Court File and Parties

Court File No.: CR-21-19853 Date: 2023/09/13 Superior Court of Justice - Ontario

Re: His Majesty The King, Respondent And David Wilson, Applicant

Before: The Honourable Mr. Justice Robert Smith

Counsel: John Semenoff, for the Respondent Michael A. Johnston and Ryan E. Durran, for the Applicant

Heard: July 17, 2023 in Ottawa

Reasons for Decision

R. Smith J

[1] The Accused has brought an Application to admit fresh evidence, namely evidence of his acquittal of the charges involving the similar fact witness, K.B., which occurred in a separate trial held after the Accused was found guilty of the charges involving T.C., but before he was sentenced. The Accused seeks a mistrial if the fresh evidence is admitted.

[2] The Accused submits that his subsequent acquittal, in the trial of the similar fact witness K.B., meets the test for the admission of fresh evidence set out by the Supreme Court of Canada in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775. The Accused primarily relies on the Ontario Court of Appeal decision in R. v. G. (K.R.), which admitted fresh evidence on appeal of a subsequent acquittal on charges involving a similar fact witness.

[3] The Crown submits that the Supreme Court of Canada’s decision in R. v. Mahalingan, [2008] 3 S.C.R. 316, (S.C.C.) overruled the Ontario Court of Appeal’s decision in R. v. G. (K.R.), relied on by the Accused in support of this Application.

[4] The Crown further submits that the Supreme Court of Canada, in the 2008 Mahalingan decision established that the acquittal in a 2nd trial cannot operate retrospectively to render evidence inadmissible, that was given in an earlier trial. The Crown also submits that the Accused is seeking to have this Court apply the doctrine of issue estoppel retroactively, based on his subsequent acquittal on the charges involving the similar fact witness K.B., which is prohibited by Mahalingan.

Issue

[5] The issue to be decided is as follows:

Is the acquittal of the Accused, in a subsequent trial involving the similar fact witness, K.B., admissible as fresh evidence in this trial, where the Accused has been found guilty of the charges involving the Complainant T.C., but has not yet been sentenced?

Background

[6] K.B. testified as a similar fact witness in this trial where T.C. was the Complainant. K.B. was allowed to testify because the alleged sexual touching in her case was very similar to that involving T.C. and they had never spoken to each other. I found that on a balance of probabilities that the probative value of K.B.’s similar fact evidence exceeded its prejudicial effect.

[7] K.B.’s similar fact evidence was relied on in part to convict Mr. Wilson in this trial of the sexual touching of T.C.

[8] The Crown initially charged the Accused jointly with the offences related to his alleged sexual touching of both K.B. and T.C. The Accused brought an Application to sever the charges, which was granted.

[9] The trial involving the Complainant T.C. went first and was held between December 5 to 11, 2022. On February 24, 2023, I released my decision convicting Mr. Wilson of the charges against him involving the Complainant T.C. He has not yet been sentenced.

[10] The trial involving the similar fact witness K.B. was held before Justice London-Weinstein from March 20 to 30, 2023. On May 2, 2023, Mr. Wilson was acquitted of sexual interference and sexually assaulting K.B.

Analysis

[11] The Accused relies primarily on the Ontario Court of Appeal’s decision of R v. G (K.R.) and several of other cases referred to in his factum at para. 21, as authority to admit fresh evidence of a subsequent acquittal on the charges related to allegations made by a similar fact witness, who testified in the 1st trial.

[12] The Crown argues that the Mahalingan decision of the Supreme Court of Canada decided in 2008 has overruled the Ontario Court of Appeal’s decision in R. v. G (K.R.), decided in 1991, which I would otherwise be bound to follow.

[13] Both the Crown and the Defence agree on the following:

a) the trial of Mr. Wilson on the charges related to T.C. is not over until the Accused has been sentenced, at which time the trial judge will become functus officio; and, b) if the Accused’s subsequent acquittal of the charges involving the similar fact witness K.B. is admitted as fresh evidence, then the appropriate remedy is to declare a mistrial.

