R. v. F.Y.B.

2025 BCSC 1645 R. v. F.Y.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. F.Y.B., 2025 BCSC 1645 Date: 20250516 Docket: X085642 Registry: New Westminster Rex v. F.Y.B. and J.D.P. Restriction on Publication: Pursuant to s. 648(1) of the Criminal Code Before: The Honourable Mr. Justice Gibb-Carsley Oral Ruling on Voir Dire #3 - Admission of Evidence of Discreditable Conduct of F.Y.B. Counsel for the Crown: K. McIntosh M. Longay F. Radan Counsel for the Accused, F.Y.B.: J.R. Hemmerling Counsel for the Accused, J.D.P.: J. Dawkins Place and Dates of Hearing: New Westminster, B.C. March 5-7, 2025 Place and Date of Judgment: New Westminster, B.C. May 16, 2025 [1] THE COURT: These are my reasons for judgment in voir dire #3 regarding the Crown's application to adduce evidence of that reveals conduct of F.Y.B. that would be considered discreditable. Introduction [2] F.Y.B. and J.D.P. (the "Accused") are charged with five counts related to an alleged kidnapping that occurred on December 2, 2022. I will discuss the details of the alleged offences in more detail below, but in short, the accused are alleged to have robbed, threatened and held the complainant, J.G., against her will, at times using an imitation firearm (the "Charged Offences"). [3] The trial of this matter before a judge and jury is set to commence on June 2, 2025, and is scheduled for a duration of 20 days. [4] In this application, the

Crown seeks an order admitting evidence of discreditable conduct of F.Y.B. The discreditable conduct relates to an alleged robbery of the complainant in the summer of 2017 (the "Alleged 2017 Robbery") in which the complainant believes F.Y.B. was a participant. I note that F.Y.B. was never charged in respect of the Alleged 2017 Robbery. [5] As I will describe below, the Crown asserts that it is important that the complainant and other witnesses be able to provide at least some information about her belief that F.Y.B. was one of the perpetrators of the Alleged 2017 Robbery because without that evidence, the jury will be confused about why certain events unfolded as they did during the commission of the Charged Offences. [6] Specifically, the Crown argues that the jury would be confused as the complainant is expected to testify that F.Y.B. said certain things to her during the Charged Offences, which require the context of the Alleged 2017 Robbery to be understood, and without such context would unfairly impact the jury's assessment of the complainant's creditability. Second, the jury would be prevented from hearing the Crown's theory of F.Y.B.'s motive for committing the Charged Offences. Finally, without reference to the Alleged 2017 Robbery, the jury would not have an important part of the contextual background, in other words, the narrative of the Charged Offences, thus

confusing the jury and inhibiting its ability to find the truth. [7] On April 9, 2025, I gave judgment on this application and ordered that the discreditable conduct evidence of the Alleged 2017 Robbery could be admitted. I advised the parties that my reasons would follow. These are my reasons. [8] In these reasons I will provide a brief background of the Charged Offences for context. I will then set out the legal principles that guided my decision. Finally, I will turn to my discussion of how I arrived at my conclusion to admit the discreditable conduct evidence and place certain limits on what evidence can be adduced related to the Alleged 2017 Robbery. Background The Charged Offences [9] The Crown alleges that on the afternoon of December 2, 2022, the complainant went to her friend's residence to sell her friend drugs (the "Residence"). While at the Residence, F.Y.B., J.D.P., and others allegedly assaulted the complainant, threatened to cut off her fingers, and stole her property. For a time in the Residence, the complainant's legs were bound together using tape. [10] The Accused then allegedly took the complainant from the Residence to her own residence in the backseat of a car where the Accused proceeded to steal several items from the complainant's residence. The Accused later allegedly forced the complainant to sign documents to transfer ownership of her vehicle. The

