R v Sandhu, 2024 ABCA 47

In the Court of Appeal of Alberta Citation: R v Sandhu , 2024 ABCA 47 Date: 20240212 Docket: 2203-0096A Registry: Edmonton Between: His Majesty the King Respondent - and – Ramjit Sandhu Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Publication Ban – see the Criminal Code ,

section 278.95 . A person shall not publish in any document, or broadcast or transmit in any way the contents of, evidence taken, information given and representations made in an application under subsection 278.93, nor the decision under subsection 278.93(4). Corrected judgment: A corrigendum was issued on February 16, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ The Court:

The Honourable Justice Jack Watson The Honourable Justice Anne Kirker The Honourable Justice Jane Fagnan _______________________________________________________ Memorandum of Judgment Appeal from the Conviction and Sentence by The Honourable Justice A. Loparco, Sitting with a Jury Convicted on the 29th day of July, 2021 Sentenced on the 17th day of January, 2022 (Docket: 200634731P1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Introduction [1] The appellant was found guilty after trial by jury of one count of sexual assault under s 271 of the Criminal Code and onecount of being party to a sexual assault by another person under s 272(1)(

d) of the Code. The trial judge stayed the conviction on thesexual assault count under s 271 of the Code based on the principle in R v Kienapple, (SCC), [1975] 1 SCR 729. [2] The appellant sets out five substantive grounds of appeal and adds a sixth general point asserting that the verdict was amiscarriage of justice -- which submission is an element of the other grounds. Accordingly, there are five grounds for this Court to dealwith. [3] The fifth ground of appeal raises sections 7, 11(

d) and 14 of the Charter. Overall, it contends that there was such seriouslyinadequate language

interpretation during the trial that it made the trial a miscarriage of justice under s 686(1)(a)(iii) of the Code. Theappellant would support that ground of appeal with proposed new evidence related to the trial process. The Crown, while not concedingevery feature of the arguments on these Charter provisions, effectively concedes both the admissibility of the new evidence and theconclusion that there was a miscarriage of justice within the meaning of s 686(1)(a)(iii) of the Code. The Crown also concedes that thereshould be a new trial on the count under s 272(1)(

d) of the Code as the remedy for that miscarriage of justice. Moreover, the Crown doesnot seek a new trial on the count under s 271 of the Code. [4] These concessions have merit. We are persuaded that, on this ground, the appellant has established that his trial involved amiscarriage of justice within the meaning of s 686(1)(a)(iii) of the Code.

To deploy s 686(1)(a)(iii) of the Code in this case, it would notbe necessary to decide whether there was also any sort of violation of the Charter in what happened although Charter breaches, if found,would be a factor in any overall conclusion as to miscarriage of justice. [5] The usual remedy in consequence to a finding under s 686(1)(a)(iii) of the Code would be to allow the appeal and “order a

new trial” – in this case on the count under section 272(1)(

d) of the Code pursuant to this Court’s authority under s 686(2)(a). However,the appellant contends that this Court should supplement that remedy with further orders under s 686(8) of the Code, which provides that“Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, thatjustice requires.”. More specifically, the appellant applies for an order for costs against the Crown for the mistrial, a judicial stay ofproceedings of the prosecution, or both.

The Crown resists both of those forms of remedy. [6] Before addressing the fifth ground of appeal and, more specifically the remedies proposed by the appellant, it is appropriateto briefly address the other grounds of appeal. That is because we are, in the end, satisfied that a new trial is the just and appropriateremedy for the appellant and that neither a stay of proceedings nor an award of costs would be just or appropriate. In that light, reasons ofthis Court are provided on the other grounds as similar issues may arise at the new trial. II.

Other Grounds of Appeal and Standards of Review [7] No elaborate description of the evidence is required to address the first four grounds of appeal which were set out by theappellant as follows: 1. The Trial Judge erred in law in denying the Appellant's application pursuant to s 276 of the Criminal Code of Canada. 2. The trial was rendered unfair by Crown's cross-examination of the Appellant, particularly in the context of the s. 276 ruling and theAppellant's need for an interpreter. 3. The Trial Judge erred by not putting the defence of honest but mistaken belief in communicated consent before the jury. 4.

The Trial Judge's instruction to the jury was not fair and balanced. [8] The standard of review is correctness as to grounds 1, 3 and 4 as they raise questions of law in this case. As to ground 2, theCourt would review whether there was trial unfairness or a miscarriage of justice without deference to the trial judge. As in othercontexts, procedural fairness or natural justice conclusions on appeal are decisions generally made on assessment of the total effect of thecircumstances and the reviewability of specific rulings are usually just part of the picture.

Issues of trial unfairness may well raise purequestions of law, but such issues may also turn on the exercise of judicial discretion which is normally reviewable for reasonableness:compare R v Samaniego, 2022 SCC 9 at paras 19-26, 412 CCC (3d) 7. [9] Specifically, ground 1 is a ruling as to admissibility of evidence concerning alleged prior sexually related conduct involvingthe appellant and the complainant under s 276 of the Code.

Rulings as to admissibility of evidence by trial judges generally involve someassessment of facts and circumstances and some exercise of discretion, so those elements may attract deference: see eg R v W(TW), 2022BCCA 312 at para 51, 418 CCC (3d) 169, citing R v Ravelo-Corvo, 2022 BCCA 19 at para 19, 410 CCC (3d) 457. [An appeal to theSupreme Court in W(TW) was reserved on November 10, 2023, at [2022] SCCA No 333 (QL) (SCC No 40406)]. [10] The legal test for admissibility of evidence, once the facts are determined, is an extricable question of law for whichcorrectness is the review standard: see eg Samaniego at paras 64, 148; R v Fitton, (SCC), [1956] SCR 958 at pp 983-984, applied in R v Ward, (SCC), [1979] 2 SCR 30 at p 34.

That is because admissibility is a legal conclusion achievedby application of legal principles to a settled set of facts in the same way that a proper legal definition must be part of the analysis andconclusion: compare R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527. [11] The trial judge’s ruling to exclude evidence within the scope of s 276 of the Code is the principle legal question in focus inGround 1. There are a number of reasons that issues of law arise.

