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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

COURT OF APPEAL FOR ONTARIO

DATE: 20240806 DOCKET: COA-23-CR-1095

Benotto, Favreau and Madsen JJ.A.

BETWEEN

His Majesty the King Appellant

and

David Wilson Respondent

Counsel: Manasvin Goswami, for the appellant Michael A. Johnston, for the respondent

Heard: June 3, 2024

On appeal from the order entered by Justice Robert J. Smith of the Superior Court of Justice on September 13, 2023, with reasons reported at 2023 ONSC 5160.

Benotto J.A.:

[1] The respondent was charged with sexual offences against two children. The trials were held separately. During the respondent’s trial in regard to child one, the trial judge admitted similar fact evidence of child two. The trial judge convicted the respondent. The trial with respect to child two was then held before a different judge. The respondent was acquitted in that trial.

[2] Following the conviction, but before sentencing, the trial judge declared a mistrial with respect to the charges involving child one. He did so on the basis that the respondent was acquitted in the subsequent trial involving child two.

[3] The Crown appeals, asserting that the trial judge erred in granting the mistrial because the subsequent acquittal with respect to child two is not admissible in the respondent’s first trial with respect to child one. The respondent submits that the trial judge did not err, but even if he did, the Crown has no right of appeal.

[4] For the following reasons, I would allow the appeal.

BACKGROUND

[5] The respondent was charged with committing historic sexual offences against two children, T.C. and K.B. The Crown initially charged him jointly. The defence brought a successful application to sever the charges.

[6] The trial involving T.C. proceeded first.

[7] The respondent was alleged to have entered T.C.’s bedroom on various nights while she was sleeping and fondled her vaginal area without penetration. The fondling occurred approximately two to five times while the child was being babysat by the respondent’s mother. T.C. testified that she was approximately 10 years old at the time.

[8] The charges relating to K.B. stemmed from a single incident alleged to have occurred when she was approximately four years old. After falling asleep, K.B. testified that she was awoken by the respondent kneeling or crouching in her bed. He was trying to separate her legs and was feeling around her legs and her vagina. K.B. testified that she tried kicking him off, but this did not work. She tried to fall back asleep, and he continued to try feeling her vagina and then stopped, before exiting her room.

The trial with respect to T.C.

[9] The trial relating to T.C. was held between December 5-11, 2022. On February 24, 2023, the trial judge convicted the respondent of sexual assault and gross indecency.

[10] The trial judge accepted T.C.’s evidence as both credible and reliable, with the exception of the times and dates of the assaults. He found that she was not shaken in cross-examination, and her evidence was supported by the similar fact evidence of K.B.

[11] Sentencing was set for a later date.

The trial with respect to K.B.

[12] The trial involving K.B. was held before a different judge between March 20-30, 2023. The second trial judge found difficulties, inconsistencies, and discrepancies with both the respondent’s evidence and that of K.B. However, when considering the evidence as a whole, the trial judge was left with a reasonable doubt and the respondent was acquitted of those charges.

Fresh evidence application

[13] Relying on the subsequent acquittal, the respondent applied to have the trial judge admit fresh evidence in his first trial. As the trial judge stated:

[The respondent] has brought an application to admit fresh evidence, namely evidence of his acquittal of the charges involving the similar fact witness, K.B.

[14] The trial judge relied on this court’s decision in R. v. G.(K.R.) (1991), 5 O.R. (3d) 406 (C.A.), to conclude that the test for admission of fresh evidence had been met. In G.(K.R.), the court set aside a conviction and ordered a new trial based on the subsequent acquittal on charges which formed the basis of similar fact evidence at trial. The trial judge stated that K.B.’s similar fact evidence was relied on in part to convict the respondent with respect to T.C. The trial judge concluded that the similar fact evidence met the test in Palmer which requires that:

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;
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.

