Court File and Parties

COURT FILE NO.: 16-360

DATE: 2018-06-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. A.D.M.

BEFORE: Heeney J.

COUNSEL: Simon McNaughton, Counsel, for the Crown Trudy Mauth, Counsel, for the Accused

HEARD: June 5, 2018

ENDORSEMENT

[1] The accused is on trial for sexual assault and sexual interference, arising out of the allegation that he touched the breasts of the complainant sometime during 2011 and 2012 when she was 10 or 11 years of age. She is now 16. Her mother was dating the accused at the time of the alleged touching, and the complainant was alone at his home at the time.

[2] The Crown brings this application seeking to elicit similar act evidence, arising out of an incident that happened between June 1, 2006 and February 21, 2007. The accused was charged with sexual assault in connection with that incident. The alleged victim of the sexual assault was a different complainant, J.C. The matter was resolved on February 11, 2008, when the accused, with the consent of the Crown, entered a not guilty plea to sexual assault, and pleaded guilty to common assault. The facts that were read in, on consent, stated that the hand of the accused “had made contact with the upper chest area of … the complainant without her consent.” The guilty plea was accepted by the court.

[3] The Crown does not seek, however, to read in the record of the guilty plea and the facts that were agreed to on February 11, 2008 as similar act evidence. Instead, the Crown wishes to call J.C. as a witness, and have her testify as to the underlying facts of the charge. The Crown indicates he expects J.C. will testify that the accused touched her breasts while she was sleeping.

[4] The defence opposes this application. Ms. Mauth argues that the Crown is bound by the facts agreed to when the guilty plea was taken, and cannot call J.C. to give a different version of events. On the facts agreed to at that time, there was no sexual component to the assault, which is an important distinguishing factor between those facts and the case at bar, such that the prior event lacks a sufficient degree of similarity to be admissible as similar act evidence: see R. v. A.M.G., [2014] O.J. No. 224 (S.C.J.).

[5] The Crown argues that since the prior charge was a guilty plea instead of a trial on the merits, there has been no judicial determination of the issues, such that the Crown is not estopped from leading this evidence.

[6] In R. v. M. (R.A.) (1994), 1994 CanLII 16618 (MB CA), 94 C.C.C. (3d) 459, 1994 CarswellMan 174 (Man. C.A.), leave to appeal refused 1995 CarswellMan 754 (S.C.C.), the Manitoba Court of Appeal dealt with precisely the same situation. The accused was on trial for sexual assault and sexual touching involving two complainants. The Crown sought to elicit evidence of an earlier, strikingly similar incident involving a third complainant, where the accused had been charged with sexual assault. However, as in the case at bar, the accused had entered a guilty plea to the lesser offence of common assault under s. 606(4), and that plea was accepted by the court.

[7] Twaddle J.A., speaking for the court, began by noting at para. 2 that the accused had been acquitted of the charge of sexual assault he was originally facing, by reason of the fact that a plea had been accepted pursuant to s. 606(4) of the Criminal Code. This follows from the words of that section, which reads as follows:

(4) Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of the prosecutor, accept that plea of guilty and, if such plea is accepted, the court shall find the accused or defendant not guilty of the offence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in the record of the court.

[8] Evidence of similar facts is inadmissible where the accused had been acquitted on charges arising out of those facts: see R. v. Goodman (1982), 1982 CanLII 3806 (ON SC), 9 C.C.C. (3d) 285 (Ont. H.C.), and R. v. Cullen (1989), 1989 CanLII 7241 (ON CA), 52 C.C.C. (3d) 459 (Ont. C.A.). The trail judge in R. v. M. (R.A.) nevertheless admitted the evidence of the prior complainant as similar act evidence, by reason of the fact that the acquittal flowed from a guilty plea, as opposed to a trial on the merits. This was held by the Manitoba Court of Appeal to be an error of law. Twaddle J.A. referred to a decision of the English Divisional Court, G. (infant) v. Coltart, [1967] 1 All E.R. 271 (Div. Ct.), where an accused had been acquitted of theft as a result of the Crown’s election to call no evidence, yet the Crown called evidence relating to that same event to prove the intent to steal goods taken from a different victim. At paras. 15-18, Twaddle J.A. rejected any distinction between an acquittal following a trial and one following a guilty plea:

The Divisional Court [in Coltart] unanimously held that the magistrates had been in error in admitting that evidence. Salmon L.J. expressed his reasons thus (at p. 274):

There is very little authority on this point. I think, however, on general principles that it would be quite wrong to allow the prosecution, in order to obtain a conviction in case B, to seek to show that the accused was guilty in case A, after the accused had been acquitted in case A.

