Grdic v. The Queen, [1985] 1 S.C.R. 810

Ivan Grdic Appellant;

and

Her Majesty The Queen Respondent.

File No.: 17235.

1984: January 30.

Present: Ritchie, Beetz, Chouinard, Lamer and Wilson JJ.

Re‑hearing: 1985: June 5; 1985: June 13.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Defences ‑‑ Issue estoppel ‑‑ Circumstances in which doctrine applicable ‑‑ Acquittal on charges of impaired driving and of excessive blood alcohol level ‑‑ Whether issue estoppel available on subsequent charge of perjury.

Appellant, after giving alibi evidence, was acquitted on charges of impaired driving and of driving with alcohol in his blood exceeding the legal limit. Subsequently charged with perjury with respect to his testimony at the earlier trial, appellant was acquitted on the basis of issue estoppel. The trial judge found that the issue before him on the perjury trial‑‑the truthfulness of appellant's alibi‑‑had been determined at the impaired driving trial and that the evidence called on the perjury trial was available to the Crown at the earlier trial. On appeal, the Court of Appeal held that the trial judge erred in allowing issue estoppel as a defence to the charge of perjury, set aside the acquittal and ordered a new trial.

Held (Dickson C.J. and Beetz, Chouinard and Wilson JJ. dissenting): The appeal should be allowed.

Per Estey, McIntyre, Lamer, Le Dain and La Forest JJ.: The defence of issue estoppel was available to the appellant. On a charge of perjury, the Crown is estopped from re‑litigating an issue decided in favour of the appellant‑‑in this case, the truthfulness of appellant's alibi‑‑unless it is tendering, in addition to or in lieu of the evidence previously adduced, evidence that was not available by the exercise of reasonable diligence at the time of the first trial. Here, the new evidence relevant to the falsity of the alibi was available at the time of the original trial but was not called. Although the Crown was taken by surprise by the appellant's alibi it could have introduced the evidence necessary to disprove that alibi on rebuttal.

Per Dickson C.J. and Beetz, Chouinard and Wilson JJ., dissenting: The availability of issue estoppel, although applicable in principle to criminal proceedings where the Crown brings a second charge tangentially concerning the same facts as the charge on which the accused was acquitted, depends on there being explicit findings of fact on which the initial verdict logically depended. These facts must be affirmatively found by the original court and cannot be inferred from an initial verdict reflecting only a reasonable doubt. A judgment fraudulently obtained cannot form the basis of an estoppel. Therefore, if perjury can be established any estoppel which might otherwise exist will necessarily be lost. In such cases, the record of the initial trial must be put in evidence since the falsity of the accused's testimony is central to the charge. The Crown, however, cannot use the perjury charge as a guise to re‑litigate the original charge on evidence it failed to adduce at the original trial, but there is no logical reason to estop a prosecution from introducing fresh evidence which, although available all along, is probative of the essential elements of the perjury charge. In the case at bar, the defence of issue estoppel was not available to the accused because the factual determination underlying the defence would have had to be inferred from the earlier judgment. Indeed, at the first trial, the judge, not only made no finding that the accused was not the person driving the car at the time alleged by the police, but he gave a strong indication that he did not accept the accused's version of the facts. However, because he also had a reasonable doubt as to the Crown's version of the facts, he felt obliged to acquit.

Cases Cited

By the majority

The Duchess of Kingston’s Case (1776), 2 Smith L.C. (13th ed.) 644; Director of Public Prosecutions v. Humphrys, [1977] A.C. 1; R. v. Gordon, 1980 CanLII 1139 (AB KB), [1980] 3 W.W.R. 655, applied; R. v. Plummer, [1902] 2 K.B. 339; Gushue v. The Queen, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798; R. v. Linnen (1981), 1981 CanLII 2061 (SKDC), 61 C.C.C. (2d) 13; Duhamel v. The Queen, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555; R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213; R. v. Parkin (No. 2) (1922), 1922 CanLII 417 (MB CA), 37 C.C.C. 35; R. v. Therien and Sanseverino (1943), 1943 CanLII 263 (BC CA), 80 C.C.C. 87; R. v. Coombs (1977), 1977 CanLII 288 (BC CA), 35 C.C.C. (2d) 85; R. v. Campbell (1978), 1977 CanLII 1191 (ON CA), 1 C.R. (3d) 309; R. v. Kerr (1983), 1982 CanLII 4051 (MB CA), 18 Man. R. (2d) 230; Villemaire v. The Queen (1962), 1962 CanLII 873 (QC CA), 39 C.R. 297, referred to.