Accused took the complainant's vehicle, cellphone, identification and other items stolen from her residence and left her in the parking lot. [11] In the course of investigating the Charged Offences, the complainant provided a statement to Detective Trent Lukey (the "Statement"). In the Statement the complainant said that she believed that one of the perpetrators of the Charged Offences is F.Y.B. Referring to the Alleged 2017 Robbery, the complainant states that she was previously robbed by F.Y.B. in 2017. In the Statement the specific words used by the complainant were that the person who committed the charged offence "did this to me years ago that guy we're talking about, he robbed me a long time ago" and then she said she knew him as [Y.] but later learned that his name was F.Y.B. [12] In the Statement, the complainant said that one of the perpetrators, who she believes is F.Y.B., made statements that referenced the Alleged 2017 Robbery. Specifically, the complainant stated that the person she believed to be F.Y.B.: 1) repeatedly asked her if she remembered him; 2) explained to her that it wasn't him that had robbed her previously and he had just come "along for the ride"; and 3) expressed to her he believed that the complainant had retaliated against him and "tried to have him killed." [13] While I acknowledge that the complainant did not say in the Statement that the person

she believed to be F.Y.B. ever specifically referenced the Alleged 2017 Robbery by date, it appears clear in the mind of the complainant that the comments made by the person she believes to be F.Y.B. referenced the Alleged 2017 Robbery. Further, when asked by Detective Lukey why she believed that F.Y.B. was involved in the Charged Offences, the complainant answered, "Because he told me it was him", which in my view was a conclusion she drew because of the references made to the person involved in the Alleged 2017 Robbery. The Alleged 2017 Robbery [14] In the Statement, the complainant provided other details of the Alleged 2017 Robbery which include the following: 1) the Alleged 2017 Robbery occurred in the summer at around 9:00 p.m.; 2) the complainant was in her basement suite along with seven other people; 3) the complainant saw at least four people coming down the side of her house on her surveillance camera (collectively, the "2017 Perpetrators"); 4) the 2017 Perpetrators entered the complainant's house; 5) the 2017 Perpetrators put the complainant on the ground; 6) the 2017 Perpetrators tied up the complainant and the other seven people; 7) the 2017 Perpetrators wore masks, so the complainant did not see the face of the person she believed to be F.Y.B.; 8) the complainant did not know F.Y.B. before the Alleged 2017 Robbery; 9) the complainant believes that F.Y.B. had a gun

because she felt it at the back of her head, although she did not see it; 10) the 2017 Perpetrators stole money and drugs, valued at around $6,000, as well as the complainant's identification; and 11) the Alleged 2017 Robbery was never reported to the police. [15] In the Statement, the complainant also told Detective Lukey about what she believed happened after the Alleged 2017 Robbery, which includes the following: 1) after the incident, the complainant had people call F.Y.B. to try and get some of her belongings back, including her identification; 2) the complainant stated that she heard that somebody "went after" F.Y.B. in December. Detective Lukey told the complainant that he knew that F.Y.B. was shot in the head after the Alleged 2017 Robbery. The complainant answered that, "That was the time". The complainant stated that she was not involved in the shooting, that she "just talked to somebody and they did I didn't have anything to do with it, like I just told them, they told me what happened, or I told them what happened"; and 3) the complainant said that, sometime in the summer of 2022, she was told by a friend that F.Y.B. was out of jail, and that she felt afraid because he was out of jail. [16] The Crown wishes to adduce this evidence from the complainant regarding the Alleged 2017 Robbery and F.Y.B.'s alleged role in that incident. The Crown also seeks to adduce

