Court of Appeal for Ontario
Date: 2025-03-12
Docket: COA-22-CR-0424
Coram: Lauwers, George and Copeland JJ.A.
Between:
His Majesty the King (Respondent)
and
Riley Kostuk (Appellant)
Appearances:
Anil Kapoor and John-Paul Radelet, for the appellant
Deborah Krick and Baaba Forson, for the respondent
Heard: November 4, 2024
On appeal from the conviction entered by Justice Harrison S. Arrell of the Superior Court of Justice, sitting with a jury, on December 9, 2021.
Introduction
1The Crown alleged that the appellant murdered his friend, Jacob Peets, in the early morning hours of June 29, 2019. The appellant was tried on a charge of second degree murder. A jury found him guilty. He was sentenced to life imprisonment with no parole eligibility for 13 years.
2The appellant challenges his conviction on three grounds. He argues that (1) his right to counsel under s. 10(b) of the Charter was violated and that the trial judge erred by not excluding his statement to the police pursuant to s. 24(2); (2) the trial judge erred by admitting evidence of prior misconduct or, alternatively, erred by failing to instruct the jury on the proper and improper uses of that evidence; and (3) the trial judge erred by admitting evidence of the appellant’s schizophrenia when his mental health was not in issue or, alternatively, failed to instruct the jury on the proper and improper uses of that evidence. He asks that we allow the appeal, set aside his conviction, and order a new trial.
3For the reasons that follow, I would dismiss the appeal.
Background
Facts
4The appellant, Emily Raymond, and Jacob Peets have all known each other since high school. The appellant and Mr. Peets were close friends. In February 2019 the appellant and Ms. Raymond began dating. The relationship ended the following month after the appellant allegedly assaulted Ms. Raymond by punching her in the face three or four times, holding a knife to her throat, and threatening her. Mr. Peets and Ms. Raymond then began seeing each other more frequently. On one occasion in April 2019, Mr. Peets and Ms. Raymond had sex. The appellant found out and, according to Ms. Raymond, he “was not happy about [it]”.
5Near the end of June 2019, Ms. Raymond was dog-sitting for the appellant’s mother at his mother’s residence. The appellant lived elsewhere, but in an effort to rekindle their relationship, he stayed at his mother’s home with Ms. Raymond.
6On June 28, 2019, the appellant, Mr. Peets, Ms. Raymond, and another friend met at the appellant’s mother’s home before going out to a local pub. At the pub, while standing outside, the appellant verbally assaulted Ms. Raymond and spat on her. After this incident, all four returned to the appellant’s mother’s home, where they planned to smoke marijuana in the kitchen. While in the kitchen the appellant became upset. He threw a bong at Ms. Raymond and verbally attacked her. According to Ms. Raymond, Mr. Peets intervened which led to a shoving match between him and the appellant. Mr. Peets left and went outside. The appellant followed. Shortly thereafter Mr. Peets was found at the end of the driveway in a pool of blood. He had been stabbed twelve times. The appellant called 911 and performed CPR on Mr. Peets.
7The Crown relied on the testimony of a neighbour, who told the police and testified, that she had seen a person who matched the description of the appellant chasing someone who matched the description of Mr. Peets. The neighbour testified further that she saw the person matching the appellant’s description push the other man to the ground, where he remained motionless, struggling to breathe.
8The appellant argued that Mr. Peets was the victim of an ambush and attempted robbery. When the police arrived at the scene, Mr. Peets’s belongings were strewn across the street, which the appellant said supported his theory of an attempted robbery. He argued further that he had no motive to kill Mr. Peets, who he described as his “best friend”.
9After he was arrested the appellant told the police that he wanted to speak with counsel and provided the name of a lawyer. The appellant spoke to his lawyer twice while in custody at the police station; at 7:38 a.m. and again briefly at 8:10 a.m. Several times while he was being transported, and then while detained, the appellant told the police and correctional officers that he needed to go to the hospital because he was having a psychotic episode. He has schizophrenia and takes medication. The booking officer, Sergeant Gurney, determined that a hospital visit was not necessary. He did, however, retrieve the appellant’s medication, which the appellant took just after 9:00 a.m.