By the minority

Gushue v. The Queen, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798; R. v. Gordon, 1980 CanLII 1139 (AB KB), [1980] 3 W.W.R. 655; R. v. Linnen (1981), 1981 CanLII 2061 (SKDC), 61 C.C.C. (2d) 13; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; Hoystead v. Commissioner of Taxation, 1925 CanLII 607 (UK JCPC), [1926] A.C. 155; Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd., [1966] 2 All E.R. 536; Re Koenigsberg, Public Trustee v. Koenigsberg, [1949] 1 All E.R. 804; Sterling Engineering Co. v. Patchett, [1955] 1 All E.R. 369; Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254; R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213; Director of Public Prosecutions v. Humphrys, [1977] A.C. 1, revg. [1975] 2 All E.R. 1023; The Duchess of Kingston’s Case (1776), 2 Smith L.C. (13th ed.) 644; Hargreaves v. Bretherton, [1958] 3 All E.R. 122; Watson v. M'Ewan, [1905] A.C. 480; Wolf v. The Queen, 1974 CanLII 161 (SCC), [1975] 2 S.C.R. 107; R. v. Threlfall (1914), 10 Cr. App. R. 112; Phosphate Sewage Co. v. Molleson (1879), 4 App. Cas. 801.

Authors Cited

Friedland, M.L. Double Jeopardy, Oxford, Clarendon Press, 1969.

APPEAL from a judgment of the British Columbia Court of Appeal (1982), 1982 CanLII 363 (BC CA), 3 C.C.C. (3d) 379, 29 C.R. (3d) 395, [1982] 6 W.W.R. 184, allowing a Crown's appeal from accused's acquittal on a charge of perjury and ordering a new trial. Appeal allowed, Dickson C.J. and Beetz, Chouinard and Wilson JJ. dissenting.

Murray L. Smith and Deborah Strachan, for the appellant.

Richard Cairns, for the respondent.

The reasons of Dickson C.J. and Beetz, Chouinard and Wilson JJ. were delivered by

1. Wilson J. (dissenting)‑‑I have had the benefit of the reasons for judgment of my colleague, Mr. Justice Lamer, but must respectfully disagree with his conclusion that the defence of issue estoppel per rem judicatam is available to the applicant Grdic in this case.

2. Grdic was charged with driving while impaired on June 23, 1979 with a blood alcohol level over .08. The arresting officer testified at his trial on November 1, 1979 that he had stopped Grdic at 6:30 p.m. on the day in question. A breathalizer certificate was introduced showing that Grdic had provided breath samples at 7:30 p.m. and again at 7:50 p.m. that same day and both samples indicated a blood alcohol level of .17. Grdic's defence was mistaken identity. He acknowledged that he was stopped on the day in question but denied that it was at the time alleged. He testified that he was stopped around noon and was home by 5:30 p.m. His daughter corroborated his testimony. His case therefore was that the police must have confused his breathalizer certificates with someone else's.

3. The trial judge acquitted Grdic of the driving charges, stating:

It is quite apparent that perjury has been committed in this Court room. I think it is not up to me to resolve that problem. I think it is up to somebody else and I dismiss both counts.

4. At the perjury trial the Crown called the same police constable who had given evidence at the impaired driving trial but in addition the Crown called a guard from the Police Station to say that he received a radio call from that police constable and noted the time to be 6:50 p.m. on June 23, 1979. The Crown also called the breathalizer technician as a witness. His testimony was essentially the same as the information contained in his certificate of analysis which was made an exhibit at the trial in November 1979. The trial judge, relying on this Court's judgment in Gushue v. The Queen, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798, acquitted the appellant on the basis of issue estoppel before he was required to elect whether or not to call evidence. He found that the issue before him on the perjury trial had been determined at the impaired driving trial. He also found that the evidence called on the perjury trial was available to the Crown at the earlier trial.

5. The Crown appealed to the British Columbia Court of Appeal which allowed the appeal. McFarlane J.A., writing for the Court, found that the trial judge misapprehended and misapplied Gushue in the same way as Gushue had been misapprehended and misapplied by the Alberta Court of Queen's Bench in R. v. Gordon, 1980 CanLII 1139 (AB KB), [1980] 3 W.W.R. 655, and by the Saskatchewan District Court in R. v. Linnen (1981), 1981 CanLII 2061 (SKDC), 61 C.C.C. (2d) 13. The Court of Appeal did not, however, make clear whether it believed that Chief Justice Laskin's decision in Gushue stands for the proposition that issue estoppel is never available on a perjury charge or whether it is available only where the Crown is attempting to re‑try the accused.

