Peter Edgar Chisholm

The Applicant sought an order barring the Crown from prosecuting him for an allegation of choking, arguing that the charge formed part of a prior resolution and that prosecution would amount to double jeopardy under sections 725(1) and 725(2) of the Criminal Code.

The Crown argued that the choking allegation was not part of the previous proceedings and could be prosecuted.

The court found that the choking allegation was not previously adjudicated or considered, and therefore, the Crown was not barred from proceeding.

The application was dismissed.

This criminal retrial addressed the admissibility of evidence concerning an alleged sexual assault incident, where the accused had previously obtained a 'functional acquittal' on the mental element of sexual assault for that specific incident, though convicted on other factual bases within the same charge.

The defence invoked autrefois acquit and issue estoppel to bar the Crown from re-litigating the incident.

The court held that neither doctrine applied; autrefois acquit required a formal acquittal, which was absent, and issue estoppel was inapplicable because the matter was a retrial of the same charge, meaning no 'final determination' had been made on the issue, as per R. v. Cowan.

The appellant, a teacher, was convicted of sexual exploitation and assault involving multiple students.

The appeal focused on whether the trial judge adequately analyzed the potential for inadvertent tainting of witness evidence due to extensive discussions among complainants and other witnesses.

The appellate court found that while the trial judge acknowledged the risk, his reasons lacked sufficient analysis and articulation of how he concluded the evidence was reliable despite the "extreme danger" of tainting.

The court emphasized that inadvertent tainting affects reliability, not just credibility, and requires a clear explanation of how the concern was resolved.