evidence from police witnesses that the Crown contends corroborates the complainant's evidence relating to the Alleged 2017 Robbery and its aftermath. Specifically, the Crown intends to call evidence that F.Y.B. suffered a gunshot wound to his face on December 15, 2018. [17] It is with these background facts regarding the Charged Offences and the evidence relating to the Alleged 2017 Robbery that I will now turn to the legal principles engaged when a court considers whether to admit discreditable conduct evidence. I will then provide my analysis supporting my conclusion that the evidence can be admitted. Legal Principles General Framework for Admissibility of Evidence [18] The general framework for the admissibility of evidence applies to the admission of evidence of discreditable conduct. The general framework was articulated by the Supreme Court in R. v. Schneider, 2022 SCC 34, and involves three considerations: 1) whether the evidence is relevant; 2) whether the evidence is subject to an exclusionary rule; and 3) whether the trial judge should exercise their residual discretion to exclude the evidence after balancing the probative value of the evidence against its prejudicial effect. See Schneider at para. 36; R. v. T.J.F., 2024 SCC 38 at para. 74; and R. v. R.G.S., 2023 BCCA at paras. 26, 27, 29, 32, 35, 50, 51. Discreditable Conduct Evidence [19] Discreditable conduct

exists on a spectrum from noncriminal conduct that may be considered morally reprehensible to conduct that constitutes very serious criminal offences. In general terms, discreditable conduct is extrinsic conduct that "occurs before, at the same time or after the conduct that forms the subject-matter of the charge": R. v. Luciano, 2011 ONCA 89 at para. 218. [20] Discreditable conduct evidence has been described by different names, including: bad character evidence; propensity evidence; extrinsic misconduct evidence; disposition evidence; and similar fact evidence: R. v. Sipes, 2011 BCSC 640 at para.

46. Regardless of how the evidence is characterized, the same rules apply for assessing admissibility: R. v. Mahalingan, 2008 SCC 63 at paras. 160, 161; R. v. H.(D.), 2000 SKCA 42 at para. 14. [21] Evidence of uncharged disreputable conduct is presumptively inadmissible. However, discreditable conduct evidence may be admitted where the Crown establishes on a balance of probabilities that the evidence is relevant and material to a live issue at trial other than to simply demonstrate the accused's bad character and general disposition and that the probative value of the evidence outweighs its prejudicial effect: R. v. Bottomley, 2023 BCSC 406 at para. 21; and R. v. Boden, 2024 BCCA 6 at para.

69. Relevance and Materiality [22] Evidence is relevant and material where it is offered to prove or disprove a matter in issue in the case, and indeed, "renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense": Luciano at paras. 204, 207. It is to be determined in light of all other evidence as a matter of logic and human experience: Schneider, at paras. 39, 45; T.J.F. at para. 74. [23] Relevance "is a low hurdle to clear" and admissibility must not be confused with weight: R. v. Sipes, 2011 BCSC 640 at para. 42. [24] There is no exhaustive list of facts that the Crown may seek to establish which makes discreditable conduct relevant. However, commonly cited examples include "proof of motive, opportunity, intent, preparation, plan, knowledge, identity and absence of a mistake or accident": Sipes at para.

51. Probative Value [25] Probative value relates to the degree of relevance to live issues and the strength of inference that can be drawn from the evidence: Schneider at paras. 59‑60. Probative value "does not exist in the abstract" and it is a relative concept to be determined in the context of a particular case: Bottomley at para. 27. [26] Factors that a court is to consider in assessing the probative value of uncharged disreputable conduct include: the strength of the evidence that the conduct occurred; the connection between the conduct and the accused; the extent to which the evidence supports the inferences the Crown seeks to make; and the materiality of the evidence: Boden at para.

71. Prejudicial Effect [27] Discreditable conduct evidence presents particular risks to trial fairness, specifically in terms of "moral" and "reasoning" prejudice: Boden at para. 72; Bottomley at para. 30. [28] Moral prejudice refers to the risk that the evidence will stigmatize the accused as a bad person with a propensity to have committed the charged offence: Boden at para.

73. There is also a risk that the trier of fact will punish the accused for their conduct on other occasions, rather than the occasion for which they are charged: Bottomley at para.

32. The risk of moral prejudice will increase with particularly inflammatory or egregious disreputable conduct: Boden at para. 73. [29] Reasoning prejudice concerns the risk that past discreditable conduct evidence will confuse or distract the trier of fact from the charge against the accused: Bottomley at para.

31. This includes the risk that uncharged discreditable conduct evidence will overwhelm the case and attract more attention or weight than justified: Boden at para.

