



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of
the
Criminal Code
provide:

486.4  (1)
Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any of the following offences;

(i)   an offence under section 151, 152, 153, 153.1, 155, 159,
    160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 1,
    1988; or

(b)       two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect
    of the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect
    of an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)
An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6  (1)
Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)
For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.






CITATION:
R. v. D.N.C., 2011
          ONCA 672



DATE: 20111028



DOCKET: C51591



COURT OF APPEAL FOR ONTARIO



Moldaver, Feldman and Sharpe JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



D. N. C.



Appellant



Timothy E. Breen, for the appellant



Frank Au, for the respondent



Heard:
October 11, 2011



On appeal from the conviction entered on August 27, 2009 by
          Justice Robert Pelletier of the Superior Court of Justice.



By the court
:



[1]

This appeal involves an unusual application of issue estoppel to the
    admissibility of similar fact evidence.

[2]

The appellant was convicted of one count of sexual touching and one
    count of

sexual assault committed between January 1, 1995 and January 7,
    2001.  The complainant was the appellants son. The Crown led similar fact
    evidence of an incident that occurred on January 8, 2001, the day immediately
    following the time period captured by the indictment. The January 8 incident
    had been the subject of an earlier trial that ended in November 2001 with what
    the first trial judge described as a judicial stay. The stay had been granted
    when the complainant, then ten years old, refused to testify and Crown was
    denied an adjournment when the evidence that had been led to that point was
    tenuous at best and almost certainly insufficient to support a conviction. The
    trial judge made this clear in his ruling refusing the Crowns adjournment
    request, albeit without receiving submissions from counsel on the merits.

[3]

In May 2007, the complainant, by then prepared to testify, went to the
    police with the allegations of sexual abuse over an extended time period that
    formed the basis for the new charges at issue on this appeal. The Crown successfully
    applied to tender, as similar fact evidence, the same allegation of the alleged
    January 8 assault that had been judicially stayed at the first trial. The January
    8, 2001 allegation was a focal point of the second trial and figured
    significantly in the trial judge's reasons for conviction.

[4]

The appellant submits that the trial judge erred by allowing the Crown to
    lead evidence of the January 8, 2001 incident in the face of the judicial
    stay that was granted at the first trial.

Issue

[5]

The central issue before the trial judge at the second trial, and before
    us on this appeal, concerns the nature and effect of the judicial stay that
    was granted at the first trial with respect to the January 8, 2001 allegations
    and the application of the Supreme Court of Canadas judgment in
R. v.
    Mahalingan
, 2008 SCC 63, [2008] 3 S.C.R. 316.

Analysis

[6]

In
Mahalingan
, McLachlin C.J., writing for the majority, held at
    para. 2, that issue estoppel plays an indispensible role in ensuring fairness
    to the accused provided that it is confined to precluding the Crown from
    leading evidence which is inconsistent with findings made in the accuseds
    favour in a previous proceeding. Issue estoppel rests on the principle that fairness
    requires that an accused should not be called upon to answer allegations of law
    or fact already resolved in his or her favour by a judicial determination on
    the merits (para. 39).

[7]

The respondent Crown places considerable reliance on the fact that the
    first trial judge ordered a stay rather than refusing the adjournment and
    acquitting the appellant. The respondent submits that absent an acquittal or
    other clear finding of fact exonerating the appellant of the sexual misconduct
    forming the similar fact evidence, issue estoppel cannot apply and that paras.
    42 and 77 of
Mahalingan
suggest that where a prosecution is terminated
    by a stay, re-litigation will only be precluded in a limited range of cases
    that amount to an abuse of process. It is further argued that abuse of process
    is not available in this case as there is no suggestion of Crown misconduct.

[8]

We do not accept the Crowns submission for the following reasons.

The first trial and the judicial stay

[9]

The appellant was arrested on January 8, 2001 and charged with various
    sexual offenses allegedly committed on that date. Those charges were the
    subject of the appellants first trial that commenced in October 2001. At that
    first trial, the Crown called the complainants brother, who testified that he
    saw the appellant and the complainant together in circumstances that led him to
    believe the appellant was sexually abusing the complainant. After one day of
    trial, the case was adjourned for a month. When the case resumed in November 2001,
    the Crowns case was in serious difficulty as the complainant refused to
    testify. Crown counsel indicated that immediately after the alleged incident,
    the complainant had been taken to medical professionals where he had undergone certain
    tests, but that the samples had not been subject to forensic testing. The Crown
    sought an adjournment to submit these exhibits for analysis. Crown counsel
    acknowledged, however, that it was questionable whether forensic testing would
    yield any results and added: [b]ut I'm in a position where that's the only
    avenue left in the prosecution.