To begin, reliance on a stereotype or myth is an error of law: R vD(ARJ), 2017 ABCA 237 at paras 9, 37-55, 353 CCC (3d) 1, affirmed 2018 SCC 6 at para 2, [2018] 1 SCR 218; R v Delmas, 2020ABCA 152 at para 6, 37-55, 452 DLR (4th) 375, affirmed 2020 SCC 39 at para 1, [2020] 3 SCR 780. Admissibility of evidence coveredby s 276 of the Code (as well as arguments based on stereotypes and myths) would raise a question of law even if the Code did not sayso: compare R v Derksen, 2023 MBCA 85 at para 36, 91 CR (7th) 356 under motion for leave to the Supreme Court of Canada, [2023]SCCA No 501 (SCC No 41025).

We observe in passing that there are other forms of stereotypical thinking which are not directlyincluded in s 276(1) of the Code but they also raise issues of law: compare R v O(LA), 2023 ABCA 347 at paras 5, 31-34, [2023] AJ No1263 (QL). [12] Furthermore, Parliament has stipulated presumptive inadmissibility about such evidence as is covered by s 276(1). Thedetermination after a hearing under s 278.94(4) requires reasons.

This presumption is largely based on the irrelevant and prejudicialnature of such evidence of prior sexual interaction: see R v Barton, 2019 SCC 33 at para 58, [2019] 2 SCR 579: “The animatingpurposes behind this new regime, aligned with those of its predecessor, were to protect the integrity of the trial by excluding irrelevantand misleading evidence, protect the accused's right to a fair trial, and encourage the reporting of sexual offences by protecting thesecurity and privacy of complainants ... [citations omitted]”; see also paras 60-65 and paras 76-85 of Barton.

As to the balancing, seelikewise R v V(R), 2019 SCC 41 at paras 39-40, 47-49, 64-65, 378 CCC (3d) 193 and R v Goldfinch, 2019 SCC 38, [2019] 3 SCR 3. [13] Accordingly, the role of the trial judge is a gatekeeping function involving legal principles: R v L(A), 2020 BCCA 18 at para141, 385 CCC (3d) 407, leave denied [2020] SCCA No 83 (QL) (SCC No. 39103).

It may be that only part of some proposed evidencefails the Code admissibility requirements – or (put more precisely) is proven to meet an exception to inadmissibility - but the trial judgemust still operate within legal principle in drawing any distinctions of that sort in admitting some and excluding the rest. One suchprinciple is whether the proposed evidence, even if admissible on the Code standards, is of such faint probative value as against seriousrisk of prejudice that the situation outweighs admissibility: compare V(

R) at paras 73-81 97-98. As noted in L(A), within paras 208-236: 224 In the result, the right to make full answer and defence does not necessarily open the door to the widest possible range ofinquiries. Nor does it guarantee to an accused the most favourable procedures imaginable -- procedures that take only his or her interestsinto account or that permit the introduction of evidence that purports to take its probative value from impermissible reasoning based on

myths and stereotypes that have long plagued this area of the law and distorted the truth-seeking function of a trial: R.V. at para. 67; R. v.Darrach, 2000 SCC 46 at para. 24; Barton at para. 1; R. v. Goldfinch, 2019 SCC 38 at paras. 2, 30.

See also R v McKnight, 2020 ABCA 251 at paras 120 and 259, 416 CCC (3d) 248, leave denied [2022] SCCA No 341 (QL) (SCC No.40375). [14] Therefore, it raised a question of law whether the evidence under s 276 of the Code which was claimed to be admissible in thiscase under Ground 1 in actuality measured up to the legal test (or the common law) to be exceptionally admitted: see s 278.97 of theCode referring back to s 278.94 and s 276(2) of the Code; see R v Darrach, 2000 SCC 46 at para 71, [2000] 2 SCR 443; Barton andGoldfinch (albeit relying on s 276.5 of the Code, replaced by s 278.97 of the Code); R v T(M), 2012 ONCA 511 at para 54, 289 CCC(3d) 115; W(TW).

Similarly, as to relevance generally raising a question of law, also compare R v Schneider, 2022 SCC 34 at para 39,418 CCC (3d) 137; R v Stewart, 2022 CMAC 9 at paras 25-26, [2022] CMAJ No 9 (QL). To be sure, the factual basis and context inwhich admissibility is determined is likely to involve a decision on matters of fact for which review on palpable and overriding errorwould apply (regardless of the ‘threshold’ for fact finding).

But the foundational test in law remains. [15] As to Ground 2, having to do with allegedly unfair cross-examination at trial by Crown counsel, McKnight says at para 119: 119 Improper cross-examination by the Crown does not always require a new trial. The question is whether, first, the Crown conductwas improper, and second, whether any improprieties found resulted in a miscarriage of justice such that the curative proviso in s 686(1)(b)(iii) of the Criminal Code is inapplicable. A miscarriage of justice arises when improper Crown conduct either

i) prejudices theaccused so as to render the trial unfair, or ii) otherwise brings the administration of justice into disrepute: Fanjoy v The Queen, (SCC), [1985] 2 SCR 233 at 240; R v Ruptash, 1982 ABCA 165 at para 16; R v R (AJ), (1994), (ON CA),94 CCC (3d) 168 [R (AJ), ] at 176; R v AG 2015 ONCA 159 [AG] at para 22; R v Belcourt, 2019 BCCA 435 at para 48. The same istrue of improper closing submissions by the Crown: R v AT, 2015 ONCA 65 at para 31; R v Hong, 2019 ONCA 170 at para 33; R vChacon-Perez 2022 ONCA 3 [Chacon–Perez] at para 129.

Also compare R v M(BE), 2023 SCC 32 at paras 2-5, [2023] SCJ No 33 (QL) from 2022 ABCA 207 at paras 12-17, 19-23, 414 CCC(3d) 296; R v A(N), 2015 NWTCA 8 at para 37, 331 CCC (3d) 33; Derksen at paras 51-57 (legal error by the trial judge arising whenthe trial judge fails to ‘correct’ or counteract the counsel misconduct). See also R v Clyke, 2021 ONCA 810 at paras 34-37, 408 CCC(3d) 86 where it was said at para 37: 37 While each case falls to be decided on its own facts, a non-exhaustive list of factors to be considered includes: (

i) the seriousnessof the improper comments; (ii) the context in which the comments were made; (iii) the presence or absence of objection by defencecounsel; and (iv) any remedial steps taken by the trial judge following the address or in the final instructions to the jury: R. v. Taylor,2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128, per Watt J.A.

Deference is owed to a trial judge’s assessment as to whether the alleged misconduct of Crown counsel was such as to demand a newtrial: R v McGregor, 2019 ONCA 307 at paras 182-184, 55 CR (7th) 61; Clyke at paras 38-42. [16] As to Ground 2, part of this ground is rendered moot by the Crown’s concession, namely unfairness of the trial. That said, theCrown does not concede unfairness by trial Crown counsel. Were this an independent issue, the topic of miscarriage of justice under s686(1)(a)(iii) arises.

