R. v. A.A., 2025 ONSC 4253

Court File No.: CR 23-92
Date: 2025/07/21
Ontario Superior Court of Justice
Between:
His Majesty the King – and – A.A.

Appearances:
Peter Chisholm, for the Crown
Jonatan Larochelle, for the Applicant

Heard: April 30, 2025

Mid-Trial Ruling
Justice H. Desormeau

Issues

[1] The Applicant Accused is seeking an order barring the Crown from prosecuting him on the allegation of choking by function of s.725(1) and 725(2) of the Criminal Code of Canada (“CCC”) as the charge in question formed part of a prior resolution.

[2] The Crown argues that they ought to be able to proceed with that charge.

Summary of the Facts

[3] It was common ground advanced by both Crown and the Applicant that:

(a) The Accused is charged “…between the 1st day of September in the year 2018 and the 31st day of December in the year 2018 at the Township of SOUTH STORMONT in the said Region, with intent to enable himself to commit the indictable offence of assault, did attempt to choke [E.R.] contrary to Section 246(a) of the Criminal Code.”

(b) It was undisputed that the Applicant was previously charged with several offences stemming from an incident which occurred on March 24, 2017.

(c) Both Crown and the Applicant agree that these two above events stem from the same set of underlying facts, arising at the same date and time, despite the complainant not matching the same calendar dates in her evidence.

(d) On April 26, 2018, the Applicant plead guilty to:

• Mischief, contrary to Section 430(4) of the Criminal Code;
• Breach of release document, contrary to Section 145(5.1) of the Criminal Code;
• Breach of release document, contrary to Section 145(5.1) of the Criminal Code.

(e) On that same date, in sentencing submissions, the Crown read in all the facts related to the offences, including the facts of an assault, and articulated their reliance on s.725 of the Criminal Code in support of same. Specifically, the facts read onto the record included the Applicant accused being in a violent rage: breaking of mirrors, punching of holes in walls and striking a blow across the complainant’s face. There was no plea of guilt to the assault charge though it formed part of the plea negotiation and, importantly, part of the information the Trial Judge considered.

(f) The Applicant was sentenced to a conditional discharge for the mischief and breaches, and the assault allegation was withdrawn.

(g) It is not disputed that there was no mention of any choking in the allegations before the court on April 26, 2018, or in the Crown Brief Synopsis, and therefore the Trial Judge did not, and could not have considered an alleged choking within the s.725 considerations.

Criminal Code

[4] Section 725(1)(c) CCC states that in determining the sentence, a court may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

[5] Section 725(2) CCC states that the court shall, on the information or indictment, note:

(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in determining the sentence under paragraph (1)(c),

and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

[emphasis added]

Argument of the Applicant

[6] The Applicant’s position is that in this fact pattern, s.725(1) and s.725(2) CCC were intended to capture the series of transactions that were explicitly or implicitly on record as one factual matrix on which the Applicant had already been sentenced.

[7] The Applicant argued that s.725(2) CCC prohibits the Crown from revisiting or adding a new step in the factual matrix, or prosecuting the revisited factual matrix for which the Applicant has already been held accountable.

[8] Given that the prior charges explicitly included the assault already alleged back in 2017, and the Applicant has taken responsibility for same in 2018, the Crown cannot now rely on the same assault to form the intent for the Applicant to enable himself to commit the indictable offence of assault, to establish the attempt to choke the complainant contrary to s.246(a) CCC.

[9] The Applicant submits that the charge of choking explicitly includes the assault charge which had already been prosecuted. It is argued that the attempt to choke, though not explicitly mentioned in the prior resolution, cannot now be pursued.

[10] In sum, it was advanced that the Applicant is faced with a situation of double jeopardy. The Applicant seeks an order prohibiting the Crown from prosecuting him on the choking charge.

[11] The Applicant provided no case law to support his position and advised that he could not find a case on point.

Argument of the Crown

[12] The Crown argued that the allegations from 2017 for which the Applicant stood charged and thereafter resolved, did not include any allegations contrary to s.246(a) CCC. The Crown agrees that the facts read in for resolution of the 2017 allegations included the assault charge, pursuant to s.725(1) CCC, which did not include any suggestion of choking or strangling the complainant.

[13] It is conceded that the doctrine of issue estoppel prevents prosecuting the Applicant with respect to the s.266 Criminal Code offence, which is contained in count two on the 2024 indictment.

[14] It is also argued that issue estoppel does not bar the Crown from introducing evidence constituting charges that were previously stayed or withdrawn prior to a plea being entered: R. v. T.G., 2017 ONSC 3213, at para. 33.

[15] The Crown takes the position that the Applicant was never charged with an offence under section 246(a) of the Criminal Code. There is no evidence to establish that the allegation of a choking was presented at the prior proceeding, nor is there a logical inference that this allegation was decided by the Trial Judge whatsoever. As such, there is no reason the Crown cannot now prosecute such offence, as it is not issue estopped.

[16] The Crown agrees that the Applicant is entitled to rely on section 11(h) of the Charter which provides that any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again. Nevertheless, by prosecuting the Applicant for the choking count, he is not being tried for the assault offence contained in the 2017 allegations and therefore is not facing jeopardy to be tried or punished for the offence a second time. Section 725 CCC does not bar the Crown from prosecuting the Applicant for the choking.

[17] The Crown sought the dismissal of the Application.

The Law

[18] In the context of unfair re-litigation, or res judicata, in R. v. Mahalingan, 2008 SCC 63 at para. 16, the Supreme Court of Canada (“SCC”) noted that the doctrine of issue estoppel is concerned with whether an issue to be decided in proving the current action is the same as an issue decided in previous proceedings.

