.P. left and went to her cousin’s house, across the street from Mr. Townsend’s, and L.D. went to sleep.

[13] L.D. testified that after she agreed that Mr. Townsend could lie down beside her, she rolled over so that her back was towards him. She said that Mr. Townsend then began complimenting her, touched and squeezed her breasts, and put his fingers in her vagina. She repeatedly told him to stop.

[14] She testified that Mr. Townsend then got on top of her, pulled her pants off and her shirt up, despite her asking him to stop. She said that, while she was on her back, he penetrated her with his penis, about three times, from a kneeling position.

[15] Mr. Townsend denied that he initiated any physical contact with L.D. and said that any contact would have been accidental when he was rolling around on the bed. He said that he was not interested in L.D.

[16] L.D. testified that she got Mr. Townsend to stop penetrating her by either kneeing or kicking him in the upper leg or groin area, after which she put her pants back on, grabbed her stuff, and ran out of the house.

[17] Mr. Townsend testified that he was awoken by a pain in his groin, severe enough for him to fall off the bed. He testified that he then noticed that L.D. had gone from the room, and so he got up to see what was happening. P.G. was sleeping, the living room was a mess, and he returned to his bedroom to find that his Xbox console was missing.

[18] He said that he went outside to see where L.D. was, and, although her car was there, he did not see her. He testified that he then began to have a panic attack—screaming and crying and punching the outside wall of his house.

[19] L.D. testified that, once she ran out of the house, she attempted to reach T.P. by phone. While outside, she saw Mr. Townsend punching the side of his house and appearing angry and upset. T.P. also saw Mr. Townsend, outside his house, with his head in his hands.

[20] L.D. and T.P. both testified that they drove to the hospital in Dawson Creek to the hospital, where L.D. spoke with police.

Trial Judgment

[21] The trial judge convicted Mr. Townsend. The trial judge disbelieved his evidence because:

b) He purported to have no romantic interest in L.D., but some evidence showed that he did. The fact that he would not admit to having any interest in L.D. was self-serving and intended to bolster his defense that he could not have done what was alleged because he was not interested in her (RFJ at para. 56).

e) His explanation for his behaviour outside the house (the punching, screaming, and crying)—that the house was a mess and his Xbox was missing—was not believable because he would have known the state of the house before going to bed, and in any case, the mess and the missing Xbox did not explain the severe reaction that he had (RFJ at paras. 59–60).

[22] The trial judge found L.D. to be a credible and reliable witness. Notwithstanding her level of intoxication, the trial judge found that almost all of her evidence about the events of that night was corroborated by other independent evidence, including, most importantly, Mr. Townsend’s and T.P.’s evidence (RFJ at paras. 64–66).

[26] The trial judge found that L.D.’s evidence was believable with regards to the evidence that the penetration occurred with her on the bed and Mr. Townsend on his knees, and that she could have kicked/kneed him from those positions. He held that “the accused and L.D. are both young and, from appearances, appear flexible” (RFJ at para. 70).

[28] The trial judge then listed five additional pieces of accepted evidence which he said corroborated L.D.’s version of what transpired. One was “the evidence that the accused was distraught after the alleged assault and was seen punching the house” (RFJ at paras. 73–74).[Emphasis by PJM]

[29] Considering all the evidence, the trial judge was satisfied beyond a reasonable doubt of Mr. Townsend’s guilt (RFJ at para. 76).

Issues on Appeal

[31] I have concluded that the appeal should be allowed on the basis of the trial judge’s improper reliance on Mr. Townsend’s post-offence conduct as evidence of his guilt….

Mr. Townsend’s explanation for his reaction outside the house

[32] Also going towards a negative credibility finding against Mr. Townsend, the trial judge stated:

[59] … the accused’s explanation for his behaviour outside the house, i.e., the punching of the house, is not believable. He says he was confused, which he attributed to finding his Xbox missing and the house being a mess. He testified he had a panic attack outside the house. I do not accept his evidence that his Xbox was missing and do not accept that he could have been surprised upon finding the house was in a mess. He was the last one to go to bed and would have known the state of the house.

[60] In any event, the missing Xbox and the house being a mess do not explain his severe reaction of crying, screaming, and punching the house.

Analysis

[41] As is the case with any other type of circumstantial evidence, the trial judge has discretion to determine the relevance and admissibility of an accused’s postoffence conduct (sometimes called “after-the-fact conduct”). However, the trier of fact may not draw an inference of guilt without considering alternative reasonable explanations for the post-offence conduct and must be alive to the special risks posed by such evidence: R. v. White, 2011 SCC 13 at para. 87; R. v. Calnen, 2019 SCC 6 at paras. 105, 116, 145.

[42] To avoid the danger that post-conduct evidence may invite the trier of fact to engage in imprecise reasoning and jump to questionable conclusions, a jury must be instructed to consider alternative innocent inferences: Calnen at paras. 116–117. The same concerns apply in a judge-alone trial: R. v. Tubic, 2024 ONCA 833 at para. 65.[Emphasis by PJM]

[44] After stating that he believed L.D.’s evidence over that of the accused, the trial judge said:

[72] … Even if I believe L.D., I must consider all of the evidence and determine if the accepted evidence establishes the guilt of the accused beyond a reasonable doubt.

