Court Order Regarding Publication Ban

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:

ORDER RESTRICTING PUBLICATION — SEXUAL OFFENCES 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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).

MANDATORY ORDER ON APPLICATION (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; 486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2024 11 14 COURT FILE No.: 19-A70

B E T W E E N : HIS MAJESTY THE KING — AND — GABRIEL RICHER

Before: Justice Julien R. Lalande Heard on: Oct 30, 2024 Reasons for Judgment released on: Nov 14, 2024

Counsel: P. Chisholm .......................................................................................... counsel for the Crown D. Embry and S. Darby ............................................ counsel for the accused, Mr. Richer

Lalande J.:

Overview

[1] Gabriel Richer is being retried on several offences following a successful appeal of his original convictions. An issue has arisen as to whether the Crown is entitled to call evidence with respect to an allegation involving Mr. Richer touching the thigh of a complainant, J.U. It is one of two alleged incidents involving J.U.

[2] At the first trial, Mr. Richer was found guilty on both charges involving J.U., sexual assault and sexual exploitation. Both findings of guilt were based on the other incident. With respect to the touching of J.U.’s thigh, the judge found that the act itself had occurred but had a doubt as to whether it was for a sexual purpose.

[3] Defence invokes the special plea of autrefois acquit with respect to the touching of J.U.’s thigh, arguing that the Crown is barred from calling evidence on the matter.

[4] For the following reasons, I will allow the Crown to call evidence with respect to the incident in question.

Facts

Evidence at Trial

[5] The accused, Gabriel Richer, is on trial for seven offences, including three counts of assault, two counts of sexual assault and two counts of sexual exploitation. The trial involves five complainants. Mr. Richer taught math at a local high school and the allegations involve instances of him inappropriately touching female students during class or while otherwise at school.

[6] At this point in the trial, two complainants have testified. The next Crown witness is J.U. As mentioned, the charges naming J.U. as the complainant include one count of sexual assault and one count of sexual exploitation. Both are alleged to have occurred between September 5th, 2017 and the December 22nd, 2017. The evidence in support of the charges includes two separate incidents where the accused is alleged to have touched J.U. during the timeframe in question, once on her thigh and once on the back of her upper leg below her buttocks. [^1]

Procedural History

[7] The accused was previously tried in front of Justice Renaud. He was acquitted of certain offences and convicted of others. At that trial, Justice Renaud found that Mr. Richer had intentionally touched the back of J.U.’s leg near her buttocks for a sexual purpose. On the incident involving the touching of J.U.’s thigh, His Honour found that the touching occurred but was left with a doubt as to whether the accused had done so for a sexual purpose.

[8] After making these findings, Justice Renaud raised the possibility that the accused be found guilty of a simple assault in relation to the thigh touching as a lesser included offence of the sexual assault charge. The Crown declined to have the Court do so and urged Justice Renaud to enter findings of guilt on both charges based on the incident of leg touching. As a result, Mr. Richer was found guilty of sexual assault and sexual exploitation on this basis and the sexual assault count was stayed pursuant to the rule in Kienapple.

[9] The convictions entered by Justice Renaud were later overturned by Justice Bramwell, sitting as a Summary Conviction Appeal Court. Of note, the issues on appeal were unrelated to Justice Renaud’s findings with respect to the incident involving Mr. Richer’s touching of J.U.’s thigh and specifically that there was a reasonable doubt as to whether the touching was for a sexual purpose. I am now presiding over the retrial of the overturned convictions while the acquittals from the first trial remain undisturbed.

Argument

Crown

[10] The Crown seeks to prove both incidents with respect to J.U. on the sexual assault and sexual exploitation charges, relying on R v Cowan, 2021 SCC 45.

Defence

[11] Mr. Embry, counsel for Mr. Richer, argues that the Crown must be barred from calling the evidence on the incident involving the touching of J.U.’s thigh as his client was ‘functionally acquitted’ of the allegation at his first trial. Otherwise, defence argues, forcing Mr. Richer to again defend himself against the same allegation results in a profound unfairness which the law ought to prevent. In support of his position, Mr. Embry relies on the special plea of autrefois acquit, arguing that it best captures the mischief created in this situation. Mr. Embry urges the Court to apply the principle in concept and not “get into the weeds” in terms of charges and prior dispositions.