For such appeal grounds, an appellant must establish a miscarriage of justice and not merely seek to characterizeevents by argument: see R v White, 2022 SCC 7 at paras 5-11, 411 CCC (3d) 419 and in citing R v Wong, 2018 SCC 25, [2018] 1 SCR696.

In White, the Supreme Court of Canada also said that the defect must be "so serious that it shakes public confidence in theadministration of justice", citing R v Davey, 2012 SCC 75 at para 51, [2012] 3 SCR 828: see also R v Kahsai 2023 SCC 20 at paras 5 and67-70, 428 CCC (3d) 135. [17] If a miscarriage of justice is made out, the appellate court will not likely be concerned with whether any discretionary rulingsthat formed part of the basis for that situation happening were correct or would be entitled to deference: compare R v Sauverwald, 2020ABCA 388 at paras 10-12 and 22, 394 CCC (3d) 516; Samaniego. [18] On the other hand, discretionary rulings that are entitled to deference do not constitute a basis for finding a miscarriage ofjustice merely because the outcome of the exercise of the discretion may enhance the possibility of conviction.

It is not prejudice in lawfor lawful evidence or procedure to favor conviction: see R v Handy, 2002 SCC 56 at para 139, [2002] 2 SCR 908 (“It is frequentlymentioned that ‘prejudice’ in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongfulconviction.”) [19] The Supreme Court of Canada, albeit as to

interpretation of s 686(1)(b)(iv) of the Code, also pointed out in R v Esseghaier,2021 SCC 9 at para 57, 396 CCC (3d) 326, that “our law does not demand perfect justice, but fundamentally fair justice”: see also R vMills, (SCC), [1999] 3 SCR 668 at para 72.

Seen in that way, circumstances in a trial, such as rulings of a trial judge orconduct of counsel which are found to be lawful do not occasion a miscarriage of justice solely because they disadvantaged the accusedor because the appellate court would have exercised whatever discretion may have been involved differently: see eg Mills at para 75.The Mills finding as to fair process was upheld in R v J(J), 2022 SCC 28, 415 CCC (3d) 285. [20] As to Ground 3, the trial judge’s decision not to permit the defence of honest but mistaken belief in communicated consent tobe presented to the jury raises a question of law for which correctness is the standard: compare R v Cinous, 2022 SCC 29 at paras 55,202, 2002 SCC 29 , [2002] 2 SCR 3 and R v Cairney, 2013 SCC 55 at paras 21-22, [2013] 3 SCR 420.

One might also comparethe analysis of what is relevant to a defence that might narrow its availability: R v Khill, 2021 SCC 37 at paras 119, 140-145, 409 CCC(3d) 141; see also Derksen at paras 17-20, 31-38, 46 (applying ‘air of reality’ to honest and mistaken belief in communicated consent); R v Hay, 2022 ABCA 246 at paras 32-37, 482 DLR (4th) 3, affirmed 2023 SCC 15 at para 2, 482 DLR (4th) 1. [21] As to Ground 4, misdirection of the jury on a material matter which should be given correctly to the jury raises a question oflaw: Barton at para 54; Khill at paras 140-141; R v Abdullahi, 2023 SCC 19 at paras 4-5, 30-33, 428 CCC (3d) 1.

As the Court said in

Adbullahi , at paras 34-43, the jury must be “properly equipped” under the functional approach by the jury charge to be able to decide the case. [ 22 ] It is appropriate to now turn to the individual grounds. III. Discussion of Grounds 1 to 4 [ 23 ] Grounds 1 and 3 are interrelated and may be conveniently dealt with together. Grounds 2 and 4 are dealt with separately. Grounds 1 and 3 –

Section 276 of the Criminal Code [ 24 ] As noted above, Grounds 1 and 3 are worded as follows: 1 The Trial Judge erred in law in denying the Appellant's application pursuant to s. 276 of the Criminal Code of Canada ; ... 3 The Trial Judge erred by not putting the defence of honest but mistaken belief in communicated consent before the jury. ... [ 25 ] The appellant particularizes these grounds of appeal by focusing on the trial judge’s written reasons and drawing from them three points said to be error of law: (

a) the trial judge allowed counsel for the complainant to participate in the ‘stage 1’ phase of proceedings under s 278.93 of the Criminal Code ; (

b) that the trial judge “went far beyond the scope of a facial consideration of whether the evidence was capable of being admissible” in making her rulings; and (

c) that she erred in law in concluding that the evidence which the appellant proposed to introduce was irrelevant, prejudicial and not admissible under the Code . [ 26 ] Dealing with these points in reverse order -- namely with the crucial point of admissibility of the proposed evidence -- the trial judge summarized what was proposed by appellant to be relevant and probative in these terms: 13 The anticipated evidence is that the Accused danced in the bar with the Complainant prior to the incident that is the basis of the charges and that the Complainant pulled him towards her and started kissing him (Affidavit at paras 4-5). 14 The Applicant, who does not speak English, deposes that he could tell that the Complainant was interested in him.

The Applicant further deposes that the Complainant then used words and gestures to indicate that she wanted his telephone number, which he gave to her in English while she typed it into her phone (Affidavit at para 6). At the end of the night, he states that she then kissed him again outside the bathrooms in the bar (Affidavit at para 7). [ 27 ] This was the version ventured by the appellant, and the complainant’s version differed but for present purposes, as properly noted by the trial judge, the stage 1 analysis did not reach a conclusion as to which version was probable for the purposes of stage 2.

The trial judge, at para 15, went on to encapsulate the events that the appellant alleged to have occurred after the complainant entered a motor vehicle and was driven away from the bar putatively to take her to her Airbnb. That evidence was not excluded at trial. So, the issue here was and is admissibility of the kissing.

The trial judge said, at para 18, that the appellant’s argument to her was that the appellant “had to interpret the Complainant's non-verbal cues that started on the dance floor and continued through the night in order to ascertain her consent for the sexual intercourse.” [ 28 ] She went on to explain, at paras 19-22, that the appellant’s counsel contended that the kissing aspect was “so innocuous that no reasonable person would believe that it could detract from the Complainant’s credibility”.