[73] I also accept the following additional evidence:

a) The admitted fact that L.D. did not have genital discomfort before the alleged assault, but had genital discomfort after the alleged assault;

b) T.P.’s evidence that L.D. called her crying and seemed overwhelmed on the way to the hospital;

c) The fact that L.D. immediately drove to the hospital for a rape kit;

d) Dr. Meyer’s evidence that L.D. was tearful; and

e) The evidence that the accused was distraught after the alleged assault and was seen punching the house.

[74] In my view, the above accepted evidence corroborates L.D.’s version of what transpired.

[45] Reading the trial judge’s reasons as whole, the progression of his analysis makes it clear that he used the evidence listed in the subparagraphs of para. 73 (noted above) in support of the inference that Mr. Townsend was guilty of sexual assault.

[50] Aware of his task under W.(D.), the trial judge’s purpose in listing the additional evidence in para. 73 was to consider the totality of the accepted evidence to assess Mr. Townsend’s guilt. The structure of the reasons makes clear that the additional evidence listed in the subparagraphs of para. 73 (noted above) was intended to support an inference of guilt. As Mr. Townsend acknowledged, the evidence in the first four subparagraphs could appropriately be considered to corroborate L.D.’s evidence that a sexual assault occurred. However, the inclusion of Mr. Townsend’s post-offence conduct, in the fifth subparagraph, without consideration of the caution required with respect to an accused’s post-offence conduct, could not be appropriately considered for this purpose.

[53] I conclude that the trial judge was considering the evidence about Mr. Townsend’s post-offence conduct as part of the evidence leading to an inference of guilt.

[55] The Supreme Court of Canada clarified the law on the use of post-offence conduct in White. There, the accused was charged with second-degree murder. The only issue at trial was whether the accused possessed the requisite intent for murder, or whether he was instead guilty of manslaughter. In response to the defence’s theory that the accused accidentally shot the victim, the Crown submitted to the jury that, “…the accused ran immediately after the shooting. There is no hesitation here, no shock, no uncertainty on his part, just immediate flight. One would expect hesitancy if the shot was anything other than the intended action of Dennis White”. Mr. White was convicted by the jury and appealed his conviction on the basis that the trial judge erred by not sufficiently instructing the jury regarding the relevance of his post-offence conduct.

[56] The Court accepted that under certain circumstances, post-offence conduct can provide circumstantial evidence of an accused’s guilt, but, as with circumstantial evidence generally, its admissibility depends on its relevance (or probative value). The Court said:

a) The relevance of the conduct to the inference of guilt must be demonstrated: at para. 22.

b) Relevance is assessed case-by-case and is established where the conduct has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” [citation omitted]: at paras. 36–38.

c) Its prejudicial effect must not outweigh its probative value: at paras. 45, 50.

d) Relevance “depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial” and must not be “too equivocal”: at paras. 42–44.

[57] Where evidence of post-offence conduct is relevant and admissible for one purpose, the trial of fact needs to be mindful of its permissible use.

[58] Post-offence conduct evidence that is “too equivocal” to support a logical inference—such as one of guilt— “cannot meet the test of relevance because its meaning is speculative”: R. v. Merritt, 2023 ONCA 3, citing R. v. Schneider, 2022 SCC 34, at para. 39 and White at para. 44.

[59] Mr. Townsend’s explanations for his reaction outside the house were that: he had just been hit in the groin; his Xbox was missing; he was tired; his house was a mess, and L.D.’s car was outside, but she was nowhere to be seen. This evidence had to be assessed in the context of Mr. Townsend’s uncontested evidence that he was prone to anxiety.[Emphasis by PJM]

[60] In the circumstances of this case, the evidence that Mr. Townsend “was distraught after the alleged assault and was seen punching the house” was “too equivocal” to infer his guilt and there is no indication in the trial judge’s reasons that he considered other reasonable inferences that might explain Mr. Townsend’s conduct.[Emphasis by PJM]

[61] ….Although the trial judge did not accept that a messy house and a missing Xbox could cause Mr. Townsend’s distress, Mr. Townsend gave other explanations for his distress, and he was prone to anxiety to begin with. These other explanations were not considered by the trial judge.

[68] ….Mr. Townsend being distraught and punching the house was no more capable of supporting the inference of guilt than the evidence of Mr. Townsend being upset due to being hit in the groin; his Xbox being stolen; seeing his house in a mess; and seeing L.D.’s car there, but she was gone. This is especially so in light of his uncontradicted evidence that he had a history of anxiety.

[69] Moreover, Mr. Townsend’s explanation for his conduct was not disproportionate to the conduct itself. As stated, Mr. Townsend gave explanations for his distress that the trial judge did not address. Unlike in Calnen, these explanations are not out of proportion with Mr. Townsend’s reaction of screaming, crying, and punching the wall of his house.

[70] The trial judge gave no indication that he considered Mr. Townsend’s proportionate, plausible alternative explanations for his conduct outside the house before relying on that conduct to support an inference of guilt. He expressly did not undertake the reasoning process mandated by White and the other cases I have cited. This amounts to an error in the reasoning process that is an error of law: R. v. Simpson, 2002 BCCA 565 at para. 29.