[15] In finding that the Palmer test had been met, the trial judge rejected the Crown’s position that the Supreme Court’s decision in R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316 (“Mahalingan (SCC)”), overruled G.(K.R.). The Supreme Court’s decision in Mahalingan stands for the proposition that an acquittal in a subsequent trial cannot operate retrospectively to render evidence inadmissible which had already been accepted in an earlier trial: Mahalingan (SCC), at para. 79.

[16] The trial judge understood Mahalingan (SCC) to apply only when the first trial was completed. Because he had not yet sentenced the respondent, the trial was not formally completed: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12. The trial judge therefore concluded that Mahalingan did not apply.

[17] The trial judge reopened the case, allowed the fresh evidence application and declared a mistrial in accordance with R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219.

ISSUES ON APPEAL

1. Did the trial judge err by failing to follow the Supreme Court’s decision in Mahalingan?
2. If the trial judge erred, does this court have jurisdiction pursuant to s. 676(1)(b)?

DISCUSSION AND ANALYSIS

(1) Did the trial judge err by failing to follow Mahalingan?

[18] In order to understand the significance of Mahalingan, it is necessary to review the background law relating to issue estoppel. I summarize the historical context and review Mahalingan. I then consider the trial judge’s interpretation of Mahalingan (SCC).

(a) Background of Issue Estoppel

[19] Issue estoppel is a legal doctrine which estops the re-litigation of disputed issues and prevents a party against whom an issue has been decided from proffering evidence to contradict the earlier result: R. v. Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at para. 77. The doctrine is concerned with “whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding”: Mahalingan (SCC), at para. 16.

[20] The application of issue estoppel to acquittals in criminal proceedings has been controversial. The foundational Canadian decision – and the source of the confusion – is R. v. Grdic, [1985] 1 S.C.R. 810. In that case the court held that an acquittal is the equivalent to a finding of innocence: Grdic, at p. 825. As applied in Grdic, issue estoppel prevented the Crown from prosecuting the accused for perjury based on alibi evidence given at an earlier trial where he had been acquitted. As observed by McLachlin C.J. in Mahalingan, the estoppel principle in Grdic was “clearly concerned with the relitigation of an issue that had, in a previous proceeding, been resolved in the accused’s favour”: Mahalingan (SCC), at para. 27.

[21] In G.(K.R.), this court applied the Grdic principle to set aside a conviction based on a subsequent acquittal: G.(K.R.), at paras. 5-7, 17. The appellant in G.(K.R.) was convicted of sexual offences against two children based in part on the similar fact evidence of a third child. In a later trial, the appellant was acquitted of the third child’s allegations. On appeal against the convictions entered at the first trial, the appellant sought to introduce the acquittal as fresh evidence and invited this court to consider the trial record as if the testimony of the third child were not there. The court was asked to decide whether the absence of this testimony would reasonably have been expected to affect the result: G.(K.R.), at para. 8. Citing the Grdic principle that an acquittal is equivalent to a finding of innocence, the court held that “there would be a clear miscarriage of justice if allegations of conduct, of which [the appellant] was innocent, played a part in his conviction for these offences”: G.(K.R.), at para. 13. On this basis, the court admitted the acquittal, removed the testimony of the third child from the record, set aside the convictions, and ordered a new trial: G.(K.R.), at para. 17.

[22] In the years following G.(K.R.), the exclusion of similar fact evidence on the basis of issue estoppel became the subject of criticism. [1] Some jurisdictions have completely rejected the reasoning the Grdic. [2] It was suggested that the case law has misinterpreted Grdic, which was a case about issue estoppel, and misapplied it to bar otherwise admissible similar fact evidence. It was said that the concerns “underlying issue estoppel do not apply to similar fact” evidence, with estoppel requiring that the identical legal issue be decided in both cases. [3]

[23] The Supreme Court of Canada mitigated the impact of issue estoppel on the use of similar fact evidence when it decided R. v. Arp, [1998] 3 S.C.R. 339. In Arp the Supreme Court confirmed that the estoppel principle from Grdic does not apply “to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding”: Arp, at para. 79. In relation to the test for admission of similar fact evidence as opposed to conviction, the Supreme Court held that there “is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it”: Arp, at para. 79. Accordingly, Arp confirmed that, in a trial involving similar fact evidence, the trier of fact may use the evidence from one count on which there was an acquittal to assess an accused’s liability on other counts once an improbability of coincidence is established.