The reasons of Widgery J. were expressed in these terms (at p. 276):

If an accused charged with a criminal offence is acquitted by a court of competent jurisdiction, it seems to me clear that the prosecution on a subsequent charge brought against that accused cannot seek to prove that he was guilty on the first charge, contrary to the verdict of the court on that charge, in order to obtain the benefit of any conclusion which may flow from such guilt.

Lord Parker agreed with both judgments even though he expressed his reluctance at doing so when the accused was, in his words, “plainly guilty.”

It will be observed that none of the judges in that case made any distinction between an acquittal following a trial on the merits and one obtained as a result of the Crown’s election to call no evidence. Nor can a valid distinction be made, in my view, between an acquittal obtained on either basis and one obtained as a result of the acceptance by the prosecution of a plea to an included offence.

[9] Twaddle J.A. went on to consider whether evidence relating to the earlier charge might ever be admissible in a subsequent case. He continued with his analysis of Coltart at para. 19:

The matter does not end there, however, as their lordships in that case went on to consider whether evidence relating to the charge on which the accused was acquitted might ever be admissible in a subsequent case. Their lordships thought it might on a test of relevance. Widgery J. put it this way (at p. 276):

Hence, it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent on the first charge.

[10] At para. 21 he applied Widgery J.’s test:

Applying Widgery J.’s test to the case at bar, it is certainly arguable that evidence of the common assault was admissible as relevant to the issue of whether the touching was accidental. On this issue, the evidence was relevant quite independently of any question whether the accused was guilty or innocent of sexually assaulting D. What was not admissible was evidence to prove that the earlier assault had been a sexual one. [emphasis added]

[11] The Crown relies on R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316 to argue that issue estoppel only prevents the Crown from attempting to re-litigate issues decided in the previous proceeding. While that is true, Mahalingan makes no distinction between whether the issues were decided following a trial or in the context of a guilty plea.

[12] At para. 2 of Mahalingan, McLachlin C.J., speaking for the majority, affirmed that “issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality.” At para. 26, she summarized the current state of the law as it relates to issue estoppel in a criminal context:

In summary, the majority reasons in Grdic stand for the following proposition. The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused's favour or resolved on the basis of a reasonable doubt. Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case). Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. In my view, these propositions should be affirmed as correct statements of the law. Moreover, it should follow from these propositions that the Crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused's favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.

[13] Applying those principles here leads to the same conclusion arrived at by Twaddle J.A. in M. (R.A.). The only element that distinguishes a sexual assault from a common assault is the sexual nature of the assault. When the accused is acquitted of sexual assault, that issue must, of necessity, have been decided in his favour. This is so regardless of whether the facts are found by a trier of fact, or are agreed to by the Crown and defence, and subsequently accepted by the court. The objectives of fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality apply equally whether the prior verdict flows from a trial or a guilty plea. On the facts accepted by the court, no sexual element was present. The Crown now seeks to call evidence relating to that earlier incident to establish that, notwithstanding the acquittal, the first assault was, in fact, a sexual one. In my view, the Crown is estopped from doing so.

[14] To the same effect, Charron J., who delivered partially concurring reasons in Mahalingan on behalf of herself, Deschamps and Abella JJ., quoted at para. 139 from the reasons of Lamer J. in Grdic, where he said, in part, the following:

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 [page377] 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…[emphasis added by Charron J.]

[15] For the accused to have been acquitted of sexual assault and convicted of common assault, the issue as to the presence or absence of circumstances of a sexual nature must have been conclusively determined in his favour.

[16] Accordingly, I conclude that the Crown is estopped from calling J.C. for the purpose of seeking to establish that the common assault to which the accused pleaded guilty to in February 2008 was, in fact, a sexual assault.

“T. A. Heeney J.”

Mr. Justice T. A. Heeney

Date: June 6, 2018