Disposition

[71] For the foregoing reasons, I would conclude that the trial judge erred in law in relying on Mr. Townsend’s post-offence conduct to infer guilt, which justifies appellate intervention under s. 686(1)(a)(ii) of the Code. This error is presumed to be prejudicial to Mr. Townsend, and the Crown bears the burden of showing an absence of prejudice under the curative proviso in s. 686(1)(b)(iii) of the Code: R. v. Tayo Tompouba, 2024 SCC 16 at para. 57. As the Crown did not invoke the curative proviso, I would allow the appeal, set aside the conviction, and order a new trial.

R v Z.M.L., 2025 ONCA 872

[December 16, 2025] Independent Evidence of Fabrication by an Accused [Sossin J.A., with J. Copeland and S. Gomery JJ.A. concurring] 

AUTHOR’S NOTE: For an accused’s evidence to be characterized as fabrication capable of supporting an inference of guilt, there must be independent evidence of deliberate concoction. The same evidence used to disbelieve the accused’s account cannot, by itself, establish fabrication. Proof of fabrication must come from some separate evidentiary source.

This is a deliberately demanding standard—and rightly so. If fabrication could be inferred merely from disbelief, triers of fact would be permitted to move impermissibly from rejection of testimony to proof of guilt on the basis of the same evidentiary record. That reasoning would fundamentally undermine the presumption of innocence.

The law therefore insists that findings of deliberate fabrication remain difficult to make, ensuring that disbelief does not become a substitute for proof beyond a reasonable doubt. 

[2] ….The trial judge found that the appellant fabricated several exculpatory in-court statements, based on his mere disbelief of the appellant’s evidence, and without any independent evidence of fabrication. He then relied on his finding of fabrication as circumstantial evidence of the appellant’s guilt. This line of reasoning with respect to the in-court statements was in error because it is inconsistent with this court’s decision in R. v. Iqbal, 2021 ONCA 416, 406 C.C.C. (3d) 208. In Iqbal, this court held a trial judge must be satisfied that there is independent evidence of fabrication before they can transform their disbelief of an accused into circumstantial evidence that the accused’s account displays a consciousness of guilt.

[8] In the early morning hours of September 3, 2014, the group came across Mr. Wapoose, who was heavily intoxicated and leaning against a lamppost at the side of the road in Chapples Park. They had an initial encounter with Mr. Wapoose before walking on. After some time, some members of the group turned back to assault Mr. Wapoose.

[9] During this assault, J.M. administered a beating to Mr. Wapoose. At some point during the assault, J.M. stabbed Mr. Wapoose and dragged him to the ditch where his body was eventually found, though the order of these events was disputed at trial. L.Z. also stole Mr. Wapoose’s bicycle.

[10] J.M. was tried separately as an adult. Z.M.L was tried alone. L.Z. testified for the Crown at Z.M.L.’s trial. At trial, the appellant and L.Z. gave different accounts of the assault. Both testified that they were not involved in the beating and that it was the other who had participated. Both testified that it was the other who helped J.M. drag Mr. Wapoose into the ditch where he was ultimately found dead. J.M. was convicted of second degree murder in his separate trial.

2. The appellant’s evidence

[11] The appellant testified that J.M. and L.Z. had been talking about wanting to rob someone that night and that he attempted to dissuade them. His evidence was that L.Z. and J.M. robbed Mr. Wapoose of his backpack and bicycle upon their initial encounter. L.Z. then suggested to J.M. that the two go back to where Mr. Wapoose was laying because they needed to urinate. The appellant also testified that L.Z. wondered aloud if Mr. Wapoose had “seen their faces”.

[12] While J.M. and L.Z. were away, the appellant heard screams coming from the area where the group had first encountered Mr. Wapoose. The appellant, fearing for J.M. and L.Z.’s safety, went to investigate. From a distance of 30 to 40 feet, the appellant observed L.Z. and J.M. beating Mr. Wapoose on the side of the road. This lasted some five minutes. J.M. then stabbed Mr. Wapoose in the neck, and J.M. and L.Z. dragged Mr. Wapoose into the ditch where his body was recovered. The appellant also testified that he saw J.M. throw the pole with which he had beaten Mr. Wapoose into the ditch.

3. L.Z.’s evidence

[15] L.Z. testified that after the group’s initial encounter with Mr. Wapoose, it was the appellant who wanted to go back and rob him. L.Z. testified that the appellant and J.M. kicked and punched Mr. Wapoose on the road before dragging him to the ditch….

C. DECISION BELOW

1. Reasons for judgment

[16] At the close of the Crown’s case, the defence brought a motion for a directed verdict, seeking that the trial proceed on the lesser offence of manslaughter. The Crown joined in this motion, agreeing that there was insufficient evidence to support the appellant’s liability for murder. The motion was granted.

[17] Applying the framework from R. v. W.(D.), [1991] 1 S.C.R. 742, the trial judge concluded that the explanation for the appellant and L.Z.’s contradictory evidence was that the appellant had participated in the assault. That said, the trial judge believed that both L.Z. and the appellant were attempting to avoid culpability and that neither of them were telling the whole truth.