10The appellant then attended bail court via video conference, where he was remanded into custody. After this court appearance the appellant remained in a cell at the police station. He was picked up and taken to a detention centre later.
The Police Statement
11The appellant’s interview, conducted by Detective DiFranco, lasted for approximately one hour and twenty minutes. Detective DiFranco cautioned the appellant and explained the charge to him. The appellant confirmed that he had spoken to his lawyer, that he was satisfied with the advice he had received, and that he had been treated well by the police. Detective DiFranco told the appellant that he could end the interview and return to his cell at any time. During the interview, the appellant said several things about what had happened between him and Mr. Peets, about his mental health, and about his reluctance to speak with the police.
12The first recorded interaction between Detective DiFranco and the appellant occurred while the appellant was still in his cell, when Detective DiFranco asked the appellant if he would come and speak with him about what had happened:
Appellant: I don’t even know what happened. I don’t feel comfortable speaking without my lawyer.
Det. DiFranco: Okay, so you don’t wanna participate in an interview with me?
Appellant: Well, I wanna talk to my lawyer first.
Det. DiFranco: Did you talk to him today already?
Appellant: Yeah, he told me (inaudible).
Det. DiFranco: Okay, and you – so I, I don’t need the privilege of that. So I’m just wondering, is it, if, I know you’ve been remanded, um, and that you’re, you’re into custody. So it’s just, this is my only opportunity. If you’d like to come with me, you can. If you don’t want to, that’s totally your choice.
Appellant: Sure. Let’s go, man.
Det. DiFranco: You want to go?
Appellant: Sure.
Det. DiFranco: Okay. Now you don’t have to is what I want you to understand. Do you understand that?
Appellant: Well, it’s better than sitting in the cell.
13After the interview began, Detective DiFranco once again asked the appellant if he had spoken with his lawyer and whether he was satisfied with the advice he had received. The appellant advised that he had and that he was. Once in the interview room, and after Detective DiFranco told the appellant that he could leave at any point, the following exchange occurred:
Appellant: Can I just go to my cell, man. I feel like I’m gonna fuck up.
Det. DiFranco: You feel like you’re gonna fuck up? Is that what you had said?
Appellant: Yeah.
Det. DiFranco: Okay. Um…
Appellant: I’ll just get back to my cell.
Det. DiFranco: Just so, just so I understand what was, what was happening there is I went down to your cell I, I asked you if you wanted to come out, you said it was better than staying in your cell.
Appellant: Yeah, I don’t know.
Det. DiFranco: To come out and talk with me.
Appellant: Yeah, I guess…
Det. DiFranco: Um…
Appellant: …it’s just ‘cause I’m here right now and (inaudible).
Det. DiFranco: It, it’s up to you, I’m not gonna ask you, uh, yes or no. Uh, I’m, I’m, I’m, the only reason I’m here is if, if, if you want to tell me what happened it would, or what didn’t, what you don’t know.
Appellant: I don’t know what happened, man.
Det. DiFranco: Can you tell me a bit about earlier in the night? You don’t have to but I’m…
Appellant: Yeah, we were all just having fun, man.
14During the interview the appellant told Detective DiFranco that he would like to return to his cell. At one point the appellant said, “I don’t understand what happened again like I must have like a schizophrenic freak out or something, man like I’m not… I’m not sure what even happened tonight, man like I don’t remember anything that I did.” The appellant repeatedly mentioned his schizophrenia. He told Detective DiFranco that he had not been taking his prescribed medication, and that he had been hearing voices. At the conclusion of the interview, and before being returned to his cell, the appellant apologized for not being more helpful.
Pretrial Motions and the Trial
15The Crown sought a pretrial ruling that three statements made by the appellant at various times were voluntary and admissible. While the appellant opposed their admission, he did not make the same s. 10(b) Charter arguments he is now making on appeal. I will return to this.
16The trial judge granted the Crown’s application. He found that all of the appellant’s statements, including those made during the video-recorded interview, were voluntary and admissible.
17At the time of the pretrial motion, the appellant’s counsel advised that the appellant would not raise the issue of criminal responsibility. She argued that no reference should be made to the appellant’s mental health during his trial because the prejudicial effect of that information would outweigh its probative value. She did not, however, seek to redact the appellant’s statements to omit the discrete references to his mental health either before or while the officers were testifying.