[24] Then came Mahalingan.

(b) Mahalingan

[25] The accused was convicted of aggravated assault. The eyewitness who identified him as the attacker testified that, shortly before the trial commenced, the accused had telephoned him from jail asking that the eyewitness not testify against him. The accused was subsequently charged with attempting to obstruct justice in relation to the alleged phone call. The accused’s trial on that charge occurred following the conclusion of the first trial. The Crown adduced evidence of the telephone call mirroring that evidence put forward at the initial trial. The accused was acquitted on the obstruction of justice charge. He appealed his aggravated assault conviction, seeking to have his acquittal for obstructing justice accepted as fresh evidence in his appeal.

[26] Based on the doctrine of issue estoppel, he submitted that the acquittal had the retrospective effect of rendering the testimony about the phone call inadmissible at his initial trial.

(c) The Court of Appeal for Ontario

[27] The Court of Appeal unanimously allowed the accused’s appeal against conviction and ordered a new trial on the ground that the trial judge had failed to outline the position of the defence in his instructions to the jury: R. v. Mahalingan (2006), 80 O.R. (3d) 35, at paras. 37, 69, 70 (“Mahalingan (ONCA)”). The court was divided, however, on the fresh evidence application.

[28] Sharpe J.A., writing for the majority, recognized and agreed with the criticism of the treatment of issue estoppel, see Mahalingan (ONCA) at para. 62:

The exclusion of similar fact evidence on the basis of issue estoppel has been the subject of trenchant criticism by academic and other authors. [References omitted, included in footnote. [4]]

[29] Sharpe J.A. agreed with cases that called for the Supreme Court to clarify issue estoppel but concluded that the court was bound by the holding in Grdic and subsequent case law affirming that interpretation: Mahalingan (ONCA), at paras 60-61.

[30] Blair J.A., in dissent, explained why he disagreed. He concluded that the subsequent acquittal on the charge of obstructing justice did not retrospectively render inadmissible the evidence of the accused’s telephone call to the eyewitness and would have dismissed the application for fresh evidence, see Mahalingan (ONCA), at para. 78:

I do not accept that the acquittal is admissible and useable for these purposes. While I agree with my colleague that this is an area of the law that the Supreme Court of Canada may wish to reassess – for the reasons articulated in the literature he canvasses – I do not share his view that we are bound by authority either in the Supreme Court of Canada or in this court to come to a different conclusion.

[31] Blair J.A. further explained at paras. 81 and 82:

Indeed, the retrospective application of issue estoppel in the circumstances of this case at least, is meaningless. It is meaningless because it does not respond to any of the basic principles that underpin the notion of issue estoppel, namely:

(a) to promote finality in litigation (in this case, it accomplishes the opposite, by fostering yet another proceeding);

(b) to prevent double jeopardy and unfairness to the accused, who should not be required to defend himself or herself continuously against the same allegations, once the legal system has determined the issue in his or her favour (that is not the case here); and

(c) to guard against inconsistent verdicts (again, not a concern here, as attempting to obstruct justice was not an issue at the attempt murder/aggravated assault trial, and the two different triers of fact were operating on the basis of a different standard of proof).

Consequently, I do not view Grdic as precluding us from dismissing this ground of appeal. Indeed, it seems to me that the Supreme Court's more recent decision in R. v. Arp, [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 129 C.C.C. (3d) 321 suggests the contrary.

(d) The Supreme Court of Canada

[32] On appeal from this court, the Supreme Court took the opportunity to clarify the law. Chief Justice McLachlin, writing for the majority, referred to Grdic as having created “perplexing difficulties” and referred to the “calls for reform”: Mahalingan (SCC), at para. 1. Rather than eliminate issue estoppel entirely from criminal law – as Charron J. said in dissent – McLachlin C.J. opted to narrow its application. As she said at para. 2:

I would modify the current Canadian approach to issue estoppel in criminal law, confining it 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.

