• in the case below what is the decision made by the judge for this appeal?
• what is the meaning of the last line [66]In light of the decision above, the sentence appeal is moot. ?( more like what really is the meaning of Moot?

Court of Queen's Bench of Alberta

Citation: R v Settle,2021ABQB 40

Date:20210115

Docket:17120991S1

Registry:Edmonton

Between:

Her Majesty the Queen

Crown

- and -

Elizabeth Nicole Settle

Appellant

_______________________________________________________

Decision

of the

Honourable Madam JusticeAvril B. Inglis

_______________________________________________________

Appeal from the Conviction and Sentence

Filed on the 28^thday of November, 2020

Dated the 15^thof January, 2021

(2019 ABPC 283, 2019 ABPC 328;Docket: 171209901p1)

Background

[1]On February 8, 2019 the appellant was convicted of two counts ofcriminalharassment against each of a married couple. She appeals both the conviction and the global sentence of nine months incarceration. She seeks acquittal, or new trial; if neither of those is granted, she seeks a reduced sentence of a conditional discharge or another non-custodial sentence.

[2]The background to the charges is a challenging personal history between the appellant and the male complainant; the two lived in the same neighbourhood, knew each other through their children's involvement with minor hockey, and engaged in a lengthy affair. The male complainant ended the relationship which allegedly was followed by lengthy harassment of both him and his spouse by the appellant. The date range of the offences alleged on the indictment is August 24, 2016 to September 11, 2017. At trial, evidence of interactions and events prior to that were led in evidence, including repeat police engagement with the parties leading up to the appellant's arrest Sept 12, 2017.

Standard of review

[3]Counsel have correctly stated the standard of review in their arguments. Given the number of different appeal grounds argued, it is appropriate to recite the distinct standards. FromR. v. Lofstrom2020 ABCA 109at paras8-13:

Questions of law are reviewed on a standard of correctness: the appellate court is free to replace the trial judge's opinion with its own. Findings and inferences of fact are reviewed on a standard of deference; the appellate court is not to reverse the trial judge's factual findings or inferences unless it is established that the judge made a palpable and overriding error:Housen v. Nikolaisen,2002 SCC 33,[2002] 2 S.C.R. 235 (S.C.C.);

Whether a trial was fair is a question of law....

Whether a verdict is unreasonable is a question of law. A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered. An appellate court may also find a verdict unreasonable "if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge:R. c. P. (R.),2012 SCC 22(S.C.C.) at para9,[2012] 1 S.C.R. 746 (S.C.C.).

Whether a witness is credible is a question of fact. An appellate court cannot interfere with the trial judge's assessments unless it is established that they cannot be supported on any reasonable view of the evidence:R. c. P. (R.)at para10. Where a trial judge gives detailed reasons for judgment showing that he was alive to the "recurrent problems in this field of adjudication, the court of appeal brings no special insight to the assessment of the evidence"; the fact that "an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion the trial judgment was unreasonable":R. v. G. (A.),2000 SCC 17(S.C.C.) at para29,(2000),[2001] 1 S.C.R. 439 (S.C.C.).

Admissibility of evidence is a question of law, but the trial judge's weighing of the evidence's probative value against prejudicial effect is an exercise of discretion that is entitled to deference: R. v. Underwood,2008 ABCA 263(Alta. C.A.) at para10, (2008), 433 A.R. 298 (Alta. C.A.).

Issues

[4]The appellants raised the following issues:

1.Jurisdiction;

2.The trial judge received and relied on inadmissible bad character evidence;

3.The trial judge convicted the accused for acts not included by the charged dates;

4.The trial judge erred in his credibility assessment of the only defence witness; and

5.The sentence is excessive and unfit.

[5]The appellants seek the following remedies: an acquittal; or in the alternative an order of a new trial; or in the alternative a non-custodial sentence.

Appeal ground #1: Jurisdiction

[6]While the record before this court was unclear, Crown counsel indicated that the initial election early in the proceedings was indictment. On the first day of trial in provincial court, December 5, 2018, the following occurred:

[Crown Counsel]: And I can indicate the Crown is prepared to re-elect, proceed summarily with the consent of defence.

[Defence Counsel]: And defence consents.

The Court: All right. So, Crown's re-electing to proceed by way of summary conviction.