The Law

[12] The special plea of autrefois acquit falls under the umbrella term of res judicata. Res judicata includes (1) special pleas, sometimes characterized as legal defences, of autrefois acquit or autrefois convict; (2) the principle of issue estoppel which can apply to parts of a case; and (3) the Kienapple principle, which serves to avoid duplicitous findings of guilt on multi-count indictments.

[13] These principles serve to protect an accused against what is commonly known as double jeopardy. That is, being retried or punished for offences that have previously and finally been tried. This protection is enshrined in section 11(h) of the Charter and has long been part of the common law.

[14] Of the various principles, the special pleas are unique in that they are codified. The plea of autrefois acquit is found in section 607(1) of the Criminal Code. It is normally available upon arraignment to determine if the accused may be tried on a charge. A plain reading of the Code suggests that, if the special plea is entered, the accused is then called upon to provide proof of his previous acquittal under section 607(5) and bears the onus to show that he was, on another occasion, acquitted of the accusation (Melanson at para 3). The subsequent procedures are found in section 609.

[15] The law has interpreted the pleas of autrefois convict and autrefois acquit to require a prior disposition, including a finding of guilt and sentence for autrefois convict (Melanson, at para 11). Some cases seem to suggest that compliance with the procedure in section 607 is also required. For example, in Pike at paragraph 3, the Court of Appeal relied in part on a failure to enter the plea upon arraignment to reject an argument of autrefois acquit.

[16] Generally speaking, the special pleas of autrefois acquit and autrefois convict are applied narrowly (Bremmer, 2007 NSCA 53 at para 26; Sankoff, P., Professor Sankoff’s Guide to Criminal Defences, CDE Publishing (2024), at p. 179). As pointed out by Professor Sankoff, the mere existence of section 11(h) seems to prevent attempts to unfairly retry accused persons, and the Crown rarely attempts to do so. Where the matter is litigated, it is typically in situations where the charge was previously stayed or withdrawn, or where the Crown prosecutes a different charge relying on the same facts already adjudicated (Sankoff, P., at p. 179).

Analysis

Autrefois Acquit

[17] To begin, I agree with Mr. Embry’s argument that Justice Renaud’s finding on the incident involving the touching of J.U’s thigh was tantamount to an acquittal in that there was a reasonable doubt on the mental element of sexual assault. By allowing the matter to be re-litigated, there is some obvious unfairness to Mr. Richer in that he is forced to face that same allegation despite having previously obtained a favorable outcome. What’s more, if there had been a formal disposition with respect to the incident involving Mr. Richer touching J.U.’s thigh, he would not be facing the same jeopardy today. For example, had the accused been found guilty of assault simpliciter with respect to this incident, as suggested by Justice Renaud, and the matter was appealed in the same way, Mr. Richer would not be facing a charge of sexual assault at his retrial. Instead, he would face a charge of simple assault. A similar result would have occurred if Mr. Richer had been prosecuted for the thigh touching incident on a single charge instead of multiple incidents on a wider timeframe covered by a single count.

[18] However, as I will explain, despite the apparent unfairness to Mr. Richer, the special plea of autrefois acquit cannot apply to the facts before me for two reasons. The first is the absence of a formal verdict of acquittal. Though some findings were made in his favour, Mr. Richer was not formally acquitted of the thigh-touching incident. He was convicted of the charges based on an unrelated incident. An acquittal is a precondition to the plea of autrefois acquit.

