on the evidence: see R. v. Pickton,  2 S.C.R. 198, 
S.C.J. No. 32, 2010 SCC 32, at para. 19; R. v. Khawaja (2010),
103 O.R. (3d) 321,  O.J. No. 5471, 2010 ONCA 862,
273 C.C.C. (3d) 415, at paras. 143-45, approved without reference to this point,  3 S.C.R. 555,  S.C.J. No. 69, 2012
SCC 69; R. v. Ranger (2003), 67 O.R. (3d) 1,  O.J. No. 3479
(C.A.), at pp. 41-42 O.R.; R. v. Pawluk,  O.J. No. 5817,
2017 ONCA 863, at para. 29.
 The defence must be taken to know that liability depends
on an application of the applicable legal principles to the evidence. There is nothing per se unfair in the Crown relying on different or alternate theories of liability, as long as each is rooted
in the evidence. The argument that the Crown should be bound
by the particular theory it advances is essentially an argument
in favour of a formalistic pleadings-type approach to criminal
justice, or perhaps a plea for the return of the now discredited
“sporting theory” of criminal justice. The contemporary approach
favours the adjudication of criminal allegations on their merits.
 The general rule that the Crown can rely on any legal
basis of culpability available on the evidence is circumscribed by
the overriding need to ensure trial fairness and, specifically,
the accused’s right to make full answer and defence: Ranger, at
para. 133. There can be circumstances in which the defence,
based on particulars provided by the Crown, specific representations made by the Crown, or the overall conduct of the trial,
is justifiably led to believe that the accused’s potential liability
is limited to a specific factual or legal theory and conducts the
defence accordingly. In those circumstances, the defence may be
able to successfully argue that any departure from the specific
basis of liability put forward, especially after the evidence is
complete, would unfairly prejudice the accused’s ability to make
full answer and defence: Pawluk, at para. 30.
 Ranger provides an example of how a very late change in
the nature of the case the accused had to meet could seriously
prejudice the defence. In Ranger, the defence had every reason
to believe, right up to the point of the jury instruction, that the
jury would be told that liability depended on the Crown proving
that the accused was in the house when the murders occurred.
Both the Crown and the trial judge had made comments to the
effect that liability depended on the Crown proving that fact.
However, the trial judge, in his instructions to the jury, and on
his own initiative, put a second and different theory of liability
to the jury that did not require that the jury find that the
accused was in the house. This court concluded that, having
regard to the conduct of the trial, the introduction of this new