R. v. D.N.C., 2011 ONCA 672

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R. v. D.N.C., 2011 ONCA 672

DATE: 20111028

DOCKET: C51591

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Sharpe JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

D. N. C.

Appellant

Timothy E. Breen, for the appellant

Frank Au, for the respondent

Heard: October 11, 2011

On appeal from the conviction entered on August 27, 2009 by Justice Robert Pelletier of the Superior Court of Justice.

By the court:

[1] This appeal involves an unusual application of issue estoppel to the admissibility of similar fact evidence.

[2] The appellant was convicted of one count of sexual touching and one count of sexual assault committed between January 1, 1995 and January 7, 2001. The complainant was the appellant’s son. The Crown led similar fact evidence of an incident that occurred on January 8, 2001, the day immediately following the time period captured by the indictment. The January 8 incident had been the subject of an earlier trial that ended in November 2001 with what the first trial judge described as a “judicial stay”. The stay had been granted when the complainant, then ten years old, refused to testify and Crown was denied an adjournment when the evidence that had been led to that point was tenuous at best and almost certainly insufficient to support a conviction. The trial judge made this clear in his ruling refusing the Crown’s adjournment request, albeit without receiving submissions from counsel on the merits.

[3] In May 2007, the complainant, by then prepared to testify, went to the police with the allegations of sexual abuse over an extended time period that formed the basis for the new charges at issue on this appeal. The Crown successfully applied to tender, as similar fact evidence, the same allegation of the alleged January 8 assault that had been judicially stayed at the first trial. The January 8, 2001 allegation was a focal point of the second trial and figured significantly in the trial judge's reasons for conviction.

[4] The appellant submits that the trial judge erred by allowing the Crown to lead evidence of the January 8, 2001 incident in the face of the “judicial stay” that was granted at the first trial.

Issue

[5] The central issue before the trial judge at the second trial, and before us on this appeal, concerns the nature and effect of the “judicial stay” that was granted at the first trial with respect to the January 8, 2001 allegations and the application of the Supreme Court of Canada’s judgment in R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316.

Analysis

[6] In Mahalingan, McLachlin C.J., writing for the majority, held at para. 2, that issue estoppel “plays an indispensible role in ensuring fairness to the accused” provided that it is confined to precluding the Crown “from leading evidence which is inconsistent with findings made in the accused’s favour in a previous proceeding.” Issue estoppel rests on the principle that fairness “requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits” (para. 39).

[7] The respondent Crown places considerable reliance on the fact that the first trial judge ordered a “stay” rather than refusing the adjournment and acquitting the appellant. The respondent submits that absent an acquittal or other clear finding of fact exonerating the appellant of the sexual misconduct forming the similar fact evidence, issue estoppel cannot apply and that paras. 42 and 77 of Mahalingan suggest that where a prosecution is terminated by a stay, re-litigation will only be precluded in a limited range of cases that amount to an abuse of process. It is further argued that abuse of process is not available in this case as there is no suggestion of Crown misconduct.

[8] We do not accept the Crown’s submission for the following reasons.

The first trial and the “judicial stay”

[9] The appellant was arrested on January 8, 2001 and charged with various sexual offenses allegedly committed on that date. Those charges were the subject of the appellant’s first trial that commenced in October 2001. At that first trial, the Crown called the complainant’s brother, who testified that he saw the appellant and the complainant together in circumstances that led him to believe the appellant was sexually abusing the complainant. After one day of trial, the case was adjourned for a month. When the case resumed in November 2001, the Crown’s case was in serious difficulty as the complainant refused to testify. Crown counsel indicated that immediately after the alleged incident, the complainant had been taken to medical professionals where he had undergone certain tests, but that the samples had not been subject to forensic testing. The Crown sought an adjournment to submit these exhibits for analysis. Crown counsel acknowledged, however, that it was questionable whether forensic testing would yield any results and added: “[b]ut I'm in a position where that's the only avenue left in the prosecution”.

[10] The trial judge refused the adjournment expressing concerns about the delay in the forensic testing and the appearance of justice in relation to the accused’s entitlement to the presumption of innocence. The trial judge concluded as follows:

Does justice look bad after all this delay? Yes. No question about it. Justice looks bad. I am going to take it upon myself to enter a judicial stay of proceedings and stop the prosecution at this point, but leave open the question of whether or not that judicial stay could be reopened upon a judge’s order within the next year and I do that rather than refuse to grant an adjournment requested by the Crown resulting in a dismissal at this time.

I feel that's the middle ground by which I may potentially preserve the rights of the public, but relieve [the appellant] of the weight of a prosecution and the restrictive terms under which he now lives.