74. Balancing [30] To be admissible the benefits of admitting the discreditable conduct evidence must outweigh the costs: Bottomley at para.

34. Judges must be cautious of the cumulative effect of admitting multiple pieces of discreditable conduct evidence as the whole of such evidence can cumulatively generate significant prejudice that is not easily discernible when parcelled out: Bottomley at para.

36. As such, courts must remain vigilant to not admit more discreditable conduct evidence than is necessary: R. v. Coban, 2021 BCSC 1855 at para. 26, citing Sipes at paras. 82 and 147. [31] In measuring the probative value of the evidence against the prejudicial effect of its admission it is important to recognize that the probative value goes to a proof of an issue, but the prejudicial effect to the fairness of the trial. As such, these two competing factors are not operating on the same plane and so are not balanced specifically against each other: R. v. Handy, 2002 SCC 56 at para.

149. What is important is to ensure that the evidence is sufficiently probative to a relevant issue at trial, that is not outweighed by the likelihood that the jury or judge will misuse the evidence. This has been referred to as a "cost-benefit analysis": Schneider at para.

60. With evidence of discreditable conduct, the greatest danger, of course, is the potential for propensity reasoning. Scope and Instructions [32] Trial judges, especially in a jury trial, should take reasonable steps to minimize the prejudicial effect of discreditable conduct evidence and ensure it is not misused: Boden at para.

75. One way of limiting the prejudicial effect is to limit the volume and extent of the evidence adduced by the Crown: Boden at para.

75. Another option is for the judge to direct that certain portions of the evidence be edited or presented in a way that ameliorates its prejudicial effect: Boden at para. 75. [33] If evidence of uncharged disreputable conduct is admitted in a jury trial, the trial judge must provide jury instructions that identify the evidence and explain its permitted and prohibited use: Boden at para. 75. [34] With these legal principles in mind, I now turn to my analysis and determination. Analysis Relevance and Materiality [35] The Crown asserts that the discreditable conduct evidence sought to be adduced regarding the Alleged 2017 Robbery is relevant to at least four material issues at trial: (1) identification; (2) motive; (3) creditability; and (4) narrative. I will describe these issues in more detail below, but in simple terms, I find that the discreditable conduct evidence will make the facts in respect of these issues more or less likely. As such, I find it crosses the low threshold of relevance and is not tendered to demonstrate that F.Y.B. is a person of bad character or has a propensity to commit offences. [36] Turning first to identity, I accept that the complainant's ability to identify F.Y.B. as one of the perpetrators who allegedly assaulted, robbed and kidnapped her on December 2, 2022, is based on her interactions with the person she believes to be F.Y.B. during the Alleged

2017 Robbery. The evidence of the Alleged 2017 Robbery, if accepted by the jury, makes it more likely that the jury would conclude that F.Y.B. was one of the individuals involved in the Charged Offences. [37] In respect of animus and motive for the alleged offences, the Crown's theory is that F.Y.B. was in part motivated by animus or revenge towards the complainant because he believed the complainant had him targeted and shot for his role in the Alleged 2017 Robbery. I accept that the evidence of the Alleged 2017 Robbery logically tends to make that fact more or less likely. [38] In respect of the relevance of the evidence regarding the Alleged 2017 Robbery to creditability, I accept that it is relevant to the jury's assessment of the complainant's credibility and reliability. If the jury does not have some information about the Alleged 2017 Robbery, it will make the complainant's testimony regarding her interactions with one of the perpetrators of the Charged Offences incomprehensible. For example, in the Statement the complainant states to Detective Lukey that one of the perpetrators, the person whom she believes to be F.Y.B., said to her, "But he tells me today he knows everywhere I go so I'm, he goes that I've known everywhere you go for the last five years". [39] Without at least some context of the Alleged 2017 Robbery, this statement will make the complainant unfairly