6. In both Gordon and Linnen, supra, Gushue was interpreted as holding that the defence of issue estoppel is available to a person accused of perjury whenever the effect of the perjury charge would be to re‑try the accused on issues considered during the first trial in which the impugned testimony was given. As articulated by Kerans J. in Gordon at p. 657, issue estoppel would apply any time a common issue can be made out between the initial trial and the subsequent perjury charge. This view is premised on Chief Justice Laskin's statement that the initial "jury finding ... must be regarded as conclusively true" (Gushue at p. 805). This statement, in turn, was construed by the courts in Gordon and Linnen as grounding issue estoppel in a policy that the integrity of jury verdicts must be protected. By contrast, the Court of Appeal in the case at bar suggests that the alternative interpretation of Gushue, namely that issue estoppel is available only where the accused is placed in double jeopardy, is the more plausible one. The problem confronting the Court in the present appeal, therefore, is to determine the scope of issue estoppel as enunciated in Gushue and particularly its applicability to criminal verdicts and subsequent perjury prosecutions.

7. The appellant appealed as of right to this Court pursuant to s. 618(2)(a) of the Criminal Code. Three distinct issues of law are raised on the appeal, namely (a) issue estoppel; (b) the relationship between issue estoppel and fraud; and (c) the kind of evidence the Crown must produce in the perjury trial. I propose to deal with those in turn.

(a) Issue estoppel

8. The doctrine of res judicata reflects the fundamental premise that there must at some point be an end to litigation. Accordingly, the doctrine is generally treated as part of the law of estoppel. In its broadest sense a plea of res judicata is an allegation that the entire legal rights and obligations flowing between the parties, including questions of both law and fact, have been conclusively disposed of by an earlier judgment: see Badar Bee v. Habib Merican Noordin, [1909] A.C. 615 (P.C.) An estoppel, however, can apply also to a single issue which may arise between two parties who, although litigating for the second time regarding issues related factually to their first case, face each other in an altogether new cause of action: see Hoystead v. Commissioner of Taxation, 1925 CanLII 607 (UK JCPC), [1926] A.C. 155 (P.C.)

9. In Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd., [1966] 2 All E.R. 536, Lord Guest indicated that the criteria required for the operation of issue estoppel are threefold: (a) the identical question must have been decided in both cases; (b) the judgment creating the estoppel must be a final judgment; and (c) the parties must be the same in both actions. For purposes of this appeal, however, the most significant criterion is that the issue alleged to trigger the estoppel must have clearly confronted the court in the previous proceeding and must have been determined with certainty in the course of that court's findings: see Re Koenigsberg, Public Trustee v. Koenigsberg, [1949] 1 All E.R. 804 (C.A.); Sterling Engineering Co. v. Patchett, [1955] 1 All E.R. 369 (H.L.) As Dickson J. (as he then was) stated in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at pp. 254‑55:

Is the question to be decided in these proceedings ... the same as was contested in the earlier proceedings? If it is not, there is no estoppel. It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment.

(Emphasis added.)

10. It was held by Laskin C.J. in Gushue that issue estoppel can in theory apply so as to prevent re‑litigation of an issue between the Crown and the accused in criminal proceedings although as Lord Morris of Borth‑y‑Gest pointed out in Connelly v. Director of Public Prosecutions, [1964] A.C. 1254 at pp. 1321‑22, it is only in extremely rare circumstances that the relevant issue whose re‑litigation is sought to be estopped can be with sufficient precision identified in the judgment on the earlier proceedings. Indeed, Lord Devlin in Connelly highlighted the central concern in indicating that a criminal verdict typically entails no determination of separate issues by the trier of fact so that its conclusion on any given issue must, in the words of Dickson J. in Angle, supra, be inferred by argument from the judgment. Accordingly Laskin C.J. in Gushue expressed extreme hesitancy in ever permitting an estoppel of a particular question of fact to be premised on a previous criminal verdict in which no specific findings of fact were articulated. Otherwise, he queried, at p. 803:

How can it be ascertained on what issue or issues the finding rested for the purpose of foreclosing a relitigation of that issue or those issues in a subsequent criminal prosecution?