[18] The trial judge rejected the appellant’s evidence on several key points. He did not believe that the appellant last saw Mr. Wapoose on the road or that he was standing far away from J.M. during the beating, nor that the assault lasted as long as five minutes. In part, this was because the appellant’s account did not accord with scene photographs. They showed Mr. Wapoose in the ditch and showed no blood on the road. This belied the appellant’s testimony that he last saw Mr. Wapoose on the side of the road. Moreover, no metal pole was recovered by police. This contradicted the appellant’s testimony that he saw J.M. throw it in the ditch. Based on the trial judge’s conclusion that the appellant’s evidence on these issues was not credible, he rejected the appellant’s testimony about his degree of involvement in the physical acts of beating and stabbing Mr. Wapoose.

[19] The trial judge also disbelieved that the appellant counseled J.M. and L.Z. not to rob someone on the night of the killing, as this was inconsistent with his testimony that he returned to the scene of the assault when he heard screams and did not leave during the beating. This too buttressed the trial judge’s rejection of the appellant’s account of his involvement in the assault.

[20] Finally, the trial judge did not believe the appellant’s evidence that he lied to police about his involvement in the offence when questioned in February 2015….

[21] The trial judge repeats at several points in his reasons that the appellant had concocted his in-court evidence to minimize his involvement in Mr. Wapoose’s death and to “deflect blame from himself” and onto L.Z.: see paras. 68-70, 72, 75,77-78, 80, 82. With respect to his lie to police, the trial judge reasoned that once the appellant was confronted by police, his motive for keeping quiet disappeared, given that his potential involvement in the killing was now revealed. In the trial judge’s view, the appellant chose not to tell the truth, not because he was afraid of retribution, but because he was involved in the acts leading to Mr. Wapoose’s death and did not want to admit it.

[22] Overall, the trial judge believed L.Z.’s evidence that he witnessed J.M. and the appellant beat the victim. In part, this was because L.Z. was truthful about stealing Mr. Wapoose’s bicycle. The trial judge accepted that J.M. also participated in the assault and did not discount the possibility that L.Z. participated in the assault.

E. ANALYSIS

[26] In my view, this appeal can be resolved on the basis of the first ground of appeal.

[27] As I explain below, I agree with the appellant that the trial judge erred in treating his disbelief of the appellant as circumstantial evidence of his guilt. Accordingly, a new trial is required.

1. Legal Framework

[28] There is an important distinction between a trial judge’s mere disbelief of an accused person’s exculpatory evidence and a finding of deliberate concoction: R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38. As this court affirmed in R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, leave to appeal refused, [2023] S.C.C.A. No. 35., while a statement that is disbelieved cannot be evidence that strengthens the Crown’s case, a statement that has been deliberately concocted is capable of supporting an inference of guilt: at para. 38. This is because it supports the inference that the accused fabricated their account because they were conscious of their guilt and thus sought to minimize it: R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 26.[Emphasis by PJM]

[29] However, in keeping with the fact that the Crown always bears the burden of proof, the Crown must adduce evidence of fabrication that is independent of the evidence that contradicts or discredits the accused’s exculpatory statement: Al Enzi, at para. 39. Otherwise, it would be far too easy to “equate disbelief of an accused’s version of events with guilt”: R. v. Coutts (1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at pp. 551-52, leave to appeal refused, [1998] S.C.C.A. No. 450.

[30] Accordingly, in Iqbal, at para. 58, this court set out the following criteria for appellate review of a trial judge’s treatment of disbelieved evidence arising from in-court testimony:

(a) Did the trial judge disbelieve the appellant’s testimony?

(b) If so, did the trial judge also find that the appellant fabricated their testimony?

(c) If the trial judge found the appellant’s testimony was fabricated, was there independent evidence of fabrication capable of supporting that finding?

(d) If not, did the trial judge, despite the absence of independent evidence of fabrication, erroneously rely on the finding of fabrication as circumstantial evidence of guilt?[Emphasis by PJM]

[31] The analysis remains the same for out-of-court statements: R. v. Ahmadi, 2025 ONCA 219, 446 C.C.C. (3d) 497, at para. 50.[Emphasis by PJM]

[32] Where an exculpatory statement is made in court, the circumstances surrounding the statement cannot constitute independent evidence of fabrication: Iqbal, at para. 55. This is because such evidence necessarily goes to the falsity of the accused’s in-court testimony, and it is well-established that in order for evidence to be truly independent, it cannot be used to both disbelieve the accused and make a finding of fabrication or concoction against him: Iqbal, at paras. 56, 75-76.

2. The trial judge improperly relied on his disbelief of the appellant as circumstantial evidence of guilt
b. The trial judge’s erroneous treatment of the appellant’s in-court testimony

[38] I begin with the trial judge’s treatment of the appellant’s in-court evidence. It is clear that the trial judge disbelieved the bulk of the appellant’s testimony and concluded he had fabricated his exculpatory account. However, he then went a step further. In evaluating the appellant’s in-court testimony, the trial judge made findings to the effect that the appellant was “lying about the details because he [was] making up the parts of the story in a way to try and deflect blame from himself”: at para. 77. Elsewhere, he stated, at para. 72:

In addition, I do not believe Z.M.L.’s testimony about his involvement in the beating and stabbing actions that were visited upon Mr. Wapoose because of his evidence about what he had been saying to the others before they came upon Mr. Wapoose. Z.M.L. testified that L.Z. had been “egging J.M. on” to try and find someone to rob. Z.M.L. testified he was telling them to stop and that he wanted no part of this. In my view, this is just a convenient lie to place blame on L.Z. and deflect blame from himself. [Emphasis added.]