[33] Chief Justice McLachlin specifically adopted the reasoning of Blair J.A. and concluded that “properly understood, issue estoppel does not operate retrospectively to require the ordering of a new trial”: Mahalingan (SCC), at para. 3. This new approach, per McLachlin C.J., would cause the difficulties to “largely vanish”: Mahalingan (SCC), at para. 17.

[34] And to further clarify, McLachlin C.J. concluded at para. 79:

This issue can be disposed of on the basis of the order of the verdicts. The acquittal in the second trial cannot operate retrospectively to render the evidence inadmissible in the earlier case (this appeal). The order of the trials matters, and is inherent in the notions of finality that issue estoppel, and res judicata more generally, support.

[35] The Supreme Court clearly modified the use of issue estoppel that had operated in G. (K.R.). Chief Justice McLachlin explicitly referred to G.(K.R.) as one of the “most significant extensions of the traditional rule of issue estoppel” by expanding issue estoppel to “operate retrospectively to bar or require the redaction of evidence from a first trial, where there is an acquittal on a subsequent charge”: Mahalingan (SCC), at para. 33. Rather than adopting this view, McLachlin C.J. clearly says “issue estoppel should not be understood to operate retrospectively”: Mahalingan (SCC), at para. 33.

[36] As I will explain below, the trial judge misinterpreted the application of Mahalingan (SCC).

(e) The trial judge’s misinterpretation of Mahalingan

[37] The trial judge erred in his interpretation of Mahalingan in two ways. He concluded that it only applied after the respondent had been sentenced, and he found that Mahalingan did not overrule G.(K.R.).

The only after sentencing error

[38] The trial judge recognized that Mahalingan holds that the acquittal of an accused in a second trial cannot render similar fact evidence inadmissible in an earlier trial. However, the trial judge concluded that he was not bound to follow Mahalingan because the trial before him had not completed, given the trial would “only be completed when the sentence is imposed”. He said:

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. [Emphasis added]

[39] Nowhere in the Supreme Court’s Mahalingan analysis does it say that the modification of the law does not apply to situations where the accused has been found guilty but not sentenced. Indeed the Supreme Court repeatedly referred to the issue and the findings, and “whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding”: Mahalingan (SCC), at para. 16.

[40] The trial judge came to the conclusion that the trial must be completed, and the sentence imposed by relying on Danlyuk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, a case that predated Mahalingan (SCC). He said:

The principles of issue estoppel were set out in Danyluk v. Ainsworth Technologies Inc. … and were referred to in Mahalingan at para. [112] as follows:

a) the issue must be the same as the one decided in the prior decision;

b) the prior judicial decision must’ve (sic) been final; and,

c) the parties to both decisions must be the same, or their privies. (the mutuality requirement).

[41] The passage he quotes is not from the majority but from Charron J.’s dissenting opinion, who was referring to estoppel principles in the civil context. In the criminal context, she was critical of the finality requirement, holding at para. 134:

Determining whether a decision is final for the purpose of issue estoppel has raised some controversy in the case law, even in the context of civil litigation. For example, the law does not appear settled concerning the effect of the appeal process on the question of finality. Of particular relevance here, however, is the layer of complexity added to the finality assessment by virtue of the varying burdens of proof applicable at different stages of a criminal proceeding.

[42] Justice Charron would have eliminated issue estoppel in the criminal context entirely: Mahalingan (SCC), at para. 151.

[43] Consequently, the trial judge erred in his treatment of Mahalingan and, consequently, erred in concluding that the trial must have been completed in the formal sense of conviction followed by sentence. I pause to note that this is a separate issue from the principle that the trial judge is not functus officio in a judge alone trial until sentencing. Even though the trial judge here was not functus, he still erred in concluding that Mahalingan only applied after sentencing.