Paradoxically, since that position for the appellant would suggest that the kissing evidence proposed for admission was irrelevant, the appellant’s position then was that “the sole purpose is to show the Complainant's attitude and disposition toward him on this occasion only”. [ 29 ] The appellant’s counsel’s submissions in this Court remain along this line. But the word “only” as art of that assertion is a rhetorical chimera.

The underlying logic of the argument for admissibility could only be that her alleged conduct was, for the appellant, a form of circumstantial evidence from earlier conduct of her inclination to later consent to an entirely different form of “ activity that forms the subject matter of the charge ” under s 273.2 of the Code . For that, the relevant state of mind of the complainant would be “the voluntary agreement of the complainant to engage in the sexual activity in question ” under s 273.1 of the Code .

Accordingly, this argument devolves to a contention that this evidence supports an inference of the complainant’s “disposition or interest”.

Her alleged disposition or interest in such kissing if and when it occurred could in no sense be probative of her consent at the later time of the “activity” of sexual intercourse without the connecting bridgework of forbidden reasoning. [ 30 ] The trial judge captured this point efficiently when she wrote: 48 The Applicant states that if he is prevented from explaining the evolution of the Complainant's communicated interest in him, his story will appear unnatural and implausible.

Moreover, it would make it impossible for him to gain any credibility in respect of his belief that she was consenting without being able to explain why. The Applicant contends that the jury will understand that sexual encounters naturally develop and have a storyline that is critical to understanding the outcome. 49 I conclude that the Applicant's attempt to describe the progression leading up to sex in the vehicle masquerades as context and narrative and I therefore reject any relevant nexus it may have to the defence of consent. [Emphasis added] We see no error in what she said in this respect.

The appellant’s syllogism for admissibility requires the inclusion of the appellant’s stereotypical

interpretation of the alleged earlier events of kissing into a position to go to the jury that it constituted a green light for sexual intercourse. As the trial judge observed at paras 59 to 77 of her reasons, the proposed evidence offered here was facially what Parliament has said to be presumptively inadmissible, notably under, in this case, both of s 276(1)(

a) and s 276(1)(

b) of the Code .

[31] The second element of the defence submissions to the trial judge concerned the alleged basis for admission of the evidence ofkissing on the topic of whether the appellant had an honest but mistaken belief in communicated consent. It is important to rememberthat, in Barton, Moldaver J pointed out that Parliament linked the defence of mistake to mistake as to communicated consent and not ageneral idea of advance or implied consent. The trial judge put the point this way: 55 It is essential to reiterate the law here.

A belief by the Accused that the Complainant might have been receptive to his advances forsex because of prior sexual acts that evening, namely kissing, does nothing to establish that consent was actually given for the sex: JA atparas 47 and 64. Consent must be found in what specifically passed between the Accused and Complainant on this occasion: JA at para34. 56 While I accept that there were language barriers at play, this does not permit me to lower the threshold for consent.

It is trite nowin the law that no means no and nothing less than yes means yes. 57 Any language barriers, in my view, heighten the need for the person seeking consent to find other ways to ascertain it; the pathwayto sexual activity cannot be paved by implying consent from a prior act or a friendly disposition. It is an error of law to rely on anythingshort of communicated consent for the specific sexual act in question. [Emphasis added.] 58 Based on the anticipated evidence, I therefore find no air of reality to this defence. We see no error in this reasoning under the circumstances of this case.

We add that the alleged kissing was not part of the activity inquestion: see McKnight, at paras 252-255, which included this: 255 If the so-called "proximate" activity is not part of those events comprising the offence but is nonetheless allowed in evidencewithout review for admissibility or prejudice, then this concept of "proximate" activity is simply a lamentable revival of the concept ofimplied consent such as by the "come hither" stare or other alleged signals of sexual interest.

Applying an amorphous notion of mere"proximity in time and place" as a justification for disapplying the screening provisions would not only undermine those screeningprovisions but would roll back Parliament's carefully chosen use of the word "activity" to put beyond question that a complainant is notdeemed to mean "yes" to anything, even at the time and place. [Emphasis added.] See also R v Choudhary, 2023 ONCA 467 at para 17, 428 CCC (3d) 380.

Since this argument fails, we now return to address twoprocess points, the first being the participation of counsel for the complainant in submissions on the stage 1 decision, and the secondbeing the decision to close the door at stage 1 based on lack of air of reality. [32] As to the first point, the appellant cites JJ for the proposition that a complainant has no role to play at stage 1.

The SupremeCourt of Canada in JJ distinguished stage 1 and stage 2 in part, in our view, to uphold this distinction in the Code provisions becauseseparating the stages also would protect complainants from being conscripted into participating in the stage 1 inquiry.

Further, the Courttook the unsurprising position that a decision as to whether a contention in favor of admissibility is sufficiently arguable to move to stage2 is not a platform for the balancing which is the purpose of stage 2. [33] That said, and even assuming a procedural slip, the trial judge certainly had the jurisdiction to adjudicate the matter, and therewas no prejudice to the appellant by permitting intervention by counsel for the complainant in making submissions about the law. Thedecision of the Supreme Court of Canada in JJ was rendered after the trial judge issued her reasons.

Considering the reasoning of theCourt in JJ, there was, arguably, no significant error of law at all until the Supreme Court spoke, even though the law is ‘alwaysspeaking’. That said, and assuming there was an error of process, it would be an error that would engage the second ‘curative proviso’ ins 686(1)(b)(iv) of the Code: see Esseghaier, at paras 35-43, 45-49. [34] As to the second point regarding whether the trial judge misconceived the level of evidence required to meet the threshold atstage 1, the appellant’s submission depends on whether the appellant’s position got past the air of reality test.

It did not get over thathurdle in the trial judge’s reasonable assessment of the matter. We agree with her. As pointed out in Derksen, at paras 31-32: 31 In order to rely on the defence of honest but mistaken belief in communicated consent, an accused must establish that there exists anair of reality to the defence.

The trial judge must "consider whether there is any evidence upon which a reasonable trier of fact actingjudicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed thecomplainant communicated consent" (Barton at para 121). 32 Where the testimony of the victim and the accused is "diametrically opposed" (R v Davis, (SCC), [1999] 3 SCR759 at para 85), honest but mistaken belief in communicated consent will not arise; the issue at trial is one of the victim's credibility as tothe lack of consent.