[7]Nothing else was said about this re-election. The appellant argues that there is no "express consent" to the re-election, which was required: specifically that express, informed consent references the requirements of s 786 of theCriminalCode of Canada.

[8]The appellantcitedR. v. Dudley,2009 SCC 58. At paragraph 3:

Where the trial has proceeded before a summary conviction court without an express election by the Crown, it will be presumed that the Crown has elected to proceed summarily. Where it is discovered before adjudication on the merits that the proceedings were instituted more than six months after the offence is alleged to have been committed, a mistrial should be declared unless the parties agree to waive the limitation period (or "prescription").

[9]At paragraph 5:

Where an appeal by the accusedis allowed on the sole ground that the proceedings were statute-barred and conducted without consent, a conviction at trial should be set aside. In either instance, the Crown may proceed afresh by indictment except where the court is satisfied that this would amount to an abuse of process. That is because neither a mistrial nor a conviction set aside on appeal gives rise to a plea ofautrefois.

[10]Section 786(2)of theCriminalCode of Canada(as it was at the time of this trial) read:

786.. . .

(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose,unless the prosecutor and the defendant so agree.

[11]Considering that provision, the Supreme Court of Canada held that the defence can waive the 6 month requirement.Dudleynotesat para36:

The consent of the parties, I repeat, can be given at any time during the proceedings before the verdict. The prosecutor will always be deemed to have consented by virtue of his or her election to try the hybrid offence summarily. The defendant must consent to the proceedings in a manner consistent with the reasons of the Court inKorponey v. Canada (Attorney General),1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41 (S.C.C.). That is to say, the consent of the defendant to continue with the proceedings must be "informed, clear and unequivocal":Korponay, at p. 58.

[12]The appellant argues that in this case, the consent provided does not meet that standard, and that the consent on the record (from counsel, not the same as appellate counsel) is vague.

[13]Crown counsel argued that the statements by the defence counsel on the first day of trial convey nothing equivocal, and that there is no foundation to claim that the consent offered was not informed.

[14]Korponey v. Canada (Attorney General),1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41 (S.C.C.)- which the appellants explicit ask this court to rely on bycitingDudley- is dispositive of this issue. In that case, the issue was the validity of an accused's re-election to a judge alone trial. Having previously elected to be tried by jury, the accused was remanded to a judge alone trial after his counsel simply stated "Judge alone" on the record. The statement by counsel in that matter was no more explicit than what was said before the court in this. Notably, at the time there was a detailed process outlined in theCriminalCode of Canadafor that type of re-election that was not followed. The Supreme Court noted the following starting at para 25:

It is equally clear that appellant's attorney and appellant himself were there to commence the trial before that court and that the attorney for the appellant, being of the view, and rightly so, that there had not been a re-election, indicated to the judge in his client's name that he wanted to be tried by a judge alone. The judge had before him an attorney whose knowledge of the law and of the practice of thecriminallaw does not appear to be in issue. He was, in my view, amply justified in assuming, since everyone was there to proceed with the trial, that the attorney had discussed the matter with Korponay and that Korponay made an informed decision, on the advice of his attorney, to proceed to trial, not before a jury, but before that judge sitting without a jury, and that the attorney was fully authorized to do anything necessary to that end. The judge was therefore in my view amply justified in considering that the attorney's saying "judge alone" was an informed waiver of the requirement of putting to his client the words of the section. The accused's attorney knew what those words were, he knew what they meant and what effect his answer "judge alone" would have on his client's rights. ...

This is a case of a clear and unequivocal waiver by the accused through his attorney of the uttering of the words set out in the section.The attorney thought the accused had not re-elected, was right in thinking so and did re-elect for the purpose of getting on with what everyone was there to do: start the trial. ...

[15]Similarly, I find the waiver of the right to be tried by Miss Settle's lawyer on the first day of trial in provincial court to be informed, clear and unequivocal. The trial judge was entitled to rely on the consent offered. This ground of appeal does not succeed.

Appeal ground #2: Admission of prior bad act evidence withoutvoir dire

[16]The trial court heard evidence of this appellant's actions in relation to the two complainants that do not fall within the dates listed on the information. This included evidence of communications and conduct from the appellant as early as May 26, 2016, four months before the start of the charged period.