[14] I agree that if the subsequent acquittal is admitted as fresh evidence that a mistrial would be appropriate remedy for the reasons articulated by Trotter J. (as he then was) in the decision of R. v. Drysdale, 2011 ONSC 5451, [2011] O. J. No. 4232.

[15] In R. v. Grant (1991), 67 C.C.C. (3d) at pp. 268 and 269, Lamer J. stated that an acquittal was the equivalent of a finding of innocence. However, in her dissenting reasons in Mahalingan, Charon J. outlined the complexity of the application of the doctrine of issue estoppel in criminal law and stated that this difficulty was caused in part by the fact that a verdict of “not guilty” encompassed a broad range of circumstances, from factual innocence to proof just short of beyond a reasonable doubt.

[16] In R. v. G. (K.R.), Justice Galligan of the Ontario Court of Appeal stated that “it would be a clear miscarriage of justice if allegations of conduct, of which he was innocent, played a part in his conviction for these offences”. If the trial involving K.B.’s allegations, in which he was acquitted, had occurred before this trial involving T.C., K.B.’s similar fact evidence would not have been admissible in this trial. The R. v. G. (K. R.) case is directly on point unless it has been overruled by the Supreme Court’s decision in Mahalingan.

[17] The Crown submits that the Defence elected to sever the charges and should suffer any adverse consequences that result. The similar fact evidence of K.B. was admitted in this trial based on a standard of proof on a balance of probabilities. The 2nd trial related to the allegations of K.B. involved the application of a different standard of proof, namely beyond a reasonable doubt, and involved different evidence before a different judge. As a result, the Crown submits that evidence of his acquittal should not be introduced in this trial after a finding of guilt has been made. The Crown argues that the decisions are not inconsistent and there is no unfairness to the Accused because of the application of different standards of proof.

[18] The Crown submits that the Mahalingan decision, which followed Blair J.A.’s dissent in the Court of Appeal, effectively overruled R v. G (K.R.). At para. 34 of Mahalingan, the majority of the Supreme Court stated that the principle of issue estoppel could not operate retrospectively and stated as follows:

[34] As to the second issue, issue estoppel should not be understood to operate retrospectively. Nowhere in Grdic does Lamer J. suggest that acquittal in a subsequent trial would require a retrospective review of previous trials to determine if evidence led by the Crown in the second trial which resulted in an acquittal had been led in the first trial. Nor does he suggest that if such evidence had been led, it would be deemed retrospectively to have been improperly received, requiring a new trial.

[19] In Mahalingan, Justice McLachlin stated that an acquittal in a subsequent trial would not require a retrospective review of a decision in a previous trial, if the evidence led by the Crown in the 2nd trial, which resulted in an acquittal, was led at the 1st trial.

[20] This is not the situation before me because K.B.’s similar fact evidence was introduced in the 1st trial and was subject to a different standard of proof than in the in the 2nd trial.

[21] In this trial there was no evidence of an acquittal of the Accused at a previous trial, rather he was acquitted in a subsequent trial. At para. 79 of Mahalingan, McLachlin J. stated that “… The acquittal in the 2nd trial cannot operate retrospectively to render the evidence inadmissible in the earlier case.”

[22] In R. v. Drysdale, 2011 ONSC 5451, Trotter J. (as he then was) held that the appropriate test to apply to reopen and admit fresh evidence after conviction, but before a sentence was entered, was the Palmer test.

[23] The Palmer test was summarized by Watt J.A. in R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109 at para. 48 as follows:

[48] The criteria to be met to determine the admissibility of fresh evidence on appeal provide helpful guidance to judges faced with an application to re-open the defence case after an adjudication of guilt has been made. The test is familiar:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[24] The Crown does not dispute that the 1st and 3rd factors of the Palmer test have been met because the Accused could not have adduced evidence of his acquittal on the trial that occurred subsequent to the finding of guilt on this trial. The Crown also does not dispute that the evidence of the Accused’s acquittal is capable of belief. However, the Crown argues that the 2nd and 4th factors of the Palmer test have not been met by the Accused.

[25] The 4th Palmer factor is whether the evidence of the subsequent acquittal on the charges related to the similar fact the witness K.B. could reasonably be expected to have affected the result.