For the defence to apply, there must be "evidence of a situation of ambiguity" that is "capable of explaining how theaccused could honestly have mistaken the complainant's lack of consent as consent", such that what is at issue is not what happened butthe parties'

interpretation of what happened (R v Esau, (SCC), [1997] 2 SCR 777 at para 63; see also Davis at para 86;and Park at paras 25-26). [Emphasis added.] There was no processing error in the trial judge’s finding that the proposed evidence and argument failed to get past stage 1. [35] To summarize, it is useful to note that this Court in Hay pointed out respecting both consent and mistake that: 19 Taking Mr Hay's evidence at its highest, it fails to ground his argument that he believed the complainant communicated consent toengage in anal intercourse; notably absent was any evidence that Mr Hay believed the complainant had communicated consent to thisspecific act.

At best, the evidence of previous sexual activity would have grounded his belief that the complainant might consent or waslikely to consent to anal intercourse. This is not sufficient. The evidence did not meet the test for relevance and should not have beenadmitted or relied on by the trial judge in her subsequent decision. [...] 32 Two problems arise here. First, the defence of honest but mistaken belief in communicated consent must be based on Mr Hay'sbelief that the complainant had consented to anal intercourse, not that she would have, or was likely to, consent to the act. Assuming the

complainant was more likely to consent to anal intercourse because of their previous sexual interactions is prohibited twin-myth reasoning. 33 Second, anal intercourse is not a natural extension of digital penetration .

It is a new sexual act and a clear escalation in sexual activity that requires enhanced efforts to ascertain consent, particularly in a new relationship. [Emphasis added] The Supreme Court of Canada in Hay holding that this Court “properly substituted a conviction” and explaining in the following compact terms: 2 We are all of the view that the appeal should be dismissed, substantially for the reasons of the Court of Appeal. Mr. Hay's defence of honest but mistaken belief in communicated consent had no air of reality, and the evidence of prior sexual activity was inadmissible.

In the circumstances, the Court of Appeal properly substituted a conviction. Therefore, the appeal is dismissed. See also R v E(

A) and F(TC) , 2022 SCC 4 at para 1 , 410 CCC (3d) 423, dismissing appeal from 2021 ABCA 172 at paras 24-27 and 44 , 466 DLR (4th) 226. The appeals in Hay and E(

A) were cases where convictions were entered on appeal by this Court. [ 36 ] As for whether the trial judge misconceived the procedure and onus, the trial judge recognized the threshold for the stage 1 assessment and, in our view, she applied it. The appellant contends that his lack of linguistic understanding raised a factual point which would be pertinent to assessment of whether the stage 1 position was arguable.

We agree with the trial judge that the appellant’s lack of linguistic capacity in the circumstances of this case did not assist the appellant in his s 276 application. [ 37 ] Grounds 1 and 3 therefore are not made out and would not have justified an order for a new trial. Nor do the circumstances discussed under these Grounds lend weight to the submission under Ground 5 as to remedy such as costs. Ground 2 – Alleged Crown Misconduct [ 38 ] Ground 2 alleges unfairness on the part of Crown counsel in cross-examination and in submissions to the jury.

As mentioned above, the effect of this ground is moot as a new trial is being ordered on a different basis. The upshot of this ground is that Crown counsel asked a series of questions that put to the appellant that he had an ability to cope in the English language. The appellant submits that this line of questioning would have invited the jury to be skeptical about the appellant’s need for

interpretation assistance in this case. The appellant contends that whether the appellant had some ability in the English language was irrelevant to the issues in the case. [ 39 ] The appellant goes further to suggest that Crown counsel not only covered an area which was collateral and unfair, but Crown counsel went on to ask compound questions, not wait for answers before asking another question, and in one instance offered a form of resume about what happened and invited the appellant to respond to it.

On all of this, counsel for the appellant submits that this took unfair advantage of the appellant's limited proficiency in English. [ 40 ] A specific question by Crown counsel was objected to in the presence of the jury and was withdrawn. Later, a different question considered acceptable by trial defence counsel was put to the appellant. The question suggested to the appellant that the complainant’s behaviour in the vehicle was a surprise to him as it came “out of the blue” [AT 571/31].

Considering the ruling under s 276 and s 278.94 of the Code , the question was improper and was properly objected to by defence counsel.

After discussion in the absence of the jury [AT 572-573], Crown counsel proceeded differently, and trial defence counsel did not object. [ 41 ] Neither counsel asked the trial judge to address this questioning incident in the jury charge although there were very specific and clear contributions by both counsel to amend the jury charge, notably as to very specific proposals by defence counsel regarding the trial judge’s description of the evidence [AT 649-710]: see discussion of ground 4 below.

In our view, it was entirely reasonable for defence counsel not to want to give this wrinkle in the fabric of the appellant’s evidence any prominence. Some of the Crown cross- examination enabled the appellant to say that the complainant’s dancing, her request for his phone number, and request for a ride indicated that he thought she liked him.

This was not injurious to his position. [ 42 ] The appellant’s argument as to Crown cross-examination respecting the appellant’s understanding of English might have some force if the objective of the questions was generic in the sense that it merely proposed to invite the jury to find the appellant lacked credibility on a collateral issue. [ 43 ] But the point was not entirely collateral since the appellant’s capacity to seek the complainant’s consent to the activity by asking her for her consent in a language she understood was relevant.

The appellant’s version was that one of the males with him spoke to her in English around the time he had sex with her. Her version was that she was never asked by the appellant or other men involved and was stripped of her clothing and subjected to intercourse against her will with her saying “no”. In her testimony, she mentioned that the men spoke a language between them and not to her that she did not understand.

In contrast, the appellant’s version alleged co- operation by her at least as to sex with him and that she never said “no” to him. [ 44 ] As for the more generalized complaints about the manner of cross-examination, it is not possible for this Court to accurately gauge the tenor or impact of the questioning. In print the cross-examination does not appear to be profoundly atypical or hectoring. There was no request for a specific remedy arising from the questions to be included in the charge. The trial judge warned the jury in the following terms, which followed a systematic review of the draft charge: Mr.

Sandhu had more barriers communicating and had to use an interpreter, which may have impacted his ability to express himself. He was staid, resolute, virtually unemotional throughout. Be very careful what you might infer from either. Such factors as differing countries of origin and cultures may be factors. The formality and pressure of the process can be another, especially when having to speak in front of so many strangers about a most personal and private activity. Be careful not to assume either of them ought to have behaved differently or in any specific way if what they say is true.

Forming a decision solely on reading something into the way a person has testified is more likely than not to lead to error.