11. The difficulty in identifying with certainty the factual basis upon which a criminal judgment rests has generally led to a much more limited application of issue estoppel in criminal law than in civil litigation. In the absence of specific findings by the previous court, issue estoppel has been held to "only estop[s] the Crown from questioning in later legal proceedings that which was in substance fundamental to the decision in earlier proceedings": R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213 (Ont. H.C.) at p. 218. (Emphasis added). The restrictive application of the doctrine may be illustrated by the decision of the House of Lords in Director of Public Prosecutions v. Humphrys, [1977] A.C. 1, a case which entailed facts identical to those in the present appeal. The accused, having first been acquitted of a motor vehicle offence on the strength of his defence of mistaken identity, was charged with having perjured himself during the course of the testimony he gave on his own behalf. Viscount Dilhorne, while expressing doubts as to the very availability of the doctrine in criminal law, noted that even if issue estoppel could operate as a bar to re‑opening a conclusively determined fact, that fact would have to be so crucial to the verdict of the first court as to preclude its relevance to any other charge (p. 22). As Lord Widgery C.J. pointed out in the Court of Appeal, R. v. Humphrys, [1975] 2 All E.R. 1023, at p. 1026:

... it is only in quite exceptional cases that an argument based on issue estoppel is likely to succeed because it is only in the clearest cases, where it is obvious that the court before which the earlier proceedings were held must have applied its mind and decided the issue on which estoppel is claimed, that the matter can be recognised as having any virtue or effect on the subsequent proceedings.

12. I must respectfully differ from my learned colleague in his view that a finding was made by the trial judge trying Grdic on the impaired driving charges that he was not the person driving the car at 6:30 p.m. On the contrary, the trial judge, it seems to me, expressly refrained from making any finding on that issue. In stating his suspicion that perjury had been committed he gave a strong indication that, although he had a reasonable doubt as to the Crown's version of the events, he was not prepared to accept the facts as presented by the accused. Having regard to that reasonable doubt he had no alternative but to acquit. Accordingly, in the present case the factual determination on which the estoppel is based is one that would have to be inferred from the earlier judgment since it was not the subject of an express finding as required by Dickson J. in Angle, supra. Since it cannot conclusively be inferred from that judgment, I do not believe that issue estoppel constitutes a bar to the Crown's pursuit of the perjury charge.

(b) Issue estoppel and fraud

13. Having concluded that issue estoppel is not available to Grdic it is not, strictly speaking, necessary for me to address the issue of the effect of fraud on the application of the doctrine. However, since much of the argument was devoted to this issue and since my colleague has dealt with it at some length in his reasons, I am addressing it briefly.

14. Assuming that I am wrong in concluding that a finding of fact in the accused's favour was not implicit in his acquittal on the impaired driving charges and that the doctrine of issue estoppel may be raised by Grdic as a defence to the perjury charge, Grdic faces the hurdle that fraud represents an extrinsic act which can serve to vitiate the initial proceedings: see The Duchess of Kingston's Case (1776), 2 Smith L.C. (13th ed.) 644. Perjury may be said to be a species of deceitful conduct which, although not itself actionable, partakes of all of the elements of fraud: see Hargreaves v. Bretherton, [1958] 3 All E.R. 122 (Q.B.); Watson v. M'Ewan, [1905] A.C. 480 (H.L.) Accordingly, it is evident that if perjury or other fraudulent conduct can be established any estoppel which might otherwise exist will necessarily be lost.

15. The offence of perjury requires for its proof an examination of the record of the initial proceedings since regardless of whether the court was actually misled, the actus reus of the offence is the giving of false evidence and the mens rea of knowingly doing so can be inferred from such an act: see Wolf v. The Queen, 1974 CanLII 161 (SCC), [1975] 2 S.C.R. 107. The record of the prior testimony must be compared with some other objective evidence establishing the falsity of such testimony (R. v. Threlfall (1914), 10 Cr. App. R. 112, at p. 114) so that to a certain extent the record of the prior proceedings always constitutes part of the evidence in the subsequent one. Accordingly, although Lord Widgery correctly points out in Humphrys, supra, that there is no exception per se to the doctrine of issue estoppel in relation to a charge of perjury, and the perjury charge cannot be a guise for re‑trying the initial case against the accused, the doctrine does not operate so as to make inadmissible evidence going to the act of making a false statement under oath. Proof of such an act, of course, then amounts to the fraud required in order to undermine the very basis on which the estoppel is founded.