[26] K.B.’s similar fact evidence was relevant evidence and a factor supporting a finding of guilt in this trial, as indicated in paras. 19, 20, 31, 32, and 33 of my decision. As a result, it could reasonably be expected to affect the result.

[27] The issue is whether the Mahalingan decision of the Supreme Court overrules the Court of Appeal’s decision in R v. G (K.R.). Framed another way, is the Accused seeking to apply the principles of issue estoppel retroactively, which is prohibited by the Mahalingan decision.

[28] In Mahalingan, the Supreme Court held that a subsequent acquittal on a charge based on evidence that was adduced in the 1st trial does not retrospectively render the evidence used to convict an Accused inadmissible in a previous trial. Therefore, following the reasoning of Mahalingan, the similar fact evidence of K.B. is not rendered inadmissible retroactively in this trial, if this trial was completed. However, this trial is not completed by the finding of guilt and will only be completed when the sentence is imposed.

[29] The principles of issue estoppel were set out in Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 380 and were referred to in Mahalingan at para. 111 as follows:

a) the issue must be the same as the one decided in the prior decision; b) the prior judicial decision must’ve been final; and, c) the parties to both decisions must be the same, or their privies. (the mutuality requirement).

[30] In para. 2 of Mahalingan, McLachlin J., writing for the majority held that the doctrine of issue estoppel in criminal cases was confined to “the focused compass of precluding the Crown from leading evidence which is inconsistent with findings made in the Accused’s favour in a previous proceeding”. Here, there is no final ruling of the court in the Accused’s favour. Rather, there is a prior ruling against the Accused convicting him of the offences charged in the complaint made by T.C. However, this trial involving the allegations made by T.C. is not yet completed. A final decision in favour of the Accused would have to be the decision acquitting him of the charges related to the similar fact evidence of K.B. However, the Crown is not seeking to challenge or retry the Accused on the charges related to K.B., which would be contrary to the doctrine of issue estoppel.

[31] The 2nd factor in issue estoppel is that the prior judicial decision must have been final. The decision convicting the Accused is final, but his criminal trial is not completed because the sentencing has not occurred. As a result, the final decision in the Accused’s criminal trial, which includes both a determination of guilt or innocence and if found guilty, the imposition of sentence, has not yet occurred.

[32] The principle of issue estoppel in criminal law is limited to preventing the Crown from leading evidence inconsistent with findings made in the Accused’s favour in a previous proceeding. The requirement of a final decision results in the doctrine of issue estoppel being inapplicable in the circumstances of this case.

[33] The Mahalingan decision stands for the principle that issue estoppel does not operate retrospectively and that in criminal law, the doctrine of issue estoppel is limited to preventing the Crown from leading evidence, which is inconsistent with findings in the Accused’s favour made in a previous proceeding. The Crown is not attempting to lead evidence that is inconsistent with findings made in the Accused’s favour because the Crown has already led its similar fact evidence in this trial. However, the Supreme Court’s decision limiting the application of the doctrine of issue estoppel in criminal cases to that set out above, does not specifically overrule the principles set out in R v. G. (K.R.) with regard to the admission of fresh evidence in circumstances where a trial was not completed. As a result, I am bound to follow the Court of Appeal’s decision in R. v. G. (K. R.).

[34] While the Accused’s subsequent acquittal of the charges involving K.B., were made applying a different standard of proof, I am satisfied that it meets the Palmer test for the admission of fresh evidence. The similar fact evidence of K.B. cannot be relied on in this trial based on the Accused’s subsequent acquittal on those charges. K.R.’s evidence was relevant to the determination of his guilt, his credibility, and could reasonably have affected the finding of guilt in this trial.

[35] As the sentencing is not completed, I will allow the fresh evidence of the Accused’s acquittal on the charges involving K.B. as it meets the factors outlined in the Palmer decision and is in the interest of trial fairness.

Disposition

[36] The Accused’s application to admit fresh evidence of his acquittal on the charges involving the similar fact witness, K.B., is granted and I declare a mistrial.

Mr. Justice Robert Smith Date: September 13, 2023