The charge went into considerable detail as to the factors the jury could consider or should not overemphasize in assessing the evidence.The trial judge took the jury through the concepts in R v W(D), (SCC), [1991] 1 SCR 742. The appellant raises noobjection to these instructions by specific proposals of different wording now. [45] This Court, therefore, cannot find reversible unfairness under this ground: compare R v EF, 2022 ABCA 366 at paras 11-23,420 CCC (3d) 208; M(BE). Ground 4 – Misdirection of the Jury [46] The fourth ground of appeal contends that the jury charge was unfair and not balanced.

The charge was the product ofdiscussions with counsel and there was no objection to them afterwards. It is on appeal that counsel complains about whether theappellant’s narrative was sufficiently left with the jury. We agree with the Crown submission that there is no flaw in the jury charge inthis respect.

As expressed, the argument under this ground is quite general and seems to recast the argument about the trial judge notleaving the honest mistake defence with the jury. [47] There is more than a failure to object; we see the jury charge as a product of not only the trial judge but able and thoughtfulpositions from trial counsel, and, importantly, trial defence counsel: see EF at para 14, noting R v Bouchard, 2013 ONCA 791 at para38, 305 CCC (3d) 240, aff'd 2014 SCC 64, [2014] 3 SCR 283 itself cited with approval in Barton at para 150; R v McCrimmon, 2022ABCA 289 at paras 8-12, 417 CCC (3d) 390. [48] As said in that line of cases, when the trial judge's instructions are consistent with the instructions worked out by counsel andthe trial judge in the pre-charge conference, and counsel has no objections after the charge is delivered, it is an understatement todescribe counsel's position as merely "a failure to object": see R v Vankoughnett, 2008 BCCA 261 at para 20, [2008] BCJ No 1342(QL), citing R v Chandrakumar, 2007 ONCA 798 at para 36, 231 OAC 30; R v Mack, 2014 SCC 58 at para 60, [2014] 3 SCR 3.

It ismore accurate here to say that counsel's position was that he was satisfied with the instructions. And it may be a strategic position: R vCalnen, 2019 SCC 6 at paras 32 and 68, [2019] 1 SCR 301. [49] As said by the Supreme Court of Canada recently in Abdullahi, at paras 66-70, after explaining the distinction betweenrequired and contingent instructions: 66 Trial judges often convene a pre-charge conference, as provided for under s. 650.1 of the Criminal Code. In this proceeding, thejudge will usually provide counsel with a draft of the jury charge and invite comments on it.

This is intended to be a meaningfulexchange. Counsel should lay their cards on the table, and the judge should be mindful of what counsel says, bearing in mind that it is anadversarial process. After the judge has instructed the jury, counsel have an opportunity to raise objections to the charge or to requestclarifications or additional instructions before the jury commences its deliberations. As with the pre-charge conference, this is meant tobe a meaningful exchange where counsel lay their cards on the table.

Finally, when juries raise questions during their deliberations,counsel have the opportunity to provide submissions to the judge as to how to answer the questions. Where counsel fails at these variousopportunities to request the inclusion of an instruction or fails to raise an objection to the charge as delivered, appellate courts have oftenturned to counsel's silence as an important consideration. 67 Although the silence of counsel can be a relevant consideration, it should be recalled that the responsibility for the jury charge lieswith the trial judge, not counsel.

This Court has on several occasions stated that the silence of counsel, while relevant, is notdeterminative (see, e.g., Thériault v. The Queen, (SCC), [1981] 1 S.C.R. 336, at pp. 343-44; Daley, at para. 58; Mack,at para. 60). To hold otherwise would "unequivocally prejudice an accused's right of appeal in cases where counsel is inexperienced withjury trials" (Jacquard, at para. 37). The silence of counsel is simply one of many considerations under a functional approach. 68 Counsel's silence may be particularly relevant as to whether a contingent instruction was required.

For example, the lack of arequest by defence counsel for the inclusion of a limiting instruction against general propensity reasoning may reinforce the conclusionthat such an instruction was not required in the circumstances of the case (Calnen, at para. 41). Counsel's silence may also suggest thatan instruction that was given was sufficiently detailed. For example, the lack of objection may indicate the sufficiency of a judge'sVetrovec instruction (Khela) or instructions on advanced intoxication (Daley).

Counsel's silence could also support a conclusion that thecharge read as a whole accurately set out the law relevant to a given issue. For example, in Goforth, the lack of objection by defencecounsel did not make the jury charge accurate, but it supported the conclusion that the overall effect of the charge accurately instructedthe jury with the foreseeability standard for the offence (para. 39). One can take the view that an instruction good enough for counselwas likely good enough for the jury (see, e.g., Jaw, at para. 36).

But, the impressions of the moment can be mistaken, especially incomplex cases with multiple legal issues. 69 Counsel's silence may be particularly significant where there are indications that it was a tactical decision. If the absence of aninstruction at trial could have benefited the party who argues on appeal that it was required, then the appellate court might ask whethercounsel made the tactical decision not to seek the instruction at trial (Calnen, at para. 41; see also R. v. Royz, 2009 SCC 13, [2009] 1S.C.R. 423, at para. 3). This can be a significant consideration.

Counsel cannot withhold an objection at trial and save it for an appeal.Appellate courts are also rightly hesitant to second-guess the tactical decisions of counsel, save to prevent a miscarriage of justice(Calnen, at para. 67; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34). Conversely, if the omission of an instruction wouldhave had no apparent benefit for the appealing party, this may suggest that the error was an oversight rather than a tactical decision(Khill, at para. 144; R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 48). 70 Appellate courts may also be called on to consider whether counsel's silence is relevant to the curative proviso. Counsel's silencemay suggest, for example, that while an omission in the judge's instructions was an error of law, the error was harmless in thecircumstances (R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129, at p. 143; Jaw, at para. 44). As noted before, this is adistinct inquiry. [Emphasis added.] The charge here was impeccable having regard to the evidence and the positions of counsel.

[50] Ground 4 on appeal is rejected. Ground 5 as to Language

Interpretation and Remedy [51] There is, as mentioned, no dispute as to the conclusion that the language

interpretation in this trial was sufficiently deficient tothe extent that the verdict cannot stand. Consequently, the real questions are whether either of the alternative remedies proposed by theappellant are just and appropriate and rendered necessary under the circumstances. A stay would terminate the prosecution. An award ofcosts is proposed to compensate the appellant for the need to face re-trial. [52] Section 686(8) of the Code says that if a new trial is ordered under s 686(2) by this Court, the Court also “may make anyorder, in addition, that justice requires”.