[39] In my view, in focusing on the appellant fabricating facts in order to deflect blame from himself, the trial judge implicitly relied on fabrication as circumstantial evidence of guilt. It only makes sense for the appellant to have fabricated his account to “deflect blame” if he himself participated in the assault. The trial judge did not refer to the legal principles governing fabricated statements as circumstantial evidence of guilt, nor did he explicitly identify any independent evidence of fabrication.

[41] However, as noted above, the trial judge failed to identify any independent evidence of fabrication. According to Iqbal, at para. 69:

Where a trial judge fails to advert to independent evidence of fabrication, the jurisprudence indicates that an appellate court may assess whether the record reveals sufficient such evidence to show that the trial judge’s omission did not prejudice the appellant.

[42] The record does not contain any independent evidence of fabrication. Indeed, the trial judge erred by using L.Z.’s evidence and the scene photographs as the basis to both disbelieve the appellant’s evidence and make a finding of fabrication or concoction against him. With respect to L.Z.’s testimony, this evidence directly contradicts the appellant’s evidence and thus cannot be considered independent: Iqbal, at para. 56. With respect to the scene photographs, as Iqbal notes, the same piece of circumstantial evidence cannot be used to both disbelieve an accused and support a claim of fabrication: at paras. 75-76.[Emphasis by PJM]

[43] Similarly, contrary to the Crown’s submission, Iqbal makes clear that the circumstances surrounding an accused’s in-court statement cannot be used to ground a finding of fabrication: at para. 55. Any implausibility or inconsistency in the appellant’s testimony cannot be placed on the scales of proof to find him guilty.

[44] Thus, the trial judge impermissibly used his rejection of the appellant’s incourt evidence as circumstantial evidence of guilt, notwithstanding the absence of independent evidence of fabrication.

[45] As this error in my view warrants a new trial, I do not need to consider whether the trial judge’s treatment of the appellant’s out-of-court evidence also reveals a reversible error.

F. DISPOSITION

[48] For these reasons, I would allow the appeal and order a new trial.

R v Meeko, 2025 NUCA 12

[December 5, 2025] Bad Character Evidence [Suzanne Duncan, Alice Woolley, Kevin Feth JJ.A.]

AUTHOR’S NOTE: Historical sexual assault prosecutions frequently raise difficult issues involving uncharged acts of disreputable conduct. At a minimum, such evidence requires a strong limiting instruction to ensure the jury does not engage in impermissible propensity reasoning—moving from bad character to guilt. In some cases, however, the risk of prejudice is so acute that the evidence must be excluded altogether.

That was the concern here. The Crown sought to rely on an alleged admission of other inappropriate sexual conduct, tendered as a partial statement whose meaning was imprecise and ambiguous, particularly as to the identity of the alleged victims. This ambiguity engaged the partial statement rule, requiring careful scrutiny of admissibility.

Given the difficulty in interpreting the statement and the immense prejudicial impact of introducing vague bad-character evidence, the trial judge was required to conduct a fulsome voir dire before permitting the evidence to go to the jury. At an absolute minimum, the jury required a clear and forceful instruction limiting any use of the statement to the single complainant to whom it could be said to apply with certainty.

This decision underscores the heightened vigilance required where ambiguous admissions risk becoming a conduit for impermissible propensity reasoning.

I. Introduction

[1] On June 6, 2023, a jury convicted the appellant Johnny Meeko of fourteen offences committed against children in his care when he was a teacher and community leader in Sanikiluaq. The appellant received a sentence of 58 years incarceration, reduced to 29 years on the principle of totality.

[2] The appellant appeals his conviction. He submits the trial judge erred by admitting evidence of discreditable conduct outside the scope of his criminal charges and, especially, by admitting that evidence without assessing on what basis – or whether – it could properly be admitted.

[3] The uncharged discreditable conduct evidence admitted at trial included evidence about other acts similar to those alleged in the indictment. The appellant submits the purpose for admitting that discreditable conduct evidence was never identified and, in any event, its prejudicial effect outweighed its probative value such that it ought not to have been before the jury.

[4] The appellant says the trial judge compounded the error of admitting uncharged discreditable conduct evidence by not warning the jury against propensity reasoning. The jury was not told that if they accepted the appellant had done one or some of the wrongful acts with which he was charged, or had engaged in other discreditable conduct, they could not therefore conclude that he was the type of person likely to be guilty of the other wrongful acts with which he was charged. The rule against propensity reasoning in criminal cases is of long-standing:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

R v B(CR), [1990] 1 SCR 717 at 725 [B(CR)], citing Makin v Attorney-General for New South Wales, [1894] AC 57 at 65. See also, R v TJF, 2024 SCC 38 at paras 74-78 [TJF].

[5] The appellant particularly objects to the admission in evidence of his purported statement to LK, a mother of one of the complainants, denying the allegations against him but acknowledging “five people who I did”. LK testified the appellant named her son as one of those five people, after which she became too distressed to hear what the appellant was saying. The appellant submits LK’s statement ought not to have been admitted because its prejudicial effect outweighed its probative value for deciding the issues before the jury. In the alternative, if the statement could be admitted, the jury needed to be instructed about the permissible and impermissible uses it could make of the statement.

