WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) MANDATORY ORDER ON APPLICATION — 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 victim of the right to make an application for the order; and

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

486.6 OFFENCE — (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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. J.C., 2023 ONCJ 455

DATE: October 16, 2023

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.C.

Before Justice Louise A. Botham

Ruling on Admissibility of Stayed Charges

Patricia Garcia ….............................................................................. counsel for the Crown

Vincent Rishea ..………….…………………………………counsel for the accused J.C.

BOTHAM J.:

[1] J.C. was arrested on August 1, 2000 and charged with five counts of possession of child pornography. Those charges were stayed by Justice Epstein on March 28, 2022.

[2] An assessment pursuant to 752.1 has been ordered. The Crown wishes to adduce evidence of those charges should a hearing be ordered under s. 753 of the Code and to provide that evidence to the assessor.

[3] J.C. resists such an order. It is submitted that the judicial stay entered by Justice Epstein concludes the matter, just an acquittal would have, and that the Crown is precluded from re litigating the matter.

[4] The Crown submits that the stay entered on March 28, 2022 was a Crown stay, not a judicial stay. It is further submitted that the Court of Appeal in dismissing the Crown appeal from the stay entered before Justice Epstein did not replace one stay of proceedings for another. Given that the stay was a Crown stay, it is submitted that the evidence from the 2000 charges is admissible without further leave.

[5] In the alternative, it is submitted that even if it is found that the matters were judicially stayed, the Crown is not estopped from introducing evidence from the 2000 charges because findings of fact had not been made with respect to materials allegedly found in his possession or his statement to the police.

[6] I think it is useful to review the findings made by our Court of Appeal in R. v. Cassidy, 2004 O.J. No 39. At para 6 the Court, in summarizing what had occurred at the trial level wrote:

“On March 28, 2002, the Crown advised the trial judge that it would not be complying with this order and therefore consented to the respondent’s application to stay all charges. The same day, the trial judge made the stay order requested.”

[7] I do not know how to read that passage except to conclude that our Appellate Court viewed the stay as a judicial order in response to an application from the accused for such a remedy. The fact that the Crown agreed to such an order does not change that.

[8] On appeal, Crown counsel had submitted that the disclosure order had gone too far and that the stay should be set aside and a new trial ordered. The Court found that the disclosure order had exceeded what was necessary and determined that the stay order itself could not be sustained on the basis upon which it was made. However, having determined that it would be “an unfair and abusive exercise of prosecutorial discretion to allow the Crown to force the Respondent to a new trial now”, the Court determined that the appropriate order was still a stay.

[9] Whether the Court was upholding the original judicial stay or entering a stay themselves, I am satisfied that the matter has been judicially stayed.

[10] On the issue of estoppel, I agree that the Crown is not necessarily estopped from litigating a factual issue simply because a previous trial had resulted in an acquittal or a judicial stay. The Crown is estopped from litigating issues which were expressly resolved or had to have been resolved in the accused’s favour in order that an acquittal could be entered.

[11] In R. v. D.C.C., 2011 O.J. 4777, our Court of Appeal considered the application of issue estoppel with respect to the admissibility of similar fact evidence, where that evidence had been the subject of an earlier trial which had been judicially stayed.

[12] That judicial stay had been entered after the trial judge refused a Crown application for adjournment, leaving the Crown with no evidence capable of proving the charge before the Court. On a subsequent trial, the Crown was successful in introducing evidence from that first trial as similar fact evidence. Upon appeal of that decision, a new trial was ordered.

[13] The Court at para 12 characterized the judicial stay granted at the first trial as the functional equivalent of ‘a judicial determination on the merits’ in favour of the Appellant which would preclude the Crown from relying on that evidence from the first trial.

[14] In this case, the issue of whether or not the accused had been in possession of pornographic materials as alleged was the central issue in the trial. The trial judge had made a disclosure order which the Crown refused to comply with. Had the matter proceeded to trial in the absence of that disclosure being made, the Crown would not have been able to introduce the evidence necessary to prove the charge and an acquittal would have been entered. The stay entered by the trial judge was the equivalent of a judicial determination on the merits, meaning that the central issue of possession had been decided in favour of the accused.

[15] The Crown is estopped from leading evidence with respect to the materials alleged to have been in the accused’s possession in August 2000.

[16] I am not satisfied however that the Crown is estopped from leading evidence with respect to the accused’s statement to the police, made in relation to that arrest.

[17] In R. v. Grandine, 2018 O.J. No 4929, Justice Code considered whether statements made by the accused to the police were admissible at his re-trial on a charge of manslaughter where the Crown had sought to rely on them at the original trial to prove an intention to kill and he had been acquitted of first-degree murder and found guilty of manslaughter.

[18] The defence had argued that since a jury had found him not guilty of an intentional killing, the Crown would be estopped from introducing any evidence relevant to an intention to kill, since it could be used to attack the previous finding of lack of mens rea.

[19] It was conceded by Crown counsel that they could not use that evidence for that purpose. However, the Crown submitted that that evidence was equally relevant to the charge of manslaughter since it could establish intention to commit the unlawful act which led to the complainant’s death.

[20] Justice Code agreed and admitted the evidence. In doing so, he referenced among other authorities, R. v. Skeete, 2017 ONCA 926, para 97 where Justice Watt had held that the Crown was not precluded from leading evidence at a subsequent trial, even where that evidence did relate to issues previously litigated, as long as the Crown was not seeking to contradict that earlier factual finding.

[21] I have reviewed J.C.’s statement to the police when arrested in 2000. I am satisfied that aspects of it may well be relevant to the issues that I will need to decide should this matter proceed to a s. 753 hearing. The Crown would be precluded from relying on his statement to prove the offences which have been judicially stayed or to contradict that earlier factual finding. However, for the reasons set out in R. v. Skeete, supra, I am satisfied that the Crown is not precluded from introducing his statement into evidence at this hearing.

[22] If either counsel requires further clarification with respect to the scope of my ruling, I am happy to address those issues on our next date in court.

Released: October 16, 2023

Signed: Justice L. Botham