While the language of s 686(2) of the Code is not narrow, the Supreme Court of Canada pointedout in R v Cowan, 2021 SCC 45 at para 54, 409 CCC (3d) 287 that: [54] Where an appellate court exercises its powers under s. 686(2), (4), (6) or (7), it may also “make any order, in addition, that justicerequires” under s. 686(8). This power, however, is not limitless. As this Court recently explained in R.V., for an appellate court to issuean additional order under its s. 686(8) residual power, three conditions must be met (para. 74, citing R. v. Thomas, (SCC), [1998] 3 S.C.R. 535).

First, the court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7).Second, the order issued must be ancillary to the triggering power in that it cannot be “at direct variance with the court’s underlyingjudgment” (Thomas, at para. 17; see also R. v. Warsing, (SCC), [1998] 3 S.C.R. 579, at paras. 72-74). Third andfinally, the order must be one that “justice requires”. [Emphasis added] [53] The Court in Cowan later added at para 63: The ancillary order was also not one that justice required.

In Canadian criminal law, the concept of the “interests of justice” has come tobe understood as encompassing the interests of the accused, the interests of the Crown, broad-based societal concerns, and the integrityof the criminal process (R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768; R. v. M. (P.S.) (1992), (ONCA), 77 C.C.C. (3d) 402 (Ont. C.A.), at paras. 32-36; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 52; R. v. Last, 2009 SCC45, [2009] 3 S.C.R. 146, at para. 16; R. v. Bernardo (1997), (ON CA), 105 O.A.C. 244, at paras. 16 and 20).

Here, inmy view, the ancillary order threatens the integrity of the criminal process by distorting the truth-seeking function of the courts.[Emphasis added] [54] The specific concern of the Court in Cowan was not like the present situation, but the broader principle expressed about the“interests of justice” applies. Similarly, in R v Baasch, 2023 NUCA 7 at para 52, [2023] Nu J No 18 (QL), leave denied (2024) [2023]SCCA No 340 (QL) (SCC No. 40878) we find this: 52 Section 686(8) then provides that a court of appeal "may make any order, in addition, that justice requires", a remedy that is to begiven a broad

interpretation: R v Provo, (SCC), [1989] 2 SCR 3, 20, 49 CCC (3d) 417.

The additional order must ariseout of a triggering provision of s 686, must be truly ancillary to that provision, and must be in the interests of justice: R v RV, 2021 SCC10, para 74, 402 CCC (3d) 295; see also R v Thomas, (SCC), [1998] 3 SCR 535, paras 10-18, 130 CCC (3d) 225; R vHinse, (SCC), [1995] 4 SCR 597, paras 30-33, 102 CCC (3d) 289. [Emphasis added] [55] On the point of costs, the appellant argues that there is prejudice to any appellant who wins a new trial following from“having to incur the financial costs associated with a new trial”.

The prospect of having to defend a prosecution at a second trial afterbeing convicted at the first trial is not legal prejudice in and of itself. Parliament specifically provides for such a remedy. The “financialcosts” of a re-trial, if any, are likewise an incident of the legal process and not of themselves any abuse of that process.

The appellant’sposition, and the basis of his application for costs, is in no sense unique, extraordinary, or requiring of an exemplary response by theCourt to vindicate a foundational legal principle. [56] In R v Tran, (SCC), [1994] 2 SCR 951, the Supreme Court of Canada did refer to the possibility of“damages” as a Charter remedy in an

interpretation case with a clear breach of s 14 of the Charter. Nonetheless, the Court did not ordercosts or damages in that case and, rather, found “that the appropriate and just remedy under s. 24(1) of the Charter is to grant theappellant's request for an order allowing the appeal, quashing the conviction and directing that a new trial be held”. We do not discernfrom the few sentences the Court used to address remedy that it was intending to mandate a policy line of reasoning about costs ordamages which later cases of that Court and other courts have not put forward.

Read with care, the wording in Tran excludes theimposition of costs or damages. [57] Parliament has provided for costs in criminal matters under very limited circumstances. This signal should not be forgotten.The imposition of costs upon the public must require a very substantial justification to be in the interests of justice.

This has beenexpressed in the following terms in R v Singh, 2016 ONCA 108 at para 38, 334 CCC (3d) 481: 38 As the above-noted passage makes clear, inadvertent error is not enough to justify an award of costs for breach of the disclosureobligation and costs awards for such breaches will not be "routinely ordered in favour of accused persons who establish Charterviolations": Ciarniello, at para. 36.

A costs award against the Crown will not be an "appropriate and just remedy" under s. 24(1) of theCharter absent a finding that the Crown's conduct demonstrated a "marked and unacceptable departure from the reasonable standardsexpected of the prosecution", or something that is "rare" or "unique" that "must at least result in something akin to an extreme hardshipon the defendant": Ciarniello, at paras 31-36; see also Tiffin, at paras. 93-101. [58] The decision in R v Tiffin, 2008 ONCA 306 at paras 92-102, 232 CCC (3d) 303 covers similar ground.

A further appeal bythe accused persons in Tiffin was quashed as moot at (2008) (SCC), 236 CCC (3d) 1. As for R v Ciarniello (2006), (ON CA), 81 OR (3d) 561, it was re-affirmed in Quebec (Director of Criminal and Penal Prosecutions) v Jodoin,2017 SCC 26 at paras 25-34, [2017] 1 SCR 478, that costs are a very exceptional remedy in the criminal justice system. While the Courtin Jodoin was directing its attention to alleged misconduct of a lawyer which interfered with the course of legal proceedings, the essenceof the reasoning aligns with the general propositions in Singh.

[59] Furthermore, and again about the interests of justice and drawing from Ciarniello at para 33: “Routine costs awards in favourof the winning party are a feature of civil, not criminal proceedings. ...

Criminal proceedings are brought in the public interest, not by oneparty to vindicate his or her private interests as against another.” [60] In so saying, Ciarniello took from the reasons of McFadyen JA for this Court in R v Robinson, 1999 ABCA 367 at paras 26-30, 142 CCC (3d) 303 where, amongst other things, she said that costs “should not be routinely awarded”, and that: ... the Crown is not an ordinary litigant, does not win or lose criminal cases, and conducts prosecutions and makes decisions respectingprosecutions in the public interest.

In the absence of proof of misconduct, an award of costs against the Crown would be a harsh penaltyfor a Crown officer carrying out such public duties. Clearly, problems with

interpretation in this case undermined trial fairness. However, there is no suggestion the Crown was aware of theseverity of those problems at the material time.