[19] In R. v. Mahalingan, the SCC also noted that another branch of res judicata was action estoppel, or double jeopardy in the criminal law context. “An argument on this basis asserts that the cause of action in a current proceeding is the same as the cause of action in a proceeding previously litigated, with the result that the current action should not proceed. In criminal law, the double jeopardy principle finds expression in the pleas of autrefois acquit and autrefois convict”: R. v. Mahalingan, supra, at para. 15. The court went on to clarify that while double jeopardy is concerned with the total cause of action and the ultimate result of the litigation, issue estoppel is concerned with particular issues arising in two different pieces of litigation: Ibid, at para. 17.

[20] In R. v. T.G., 2017 ONSC 3213, at para. 29, the court stated that double jeopardy is also captured by s. 11(h) of the Charter which provides that if a person is acquitted or convicted of an offence, he or she shall not be tried again for the same offence.

[21] The court went on in T.G. to indicate:

In the criminal context, the case law supports a similar, though not identical approach as it relates to the special pleas of autrefois acquit and convict, the Kienapple principle and s.11(h) of the Charter. The accused must have been placed "in jeopardy"; see R. v. Belair (1988), 41 C.C.C. (3d) 329 (Ont. C.A.). The jeopardy must pertain to sufficiently related or similar offences; see R. v. Rinnie (1969), [1970] 3 C.C.C. 218 (Alta. C.A.), R. v. Turmel (1996), 109 C.C.C. (3d) 162 (Ont. C.A.), R. v. Prince, [1986] 2 S.C.R. 480 (S.C.C.) and R. v. Wigman, [1987] 1 S.C.R. 246 (S.C.C.). As well, the matter must have been judicially determined, though not necessarily on the merits; see R. v. Riddle (1979), [1980] 1 S.C.R. 380 (S.C.C.). A withdrawal of a charge or a stay of the charges by the Crown prior to a plea being entered is not a final determination for the purpose of the res judicata; see R. v. Tateham (1982), 70 C.C.C. (2d) 565 (B.C. C.A.), and R. v. Burrows (1983), 6 C.C.C. (3d) 54 (Man. C.A.).

[22] In the context of double jeopardy, the court in T.G. went on to indicate:

The concept of double jeopardy is similar in purpose to cause of action estoppel but has some key differences. One key difference is that double jeopardy does not address the problem of "case splitting" in the same sense that cause of action estoppel does. Double jeopardy acts to prevent an accused from being placed in jeopardy a second time for an offence that has been already adjudicated. It does not generally import a requirement on the Crown to prosecute all charges that "should" be prosecuted in relation to a set of facts or an incident at the same time. The only instance, to my knowledge, where this aspect of "case splitting" is imported into double jeopardy in the criminal law is found in s. 610 of the Criminal Code which extends autrefois acquit and convict to instances where the Crown seeks to re-prosecute an offence already determined by adding a further statement of intention or circumstances of aggravation warranting an increased punishment or where a Crown seeks to re-litigate a manslaughter or infanticide charge as murder (and vice versa), see R. v. Hemmingway (1971), 5 C.C.C. (2d) 127 (B.C. Co. Ct.) and R. v. Hall (1999), 1999 ABQB 231, 134 C.C.C. (3d) 256 (Alta. Q.B.).

[emphasis added]

Analysis

[23] Both the Applicant and the Crown agree that this case does not fall within the limits of cause of action estoppel or res judicata. I agree with their position as the Applicant was never arraigned on a choking allegation, and there was no judicial determination of that allegation.

[24] Both the Applicant and the Crown agree that the Crown seeking to proceed with the choking allegation does not fall within the confines of the doctrine of abuse of process. I agree with their position and find the evidence falls short of establishing an abuse of process.

[25] The Applicant suggests the issue is that of double jeopardy, specifically relying on s. 725(1) and 725(2) CCC as, according to the Applicant, the charge in question formed part of a prior resolution.

[26] As articulated above, double jeopardy is also captured by s. 11(h) of the Charter which provides that if a person is acquitted or convicted of an offence, he or she shall not be tried again for the same offence.

[27] It is undisputed that the 2017 charges did not include any allegation of choking but did contain an allegation of assault. The allegation of assault was considered by the Trial Judge as part of his s.725 analysis when sentencing the Applicant. Accordingly, the Crown is not seeking to proceed with the assault allegation.

[28] However, there is no evidence that the complainant alleged being choked in 2017. Therefore, there is no evidence that those particular facts were known to the Crown to have arisen on the facts at the time.

[29] A review of the audio from the time of the plea by the Applicant establishes that there was no choking allegation or facts supporting a choking allegation before the court at the original plea. There is no interpretation available that could lead a reasonable person to conclude that the choking allegation was a consideration for the Trial Judge. I find that same was not explicitly nor implicitly on record as part of the factual matrix for which the Applicant has already been held accountable, nor were these facts considered by the Trial Court.

[30] Additionally, the Applicant has not provided any evidence of having previously been acquitted or convicted of a prior choking allegation. The Crown is not seeking to relitigate the choking allegation, nor is the Applicant required to defend himself against the same allegation twice.

[31] Further, choking is not an included offence of the charges laid in 2017, and the counts before the court in 2018 could not have been amended to include a choking allegation, as it is a fundamentally different offence.

[32] After considering the relevant legislation and case law, as well as the submissions of counsel, I am of the view that the Crown can proceed with the choking allegation.

Disposition

[33] The application is dismissed.

Justice H. Desormeau
Released: July 21, 2025