appear unreliable or unbelievable. The complainant's credibility will likely be a central issue in this trial. In my view, to artificially have her account of the alleged offences appear incoherent or incomplete deprive the trier of fact from making an accurate assessment of the creditability and reliability of the complainant's testimony. [40] Finally, in terms of narrative, I accept that the complainant's ability to testify about the Alleged 2017 Robbery provides the trier of fact with a more comprehensive narrative of the alleged history between the complainant and F.Y.B.; particularly how and why the alleged offences unfolded. [41] Given the foregoing, I have no hesitation in concluding that the discreditable conduct evidence is relevant to issues at trial and so passes the first branch of the test for admissibility. Exclusionary Rule [42] In my view, there is generally no exclusionary rule that applies to the evidence of the Alleged 2017 Robbery. However, I acknowledge that there are a number of aspects of how the complainant came to believe that it was F.Y.B. who was involved in the Alleged 2017 Robbery that are hearsay and thus inadmissible. Indeed, it was after the Alleged 2017 Robbery that the complainant learned from a friend that it was F.Y.B. who was involved in that event. Further, the complainant also learned from a friend that F.Y.B. had been shot due to his

alleged role in the Alleged 2017 Robbery. Should evidence of this type be adduced for purposes other than for narrative, I expect they will be the subject of objections and, if necessary, mid-trial or final instructions to the jury to ensure that the jury does not make improper use of such evidence. Residual Discretion to Admit or Exclude the Evidence [43] Having found that the discreditable conduct evidence is relevant to one or more material issues, and not generally subject to an exclusionary rule, I now turn to the third step of the admissibility framework. The third step requires me to determine whether I should exercise my discretion to exclude the evidence after balancing its probative value against its prejudicial effect. I will first examine the probative value of the evidence of the discreditable conduct. [44] The Crown has identified four material issues which it says the evidence of the discreditable conduct is probative. However, it need not satisfy me that the evidence is required for all four issues. Overlapping jurisdictions for admission of discreditable conduct is acceptable. However, analytically it is useful to assess each proposed rationale for admission separately: R. v. Riley, [2009] O.J. No. 1374 (S.C.J.) at para.

39. Given that analytically and conceptually it can be helpful to articulate the court's analysis of the different rationales for admission of the evidence individually, I will do so. However, I recognize that these are not watertight compartments and there is overlap in the reasons for admitting the evidence. [45] Before turning to consider these four issues, I will address F.Y.B.'s argument that the probative value of the evidence of the discreditable conduct is low. He bases his argument on the fact that any information provided by the complainant that F.Y.B. was involved in the Alleged 2017 Robbery is based on unsourced information that the complainant heard from friends or "the street" after the Alleged 2017 Robbery occurred. [46] I acknowledge the concerns expressed by F.Y.B. regarding the source of the complainant's information that F.Y.B. was involved in the Alleged 2017 Robbery. Specifically, the complainant did not independently see or identify F.Y.B. during the Alleged 2017 Robbery. However, in my view, F.Y.B.'s position ignores that the complainant is expected to testify that the person she believes to be F.Y.B. made a number of statements during the Charged Offences that reference the events and aftermath of the Alleged 2017 Robbery. Specifically, in the Statement, the complainant informs Detective Lukey that the person she believed to be F.Y.B. told her that "it

was him", which I accept as a reference to the Alleged 2017 Robbery. [47] I will now turn to the four issues to which the Crown says the evidence of discreditable conduct has probative value. Identification [48] The Crown asserts that the complainant's testimony regarding F.Y.B.'s prior alleged discreditable conduct is highly probative and material to proving identity. [49] As a starting point I note that in the circumstances of this case, the manner that the discreditable conduct is sought to be used for identification is somewhat different than how it is often used. In many cases, the Crown seeks to adduce discreditable conduct of an accused because it is similar fact evidence to establish a pattern of behaviour by an accused to establish identity. For example, the Crown may seek to adduce the discreditable conduct for the purpose of demonstrating a unique trademark or a signature common to all incidents: R. v. MacCormack, 2009 ONCA 72 at para. 51. [50] However, in the case at bar the Crown seeks to tender the evidence of F.Y.B.'s previous discreditable conduct to allow the complainant to testify about a specific interaction she alleges she had with F.Y.B. in 2017. In my view, this is distinct from the Crown seeking to adduce similar fact evidence. The Crown is not seeking to tender the complainant's evidence of the Alleged 2017 Robbery to suggest that F.Y.B. previously