18During the pre-charge conference the trial judge noted that the appellant’s statement referred to him not taking his medication for schizophrenia and that he had blacked out, wondering aloud whether manslaughter should be left with the jury. The appellant took the position that manslaughter was not an available verdict on the evidence. During closing submissions trial counsel relied heavily on the appellant’s police statement (understandably, as it contained his version of events), and specifically argued that the appellant’s mental health could have impacted his memory. The defence did not seek the limiting instruction the appellant now says should have been given, requesting only that the trial judge repeat the anti-bias instruction he had provided during his opening remarks:
I would ask Your Honour to consider reminding the jury, as Your Honour did in your opening instructions, about – Your Honour put it far better than I can, but about not judging people with respect to personal conditions or ailments.
19In the end, the trial judge told the jury this in his charge:
[T]he mental health of [the appellant] has not been made an issue and you should not consider that in making your determination in this case.
20The Crown also sought a pretrial ruling to admit prior discreditable conduct evidence, including evidence that (1) the appellant assaulted Ms. Raymond on March 23, 2019, (2) the appellant made verbal threats to Ms. Raymond after learning she had slept with Mr. Peets, (3) Ms. Raymond wrote an essay in which she discussed the appellant’s abusive behaviour, (4) the appellant verbally assaulted Ms. Raymond at the pub, and (5) the appellant verbally assaulted and threw a bong at Ms. Raymond in the kitchen on the night of the killing. With the exception of Ms. Raymond’s essay, the trial judge admitted this evidence.
21The evidence at trial established that when the appellant, Mr. Peets, Ms. Raymond and their friend returned to the appellant’s mother’s home from the pub they all attended in the kitchen area, where the appellant and Ms. Raymond began to argue. After Mr. Peets attempted to intervene and after a brief shoving match, the appellant followed Mr. Peets outside. Soon after they left the kitchen to go outside, Mr. Peets was killed. The Crown’s theory was that the appellant was jealous of Mr. Peets’s and Ms. Raymond’s relationship, and that when Mr. Peets stepped in to prevent the assault on Ms. Raymond in the kitchen, the appellant chased Mr. Peets and stabbed him to death. The defence theory was that Mr. Peets was killed after being ambushed by someone who was attempting to rob him.
22The only issue at trial was whether the Crown had established beyond a reasonable doubt that the appellant was the person who killed Mr. Peets. As noted above, the jury determined that he was and found him guilty.
Analysis
Admissibility of the Video-Recorded Police Statement
23At trial, the appellant argued that the video-recorded statement taken at the police station was tainted by prior s. 10(b) Charter breaches, committed when he spoke to the police at the scene. He argued further that his s. 10(b) Charter rights were violated because (1) the police waited six hours after he had spoken to his lawyer to take his statement, (2) the police did not re-caution him or offer him another opportunity to speak with his lawyer when there was a change in jeopardy, and (3) he was not afforded enough time to speak with his lawyer. In the alternative, the appellant argued that even if the statement was voluntary it should be excluded because its prejudicial impact outweighed its probative value.
24On appeal, the appellant takes the position that his s. 10(b) Charter rights were infringed because the police (1) took no steps to address his mental health issues before he spoke with his lawyer, and (2) did not give him another opportunity to speak with his lawyer after he had taken his medication.
25Section 10(b) guarantees that anyone who is arrested or detained has a right “to retain and instruct counsel without delay and to be informed of that right”. This section’s purpose is to prevent the police from eliciting incriminating evidence before a detainee has had the opportunity to speak with counsel or has unequivocally waived the right to do so: R. v. Suberu, 2009 SCC 33. Put another way, s. 10(b) grants to a detainee the right to choose whether to cooperate with a police investigation or not.