(c) The need for new evidence

16. There are two accepted limitations to the rule that issue estoppel cannot be set up by a party who obtained the initial judgment by fraud, the first being the requirement that any subsequent case against such an accused be made by the Crown on the basis of fresh evidence. This limitation was accepted by Laskin C.J. in Gushue and is eminently sensible in view of the need to prohibit the Crown from re‑litigating an issue determined adversely to it by the initial court. The fresh evidence rule, however, is not an issue in the present case as the Crown did in fact introduce evidence in the perjury case that had not previously formed part of its case against the accused.

17. The second limitation to the rule that fraud undermines issue estoppel, however, is very much in issue if one accepts for the moment that issue estoppel is available to the accused in the present situation. As it is traditionally stated, this limitation reflects the idea that a prior finding of fact can only be undermined through the introduction of new evidence which was not and could not by reasonable diligence have previously been obtained: see Phosphate Sewage Co. v. Molleson (1879), 4 App. Cas. 801 at p. 814 (H.L.) Lord Hailsham articulated the policy grounds underlying this rule in Director of Public Prosecutions v. Humphrys, supra, at p. 40 where he stated that the fact that the accused was in jeopardy of answering the full case had the Crown been diligent in its conduct of the initial trial leads to a demand that it be barred from compensating for its lack of diligence in a second attempt to convict the accused. Accordingly, the rule reflects the fundamental premise of the entire doctrine of res judicata namely, that it is necessary at some point to put an end to any given piece of litigation.

18. As expressed by Lord Hailsham, the rule that any fresh evidence brought forward by the Crown must have been unavailable at the initial trial is based on the principle that the Crown must be estopped from increasing the prejudice faced by the accused resulting from the Crown's own lack of diligence. This rule, therefore, makes sense when applied to the ordinary plea of res judicata since the non‑diligent prosecution of the accused for the offence charged cannot give way to a subsequent more thorough prosecution for the same offence. It is in this respect that Friedland in his book Double Jeopardy (1969), makes the assertion (p. 129) referred to by my colleague that an acquittal must be perceived as equivalent to a finding of innocence. However, an acquittal for the offence of impaired driving cannot be said to be equivalent to a finding of innocence in a separate charge for perjury any more than it can apply to an altogether factually distinct offence. Where the question is one of issue estoppel rather than res judicata, and the second offence is different from the one with which the accused was initially charged, the prejudice imposed upon the accused is not increased by a lack of diligence on the part of the Crown. Indeed, the only result of the Crown's failure to bring forward all the evidence going to rebut the accused's allegedly perjured testimony in the first instance is the failure of the prosecution to win a conviction on the initial charge. Accordingly, rather than facing the possibility of two convictions, the accused is in jeopardy of conviction for only one offence. The policy ground of increased prejudice upon which Lord Hailsham's insistence on the requirement of previously unavailable evidence is based has no application here. So long as the Crown introduces some evidence that was not introduced on the initial trial there is no basis in principle for excluding fresh evidence probative of the alleged falsity of the accused's testimony.

Summary of Conclusions

19. Although the doctrine of issue estoppel is in principle applicable to criminal proceedings where the Crown brings a second charge tangentially concerning the same facts as a charge on which the accused was acquitted, availability of the doctrine depends on there being explicit findings of fact on which the initial verdict can be seen to have logically depended. Such facts must be perceived as having been affirmatively found by the original court and cannot be such as must be gathered only inferentially from the initial verdict or as to the finding of which the initial verdict reflects only a reasonable doubt.

20. Even if the necessary finding of fact can be discerned in the initial judgment, a party raising issue estoppel as a defence to a perjury charge must overcome the hurdle posed by the rule that a judgment fraudulently obtained cannot form the basis of an estoppel. Accordingly, at a minimum the record of the initial trial must be put in evidence since the falsity of the accused's testimony is the central issue in the perjury charge. Although the Crown may be barred from using the perjury charge as a guise in which to simply re‑litigate the original charge on evidence it failed to adduce on the original charge, there appears to be no logical reason to estop a prosecution from introducing fresh evidence which, although available all along, is probative of the essential elements of the perjury charge. Such evidence, despite its having been available, may have been perceived as of only minimal relevance to the initial charge and its subsequent introduction in the case to which it is highly relevant cannot be said to prejudice the accused in any way.