The G.(K.R.) error

[44] The trial judge also said that Mahalingan did not overrule G.(K.R.):

…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.).

[45] With respect, this statement misunderstands the ratio of Mahalingan and the fact that McLachlin C.J. specifically referred to G.(K.R.) as an example of the previously “overbroad” application of issue estoppel. She said at paras. 31-33:

I conclude that, properly understood, issue estoppel in Canadian criminal law operates to prevent the Crown from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt.

Subsequent cases, however, have read the principle of issue estoppel more broadly. This overbroad reading is the primary source of the difficulties that currently attend the rule.

The most significant extensions of the traditional rule of issue estoppel are first, the view that it operates to bar the Crown from leading evidence on any issue raised in a prior trial which resulted in an acquittal; and second, the view that it can operate retrospectively to bar or require the redaction of evidence from a first trial, where there is an acquittal on a subsequent charge involving evidence led at the first trial, as is argued in this appeal: R. v. G. (K.R.).

[46] This misunderstanding of the law of issue estoppel led the trial judge to conclude that K.B.’s evidence was not admissible and that the Palmer test had been met. He reasoned as follows:

While the [respondent]’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.B.]’s evidence was relevant to the determination of his guilt, his credibility, and could reasonably have affected the finding of guilt in this trial. [Emphasis added.]

[47] The evidence of the respondent’s acquittal in K.B.’s case was not admissible and therefore did not meet the Palmer test: R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at paras. 71, 78. Because the evidence of K.B. was not admissible, the trial judge erred by re-opening the trial. Unlike in Drysdale, where the fresh evidence application was correctly allowed, here it was a clear error to allow the fresh evidence application and re-open the trial.

[48] The error of law regarding issue estoppel grounded the trial judge’s decision to allow the fresh evidence application and then order a mistrial. Accordingly, trial judge erred in law when he granted the mistrial.

(2) Does this court have jurisdiction pursuant to s. 676(1)(b)?

[49] As explained in greater detail below, s. 676(1)(b) of the Criminal Code provides that the Crown may appeal to this court where a trial judge “refuses or fails to exercise jurisdiction on an indictment”. The respondent argues, however, that a trial judge is acting within their jurisdiction in exercising their discretion and declaring a mistrial, as long as they are not yet functus officio. In such circumstances, he further submits that, even if the trial judge erred in granting the mistrial, the Crown has no right of appeal pursuant to s. 676(1)(b).

[50] I agree with the respondent that a trial judge’s decision to order a mistrial is entitled to deference. Most appeal cases involve the failure of a trial judge to order a mistrial, not the other way around. In these circumstances, the decision may be reversed if it is clearly wrong or based on an error in principle: R. v. Akindejoye, 2024 ONCA 387, at para. 63.

[51] For the reasons I have articulated, the trial judge erred in principle by re-opening the trial, allowing the fresh evidence application and ordering a mistrial.

[52] The respondent submits that, notwithstanding this conclusion, there is no right of appeal for the Crown. He submits that the Crown’s appeal rights are limited by s. 676(1) of the Criminal Code. This appeal, he argues, fits none of the categories listed. The section provides:

s. 676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;

(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or

(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

[Emphasis added.]

[53] The respondent submits that, because the trial judge was not functus officio, he had the right to re-open the trial. He argues that it is only when a trial judge is sitting with a jury that the ability to re-open the trial is lost: see R. v. Henderson (2004), 189 C.C.C. (3d) 447 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 12. The respondent submits that, in this case, the trial judge was sitting alone and therefore had the jurisdiction to re-open the trial. As I will explain, the fact that the trial judge was not functus does not mean that an error in principle is not reviewable.

[54] In Henderson, the accused was convicted by a jury of fraudulently obtaining and attempting to obtain G.S.T. refunds. The trial judge in Henderson ultimately declared a mistrial, having found that the Crown’s failure to preserve documents breached the accused’s s. 7 right. The trial judge declared this mistrial despite the jury’s verdicts having been already recorded. This court allowed the Crown appeal pursuant to s. 676(1)(b) on the basis that the trial judge failed to exercise his jurisdiction on the indictment, which was to sentence the respondent following the jury’s verdict.