Interpretation adds an additional level of complexity to a criminal trial. It is notuncommon for counsel to be reminded to slow down and use shorter questions so that an interpreter can properly interpret. Crown’sconduct was neither “rare” nor “unique”. It was more akin to “inadvertent error”.

It did not rise to a marked and unacceptable departurefrom the reasonable standards expected of the prosecution. [61] Before leaving this point, it might be added that while costs are an established remedy in civil proceedings to regulate thoseproceedings and provide for partial indemnity, it is foundational that costs in that setting are reasonable expectations of a battle betweenpersons over private interests. The criminal justice system has quite different interests, none of which are private.

The imposition of costsupon the state in the exercise of the criminal law power under s 91:27 of the Constitution Act, 1867 (UK) 30 & 31 Vict., c 3, may welloffend the policy in Auckland Harbour Board v The King, [1924] AC 318 that courts cannot as a matter of generalized discretion andfor court purposes exact from the Consolidated Revenue Fund of Canada established by s 103 of the Constitution Act, 1867 (UK) 30 &31 Vict., c 3 or the Consolidated Revenue Funds for provinces established under s 126 of the Constitution Act, 1867. [62] In Ontario v Criminal Lawyers’ Association, 2013 SCC 43 at paras 57-62, [2013] 3 SCR 3, the Court pointed out that “theAuckland Harbour principle highlights the limits of the court's role in the administration of justice, a role that is based on history,convention, competence and capacity”.

Criminal Lawyers was a case concerned with rate of funding for amicus curiae, which wasdirectly connected to the judicial function. But even there, “permitting judges to set rates and to order payment without authority basedon a statute or derived from a constitutional challenge takes the judge out of the proper judicial role”. This is not to dismiss Crownliability under the law of contract or tort, nor to ignore existing law about Charter remedies. But there is no contract or tort liabilityengaged here, and the Charter remedy was described under Tran above and did not include costs.

It follows that to order costs againstthe Crown in this case would not be just and appropriate and would, indeed, be Constitutionally dubious. [63] As for the option of entering a stay of proceedings, the appellant cites R v Dhillon, 2014 BCCA 480 at paras 26-41, 324 CRR(2d) 163, which is a conspicuously different situation than the case at bar. Dhillon acknowledged the principles in R v Babos, 2014 SCC16 at paras 30-31, [2014] 1 SCR 309, R v Regan, 2002 SCC 12 at para 53, [2002] 1 SCR 297, and R v Power, (SCC),[1994] 1 SCR 601 at 615.

As pointed out yet again by the Supreme Court of Canada in R v Haevischer. 2023 SCC 11 at para 17, 425CCC (3d) 411, a “stay is an extraordinary remedy reserved for the "clearest of cases" (Babos, at para. 31”). [64] In this case, the motion for a stay is grounded not in any basis that the re-trial of the appellant will be rendered unfair in somemanner on its merits.

The zone of ‘abuse of process’ is the residual category, which Babos at para 35 said was based upon “whether thestate has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the faceof that conduct would be harmful to the integrity of the justice system” [Emphasis added]. And as added at para 39 of Babos, “the goal isnot to provide redress to an accused for a wrong that has been done to him or her in the past.

Instead, the focus is on whether analternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct goingforward.” [Emphasis added] [65] Since the appeal was argued, the Supreme Court of Canada rendered its decision in R v Brunelle, 2024 SCC 3, [2024] SCJNo 3 (QL). The Court was dealing with a claim for a stay for abuse under the residual ground.

It reiterates, at para 59, that the remedy ofa stay of proceedings is a prospective one and “aimed at preventing the perpetuation of prejudice to the integrity of the justice systemthat, if left alone, will continue to trouble the parties and the community as a whole in the future”. There is nothing like that here. [66] It has not been established that the Crown was in a position to understand the severity of the

interpretation problems as theywere occurring. This is not an example of the state engaging in offensive conduct as described in Babos. In these circumstances, there isno need to dissociate the justice system from the Crown’s conduct to avoid harm to its integrity. [67] The appellant also spent less than two weeks in custody after conviction and was released on judicial interim release byconsent. [68] The offence of which the appellant was convicted was a serious crime.

A stay of proceedings would in no sense be a just andappropriate remedy for an error in the trial process which had nothing to do with the merits of the case. [69] In sum, neither of the proposed remedies under ground 5 is just or appropriate. If this Court has jurisdiction to grant eitherremedy, we would decline to do so. [70] In closing on this point, we do not address the meaning of the words “justice requires” set out by Parliament nor s 686(8) ofthe Code in its context.

It may be arguable that the only ancillary remedies contemplated by s 686(8) of the Code are appellate remediesdirectly associated with the appellate power being exercised and within the jurisdiction of this Court. [71] Put another way, although we have discussed above the remedies of costs and a stay, we do not wish to be taken to accept thepremise that either remedy is included within the scope of s 686(8) of the Code. That is for another day. Perhaps such remedies residewithin the inherent powers of the superior court and not in this Court in exercising a statutory function.

Furthermore, evidential hearingsare feasible in the Court of King’s Bench in a way that they are not in this Court.

IV. Conclusion [ 72 ] The appeal from conviction is allowed and a new trial is ordered on the Count of sexual assault under s 272(1)(

d) of the Criminal Code . The Crown has chosen not to seek a retrial on the other Count mentioned. The appellant is on judicial interim release and since he is not subject to a warrant of committal at this point, he is directed to attend before the Court of King’s Bench Appearance Court on its scheduled date on March 22, 2024.

This direction effectuates the release order authority in this Court under s 679(7.1) of the Code , but now that such order is made by this Court, the appellant is subject to the jurisdiction of the Court of King’s Bench as the Court before whom he is to be tried pursuant to s 523(2) of the Code . Appeal heard on 7th day of September 2023 Memorandum filed at Edmonton, Alberta this 12th day of February, 2024 “Watson, J.A.” Watson J.A. “Watson, J.A.” Authorized to sign for: Kirker J.A. “Fagnan, J.A.” Fagnan J.A. Appearances: B.A. Beresh, K.C. K.J. Advent For the Appellant R.A.

Fata For the Respondent _______________________________________________________

Corrigendum of the Memorandum of Judgment _______________________________________________________ Paragraph [72] • Line 2 – The reference within the Criminal Code was amended from s 271 to s 272(1)(d) . • Line 5 – the scheduled date to attend before the Court of King’s Bench Appearance Court was amended from February 26, 2024 to March 22, 2024 .