[17]The admissibility and purpose of this evidence was not addressed by either counsel. Crown counsel did not request avoir direto determine the admissibility; Defence counsel did not object to it being offered, and specifically informed the trial judge that he expected the evidence to be led. Nonetheless, the appellant argues, the admissibility and purpose for calling the evidence needed to be judicially considered prior to a ruling of admissibility, even with the tacit agreement by defence counsel that the evidence was properly before the court.

[18]InR. v. J.O.L.2020 ABCA 73, the court considered an agreed statement of facts that was entered as an exhibit in a jury trial which included allegations by someone other than the complainant that the accused had sexually assaulted that other person. The issue of admissibility of those facts was not argued by counsel on appeal, however the court commented at para 24:

We are mindful that the admissibility of the conversation with LS was not directly raised on appeal. However, agreements between counsel regarding the admissibility of out-of-court statements do not obviate counsel's obligation to "...clearly articulate the precise purpose for which the out-of-court statement is being tendered":R. v. Short,2018 ONCA 1(Ont. C.A.) at para65,(2018), 358 C.C.C. (3d) 337(Ont. C.A.). A trial judge has an obligation to make the necessary inquiries to ensure that the evidence is, in fact, admissible and to ensure that the purpose for which the evidence is tendered is clearly understood. This is particularly so where the evidence will be heard by a jury and is prejudicial to the accused.

[19]Further, the court noted that the trial judge had not considered the probative value verses the prejudicial effect of the evidence. Given all three of those missed considerations (admissibility, purpose and prejudice versus probative value), they then turned their attention to the mid-trial and final instructions to the jury about the use of the agreed evidence, found it to be insufficient, and ordered a new trial.

[20]Similarly, the case ofR. v. D.L.E.1989 CanLII 74 (SCC),[1989] 2 S.C.R. 111focused on jury instructions in light of uncharged allegations (which were formally admitted as similar fact evidence), and, finding the charge lacking with respect to the purpose of the evidence and a warning against propensity reasoning, that court likewise ordered a new trial.

[21]In this case, the trial judge did not make any ruling when defence counsel specifically announced that extended evidence of conduct of the accused would be led, or when evidence outside of the date range of the allegations before the court was actually presented. His reasons for conviction and subsequent decision did not clarify any of the three issues identified above.

[22]The respondent crown argues that the evidence was clearly admissible, given the nature of it and the charge before the court. TheCriminalCodedefinescriminalharassment in this way:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably,in all the circumstances, to fear for their safety or the safety of anyone known to them. (emphasis added).

[23]The respondent argues that in a prosecution forcriminalharassment, evidence of prior acts of discreditable conduct is frequently admitted to provide a context within which to assess

i.the effect of the incident charged on the complainant;

ii.whether the accused's conduct was such that they knew it would cause the complainant to be fearful or was reckless whether complainant was fearful or not; and

iii.whether the complainant's fear was objectively justified.

[24]The respondent citedR. v. Linhares(2017) ONSC 1975, which considered the relevance of context of the conduct for both the accused's knowledge and the complainant's fear. That court noted that given that s 264(1) specifically requires that the complainant's fear "in all of the circumstances" must be reasonable, then "all of the circumstances" of the conduct of the accused is relevant and admissible. The arguments for the accusedLinhareswere similar as they are before this court: prior act evidence was wrongly admitted and without identifying its purported purpose. Arguably, the trial judge had "failed to properly delineate how the remaining and extensive evidence of misconduct was to be used" (para 15).

[25]The respondents further argue that the context of the charged acts is properly framed by this evidence, and the evidence before the court would be flawed and incomplete without it. Citing the Ontario Court of appeal inR. v. Krushel(2000) CarswellOnt 325 at para 17:

Section 264(1) refers to conduct that causes the victim "reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them." Pre-charge conduct is admissible as going to the issue whether the complainant's fear was reasonable in all the circumstances [citations removed]. The trial judge properly admitted the evidence for this purpose and properly instructed himself regarding the limited purpose for which it could be used.

[26]The respondents argue that "all of the circumstances" included in the elements of this particular offence as well as the reasonableness of fear felt by the complainant does create a broad basis for relevance and potential admissibility. The evidence before the trial judge on its face appears to be the type of evidence that is frequently admitted. As such, crown counsel argues that avoirdirewas not required; the parties understood that the evidence was admitted to show animus, intent, knowledge of the accused that the complainants were harassed and the reasonableness of their fear.