Following the stay, instead of being tested, the exhibits were destroyed and the Crown never sought to lift the stay or pursue the case any further.

The second trial

[11] At the second trial, the appellant’s trial counsel argued that evidence of the January 8, 2001 incident should be excluded on the grounds of both issue estoppel and abuse of process. The trial judge rejected that argument and concluded that by granting the “ill-advised judicial stay of proceedings” the first trial judge had taken pains to ensure that the charges could, at some point, be tried on their merits. As that had never occurred, the trial judge concluded the requirements for issue estoppel or abuse of process were not met. The Crown was thus not precluded from leading evidence as to the January 8, 2001 incident as similar fact evidence. The trial judge’s decision on this question is the central issue of this appeal.

Issue estoppel

[12] In our view, in the particular circumstances of this case, the “judicial stay” granted at the first trial constituted, in functional terms, “a judicial determination on the merits” in favour of the appellant within the meaning of Mahalingan attracting the preclusive effect of issue estoppel.

[13] First, it is clear from the record that the trial judge at the first trial had concluded that if an adjournment were refused, dismissal of the charges was inevitable. As we have noted, Crown counsel stated that because the complainant refused to testify, the “only avenue left in the prosecution” was an adjournment in the hope that the forensic tests might yield some evidence supporting the prosecution. The trial judge recognized in his reasons for granting the stay that if he were simply to refuse the requested adjournment, the inevitable result would be the dismissal of the charges.

[14] Second, it is clear from the record that the trial judge was not prepared to grant the Crown’s request for an adjournment. He decided instead to make an order that would “stop the prosecution at this point”, subject to the conditions of the stay.

[15] Third, it is common ground that the trial judge had no legal authority to grant a “judicial stay” in the circumstances of this case.

[16] Fourth, it is significant that after the trial judge entered the “judicial stay”, the Crown took no steps to proceed with the prosecution. The Crown did not appeal the trial judge's order. The Crown did not submit the exhibits for forensic testing. The Crown did not apply to have the stay lifted so that it could make the submission that the appellant should be convicted on the evidence that had already been led. Instead, the Crown acquiesced to trial judge's order to “stop the prosecution at this point”, seemingly resigned to the fact that the available evidence did not support a conviction.

[17] In these circumstances, it is our view that fairness and the interests of justice require us to look behind the legally erroneous label of “judicial stay” to the substance of what occurred. Simply put, the trial judge’s legal error in purporting to grant a “judicial stay” should not have the effect of depriving the appellant of the remedy to which he is legally entitled on the basis that at the first trial, the Crown failed to prove its case against him.

[18] It follows that the Crown should not have been permitted to adduce evidence of the January 8, 2001 incident as similar fact evidence. As the order terminating the first prosecution was, in the peculiar circumstances of this case, the functional equivalent of an acquittal, the rule of issue estoppel enunciated in Mahalingan precluded the Crown from relying on that evidence.

Abuse of process

[19] Even if the label “judicial stay” excluded the application of issue estoppel, we would reach the same conclusion on the basis of abuse of process. McLachlin C.J., clearly rejected, at para. 42 of Mahalingan, the proposition that abuse of process could or should be routinely used to “achieve the fairness goal that underlies the doctrine of issue estoppel.” However, at para. 77, McLachlin C.J. expressly stated that it was not necessary in Mahalingan “to resolve the question of whether issue estoppel applies to situations where there is a disposition such as a stay at a first trial” and went on to suggest that perhaps the “more flexible” approach of abuse of process can play a role in some cases. Although the examples McLachlin C.J. provided involved situations of stays granted on grounds such as unreasonable delay that do not engage a determination of the merits of the Crown’s case, were it necessary, we would apply abuse of process to the present case.

[20] As explained above, the disposition made by the first trial judge, amounted, in substance, to a judicial determination on the merits in favour of the appellant. We cannot agree that the appellant should be deprived of the benefit of that determination because the judge attached a legally erroneous label to the disposition he made. It would be fundamentally unfair to the appellant to be faced with the same allegations as the centerpiece of the later prosecution simply because of a legal error on the part of the first trial judge in his selection of the appropriate remedy.

[21] We do not accept the respondent’s argument that abuse of process cannot apply because there was no Crown misconduct. It has long been held that prosecutorial misconduct is not a precondition to a finding of abuse of process: R. v. Keyowski (1988), 40 C.C.C. at p. 483; R. v. Pietrangelo 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 66. In our view, the circumstances here meet the “clearest of cases” standard for abuse of process.

Disposition

[22] Accordingly, the appeal is allowed and a new trial is ordered.

RELEASED: October 28, 2011 (“R.J.S.”)

“M.J. Moldaver J.A.”

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”