21. For these reasons I would dismiss the appeal.

The judgment of Estey, McIntyre, Lamer, Le Dain and La Forest JJ. was delivered by

22. Lamer J.‑‑This appeal addresses the question of the availability of the defence of issue estoppel per rem judicatam on a charge of perjury. It also affords an opportunity to examine the application of the doctrine of double jeopardy and see to what extent its effect with respect to a perjury prosecution is to introduce an exception to the general rule that "issue estoppel" cannot be founded on fraud.

The Facts

23. In November 1979, the appellant Grdic was tried on charges that, on June 23, 1979, he drove while impaired and with a blood alcohol level over .08. A police constable testified that he had stopped Grdic at approximately 6:30 p.m. when he observed him driving erratically. A certificate of analysis was introduced to prove that Grdic had provided breath samples at 7:30 p.m. and 7:50 p.m. on June 23 and that the samples indicated a blood alcohol level of .17.

24. Grdic testified that he had been stopped for impaired driving on June 23 but denied that he was driving and was stopped at the time given by the constable. His testimony was that he was stopped at approximately noon, gave samples of his breath at that time, and that he was definitely home as of 5:00 p.m. Grdic's daughter gave evidence corroborating his testimony. The Crown did not attempt to call anyone in rebuttal.

25. The trial judge dismissed the charges.

26. In June 1980, the appellant was tried on a charge that he had perjured himself during the course of his trial in November 1979. At the perjury trial the Crown called the same police constable who had testified at the original trial and called other witnesses, who had not, in order to corroborate the constable's version of the time at which Grdic had been stopped. The trial judge acquitted Grdic before he was required to elect whether to call evidence, on the basis of the application of issue estoppel.

Judgments

1. Provincial Court of British Columbia: Overend Prov. Ct. J.

27. He was of the view that the point at issue in the perjury case, the truth of the appellant's alibi, was determined by Behncke Prov. Ct. J. when he dismissed the original charges; that the Crown was not allowed, in effect, to re‑try an accused through the mechanism of a trial on perjury charges, except if there was fresh evidence which was not available at the time of the original trial. Finding that the evidence to rebut Grdic's alibi was available to the Crown at the time of the original trial and that it did not seek to apply for an adjournment to call rebuttal evidence, he applied the principle of issue estoppel and, as a result, acquitted the accused.

2. Court of Appeal of British Columbia: McFarlane J.A., Carrothers and Hinkson JJ.A. concurring.

28. McFarlane J.A. felt it significant that the trial judge who acquitted Grdic on the original charges indicated that it was apparent that perjury had been committed and that it was not up to him to solve that problem.

29. He thought that the trial judge in the present case had misinterpreted dicta by Laskin C.J. in his judgment in Gushue v. The Queen, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798. The case of R. v. Gordon, 1980 CanLII 1139 (AB KB), [1980] 3 W.W.R. 655, upon which the trial judge relied for his interpretation of Gushue, and R. v. Linnen (1981), 1981 CanLII 2061 (SKDC), 61 C.C.C. (2d) 13, were, in the opinion of the Court of Appeal, incorrectly decided.

30. In Gushue the Chief Justice said, at pp. 805‑06:

Logical as this submission may appear to be, what we have to resolve here is a question of policy based on the premise that issue estoppel cannot be founded on false evidence where the falsity is disclosed by subsequent evidence not available at the trial from which issue estoppel is alleged to arise. In my view, unless it can be said that the subsequent prosecution is an attempt by the Crown to re‑try the accused‑‑and that is not the case here‑‑the preferable policy is to exclude issue estoppel, especially when the contradictory statements on which the charge under s. 124 is founded consist of admissions of the accused himself.

A reading of these remarks in context shows, said he, that they do not support the proposition that issue estoppel applies on a perjury charge except where the falsity of the accused's evidence can be established by evidence not available at his first trial.

31. The Crown's appeal was accordingly allowed and a new trial was ordered.

Issue

32. Did the British Columbia Court of Appeal err in holding that issue estoppel was not available on the charge of perjury in this case?

33. In a contemporaneous case, Duhamel v. The Queen, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555, I have summarized the generalities on the law of res judicata and need only add here those comments particular to the case at bar.

The Meaning of an Acquittal

34. In the case at bar the trial judge alluded to the commission of perjury. Respondent has not sought support from this but I feel I should nevertheless address the matter briefly as the Court of Appeal made some reference to the matter as follows:

At that trial the respondent in due course gave evidence to support a defence of alibi. I think it is by no means conclusive, of course, but it is not without significance that in giving his reasons for judgment the trial judge who acquitted the respondent on those charges said:

`It is quite apparent that perjury has been committed in this Court room. I think it is not up to me to solve that problem. I think that it is up to somebody else and I dismiss both counts.'