[19] While defence counsel persuasively argues that the findings at the first trial amount to a ‘functional acquittal’ given Renaud J.’s reasonable doubt on the mens rea, in my view, that fails to meet the criteria for a plea of autrefois acquit. To be clear, the law allows for some flexibility in determining what constitutes a prior disposition of acquittal in these circumstances. For example, where charges are dismissed and the Crown has called no evidence, the plea of autrefois acquit can be available (Peterson, [1982] 2 SCR 493). Likewise, a judicial stay imposed in certain circumstances may also amount to an acquittal (Jewitt, [1985] 2 SCR 128). However, in this case, where there is a single charge for two discrete incidents, and the accused was convicted based on one incident, I cannot conclude that he was acquitted within the meaning of section 607(1) of the other incident. To do so would stretch the term acquittal beyond its intended meaning.

[20] Second, even if I were to accept that argument, there is another insurmountable problem – remedy. In the matter before me, I am ruling midway through the trial. There was no plea of autrefois acquit upon arraignment, though the procedure in section 607 was followed in substance when the issue arose. I am prepared to deal with the matter as if it were formally pleaded.

[21] However, if the plea of autrefois acquit is accepted, the law instructs that the Court “give judgment discharging the accused in respect of that count” (Section 609(1)). I appreciate that this is not the remedy sought by defence in this case, but it is, in my view, the legally appropriate one for a plea of autrefois acquit.

[22] Discharging the accused with respect to the two counts in question would, essentially, amount to throwing out the baby with the bathwater. As I’ve explained, Mr. Richer’s original convictions on the charges were grounded in an entirely separate incident. If the plea of autrefois acquit is accepted based on the thigh-touching incident, then Mr. Richer would be discharged in respect of those charges. Practically speaking, this would deprive the Crown not only of the evidence regarding the thigh touching, as requested by Mr. Richer, but also of the opportunity to prosecute him on the incident of leg touching for which he was previously convicted and ordered to be retried.

[23] In coming to my conclusion, I have reviewed and considered the authorities relied on by defence, R v Peterson, 1982 SCJ No 75 and R v Van Rassel, 1990 SCJ No 11. While they are of assistance in understanding the special plea of autrefois acquit, neither involves a situation where (1) a prior disposition of acquittal is found in a situation where the accused was convicted of the charges in question on a separate basis of liability; or (2) the remedy applied is that the Crown is barred from calling certain evidence while the charge proceeds on an alternate basis. Rather, both cases involve prior dispositions where the accused was acquitted or the charges dismissed, and the parties argued as to whether the Crown was prevented from prosecuting the accused a second time on the charges.

[24] To be clear, I am not aware of any supporting law that would allow the Court to accept a plea of autrefois acquit where the accused was not previously acquitted, or, more precisely where the prior disposition was a conviction. Likewise, I am unaware of any caselaw where the remedy sought on a special plea of autrefois acquit is to prevent certain evidence from being called and not the discharge of the accused on the charges.

Issue Estoppel

[25] Prior to hearing the issue, I invited counsel to review the case of Mahalingam, 2008 SCC 63, which deals with another branch of the doctrine of res judicata, issue estoppel. Issue estoppel works to bar the Crown from leading evidence on a particular issue where findings were expressly made of a ‘final’ nature in the accused’s favour or resolved based on reasonable doubt.

[26] At first blush, issue estoppel appears to be an attractive option to remedy the unfairness highlighted by defence counsel in this case. First, the principle of issue estoppel is intended to prevent inconsistent findings and to maintain fairness in the trial process (Mahalingam, at para 3). Second, the obstacles which I described earlier with respect to the special plea of autrefois acquit are also avoided by applying issue estoppel as it does not require (although it can involve) a formal disposition on the previous matter. Likewise, the remedy invoked where a party is estopped from relitigating an issue does not involve discharging an accused on a particular count. Rather, it is to bar the Crown from calling evidence on the issue in question.

[27] Third, issue estoppel can be available at a retrial in certain circumstances. For example, in JC, 2022 ONSC 4991, Justice Schreck held that, at a retrial, both the Crown and the accused were barred from calling evidence related to a prior allegation of sexual assault where the accused was acquitted at the first trial and the Crown had not appealed that count. Parenthetically, I note that this situation is identical to that of Mr. Richer, save and except for the absence of a formal disposition of acquittal at his previous trial.