committed a certain type of crime in a certain way such that he was more likely to have committed the Charged Offences. Instead, the Crown seeks to adduce the evidence to allow the complainant to testify to why and how she believes that F.Y.B. was one of the individuals who was involved in the Charged Offences. [51] If a witness is expected to testify that an accused is someone known to them, then evidence of the prior relationship between the witness and the accused is essential for the trier of fact to properly weigh that witness's testimony regarding identification of the accused. This is the case, even in circumstances in which the witness knows the accused from the accused's unsavory background or conduct: R. v. Zeng, 2012 ONSC 207 at para. 65; R. v. Jefferson, 2010 ONSC 5531 at para. 122. [52] If the complainant is prohibited from testifying about her previous interactions with the person she believes to be F.Y.B., the identification issue would be artificially converted into one of stranger eyewitness identification. Our Court of Appeal has concluded that there is a meaningful difference, in law, between identifying a stranger and recognizing someone already known: R. v. Field, 2018 BCCA 253 at para. 42; R. v. Bob, 2008 BCCA 485 at para. 13. [53] F.Y.B. argues that the complainant's ability to positively identify him is not reliably supported by her belief as it is based

on hearsay evidence that F.Y.B. was involved in the Alleged 2017 Robbery. I disagree. In my view, I find that there is a significant probative value of the evidence of the Alleged 2017 Robbery as it relates to the issue of identification because it provides a link between the events of the Alleged 2017 Robbery and its aftermath to the events and potential participants in the Charged Offences. Animus and Motive [54] As set out above, the Crown asserts that the evidence of discreditable conduct can shed light on animus towards the complainant and F.Y.B.'s motive to commit the Charged Offences. [55] Retaliation or desire to revenge some real or perceived wrong is a common motive that arises in criminal cases: R. v. Skeete, 2017 ONCA 926 at paras. 81 and 92. Although motive is not an essential element of an offence, evidence of motive may assist in proof of an accused's participation in an offence, as well as the state of mind in which it was done: see R. v. Haevischer, 2012 BCSC 1641 at para.

18. As a matter of common sense and everyday experience, the fact that someone had a motive to commit an offence renders it more likely that they committed it as compared to a person who lacked the motive: see Luciano at paras. 113, 119; Skeete at paras. 77, 78, 90. [56] In my view, the probative value of adducing evidence of the Alleged 2017 Robbery and its aftermath is significant. Evidence of motive is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: R. v. G. (S.G.), [1997] 2 SCR 716, at para. 64 citing Lewis v. The Queen, [1979] 2 S.C.R.

821. If motive can assist a trier of fact in determining that the relationship between an accused and a complainant was acrimonious, or that the parties had been involved in a dispute prior to the charged offence, that evidence can explain why an accused committed the offence. Credibility [57] The Crown asserts that the jury's assessment of the complainant's credibility will be extremely important to this case. The Crown contends that without the evidence of the Alleged 2017 Robbery, the jury would question the complainant's evidence as to why she is testifying that the person she believes to be F.Y.B. asked if she remembered him, or that she tried to have him killed and told her that he had been tracking her. In my view, this would negatively - and artificially - reduce the jury's assessment of the complainant's creditability. [58] F.Y.B. argues that the allegations of the Alleged 2017 Robbery are uncorroborated and unreported. As such, he argues a reference to those events would not enhance or reduce the complainant's credibility. [59] The complainant is a key Crown witness who will likely be vigorously challenged on cross-examination. Whether the jury believes her to be creditable or not will be important. In my view, requiring her to omit this part of her evidence could give an unfair impression of her as a witness and distort the jury's credibility assessment. For example, without the context of the complainant's previous involvement with a person she believes to be F.Y.B., the jury may conclude that her testimony is untethered to reality: see R. v. Monteith, 2024 BCSC 1445 at para.