[27]Post-conviction, the defendant (with now appellate counsel) filed an application to re-open the case. Some arguments are similar to those on appeal. The trial judge issued written reasons dismissing the application. He addressed pre-charge evidence starting at para 40. The trial judge noted that defence counsel identified two key issues at the outset of the trial, close in time to his comment that the evidence outside of the charged time period would be heard: the intent (as defined by s. 264) and the reasonableness of the complainant's fear.

[28]The trial judge determined on that basis, particularly incriminalharassment trials where it is common to "adduce evidence of prior history to show animus, or motive, or intent, or to show that the accused knew that the complainants were harassed by the accused's conduct" (para 48) that:

[Defence counsel's] remarks at the beginning of the case show quite clearly that he addressed his mind to the elements of the offence ofcriminalharassment and to the evidence he expected to hear at trial. The pre-charge conduct was proximate in time to the offences alleged in the charges, in fact immediately preceding the time period in the charges and in a narrative sense vital to understanding the events which occurred between August 24, 2016 until September 11, 2017.

[29]The trial judge concluded (as he impliedly had during the trial) that the evidence was admissible in the circumstances, obviating the need for avoir dire.

[30]This court agrees: the contested evidence is clearly relevant for the purposes identified in the paragraphs above. However, that does not necessarily determine admissibility, argues the appellant.

[31]InR. v. Villeda,2010 ABCA 351 (CanLII), [2010] A.J. No. 1330, the Court of Appeal considered the issue of similar fact evidence admitted at trial after the trial judge determined the alleged prior bad acts of the accused were relevant. The Court found the trial judge erred by failing to assess the prejudicial effect compared to the probative value of the evidence before admitting it. The Court of Appeal found that the evidence would not have been admissible had that weighing taken place:

In summary, to admit the evidence of bad character the trial judge was obliged to find that it was relevant to an issue at trial, outside of the appellant's general character, and that its probative value in this regard outweighed its prejudicial effect. The trial judge did the former, but not the latter. The trial judge's failure to consider and apply the correct legal test is an error to which principles of deference do not apply. Furthermore, it was not a harmless error because it is clear the evidence would not have been admitted if the trial judge had applied the proper test.

[32]A significant difference between these facts andVilledais the charge in question. The utility of the bad character evidenceinVilledawas questionable, and likely of limited application; it could thus not meet the test for similar fact evidence once the proper test was applied. Here, the evidence was not just useful but likely necessary. One cannot harass unless and until the accused knows the other party feels fear. Based on the conduct here, one would not feel fear reasonably unless and until mundane conduct became repetitive or unusual in nature. The first phone call from the appellant could not reasonably cause fear. However, months later, after repeated incidents, that circumstance changes.

[33]InR. v. Sillipp(1997),1997 ABCA 346 (CanLII), 120 C.C.C. (3d) 384 (Alta. C.A.); leave to appeal refused May 14, 1998: (S.C.C.), the court outlined the elements ofcriminalharassment. In that case, the crown had made a formal application to lead prior bad act evidence in the context of a similar fact evidence application. The trial judge then applied the analysis similar to thatinVilledaand admitted most of the pre-charge evidence, noting it to be directly probative of most of the elements ofcriminalharassment.

[34]Many cases followSillipp, citing the elements of harassment listed by the Court and then also rely on previous bad act or similar fact evidence. Yet despite the frequency with which such evidence is admitted in the context ofcriminalharassment prosecutions, none cited by counsel on appeal show that such evidence was admitted except following avoir dire, which both determined the purpose of the previous act evidence and a correct analysis of the trial judge of the probative value compared to its prejudicial effect. By example, seeR. v. D. (D.)(2005) CarswellOnt 6605 (C.A.) at paras 15-17:

In my view the trial judge failed to properly assess or weigh theprobativevalueof the evidence and in so doing overemphasized its prejudicial effect.

This evidence of prior discreditable conduct was proffered to provide a context within which to assess the effect of the incident charged on the complainant and whether the conduct of the respondent was of such a nature that he knew that the conduct would cause the complainant to be fearful or that he was reckless as to whether or not she was fearful, an essential element of the offence ofcriminalharassment. Such evidence would also provide the necessary context in which to consider whether her fear was objectively justifiable.