26The right to counsel is typically a “one-time matter”: R. v. Sinclair, 2010 SCC 35, para 64, which is to say that once a detainee has consulted with counsel they have no protected guarantee of a subsequent consultation. There are exceptions, however. The police may be required to provide a second opportunity to consult counsel in three situations: when there are new procedures involving the detainee; when there is a change in legal jeopardy facing the detainee; or when the police have reason to believe that the information provided was deficient – including if it becomes clear that the detainee did not understand the advice given or does not understand their rights: Sinclair, para 2. These exceptions advance s. 10(b)’s purpose of ensuring that detainees are able to make informed choices concerning the investigation, their liberty, and the legal jeopardy they face.
(a) Mental illness does not automatically negate consultations with counsel
27Importantly, in order to make a meaningful choice respecting their participation in the investigatory process, a detainee must possess a certain basic cognitive capacity. The standard for assessing capacity in the s. 10(b) context is the same as the “operating mind” standard that applies under the common law confessions rule. As the Supreme Court held in R. v. Tessier, 2022 SCC 35, para 8, to have had an operating mind at the time a statement was made, the accused must have “possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings”.
28In R. v. Whittle, [1994] 2 S.C.R. 914, at pp. 941-42, the Supreme Court made it clear that the presence of a mental illness does not in and of itself mean legal advice was not understood or that a statement must be involuntary: see also R. v. Nagotcha, [1980] 1 S.C.R. 714, at p. 716. Rather, the question is whether the accused was “so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statements at all”: Whittle, at p. 936, quoting R. v. Santinon (1973), 11 C.C.C. (2d) 121 (B.C.C.A.).
29This means that a detainee can have an operating mind even when experiencing psychosis at the time a statement is given. In Whittle, for example, the Supreme Court affirmed this court’s conclusion that “in spite of [the appellant’s] psychosis, some of [his] comments reflected reasonable rationality”, and that “even if the appellant was driven by inner voices, this was no compulsion emanating from persons in authority over the appellant”. His statement was therefore the product of an operating mind.
30To establish a Charter breach, the burden was on the appellant to prove, on a balance of probabilities, that he did not have an operating mind at the time he gave his statement [1]. But the appellant did not raise this issue in the court below. Consequently, there was no evidence about the impact the appellant’s mental illness had on his ability to instruct counsel or understand the function of counsel, and no evidence to establish that the appellant did not understand his rights when he spoke to his counsel in an unmedicated state.
31To the contrary, the evidence of the booking officer, Sergeant Gurney, was that the appellant’s responses to his questions were not consistent with someone going through a psychotic episode. He told the court that the appellant’s responses were direct, even when he refused to answer a particular question, and that he was able to provide information when requested. When he asked the appellant if he wanted to speak with a lawyer, the appellant stated that he did and provided a name.
32The appellant argues that the police ought to have taken him to the hospital, but in Sergeant Gurney’s assessment, which is supported by the evidence, this was not necessary. At the end of the day, the police must be able to assess a situation and determine whether a detainee needs to be taken to the hospital, which is what Sergeant Gurney did. And the trial judge’s decision to accept Sergeant Gurney’s evidence as to why he did not is owed deference.
(b) The police were not required to provide the appellant with another opportunity to speak to counsel after he took his medication
33The appellant spoke with his lawyer before taking his medication, and he submits that he should have been given another opportunity to consult counsel after taking the medication, because, as he put it in his factum, “it would have been [his] first conversation with his lawyer without the burden of his illness.” However, given my conclusion above that the appellant did not lack an operating mind at the time he spoke with his counsel, there was no legally relevant change when the appellant took his medication. There was no change in jeopardy or new procedure, and no “objectively observable” indication that the appellant had not understood the advice he received: Sinclair, para 2. And, as the Supreme Court held in R. v. Willier, 2010 SCC 37, para 42: “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview”.
34While the appellant did initially say that he wanted to talk to his lawyer before speaking with Detective DiFranco, when the detective asked, “did you talk to him today already?”, the appellant answered, “yeah”, and then began to say something, inaudible in the recording, about what his lawyer had told him. Detective DiFranco then repeated three times that the appellant did not have to come with him for the interview, and the appellant responded each time that he wanted to. As in Willier, at para. 42, the appellant “expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning.” As noted above, during the interview, Detective DiFranco asked again whether the appellant had spoken with his lawyer and whether he was “satisfied with that conversation”, and the appellant affirmed that he had and that he was.