[28] Despite these advantages, I was urged by defence to consider the special plea of autrefois acquit as they were of the view that the principle of issue estoppel was not the appropriate tool in these circumstances. Having reflected on the issue, I am inclined to agree with that view and I conclude that the unfairness highlighted by defence cannot be resolved by issue estoppel, particularly in light of the Supreme Court’s decision in Cowan, 2021 SCC 45.

[29] In Cowan, the accused was charged with robbery. The Crown advanced that the accused was either a principal who participated in the robbery itself or a party who encouraged or counselled its commission without direct participation. The trial judge had a reasonable doubt as to whether the accused was either a principal or party and Cowan was acquitted. The Crown appealed and an error was found on the issue of party liability. Some debate ensued as to whether the matter ought to be confined in its retrial to the issue of party liability or whether the accused ought to stand trial again on both theories of liability.

[30] The Supreme Court directly addressed issue estoppel in Cowan, holding that the accused must stand trial again on both theories of liability. At paragraph 64, the Supreme Court explained that because the accused was being retried on the same charge, there was no “final determination” previously made. Consequently, it was held that issue estoppel could not apply:

Issue estoppel does not apply simply by virtue of the fact that a trial has been held. As the Court in Mahalingan explained, the decision that forms the basis for the issue estoppel must have been made in a prior proceeding that was final (paras. 52-55). That case, however, concerned two separate proceedings and not, as here, a trial and a retrial of the same case following a successful appeal. …This premise was succinctly summarized more than a century ago in the case of Gray v. Dalgety & Co. Ltd. (1916), 21 C.L.R. 509 (H.C.A.), at p. 521, where Griffith C.J. stated: “I never before heard it suggested that a grant of a new trial was a final decision upon any point except that the matter should be further investigated”.

[31] The situation in Cowan is like the case before me insofar as it concerns the unfairness to Mr. Richer highlighted by defence. In Cowan, there was a reasonable doubt that the accused was a principal in the robbery and that finding was undisturbed by the legal issue on appeal. To borrow Mr. Embry’s term, Cowan was ‘functionally acquitted’ on that theory of liability. Despite that, the Supreme Court ordered a retrial on both theories of liability, clarifying that issue estoppel could not bar the Crown from calling evidence on either. As mentioned, the rationale for this conclusion was that there had been no ‘final’ determination on the issue given that the charge in question was to be retried.

[32] Similarly, in Mr. Richer’s case, I conclude that, although there was a doubt that he touched J.U.’s thigh for a sexual purpose at the first trial, the law allows that the Crown can call evidence on this incident. While in this case, I am dealing with two factual incidents that can satisfy the charge, as opposed to competing theories of liability, there is no principled distinction between the scenarios. Therefore, owing to the Supreme Court’s ruling in Cowan, the doctrine of issue estoppel cannot operate to prevent the Crown from calling the evidence in question as there has been no ‘final’ determination on the charges in question.

Conclusion

[33] In the result, despite the prior finding in the accused’s favour, I conclude that neither the special plea of autrefois acquit nor the doctrine of issue estoppel can apply to prevent the Crown from calling evidence with respect to the issue of Mr. Richer allegedly touching J.U.’s thigh.

[34] Mr. Richer’s plea of autrefois acquit is not accepted, and, in accordance with section 607(4), it is ordered that his plea of not guilty remains on counts four and six of the information.

Released: November 14, 2024 Signed: Justice J.R. Lalande

[^1]: It is not in dispute that the Crown’s strategy to configure the charges in this manner was appropriate. While section 581(1) of the Criminal Code requires that each charge in an indictment ought to target a single transaction, it is not uncommon in sexual assault cases for the Crown to charge multiple incidents with respect to single charge that has a wide timeframe. Courts have repeatedly found this approach to comply with the ‘single transaction rule’ in section 581(1) (Chamot, 2012 ONCA 903 at para 49, Selles at p.339 and Hulan ONCA at p.290).