[55] The Crown submits that Henderson supports its position because it shows that “fails to exercise jurisdiction on an indictment” includes an error in law. In other words, a failure “to exercise jurisdiction on an indictment” includes a failure to sentence an accused after conviction, if the failure to sentence is based on legally invalid grounds.

[56] While the right of a trial judge to re-open the case after a finding of guilt but before sentencing does exist, it still must be done on a legally sound basis and only in the clearest of cases: R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at paras. 62, 64, leave to appeal refused, [2012] S.C.C.A. No. 92; R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. The issue is not whether the trial judge was functus officio and had the right to re-open the trial, the issue is whether the trial judge did so on a legally sound basis. The decision by the trial judge not to follow the Supreme Court’s decision in Mahalingan was not legally sound.

[57] The wording of s. 676(1)(b) is important. It says that the Attorney General may appeal to the Court of Appeal against an order that in any manner refuses or fails to exercise jurisdiction on an indictment. When combined with the wording of s. 570(1) which sets out the trial judge’s responsibilities after a finding of guilt, the meaning is clear.

[58] Section 570(1) provides:

If an accused who is tried under this Part is determined by a judge or provincial court judge to be guilty of an offence on acceptance of a plea of guilty or on a finding of guilt, the judge or provincial court judge, as the case may be, shall endorse the information accordingly and shall sentence the accused or otherwise deal with the accused in the manner authorized by law and, on request by the accused, the prosecutor, a peace officer or any other person, a conviction in Form 35 and a certified copy of it, or an order in Form 36 and a certified copy of it, shall be drawn up and the certified copy shall be delivered to the person making the request. [Emphasis added].

[59] Consequently, if the trial judge does not sentence the accused, the trial judge must otherwise deal with the accused in the manner authorized by law. The language must be interpreted according to what the text of the provision says. The action of the trial judge must be legally correct. Together with s. 676(1)(b), which provides an appeal against an order that in any manner refuses or fails to exercise jurisdiction on an indictment, the intent of Parliament is clear. The words must mean what the text of the provision denotes. In these circumstances, the trial judge was required to comply with s. 570(1).

[60] The trial judge’s decision was not legally correct. The basis for the order for a mistrial was on invalid grounds. He did not exercise his jurisdiction on legally valid grounds. The evidence of the subsequent acquittal with respect to the charges involving K.B. were not admissible and there was no basis to grant the fresh evidence application and order a mistrial. The trial judge did not deal with the respondent in the manner authorized by law.

[61] The Crown therefore has a right of appeal pursuant to s. 676(1)(b).

CONCLUSION

[62] I would allow the appeal and remit the matter for sentencing.

Released: August 6, 2024 “M.L.B.” “M.L. Benotto J.A.” “I agree. L. Favreau J.A.” “I agree. L. Madsen J.A.”

[1] Lee Stuesser, “Admitting Acquittals as Similar Fact Evidence” (2002), 45 C.L.Q. 488, at pp. 488-489 (“Stuesser”).

[2] R. v. Degnan, [2001] 1 N.Z.L.R. 280 (C.A.), at para. 33.

[3] Stuesser, at p. 495.

[4] See Stuesser, supra; Wayne Gorman, "Multiple Count Indictments and the Impact of the Accused Being Acquitted on a Count Subsequently Used as Similar Fact Evidence" (1994), 30 C.R. (4th) 222; Jean-Guy Boilard, Guide to Criminal Evidence (Cowansville, Que: Carswell, 2005); David Paciocco and Lee Stuesser, The Law of Evidence, 4th ed., (Toronto: Irwin Law, 2005); Keith Wright, "Similar Fact Multiple Count Indictments -- A Reply" (1994), 32 C.R. (4th) 301; Richard Mahoney, "Acquittals as Similar Fact Evidence: Another View" (2003), 47 C. L.Q. 265.