35This is markedly different from the case the appellant relies on, R. v. C.L., 2023 SKCA 58, where the detainee made it known to the police that he did not understand his rights. In those circumstances, there was a clear duty on the police to do more to ensure full comprehension. In the present case, there is no basis for appellate intervention.
36I would therefore reject this ground of appeal.
Discreditable Conduct Evidence
37As noted above, the trial judge allowed the Crown to introduce prior discreditable conduct of the appellant, including evidence about (1) an assault on Ms. Raymond in March 2019, (2) verbal threats towards Ms. Raymond after she had had sex with Mr. Peets, (3) a verbal assault at the pub on the night in question, and (4) a verbal and physical assault in the kitchen on the night in question. The appellant challenges only the admissibility of the March 23, 2019 assault. The appellant argues, as he did before the trial judge, that the evidence was disconnected from a motive for the appellant to kill Mr. Peets as it involved Ms. Raymond and not Mr. Peets. He argues further that the prejudicial impact of this evidence outweighs any probative value it might have.
(a) The evidence was admissible
38Evidence of prior discreditable conduct, which is presumptively inadmissible, can be admitted when “its probative value on a material fact in issue outweighs its potential prejudicial effect on the fairness of the trial”: R. v. James, para 32, citing R. v. Handy, 2002 SCC 56, para 55. Because the trial judge is best positioned to undertake this balancing exercise, the standard for appellate intervention is high. As this court held in R. v. Amin, 2024 ONCA 237, para 33, “appellate courts will defer to trial judges’ balancing of probative value and prejudicial effect under both tests unless the trial judge errs in law, misapprehends the evidence, or reaches an unreasonable result”: citing Handy, para 153; see also R. v. Walker, 2025 ONCA 19, para 23. In my view, the trial judge’s decision to admit this evidence was neither unreasonable nor tainted by, or based on, a misapprehension of evidence.
39Evidence of prior discreditable conduct can be admissible to prove animus and motive. In R. v. Chenier, evidence of drug deals and drug use was relevant to the Crown’s theory that drug debts provided a motive for the killings, and helped explain the relationship among the parties. In R. v. Carroll, 2014 ONCA 2, para 122, leave to appeal refused, [2014] S.C.C.A. No. 193, evidence of prior family violence was relevant to establishing that “the killer of the deceased was the spouse with animus or motive, rather than someone else, and that the killing was murder” (citations omitted). And in R. v. Brissard, 2017 ONCA 891, paras 27-28, evidence of prior sexual interest in a child complainant was admissible because it established motive and because its probative value in supporting the complainant’s credibility outweighed its prejudicial effect.
40Importantly, the animus need not necessarily be directed toward the victim, as long as it is relevant to the motive with respect to the victim: R. v. Holtam, 2002 BCCA 339, leave to appeal refused, [2002] S.C.C.A. No. 310, at para. 44, cited with approval in R. v. Salah, 2015 ONCA 23, para 88.
41In my view, the animus that the appellant held towards Ms. Raymond was not only relevant, but was necessary in order to understand the relationship between the appellant, Ms. Raymond, and Mr. Peets. It was also capable of supporting the Crown’s theory that the appellant had a motive, and the intent, to kill Mr. Peets.
42The appellant and Ms. Raymond were former romantic partners; Ms. Raymond had been intimate with Mr. Peets; the three were close friends; and the verbal attacks on Ms. Raymond by the appellant were directly related to what he knew or believed she had done with Mr. Peets. I agree with the Crown that excluding this evidence about their relationship, including the March 23, 2019 assault, would have left the jury with an incomplete, and perhaps even distorted, picture of the events that led to Mr. Peets’ death. And, as noted above, this evidence was capable of supporting the Crown’s theory that the appellant’s animus towards Ms. Raymond was so strong that he directed it towards Mr. Peets in that moment in the kitchen when Mr. Peets intervened in the dispute.
43In light of the appellant’s assertion that he did not kill Mr. Peets (and that he was not even present when Mr. Peets was killed), this evidence was relevant not just to motive and intent but to identity. It tended to support the Crown’s theory that the appellant was indeed the killer, and pulled against the appellant’s theory that Mr. Peets was murdered by someone attempting to rob him.
