Convicting an Accused on an Unexplored Theory of Liability

Subject:  Unexplored theory of liability--trial fairness--fundamentally unfair to convict an accused person on a theory of which they are entirely unaware.

At the very least, a trial judge ought to alert trial counsel to the possibility of a conviction on a theory of liability which the Crown has not explicitly advanced nor which can be fairly inferred as having being put in play from the argument and evidence presented by the Crown. 

The trier of fact is not confined to the Crown’s theory in determining liability. As a general principle, a conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence.  However, the application of this principle is not without constraint.

In particular, this principle does not address the corresponding principle of trial fairness. An accused person is entitled to know the case that they are being asked to meet. It is fundamentally unfair to convict an accused person on a theory of which they are entirely unaware, and to which they have not had the opportunity to respond. Doing so denies the accused person their constitutional right to make full answer and defence.   See  R. v. R.H., 2022 ONCA 69 (CanLII).

In R. v. R.H., the trial judge convicted the accused of sexual assault,  concluding (based on a history of violence in the relationship of the accused and the complainant) that  the complainant’s agreement to permit the appellant to touch her sexually was invalid. The sexual touching, concluded the trial judge, was vitiated by the control that the appellant exercised through violence and intimidation within the relationship. The error here was that neither counsel had argued this route to a conviction; the case was not litigated as a vitiation of consent case. The contest was about the factual question of whether the complainant subjectively agreed to the charged sexual activity. The conviction for sexual assault was set aside, the appellant having been denied a fair trial.  

Written by Stuart O'Connell (Barrister/Solicitor, Toronto).


Location: Toronto, ON, Canada

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