The trial judge was obliged to consider theprobativevalueof the evidence in relation to the purpose for which it was tendered.

[35]FromLinharespara 21 and 25:

In a judge alone trial, a judge is not required to instruct herself in the same manner as she would instruct a jury. She is presumed to know the law:R. v. Burns,1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 (S.C.C.) at pp. 664-65. The mere fact that the trial judge did not advert to the limitations on the use that could be made of the evidence of the Appellant's prior conduct does not necessarily give rise to an inference that the evidence was misused. However, the failure to address those limitations in this case became important when the trial judge turned to whether the elements ofcriminalharassment had been proved.

The failure of the trial judge to make findings of fact in relation to the extensive evidence of prior discreditable conduct led by the Crown and to explain the use that she made of that evidence leaves the basis upon which an essential element of the offence was found to be established unclear, and leaves this court unable to meaningfully review whether the use of that evidence was restricted to the limited purposes for which it was admissible. Accordingly, the conviction forcriminalharassment cannot stand.

[36]These same observations apply to the evidence and decision appealed here. Here, the trial judge outlined the evidence he received in chronological order, starting as early as February 2016. He described the many phone calls the complainants (particularly the female complainant) received from then up to the initial charged date in August 2016. He detailed the interactions the male complainant had with the appellant during that same time period. While he did note the dates of these events, he did not describe how he considered charged acts compared to uncharged acts alleged.

[37]This trial was similar toJ.O.L.,LinharesandVilleda. While a trial judge sitting alone is presumed to know the law and apply the law correctly, in those cases prejudicial evidence was led without explicit judicial assessment. Further, there is little if anything apparent on the trial record here that implies that the admissibility, purpose or probative value were explicitly determined prior to the court relying on this impugned evidence when convicting the accused. The particular issue of purpose is of specific concern, and is addressed in the next section.

Appeal ground #3: Blending the pre-charge evidence in final decision

[38]A secondary issue alleged regarding the prior conduct of the appellant is that the trial judge convicted her for some of the acts in the pre-charge period. Further, the appellant argues that as part of the reasoning prejudice, the inflammatory nature of the pre-charge evidence created a significant risk of distracting the trial judge from determining this case in a reasoned way.

[39]The trial judge issued an oral decision convicting the appellant. The first five pages of the transcript of his decision outline the details of the complainants' allegations of conduct prior to and after August 24, 2016.

[40]The trial judge carefully assessed certain factual conclusions he could make about the pre-charge allegations - at times the identity of the appellant was potentially unclear and he carefully considered all of the evidence to determine that the it "leads reasonably and inexorably to the inference that [the appellant] was making the harassing phone calls to [the female complainant]."

[41]He assessed other aspects of the evidence and made various findings leading up to his conclusions, starting with "[the appellant's] conduct viewed in light of the whole of the facts, the affair, the voicemails and the threat at the beginning of the period in question, August of 2016, and taking into account the continued contact and the face of the restraining order and continued police intervention leads me to conclude the continued contact with [the complainants] by [the appellant] was planned and deliberate." At these points in his decision he appears to have demarcated the pre-charge conduct from the charged conduct.

[42]However, that changed.

[43]When the trial judge turned his attention to the elements ofcriminalharassment asoutlined bySillipp, he considered all of the evidence element by element. Addressing the first element - repeatedly following, communicating or besetting or watching a dwelling house or business - he summarized briefly the conduct he had thoroughly previously recited, beginning with the phone calls that started in the spring of 2016. He concludes the assessment of this element by noting "So is there conduct for part one of that test? Yes there is.".

[44]This phrasing ties into the issue addressed in appeal ground #2, above. While the trial judge may well have considered the evidence carefully and not "convicted for uncharged acts" as alleged by the appellant, the articulated reasons are not clear on this point. His decision shows that he may well have relied on the actions of the appellant outside of the time frame as part of the acts for which she was convicted.

Ground #4: Error in credibility assessment

[45]The only witness at trial for the defence was the appellant's 14-year-old son. He gave evidence about three distinct portions of the alleged conduct. First, he attested that it was his idea - and not a deliberate part of ongoing harassment by his mother - for him to move to the school to which the male complainant had recently been hired as a hockey coach. Then, that his mother walked in their neighbourhood up to three times a day as a longstanding habit, which is why the complainants saw her frequently. Finally, he described the trip his parents' planned trip to Fernie, where the appellant had attended at the same time as the complainants, leading to their inference that she was deliberately there to harass them.