[9] For the reasons that follow, we allow the conviction appeal and order a new trial. The trial judge admitted ordinarily inadmissible uncharged discreditable conduct evidence without considering whether the probative value of the evidence in relation to live issues at trial outweighed its prejudicial effect. He did not warn the jury against propensity reasoning despite the material risk, given the evidence, that the appellant would be convicted because of the kind of person he seemed to be, rather than because the evidence proved his guilt beyond a reasonable doubt on the specific offences.

[10] These deficiencies were particularly serious in relation to the appellant’s purported admission to LK of “five people who I did”. Whether and for what purpose this statement could be admitted as evidence required assessment by the trial judge. If admitting LK’s testimony about the appellant’s statement, the trial judge needed to instruct the jury about how it could use that evidence. The trial judge did none of those things, admitting LK’s testimony without analysis, and summarizing her evidence in his charge with deficient instructions to guide the jury in how to use it.[Emphasis by PJM]

V. Analysis

1) Did the trial judge err with respect to the uncharged discreditable conduct evidence?

[28] Some of the complainants testified to similar conduct by the appellant towards other students, and conduct beyond that with which he was charged – that “he used to swipe from our vagina to our buttocks”, grabbed chests, touched the breasts and bottoms of more developed girls, made sexualized comments, and showed a complainant his erect penis through his pants. That testimony was elicited in examination in chief, but also in cross-examination. The appellant himself testified about giving birthday spankings, touching students on the bottom, touching students’ chests and tickling them.

[29] Uncharged discreditable conduct evidence is evidence of the accused’s misconduct beyond what is alleged in the indictment: TJF at para 75. It is generally inadmissible, because it risks causing “reasoning prejudice” where the jury is confused by the multiplicity of incidents and puts more weight than is logically justified on the uncharged discreditable conduct evidence, and “moral prejudice” where the jury convicts “based on bad personhood”, simply because they believe the accused to be a person of “bad character” who would likely have committed the offences in question: R v Handy, 2002 SCC 56 at para 31 [Handy]; R v Arp, [1998] 3 SCR 339 at para 40 [Arp] . Excluding this evidence ensures that an accused is “tried for what he or she did and not for who he or she is”: R v Chizanga, 2024 ONCA 545 at para 18 [Chizanga]; R v Batte, 49 OR (3d) 31, 2000 CanLII 5751 (ONCA) at para 100. The exclusionary rule also guards against the human tendency to “punish the accused for past misconduct by finding that accused guilty of the offence charged”: TJF at para 76; Arp at para 40.

[30] Uncharged discreditable conduct evidence may be admitted if it is “relevant to an issue in the case” and its probative value to an issue at trial outweighs its prejudicial effect: Handy at paras 41, 55, 69-75, 101; R v G(SG), [1997] 2 SCR 716 at paras 63-65, 69 [G(SG)]; R v B(FF), [1993] 1 SCR 697 at 730-731 [B(FF)]; Chizanga at para 12; R v Amin, 2024 ONCA 237 at para 28; R v Demetroff, 2025 ABCA 373 at para 35 [Demetroff].

[31] Here, the appellant relied on a characterization of how he touched students in the school as part of his defence. He testified and argued that he touched students regularly to compel desired behaviour, and that he did so appropriately and non-sexually, and in a manner consistent with governing norms. His counsel explored with the complainants how the appellant acted towards students in general. Therefore, testimony about how the appellant touched and interacted with other children, even if related to uncharged discreditable conduct, was “relevant to an issue in the case”. Its relevance was not to show the appellant was of bad character, but was rather to permit the jury to assess the appellant’s assertion that when he touched students it was appropriate and non-sexual. The probative value of the evidence to an issue in the case outweighed its prejudicial effect, making it admissible.[Emphasis by PJM]

[32] Because of the dangers inherent in this evidence, and the need to direct the jury about its permitted and prohibited uses, the trial judge should have expressly addressed its admissibility. However, we are satisfied his failure to do so does not, in itself, constitute a reviewable error. The basis for admitting the evidence was clear and trial counsel did not object to its admissibility. Given the appellant’s trial strategy of contextualizing and normalizing how he touched students, the absence of an objection can properly be characterized as a tactical decision.

[33] The trial judge erred, however, because he provided no instruction to the jury on permitted and prohibited uses of the evidence.

[34] When uncharged discreditable conduct evidence is admitted, a jury instruction warning against improper uses should generally be given: G(SG) at para 65; Handy at paras 69-70; R v Bradshaw, 2020 BCCA 97 at para 48 [Bradshaw]; R v RM, 2022 ONCA 850 at paras 13-15; R v Bush, 2024 ONCA 469 at para 28; R v Duncan, 2024 ABCA 237 at paras 24-25; Demetroff at para 37. Failure to give such an instruction will not always amount to reversible legal error, such as where there is no realistic possibility of prejudice in the circumstances or where defence counsel made a deliberate tactical decision not to seek a limiting instruction: R v Calnen, 2019 SCC 6 at paras 16-18, 32, 38-43, 61-65, 67; Bradshaw at paras 49-67.[Emphasis by PJM]

[35] In this case, however, the potential prejudicial effect of the uncharged discreditable conduct evidence was real in relation to both reasoning and moral prejudice. Given the multiplicity of uncharged incidents, there was a real risk the jury would focus on those incidentsto an unwarranted degree or become confused by how to assess them. There was also the risk the jury would convict the appellant on the basis that the uncharged discreditable conduct made his guilt “likely”.

