Court File and Parties

Court File No.: Toronto Date: 2018-04-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Tyrone Burton

Before: Justice Mara Greene

Reasons for Judgement Released: April 10, 2018

Counsel: M. McRae ……………..………………………………………… for the Respondent C. Langdon ……………………………..…………………….…..... for the Applicant

M.B. Greene J.:

Introduction

[1] Mr. Burton was convicted after trial of numerous offences including two counts of human trafficking. The Crown brought an application to have Mr. Burton designated a dangerous offender. The Crown gave notice of an intention to call viva voce evidence in relation to two findings of guilt from 1999. In response, Mr. Burton brought an application to prohibit the Crown from calling this evidence. After hearing the argument, I dismissed the application with a brief endorsement and indicated that written reasons would follow. These are my reasons.

Relevant Facts

[2] In 1999 Mr. Burton entered a plea of guilty to one count of sexual assault and one count of failing to comply with a recognizance. Mr. Burton was a young person at the time, with no previous youth record. He was sentenced to sixty days in a youth facility and probation. The other charges, a charge of robbery and criminal harassment were withdrawn. The transcript and audio recording from this proceeding have been destroyed. Therefore, there is no means of determining what facts Mr. Burton admitted back in 1999. The synopsis prepared by the police described an attack by Mr. Burton on a young 15 year old stranger. He took a box of cookies she was selling, followed her into her building and then into a stairwell. He grabbed at her breast and vaginal area. The victim managed to escape and fled to her apartment. A few days later, the victim went to the police and Mr. Burton was arrested and released on an undertaking prohibiting him from being within a certain distance of the victim of the sexual assault and prohibiting Mr. Burton from communicating with the victim. According to the second synopsis, a few weeks after the sexual assault, the victim was walking down a path near her home and school when Mr. Burton and a friend started to follow the victim. She ran to a stranger's house and banged on the door and obtained help. Mr. Burton was then arrested for failing to comply with his recognizance.

[3] After Mr. Burton pled guilty to the two offences, the sentencing judge ordered a pre-disposition report. This document was filed with the court on this application. According to the pre-disposition report, Mr. Burton advised the author that he did not commit the offence of sexual assault. He provided details of his defence to the author of the pre-disposition report.

[4] Despite Mr. Burton's denial to the author of the pre-disposition report, Mr. Burton's sentencing proceeded. The only inference to be drawn from this fact is that the sentencing judge was satisfied that Mr. Burton was admitting the essential elements of the offence. Moreover, Mr. Burton presently does not deny the commission of these offences, only the alleged aggravating factors.

[5] Years later, while in custody for other offences, Mr. Burton described the 1999 offences in different terms. Mr. Burton indicated that he knew the victim, that the sexual activity was initially consensual but he went too far and exposed himself to the victim.

[6] As noted above, the Crown wants to call the witnesses from the 1999 offences at Mr. Burton's dangerous offender hearing to prove aggravating facts in relation to the 1999 offences. Counsel for Mr. Burton argued that the Crown is estopped from doing so. Counsel for Mr. Burton argued that since findings of fact were already made by a Court in relation to the 1999 offences, there is a potential that this court will make inconsistent findings of fact if the Crown is permitted to call this evidence. Counsel argued, therefore, that the Crown should be prohibited from calling such evidence as it violates the issue estoppel rule.

Issue Estoppel

[7] The legal doctrine of issue estoppel has long plagued the criminal justice system. The difficulties associated with this doctrine were sufficiently troubling that in 2008, there was some discussion about abolishing this legal construct. The Supreme Court of Canada, in R. v. Mahalingan, 2008 SCC 63, however, chose not to abolish the construct of issue estoppel and opted for narrowing its scope instead. In reaching this decision, the court stated at paragraph 2:

I favour the latter approach. In my view, the difficulties associated with the application of issue estoppel in criminal law arises from the fact that it has been extended to circumstances where justice does not support its application. Properly confined, in accordance with a proper reading of the majority reasons in Grdic, issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality. Other concepts, such as abuse of process, character evidence rules, and the rules governing similar fact evidence, do not completely or effectively guarantee these goals. Though it shares many features with its civil law equivalent, criminal law issue estoppel is a stand-alone doctrine responsive to the unique characteristics of criminal trials. I would therefore decline to throw out issue estoppel in its entirety. Rather, 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.

