COURT FILE NO.: CR12400004050000

DATE: 20140109

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

G.C.
Applicant

Patricia Garcia, for the Crown

Daniel Brodsky, for G.C.

HEARD: October 22, 2013

TROTTER J.

RULING RE: ISSUE ESTOPPEL

INTRODUCTION

[1] The principles of issue estoppel are complex and can be difficult to apply in criminal cases. This case involved the application of issue estoppel at a re-trial, triggered by an unusual hung jury situation at the first trial.

[2] G.C. was originally charged on a four count indictment with the following offences all arising out of the same transaction: (1) sexual assault (s. 271 of the Criminal Code); (2) unlawful confinement (s. 279(2)); (3) threatening bodily harm (s. 264.1(1)(a)); and (4) overcoming resistance by choking (s. 246(a)). After a trial before my colleague, B.P. O’Marra J., sitting with a jury, G.C. was found not guilty on the threatening and choking counts. The jury was unable to reach verdicts on the counts alleging sexual assault and forcible confinement and a mistrial was declared.

[3] I was assigned to preside over the re-trial of the sexual assault and forcible confinement counts. Before selecting a jury, the Crown made known its intention to adduce evidence from the complainant that, during the alleged sexual assault and forcible confinement, G.C. placed his hands on the complainant’s neck and threatened to hurt her. These were the allegations that founded the threatening and choking counts on which G.C. was acquitted. On behalf of G.C., Mr. Brodsky sought to prevent the Crown from adducing this evidence, based largely on the principles of issue estoppel.

[4] Prior to the selection of the jury, I dismissed the application with brief, oral reasons. I indicated that written reasons would follow. These are my reasons. In writing these reasons, I have since had the benefit of having presided over the re-trial at which G.C. was found guilty of sexual assault, but not guilty of unlawful confinement.

THE FACTUAL BACKGROUND

[5] For the purposes the issue estoppel motion, counsel apprised me of the evidence at the first trial.[^1] The complainant, who had just turned 18, was G.C.’s step-daughter. The two had experienced strife and the complainant had all but moved out. On the evening before the incident, the complainant’s mother asked her to return home for Thanksgiving. The complainant arrived home that night, after her mother had already gone to bed. She went to her own bedroom and slept through the night.

[6] The next morning G.C. came into the complainant’s room, clad only in a towel. He performed cunnilingus on her against her will, as well as penetrating her vaginally from behind, while inserting his finger in her anus. The complainant testified that G.C. placed his hands around her throat at one point and squeezed very hard so that she could not breathe. He said “don’t make me hurt you” or “I don’t want to hurt you.”

[7] G.C. testified at the first trial. He admitted to performing cunnilingus on, and having sexual intercourse with, the complainant; however, he said the incident was entirely consensual. He denied threatening or choking the complainant.

[8] As best I can discern, the evidence on the re-trial mirrored the evidence at the first trial.

ANALYSIS

[9] It is not necessary to review the history and development of issue estoppel in Canada. This complicated doctrine, and its relationship to the broader principle of res judicata, was undertaken by the Supreme Court of Canada in R. v. Mahalingan (2008), 2008 SCC 63, 237 C.C.C. (3d) 417 (S.C.C.). In that decision, a majority of the Court was in favour of preserving the doctrine in Canadian criminal law, but “in a narrower, less problematic form.” (p. 423)

[10] In his argument Mr. Brodsky relied heavily on the judgment of Lamer J. (as he then was) in R. v. Grdic (1985), 1985 34 (SCC), 19 C.C.C. (3d) 289 (S.C.C.),[^2] which until recently, was the leading Canadian authority dealing with issue estoppel in criminal cases. In particular, he relied upon the following oft-quoted passage from that decision (at pp. 293-294):

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.

This principle was underscored a few years later in R. v. Grant (1991), 1991 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.), in which Lamer C.J.C. stated at p. 279:

It is a well-established principle in our criminal law that an acquittal is equivalent to a finding of innocence, and 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": Grdic v. The Queen.…; see also R. v. Carlson, 1969 463 (ON SC), [1970] 3 O.R. 213 (H.C.).

[11] Mr. Brodsky argued that, if G.C.’s prior acquittals for threatening and choking are to have any meaning, the Crown must be prevented from re-litigating the facts underlying those charges on the re-trial for sexual assault and forcible confinement.

[12] For the Crown, Ms. Garcia argued that the allegations of choking and threatening are embedded in the complainant’s account of what happened to her. If she were prevented from mentioning these facts while giving her narrative of events, it would result in an artificial and distorted account, one that would be misleading for the jury. Moreover, the complainant’s evidence would be lacking in certain respects in that she would be unable to explain why she did not act differently during the course of the sexual assault. In other words, not only would an edited version of the complainant’s evidence be seriously inaccurate, it would end up being inaccurate in a way that detracted from her credibility before the jury.

[13] More fundamentally, the Crown argues that Mr. Brodsky has interpreted Grdic too broadly. In that case, Mr. Grdic had been acquitted at a previous trial (by judge alone), at which the only issue was one of identification, an issue that had been conclusively resolved in his favour. In this case, the Crown argued that, because there was more than one route to the acquittals on the threatening and choking charges, it impossible to determine precisely why G.C. was found not guilty. Accordingly, Ms. Garcia argued that issue estoppel does not prevent the Crown from adducing this evidence as part of its case.

[14] Recent case law from the Supreme Court of Canada supports the Crown’s position. The following passages from Chief Justice McLachlin’s majority judgment in Mahalingan (at paragraphs 22, 24, 33 and 54) are helpful in putting Grdic in perspective and applying issue estoppel to the facts of this case:

22. To the extent that Grdic has been read as preventing the Crown from leading evidence on any issue raised in a previous trial that resulted in an acquittal, this is a misreading of the majority's holding. Only issues which were decided in the accused's fa