[36] Although the appellant’s trial counsel may have intentionally allowed the uncharged discreditable conduct evidence to be admitted, we are not satisfied his failure to request a limiting instruction was intentional. Prior to the jury instruction being delivered, counsel for the appellant expressed concern about “similar-fact evidence” and “propensity” reasoning arising due to the multiple counts. The trial judge did not provide a draft of his instructions to counsel before delivering them. In the circumstances, the fact that counsel did not request a limiting instruction after finally hearing the jury charge may well have been an oversight.[Emphasis by PJM]

[38] Specifically, the admissible uncharged discreditable conduct evidence could be considered by the jury to assess the appellant’s claim that he touched students appropriately and non-sexually but could not be used to establish the appellant’s general disposition to engage in criminal misconduct towards children in his care. Evidence about the appellant touching and spanking other children is not the type of evidence where its proper use is so obvious that no direction to avoid propensity reasoning is required: R v MRS, 2020 ONCA 667 at paras 93-96 [MRS].

[40] In this case, however, the jury charge did not make up for the absence of a limiting instruction in some other way. In particular, the trial judge’s instruction about how to assess the multi-count indictment did not do that.

[46] Thus, in his comprehensive charge to the jury at the conclusion of the trial, the trial judge simply emphasized that each count was a distinct “mini-trial”. That direction was too simplistic to be accurate in this case. Some complainants were the subject of multiple counts. While each count needed to be assessed separately, some aspects of the assessment – such as the jury’s assessment of a complainant’s credibility and reliability – would be relevant to more than one count: R v PEC, 2005 SCC 19 at para 1. The trial judge addressed that complexity in response to questions from the jury, where he explained that you “treat the evidence for each complainant as an individual mini trial”, while distinguishing between the evidence of a complainant on one count and another count. The lack of consistency in how the trial judge explained this point confused the jury, as reflected by their repeated questioning on it. That in his final remark the trial judge returned to his simplistic characterization of each count as a “mini-trial” did not help matters.

[47] These confusing and unhelpfully structured instructions thus could not compensate for the trial judge’s failure to provide a limiting instruction on the use of the uncharged discreditable conduct evidence.

[48] In a case like this, where there is a real risk the jury will support a finding of guilt through prohibited propensity reasoning, “a limiting instruction is to be provided. The jury must be told to use the evidence for the purpose for which it was admitted, and ‘not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged’”: MRS at para 69.

[49] On review of the jury charge as a whole, we conclude the overall effect of the charge did not properly equip the jury in the circumstances of the trial to decide the case according to the law and evidence. The jury needed proper guidance on how the law permitted them to use the uncharged discreditable conduct evidence, and the trial judge did not provide that guidance.

2) Did the trial judge err with respect to LK’s evidence?

[51] As set out above, and repeated here for ease of reference, the core of LK’s testimony was:

Q And can you tell the Court again exactly what Johnny said at that time after he told you to sit down?

A I’m going to tell you this, the truth, that all these people who accuse him, those are false accusations, but I want to tell you the truth, the five people who I did, I’ll give you the names.

Q And he started naming people. And what was is the first name that he said again?

A Yes. My son’s second name … Right after that, it went… I became deaf after that. I didn’t know what he was saying.

[52] Had LK’s evidence been limited to the appellant’s statement that he “did” her son, its admissibility would have been more straightforward given its relevance to one of the charges, that it was an admission by the appellant, and that any prejudicial effect – for example, what the jury should do if it had doubt over the meaning of “did” – could be managed with appropriate instructions: Schneider at paras 36, 38-57, 59, 61; R v Bennight, 2012 BCCA 190 at para 92 [Bennight].

[53] LK’s testimony was not, however, limited to the appellant’s admission about her son. It also and inextricably included her evidence that the appellant told her about the “five people who I did” and that she had not heard any of the other names or anything else the appellant said because of her distress.

[56] In R v Ferris, [1994] 3 SCR 756 [Ferris SCC], the Supreme Court affirmed the decision of the Alberta Court of Appeal that the partially heard statement “I killed David” could not be admitted because the unheard surrounding words could fundamentally change its meaning (e.g., “You don’t think I killed David?” or “They think I killed David but I didn’t”: Ferris CA at para 17). The Court of Appeal provided guidance for a trial judge’s assessment of the admissibility of incomplete hearsay statements, “The circumstances are all before the trial judge and he should determine whether or not the evidence is sufficient for a jury to conclude the meaning of the words” [emphasis added]: Ferris CA at para 17. The Supreme Court in Schneider recently affirmed its decision in Ferris SCC is still “good law”, emphasizing that exclusion of an incomplete statement is not automatic. The analysis is a contextual one. Ferris CA had been affirmed because the meaning of the statement was “so speculative and its probative value so tenuous that”, even if it was relevant, “the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value”: Schneider at paras 43, 67-72, 76.