[8] Under this more narrow approach to issue estoppel, the focus is on whether or not a factual issue has already been decided in the accused's favour. It is not every factual issue in a trial resulting in an acquittal that is estopped from being litigated in a subsequent trial. It is only those issues that were "expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal" (see paragraph 23 of R. v. Mahalingan).

[9] This narrow scope of issue estoppel is consistent with the purpose of the doctrine which is fairness to the accused person. The Court stated at paragraph 39 of R. v. Mahalingan:

In my view, it is clear that fairness to the accused 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. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata.

[10] The Supreme Court of Canada went on to provide guidance on how trial judges should approach this issue highlighting that the defence bears the burden of establishing that the issue had previously been decided in his/her favour. The Supreme Court of Canada held:

The determination of whether an issue was decided at a first trial, whether expressly or necessarily as a prerequisite to an acquittal, must be based on a review of the relevant portions of the transcript of the first trial, in particular, the allegations, the nature of the Crown's case, and the defence's case: Grdic, at p. 826. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding.

[11] At times it may not be clear that an issue was resolved in a first trial. In those cases the Crown is not estopped from calling evidence on that issue (R. v. Mahalingan, at paragraph 25). For example in R. v. Gushue, [1980] 1 S.C.R. 798, the offender was charged with murder in the course of a robbery involving a co-accused. Gushue was acquitted of the murder. The crown was nonetheless permitted to prosecute Mr. Gushue for the robbery since the acquittal of murder did not necessarily mean that the jury found that Mr. Gushue had not participated in the murder. The court summarized the law at paragraph 25:

In summary, the majority reasons in Grdic stand for the following proposition. The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused's favour or resolved on the basis of a reasonable doubt. Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case). Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. In my view, these propositions should be affirmed as correct statements of the law. Moreover, it should follow from these propositions that the crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused's favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.

[12] In jury trials, where certain factual findings are unknown because the jury does not articulate its findings of fact beyond its verdict, issue estoppel will apply where, based on the known findings of fact, findings in favour of the accused are logically necessary to the verdict of acquittal (see R. v. Mahalingan, at para 53).

[13] The doctrine of issue estoppel also appears to have no application to findings of fact made at a sentencing hearing after a jury trial. In R. v. Punko, 2012 SCC 39, it was held that findings of fact made at a sentencing hearing do not constitute a judicial determination on its merits and as such issue estoppel does not apply (R. v. Punko, at paragraph 11).

Application to the Case at Bar

[14] In 1999, Mr. Burton admitted certain facts in relation to two offences, sexual assault and failing to comply with a recognizance. It is unknown now what facts Mr. Burton admitted at his guilty plea nor is there any method of determining what facts were admitted due to the destroyed recordings. At this time, Mr. Burton denies committing the vast majority of the facts alleged in the synopsis prepared back in 1999 in relation to these two offences. While I appreciate that there is a risk that if permitted to call the witnesses from the 1999 offences this court might make findings of fact different from those made by the sentencing judge in 1999, it is equally possible that the sentencing judge made no findings in relation to the aggravating facts because they were not admitted and no steps were taken by the Crown to prove them. It is also possible that Mr. Burton admitted some of the aggravating facts back in 1999. Given the lost evidence, there is no method of determining what findings of fact were made. I appreciate that this is frustrating for the defence, and may put the defence at a disadvantage, but I nonetheless am of the view that the doctrine of issue estoppel has no application in the case at bar. I reach this conclusion because there is no evidence before the court that the sentencing judge from 1999 made findings of fact in favour of the defendant nor is there any evidence that findings of fact in favour of Mr. Burton were logically necessary as a result of the findings of guilt and sentence imposed by the judge in 1999. This is a necessary pre-condition that has not been met. As a result, issue estoppel does not apply and therefore the Crown is not estopped from calling evidence in relation to the charge of sexual assault and failing to comply with a recognizance from 1999.

[15] I am mindful that one of the reasons the defence cannot meet its burden in the case at bar is because the audio recording of the proceedings from 1999 have been destroyed. As noted in my earlier brief endorsement, this may very well open the door for the defence to raise the issue of a section 7 violation based on lost evidence but is not a legal basis for prohibiting the Crown from calling evidence on these previous offences.

Released April 10, 2018

Justice Mara Greene