44The trial judge weighed the probative value of this evidence against its potential prejudicial effect, and ultimately decided to edit details that were not necessary to advance the Crown’s theory, including that the appellant held a knife to Ms. Raymond’s throat, and Ms. Raymond’s medical records. He took a tailored approach which should be afforded deference.
(b) No limiting instruction was necessary
45I would also reject the appellant’s argument that the trial judge should have provided a limiting instruction to the jury.
46As Doherty J.A. explained in R. v. Merz, para 59, a propensity caution is not always required when the evidence is relevant to motive:
The evidence of the threats made by the appellant was evidence of motive which, in turn, constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence of motive. The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make no sense in the context of the evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury.
47This court recently reinforced that principle in Brissard, para 29, maintaining that “prior conduct evidencing motive does not require a cautionary jury instruction against propensity reasoning even where that conduct amounts to disreputable behaviour”: see also Salah, para 88. I would note also that while the trial judge could have provided the instruction, the failure to do so is not necessarily a reversible error: see R. v. Calnen, [2019] 1 SCR 201, para 5. This depends on the evidence and arguments presented at trial and whether there is a real risk that the jury would misuse the evidence for a general propensity purpose. There was no such risk here.
48I accept that if the graphic details ultimately excluded had been presented to the jury, then an instruction would have been required. But those details were not included, and what was left in the description of the March 23, 2019 incident did not suggest that the appellant had a general propensity for violence. What it did support was that the appellant had a deeply held animus towards Ms. Raymond which was transferred to Mr. Peets when he decided to protect Ms. Raymond in the kitchen. There was little risk that this evidence, when considered in the context of all the evidence at trial and the two competing theories, would distract or confuse the jury.
49The trial judge provided a comprehensive and legally correct instruction on motive. This instruction included a summary of the Crown’s theory (without inflammatory detail), and a description of the defence position. The trial judge also made it clear that “it was for [the jury] to decide if indeed [the appellant] had a motive”.
50I would reject this ground of appeal.
References to the Appellant’s Mental Health in his Police Interview
51The appellant argues that since his mental health was not at issue, any reference to his diagnosis as schizophrenic should have been omitted from the version of his police statement that went to the jury. Alternatively, he argues that the jury should have been instructed on the permissible and impermissible uses of that evidence.
52There are references to the appellant’s schizophrenia in his video-recorded police interview, which was, as already discussed, admitted through a pretrial motion. The fact that the trial judge did not excise references to the appellant’s mental health from the transcript of his statement does not give rise to a reviewable error. I arrive at that conclusion for three reasons.
53First, once most of the Crown’s case was in and before the interview was tendered through Detective DiFranco (the last Crown witness), the defence had an opportunity to request that the statement be redacted to remove those references. The fact that defence counsel did not do so speaks to their view of the potential prejudice. Moreover, at the time of the pretrial ruling, when the statement was found to be voluntary, it appears as though everyone understood that the jury was going to hear that the appellant had schizophrenia as part of the background of the events.
54Second, the Crown did not attempt to use, nor did it even mention, the appellant’s mental health issues. Only defence counsel did, suggesting that the appellant’s mental health challenges affected his memory.
55Third, the trial judge expressly told the jury to not consider the appellant’s mental health. Although this direction was provided when the trial judge was instructing on the requisite intent for murder, it was clearly a general direction that the jury’s “determination in this case” should not include a consideration of the appellant’s mental health. The trial judge provided to the jury a clear direction not to consider it in any way. In the circumstances of this case, to say anything more would have done nothing but draw more attention to the evidence.
56I would reject this ground of appeal.
Conclusion
57For these reasons, I would dismiss the appeal.
Released: March 12, 2025
“P.D.L.”
“J. George J.A.”
“I agree. P. Lauwers J.A.”
“I agree. J. Copeland J.A.”
1While the Crown must prove the voluntariness of a statement beyond a reasonable doubt, when an accused claims that their Charter right to remain silent has been violated (on the basis that they did not have the capacity to make an informed decision about whether to provide a statement), the burden is on the claimant to prove that they lacked capacity on a balance of probabilities.