35. There are not different kinds of acquittals and, on that point, I share the view that "as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence" (see Friedland, Double Jeopardy (1969), at p. 129; also Chitty i, 648; R. v. Plummer, [1902] 2 K.B. 339 at p. 349. To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of "not proven", which is not, has never been, and should not be part of our law.

36. If the trial judge did not believe the accused, as he was entitled to, and his remarks might be construed as suggesting that he in fact did not believe the accused, he should have entered a conviction. Not having done so, Grdic is entitled to the full benefit of his acquittal.

37. However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re‑litigating all or any of the issues raised in the first trial. But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused (see R. v. Carlson, 1969 CanLII 463 (ON SC), [1970] 3 O.R. 213; contra, Villemaire v. The Queen (1962), 1962 CanLII 873 (QC CA), 39 C.R. 297 at p. 300). This is so even though the judgment might well be the result of a reasonable doubt on that issue, and even when the judge has said so or expressed views that indicate clearly that his finding, though inuring to the benefit of the accused, had been arrived at with reluctance and the judge has suggested that it is not conclusively in favour of the accused.

The Favourable Finding

38. The accused, by his defence, is saying: the breathalyzer test taken that evening cannot be mine because I could not be there since I was at home.

39. The only avenue of acquittal open to the trial court, therefore, given that defence and the nature of the case, was a finding by the trial judge that there was reasonable doubt that the appellant was the person investigated at 6:30 p.m. That issue, subject to certain exceptions, cannot be re‑litigated, because, as a matter of law for the purpose of the application of the doctrine of res judicata, there has been made in his favour a finding that he was not driving his car at 6:30 p.m.

Issue Estoppel and Fraud

40. Issue estoppel cannot inure to a defendant if it be proven that the issue was determined in his favour as a result of fraud, subject to two limitations, one related to the principle of res judicata, the other the result of a policy consideration related to fairness to the accused and to the judicial process. De Grey C.J. speaking for the Court in The Duchess of Kingston's Case (1776), 2 Smith L.C. (13th ed.) 644, stated clearly the rule as it had already developed at the time, at p. 651:

...if it was a direct and decisive sentence upon the point, and, as it stands, to be admitted as conclusive evidence upon the Court, and not to be impeached from within; yet, like all other acts of the highest judicial authority, it is impeachable from without: although it is not permitted to show that the Court was mistaken, it may be shown that they were misled.

Fraud is an extrinsic, collateral act; which vitiates the most solemn proceedings of Courts of Justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal.

41. Fraud may be set up against an accused so as to deny him the benefit of issue estoppel.

42. There are many forms of fraud that may be invoked, one of which, and I imagine the most common, is the allegation by the Crown of perjury committed by the defendant. Such an allegation is to the effect that the judge not only erred but erred because he was misled by the fraud, in this case, the perjury. If the allegation is successfully established, then the accused cannot estop the Crown from inviting the judge to re‑litigate the issue.

The First Limitation

43. If to prove the allegation the Crown is merely tendering the same evidence as that tendered previously, then issue estoppel will survive the attack because the Crown's allegation is, in disguise, but a re‑litigation of the issue as litigated previously, or, to use the words of De Grey C.J., an attempt "to impeach from within".

44. Indeed another judge, or conceivably the same judge, hearing the subsequent perjury charge is invited to reconsider the same evidence and conclude differently. This can only be done through the appeal process finding reversible error resulting in the ordering of a new trial before a different judge. Therefore perjury may defeat issue estoppel but, as said De Grey C.J., only "from without", that is, only if there is additional evidence (I use here the expression "additional evidence" as including any evidence that was not put before the trier of fact in the previous proceeding, whether available or not at the time); it may defeat the estoppel, but not necessarily, and this leads into the second limitation.

Second Limitation

45. If the additional evidence was available to the Crown under the laws of evidence, using reasonable diligence at the time of the first trial (I am paraphrasing Lord Hailsham of St. Marylebone in Director of Public Prosecutions v. Humphrys, [1977] A.C. 1, at p. 40), and the Crown failed to tender it, then it is estopped from so doing later on, not per rem judicatam, but for reasons of fairness to the accused who was in jeopardy of answering the full case had the Crown been diligent.