90. Narrative [60] Evidence of discreditable conduct may be admissible for narrative, background, and context where it is necessary to present a coherent and intelligible picture of the offences charged: Haevischer at para. 13. [61] F.Y.B.'s arguments against including the evidence of discreditable conduct for narrative purposes is well set out in his written submissions as follows: [46] The fact that the complainant views the robbery as integral to the story does not mean that it is. An individual would not need to understand the prior robbery to understand that someone who believes another person targeted them for a shooting would have animus. [47] The inclusion of the 2017 robbery evidence may give the jury some additional information for why the complainant believes that [F.Y.B.] pinned the shooting on her, but this would come at the cost of trial fairness. As with animus, the narrative is not an essential element of the offence; it is not probative of anything in and of itself: [Emphasis in original.] [62] F.Y.B. points to R. v. Taweel, 2015 NSCA 107 at para. 106, where the Nova Scotia Court of Appeal cautioned courts against abusing the use of otherwise inadmissible evidence under the guise of narrative. In Taweel, the Court quoted the following passage from Narrative Evidence: A Wolf in Sheep's Clothing: ...This is a real problem because narrative evidence is often

highly prejudicial and not especially probative or even material. And its reach appears to be getting longer. Paciocco and Steusser recently observed, "The idea that evidence can be admitted because it forms part of the 'narrative' or part of the story is a potentially dangerous one. It has been used, sometimes successfully, as a way to get otherwise inadmissible evidence before the trier of fact." [63] In my respectful view, in the particular circumstances of this case, without the context or narrative of the Alleged 2017 Robbery as a backdrop to the complainant's testimony, I expect the jury would be confused. The jury would be unable to make sense of the complainant's evidence or grasp the larger context of the alleged events of December 2, 2022. [64] In this regard I find that the inclusion of references to the Alleged 2017 Robbery is probative in that it will allow the jurors to understand the circumstances and alleged context between the complainant and F.Y.B. that led to the Charged Offences and therefore make sense of the complainant's expected testimony. Residual Discretion to Include the Evidence - Prejudicial Effect [65] In addition to asserting that the evidence of the Alleged 2017 Robbery lacks sufficient probative value, F.Y.B. asserts that putting the evidence before the jury is highly prejudicial. F.Y.B.'s counsel describes the damage of putting the evidence of

the discreditable conduct before the jury as putting a "drop of poison in their ears". [66] Probative value and prejudicial effect operate on different planes. As stated by Justice Verhoeven in Monteith, at para. 83: [83] Probative value of the evidence goes to proof of an issue, while prejudicial effect goes to fairness of the trial. As probative value advances, prejudice does not necessarily recede. "[T]he two weighing pans on the scales of justice may rise and fall together", even though they pull in opposite directions: R.G.S. at para. 51, quoting R. v. Handy, 2002 SCC 56 at paras. 148-149. [67] I acknowledge that the evidence of the Alleged 2017 Robbery has both high probative value and a high potential for prejudice. There is no doubt that there is a risk of prejudice in the minds of the jury against F.Y.B. when evidence is adduced of F.Y.B.'s previous alleged violent interactions with the complainant. [68] However, in my view, the jury must be allowed to hear the complainant's evidence with regards to the Alleged 2017 Robbery. As stated above, it is essential to identity, motive, narrative, and credibility. Even one purpose may be sufficient to admit evidence of discreditable conduct. In this regard I am guided by Justice Dambrot in Riley, who expressed his concerns of admitting evidence of discreditable conduct for narrative purposes, but ultimately concluded that the