[46]The appellant argued that the evaluation of this witness showed "categorical mistrust" due to his age and relationship with the accused.

[47]When the trial judge initially addressed this witness' evidence he noted that he was "troubled by it." He indicated that the witness may have felt obliged to help his mother, and that due to his age he was "not likely capable of a critical and dispassionate assessment of his relationship with his mother or of her actions." He concluded that he should treat this witness' evidence with "considerable caution." (February 8, 2019 transcript, page 21, lines 1-7).

[48]Importantly though, the assessment of this evidence did not end with these broad statements. The trial judge found that the appellant's son transferred to the complainant's school in order to continue her contact with the complainant. He did not disbelieve the son when he testified that he was unhappy and wanted to change schools and brought up Vimy Ridge. Instead, he noted that early in the school year, shortly after the complainant moved to that school, the decision to move the appellant's son to that school was quickly made. The trial judge contrasted that change with evidence that the previous year the family had considered a different school and the son spent a day going to classes and participating in a hockey practice; based on that experience he decided against that school. None of that was done prior to transferring to Vimy Ridge. The speed of the transfer and the timing - not a categorical rejection of the young person's evidence - were the reasons given for the trial judge's findings on this issue. Notably, his findings did not contradict the son's testimony.

[49]Notably, the witness even testified that when he initially mentioned Vimy Ridge to the appellant (months before the complainant took a job there), she was opposed to that school because it was not part of the Catholic school system. However, when he brought the school up again - after the complainant had been hired there - she took action despite that earlier objection. That evidence also supports the findings of the trial judge without disbelieving the witness.

[50]When the trial judge considered the issue of the appellant's walking habits, he did not make any findings contrary to the evidence of her son. He simply found that, based on the aerial map in evidence, she could easily have continued her active lifestyle while also avoiding being near the complainants or being within the bounds of the restraining orders that bound her.He found that the contacts with the female complainant that the appellant had while out walking were part of a deliberate practice and not accidental. Again, this finding is not one that discredits the witness.

[51]The trial judge made no finding about the evidence about the appellant's trip to Fernie. While he described it in his outline of the alleged conduct he made no finding contrary to the defence witness' evidence. At most, the trip to Fernie was included in the conclusion "I'd loathe, in fact, to conclude that any of the encounters described by the [complainants] are coincidences."

[52]Ultimately, despite the original comments by the trial judge that he would treat the young witness' evidence with caution, he made no negative findings of credibility. His factual conclusions did not contradict the defence evidence; he simply did not draw the conclusions (primarily, lack ofmens rea) that the defence argued. As such, this ground of appeal fails.

Remedy

[53]Criminalharassment is an offence that lends a prosecution most particularly to leading prior conduct evidence; however, the charge itself does not determine such admissibility. Trial judges must remain gatekeepers of evidence that is presumptively inadmissible. Avoir direis required to determine the admissibility of this type of evidence, its purpose, and to assess the probative value versus its prejudicial effect to the fairness of the trial. In this trial the evidence should have been received through avoir dire, and then if admitted the purpose for the evidence should have been explicit identified. Any subsequent reliance on said evidence must then have been explicitly restricted to that purpose.

[54]The effect of defence counsel's consent (as in the first ground of this appeal) is important to consider. Here, closing argument at trial by defence counsel began by acknowledging that all elements ofcriminalharassment had been proved except whether or not the fear of the complainants was objectively justifiable. He focused his submissions on the pre-charge conduct from the outset. He expressly suggested the court could rely on pre-charge voicemails left by his client to show intent (December 7, 2018 transcript, page 57, line 33).

[55]InJ.O.Lthe Court of Appeal outlined that where defence fail to object (in that case, to the jury charge) the appeal court can infer one of several instances: it was a deliberate, strategic choice to as part of the defence strategy, the defence thought the error not worthy of objection despite the fact it did not serve the defence strategy, or the error was prejudicial and therefore occasioned a miscarriage of justice under s 686(1)(a)(iii) of theCriminalCode of Canada, which can allow for the order of a new trial.