46. Lord Hailsham dealt with the matter under the doctrine of double jeopardy in Humphrys, supra, where at p. 40, he said:

In an indictment for perjury like the present I would think that it is the duty of the court to apply the double jeopardy rule against the Crown not as a matter of discretion but as a matter of law where it is satisfied in substance that all the prosecution is doing is trying to get behind the original verdict by re‑trying the same evidence. But where the prosecution by calling additional evidence which it could not have had available using reasonable diligence at the time of the first trial is in substance as well as in form putting the accused in jeopardy not for the original alleged misdemeanour of which he has been acquitted (or convicted) but for his crime against justice committed by perjuring himself at the first trial, there is no double jeopardy and the prosecution is entitled to adduce the evidence and make the assertions necessary to achieve its purpose whether or not the effect is to give rise to the inference that the previous verdict of acquittal was insupportable, or the previous conviction and punishment right.

47. In Gushue, supra, this Court's reference to "subsequent evidence not available" must be viewed in the light of the fact that that was the factual situation addressed by the judgment, and that should not be construed as setting a narrower rule than that which I have expressed and which was that suggested by Lord Hailsham.

48. I would adopt the words of Kerans J. in R. v. Gordon, 1980 CanLII 1139 (AB KB), supra, where, addressing the same issue as in this case, he said, at p. 661:

...I don't think it is a matter only whether the evidence was actually before the court in the first trial or, on the other hand, whether it was evidence that simply didn't exist at the time of the first trial. I think rather the test is whether or not it was available.

It seems to me much the same policy is involved in the fresh evidence rule. And I am inclined to think the same rule should be applied: "available" means "available by the exercise of reasonable diligence". (Perhaps it should involve also a question of materiality. Fresh evidence operates as a justifying factor. If there is fresh evidence, then a case may be tried and the fresh evidence as well as all other relevant evidence may be advanced, including some that may have been available but not called at the first hearing. The fresh evidence is the Crown's ticket for a new trial. It should therefore be of some significance.)

49. The practical result of the interaction of these various policy considerations can be enunciated as follows:

On a charge of perjury arising in these circumstances, the Crown is estopped from re‑litigating an issue decided in favour of the accused unless it is tendering, in addition to or in lieu of the evidence previously adduced, evidence that was not at the time of the first trial available by the exercise of reasonable diligence.

Now to deal with the facts of this case.

50. It is conceded by the Crown that the new evidence was available at the time of the original trial. It is argued that "it was not called because it could not have been anticipated that it was necessary". I agree that it could not have been anticipated during the Crown's case prior to the defence; indeed Grdic did not give any indication, either prior to trial or through his cross‑examination of witnesses that his defence would be one of mistaken identity through proof of his being present elsewhere at the time of the taking of the sample. That the Crown was taken by surprise by this defence is beyond doubt, as is beyond doubt the fact that the Crown could not, through the exercise of reasonable diligence, foresee the defence. The Crown was therefore entitled to call rebuttal evidence which, under the law, had it chosen to do so, should have been allowed. Indeed, a trial judge should exercise his discretion in favour of allowing rebuttal evidence when the issue raised by the defence arose ex improviso, could not have been foreseen by the Crown, and that the Crown is not in effect attempting to split its case. (See for example R. v. Parkin (No. 2) (1922), 1922 CanLII 417 (MB CA), 37 C.C.C. 35; R. v. Therien and Sanseverino (1943), 1943 CanLII 263 (BC CA), 80 C.C.C. 87; R. v. Coombs (1977), 1977 CanLII 288 (BC CA), 35 C.C.C. (2d) 85; R. v. Campbell (1978), 1977 CanLII 1191 (ON CA), 1 C.R. (3d) 309 and R. v. Kerr (1983), 1982 CanLII 4051 (MB CA), 18 Man. R. (2d) 230). Admissible through rebuttal, the evidence was available to the Crown and the Crown, having heard the defence, was no longer in a position to argue that "it could not have been anticipated that it was necessary" to call that evidence.

51. I would therefore allow this appeal, quash the order for a new trial entered by the Court of Appeal, and restore the acquittal entered by the trial judge.

Appeal allowed, Dickson C.J. and Beetz, Chouinard and Wilson JJ. dissenting.

Solicitors for the appellant: Horembala & Smith, Vancouver.

Solicitor for the respondent: The Ministry of the Attorney General for the Province of British Columbia.