search for truth is of such importance in a trial that including evidence of that nature for narrative purposes can be appropriate: [36] As I have noted, the Crown submits that some of the impugned evidence is admissible because it is essential to the unfolding of the narrative of the Charlton and Bell shooting. I admit to some discomfort in admitting evidence on the basis of the claim that it is evidence of the narrative because "narrative" is a label that is too easily abused. Just because a piece of evidence can be labeled in this way does not make it admissible. But I do think that it is of fundamental importance that the Crown be permitted to lead the evidence of an alleged crime in a manner that permits the jury to understand and evaluate what actually transpired. A jury should not be expected to undertake an exercise that still has the search for truth as its goal by searching for that truth without the ability to understand what it is alleged that the accused were actually doing, and why they were actually doing it. See also Haevischer at paras. 14 to 17. [69] Additionally, the complainant is a key Crown witness. It would be very difficult for the complainant, as with any lay witness, to follow instructions to omit a significant aspect of her evidence while still attempting to answer truthfully: Monteith at paras. 89, 90. Asking a witness to omit certain facts from

their account of events can make it more difficult for them to give their evidence and in some cases may unduly distort it: Monteith at para. 89, citing Sipes at paras. 83, 400-404. [70] In balancing the probative value and prejudicial effect of admitting the evidence, I am therefore satisfied that the balance favours admission. [71] In respect of the risk of moral prejudice, I am satisfied that with a proper instruction and by limiting the scope of the details from the Alleged 2017 Robbery, the risk can be brought within acceptable limits. [72] In respect of reasoning prejudice, while there is a risk that the evidence may distract the jury, I have a greater concern that the jury would be more confused and speculate regarding the complainant's expected testimony upon her understanding of what the person who she believes to be F.Y.B. said and did on December 2, 2022 without reference to the Alleged 2017 Robbery. [73] I will now turn to the specific limitations I will place on the evidence of discreditable conduct to be put before the jury. Determination and Scope of Testimony [74] As I held in my ruling on this application on April 9, 2025, for the reasons set out above, I am satisfied that the Crown has met its burden to tender the discreditable conduct evidence of F.Y.B. as it relates to the Alleged 2017 Robbery. I have found that in the circumstances of this case the

probative value of what the Crown expects the complainant to testify to regarding the Alleged 2017 Robbery outweighs its prejudicial effect. As such, I will allow it to be put before the jury. [75] However, in order to minimize the real risk of prejudice that comes from putting this evidence before the jury, I accept the Crown's submission as appropriate that the evidence should be elicited through asking narrow and focussed leading questions to explain the context of the relationship between the complainant and F.Y.B. These questions should focus upon only: 1) a brief summary of the Alleged 2017 Robbery, including setting out the details of when and where it occurred; 2) the complainant's reason for her belief that F.Y.B. was involved in the Alleged 2017 Robbery; and 3) the complainant's belief that after the Alleged 2017 Robbery the complainant took steps to avoid F.Y.B. and the reasons that she did so. [76] Some evidence of the surrounding facts relating to the Alleged 2017 Robbery are more prejudicial than probative. Specifically, that the complainant believed that F.Y.B. used a gun and tied her up in the Alleged 2017 Robbery. Accordingly, I prohibit reference to evidence being put before the jury regarding allegations that a person thought to be F.Y.B. used a gun in the Alleged 2017 Robbery unless it is elicited by counsel for F.Y.B. [77] Finally, if there is reference to

F.Y.B. being incarcerated and being released from custody, which I find is probative as it is relevant to why the complainant had certain meetings with friends and acted in certain ways. I prohibit reference to the reason F.Y.B. was incarcerated, the duration of his incarceration, or the institution at which he was incarcerated. [78] In my view, these parameters combined with suitable instructions to the jury sufficiently attenuate the risks of the prejudice to F.Y.B. regarding admitting certain facts related to the Alleged 2017 Robbery. Conclusion [79] I thank counsel for their well-prepared and well-argued submissions on this voir dire. Further, if more specific direction from the Court is required about the scope and parameters of permissible evidence regarding the evidence of discreditable conduct, I invite counsel to raise the issue with me during the course of trial, in a pretrial conference and in the absence of the jury. "Gibb-Carsley J."