[56]In the case ofR. v. D.(L.E.),1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, a pre-trial ruling held that certain prior conduct of the accused was not admissible evidence. However, during cross-examination of the complainant, defence counsel elicited some of that evidence unexpectedly. He attempted to repair the disclosure through further cross examination. Failing in that effort, he sought a mistrial. In response, the trial judge allowed further examination of the impugned conduct to correct problematic impressions that had been left with the jury. In his directions to the jury, the trial judge simply noted that the prior conduct was "background".The error of leaving the impugned evidence with the jury is addressed by the Supreme Court at para 28:

The initial answer of the witness was unresponsive to the question although undoubtedly it was an innocent and instinctive act. While the cross examination by counsel for the accused compounded the error, and counsel for the accused is by no means blameless, this does not relieve the trial judge of his duty to exclude inadmissible evidence.InR. v. Ambrose(1975),1975 CanLII 1434 (NB CA), 25 C.C.C. (2d) 90 (N.B.S.C., App. Div.), aff'd1976 CanLII 201 (SCC), [1977] 2 S.C.R. 717, a Crown witness made an unresponsive statement on cross-examination by defence counsel who then invited the witness to repeat the statement rather than objecting immediately to the answer. I agree with the following statement of the Appeal Division, at pp. 91-92, with respect to the duty of a trial judge:

In acriminaltrial there is a duty on the trial Judge to exclude inadmissible evidence even though adduced by counsel for the accused or not objected to, and should inadmissible evidence be adduced, the trial Judge should either instruct the jury immediately to disregard it or, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order a new trial.

[57]Even when the evidence is led - not simply consented to - by defence counsel, the court must remedy the error.

[58]Thedissent fromD.L.E.notably disagrees with the trial's initialvoir diredecision and the Court of Appeal and Supreme Court's decision that a mistrial was required when the evidence of the accused's alleged prior assaults against the complainant was ultimately put before the jury. Madam Justice L'Heureux-Dube stated that the evidence was admissible in thevoir dire, and had become more relevant to the trial during the cross examination by defence counsel. She would have upheld the conviction.

[59]That is an attractive option in this matter. The pre-charge evidence before the trial judge is relevant to the charged conduct. The particular requirements of themens reaof an accused, the state of mind of the complainants and the reasonability of that state of mind clearly make it so.

[60]However, in this case the only remedy is a new trial. Even if this court could properly consider the admissibility and purpose of the pre-charge evidence, the initial conviction may well have rested on purposes other than those that are allowable. Further, it is possible that if the evidence had been formally admitted or potentially constrained, the evidence for the defence may well have been different. The way in which this impugned evidence was called may have potentially damaged the rest of the trial.

[61]FromVilleda:

The admission of the evidence of the three alleged prior assaults placed the appellant in a difficult and unfair position. It forced him to give evidence, and it coloured the evidence which he gave. InR. v. S.(P.L.),1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, 64 C.C.C. (3d) 193, the Supreme Court held where similar fact evidence is improperly admitted, the appellant is entitled to either an acquittal, or a new trial, unless the remaining evidence would inevitably lead to a conviction. Although we are satisfied that a conviction is possible on the basis of the remaining evidence, ruling out an acquittal, we are not convinced a conviction is inevitable. It is necessary, therefore, to order a new trial. (paras 30-31)

[62]In the context of this appeal, it is impossible to rule whether or not that all of the evidence should have been admitted, that it was properly applied or that if it had not been admitted the remaining evidence would inevitably lead to a conviction. The appellant was potentially prejudiced by its receipt by the court. However, given the rest of the evidence which is not contentious, clearly there is a likelihood of conviction even without this pre-charge evidence, and as such an acquittal is not an appropriate remedy.

[63]This may seem contrary to the decision on the first ground, above, which found that the concession by the Defence to a Crown re-election did not require a remedy of this court. However, that issue was procedural and had a clear benefit to the accused. The evidentiary concession that followed was substantial in nature and of a particularly prejudicial nature to the accused. To side-step judicial assessment of the evidence has a much different effect on the trial as a whole, and the consent by counsel is insufficient to ensure that trial fairness had been achieved when leading this evidence.

[64]TheCriminalCode of Canada'scurative proviso is found at:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or notcriminallyresponsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

[65]This test has not been met, and the conviction cannot stand. A new trial is ordered.

Sentence appeal

Heardon the26^thday of November, 2020.

Datedat the City of Edmonton, Alberta this15th day of January, 2021.