[58] In R v Merritt, 2023 ONCA 3 [Merritt], the Ontario Court of Appeal acknowledged that a recorded but partially inaudible hearsay statement might be admissible, but allowed the appeal on the basis that the trial judge “erred by failing to direct jurors that if they found this statement to be partially inaudible, they could not treat it as an admission of Ms. Merrit’s guilt unless they could determine the meaning of the statement as a whole from its context”: Merritt at para 60. The Court explained that if an incomplete hearsay statement is admissible a jury instruction is still required (Merritt at paras 80-81):

It necessarily follows from the principles underlying the rules of admissibility that if jurors who are given an incomplete statement for consideration of whether it constitutes a party admission determine that they cannot give the incomplete statement meaning because its context does not allow meaning to be determined, they cannot use that incomplete statement as an admission… No juror can properly decide a case based on irrelevant, non-probative information, and it is the responsibility of the trial judge to prevent this from occurring.

It follows from this that jurors must be told that if they cannot determine the meaning of the partial statement, they cannot use it as an admission. After all, ‘[a] charge to a jury is aimed at ensuring that’ the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues’

[emphasis added]

[59] Like the evidence in Ferris, Bennight and Merritt, LK’s testimony about the appellant’s statement is incomplete. Because she “became deaf” she did not hear the names of the other people the appellant “did” and did not hear anything further the appellant might have said about what it was he did. LK’s testimony thus raised the question of whether the meaning of what she had heard from the appellant was “so speculative and its probative value so tenuous that… its prejudicial effect overbore its probative value”: Ferris SCC at 756.

[60] The trial judge thus needed to assess whether, given that LK “became deaf”, the probative value of LK’s evidence outweighed its potential prejudice: Schneider at paras 36, 59-62, 79. Further, in assessing potential prejudice, the trial judge needed to keep in mind the significant weight juries are likely to give confession-like evidence: Schneider at para 81.

[61] We acknowledge the appellant did not object to LK’s testimony; however, his failure to do so must be understood in the context of the trial. The trial judge required that evidence to be heard at the end of a day after both counsel had proposed moving it to the next day. The appellant’s trial counsel had explained, “this may not be my strongest day… I would prefer not to go as late”. While the appellant’s trial counsel had been advised in advance of the nature of LK’s testimony, he was pressured to rush through that testimony. In the circumstances, we put minimal weight on counsel’s failure to object. Evidence “does not magically become admissible… because there is silence by the defence”: R v Settle, 2021 ABCA 221 at para 42.

[62] Trial judges must ensure trials remain fair and are conducted in accordance with relevant laws and the principles of fundamental justice: R v SKM, 2021 ABCA 246 at para 49; R v SGT, 2010 SCC 20 at para 37. This was a case where the trial judge, notwithstanding the silence of counsel, should have exercised his “gate-keeping function and either exclude[d] the evidence or [held] a voir dire to determine admissibility”: R v Lugela, 2020 ABCA 348 at para 28; see also R v Hodgson, [1998] 2 SCR 449 at para 41.

[65] The trial judge’s instructions were limited to summarizing LK’s evidence and the tenor of her cross-examination:

[The complainant’s] mother [LK] testified. And you’ll recall that she talked about a visit when she was in Iqaluit in 2015, 2016 doing a first aid course. She wanted to see her aunt. She called them up and she went over… She sat on the bed, they sat right in front of her and then Mr. Meeko started talking about the lawsuit — or actually he was talking about this case. She said she didn’t want to listen to it. That’s not the reason why she had gone. She did not want to hear about it. But Mr. Meeko continued saying that many of the allegations were false but he did five and he named her son.

[66] The trial judge provided the jury with no direction about how to use LK’s testimony. He did not reference LK’s evidence that she “became deaf” and did not hear what the appellant had said. He did not tell them that if they had doubts about the accuracy or meaning of LK’s evidence they should ignore it. He gave no instructions about proper and improper uses of the evidence. Instead, by reiterating the content of the evidence without instructing the jury about how they could use it, he amplified its weight and relevance to the jury’s deliberations in circumstances where ambiguity existed and the potential for prejudice was real. Therefore, even if LK’s evidence was properly admissible, the charge did not properly equip the jury to decide the case according to the law and evidence.

VI. Conclusion

[80] The appellant faced a multi-count indictment involving multiple complainants with allegations spanning decades, all of which were at least fifteen years prior to the trial itself. Ensuring he received a fair trial required careful attention by the trial judge and counsel. The circumstances required management of similar fact evidence and the concomitant risk of propensity reasoning: R v AV, 2025 ONCA 57 at paras 10-11; DPT at paras 16-20; R v TCF, 2006 NSCA 42 at para 30. Many of the witnesses, including the appellant, had given evidence about their experiences and interactions multiple times (including at a previous trial), all came from a small and close-knit community in which the appellant was an important and influential figure, and all were by the time of trial many years removed from the experiences with respect to which they were testifying. Particular care was required to ensure the jury heard only admissible evidence, and that it received proper instructions to allow it to assess that evidence consistent with the applicable law.

[83] The conviction appeal is allowed, and a new trial is ordered.

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Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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