[10]

The trial judge refused the adjournment expressing concerns about the
    delay in the forensic testing and the appearance of justice in relation to the accuseds
    entitlement to the presumption of innocence. The trial judge concluded as
    follows:

Does justice look bad after all this delay? Yes. No
    question about it. Justice looks bad. I am going to take it upon myself to
    enter a judicial stay of proceedings and stop the prosecution at this point,
    but leave open the question of whether or not that judicial stay could be
    reopened upon a judges order within the next year and I do that rather than
    refuse to grant an adjournment requested by the Crown resulting in a dismissal
    at this time.

I feel that's the middle ground by which I may
    potentially preserve the rights of the public, but relieve [the appellant] of
    the weight of a prosecution and the restrictive terms under which he now lives.

Following the stay, instead of being tested, the
    exhibits were destroyed and the Crown never sought to lift the stay or pursue
    the case any further.

The second trial

[11]

At the second trial, the appellants trial counsel argued that evidence of
    the January 8, 2001 incident should be excluded on the grounds of both issue
    estoppel and abuse of process. The trial judge rejected that argument and concluded
    that by granting the ill-advised judicial stay of proceedings the first trial
    judge had taken pains to ensure that the charges could, at some point, be tried
    on their merits. As that had never occurred, the trial judge concluded the
    requirements for issue estoppel or abuse of process were not met. The Crown was
    thus not precluded from leading evidence as to the January 8, 2001 incident as
    similar fact evidence. The trial judges decision on this question is the
    central issue of this appeal.

Issue estoppel

[12]

In our view, in the particular circumstances of this case, the judicial
    stay granted at the first trial constituted, in functional terms, a judicial
    determination on the merits in favour of the appellant within the meaning of
Mahalingan
attracting the preclusive effect of issue estoppel.

[13]

First, it is clear from the record that the trial judge at the first
    trial had concluded that if an adjournment were refused, dismissal of the
    charges was inevitable. As we have noted, Crown counsel stated that because the
    complainant refused to testify, the only avenue left in the prosecution was
    an adjournment in the hope that the forensic tests might yield some evidence
    supporting the prosecution. The trial judge recognized in his reasons for
    granting the stay that if he were simply to refuse the requested adjournment,
    the inevitable result would be the dismissal of the charges.

[14]

Second, it is clear from the record that the trial judge was not
    prepared to grant the Crowns request for an adjournment. He decided instead to
    make an order that would stop the prosecution at this point, subject to the
    conditions of the stay.

[15]

Third, it is common ground that the trial judge had no legal authority
    to grant a judicial stay in the circumstances of this case.

[16]

Fourth, it is significant that after the trial judge entered the
    judicial stay, the Crown took no steps to proceed with the prosecution. The Crown
    did not appeal the trial judge's order. The Crown did not submit the exhibits
    for forensic testing. The Crown did not apply to have the stay lifted so that
    it could make the submission that the appellant should be convicted on the
    evidence that had already been led. Instead, the Crown acquiesced to trial
    judge's order to stop the prosecution at this point, seemingly resigned to
    the fact that the available evidence did not support a conviction.

[17]

In these circumstances, it is our view that fairness and the interests
    of justice require us to look behind the legally erroneous label of judicial
    stay to the substance of what occurred. Simply put, the trial judges legal
    error in purporting to grant a judicial stay should not have the effect of
    depriving the appellant of the remedy to which he is legally entitled on the
    basis that at the first trial, the Crown failed to prove its case against him.

[18]

It follows that the Crown should not have been permitted to adduce
    evidence of the January 8, 2001 incident as similar fact evidence. As the order
    terminating the first prosecution was, in the peculiar circumstances of this
    case, the functional equivalent of an acquittal, the rule of issue estoppel
    enunciated in
Mahalingan
precluded the Crown from relying on that evidence.

Abuse of process

[19]

Even if the label judicial stay excluded the application of issue
    estoppel, we would reach the same conclusion on the basis of abuse of process. McLachlin
    C.J.
,
clearly rejected, at para. 42 of
Mahalingan
, the
    proposition that abuse of process could or should be routinely used to achieve
    the fairness goal that underlies the doctrine of issue estoppel. However, at
    para. 77, McLachlin C.J. expressly stated that it was not necessary in
Mahalingan
to resolve the question of whether issue estoppel applies to situations where
    there is a disposition such as a stay at a first trial and went on to suggest
    that perhaps the more flexible approach of abuse of process can play a role
    in some cases. Although the examples McLachlin C.J. provided involved
    situations of stays granted on grounds such as unreasonable delay that do not engage
    a determination of the merits of the Crowns case, were it necessary, we would
    apply abuse of process to the present case.

[20]

A
s explained above, the
    disposition made by the first trial judge, amounted, in substance, to a
    judicial determination on the merits in favour of the appellant. We cannot
    agree that the appellant should be deprived of the benefit of that
    determination because the judge attached a legally erroneous label to the
    disposition he made. It would be fundamentally unfair to the appellant to be
    faced with the same allegations as the centerpiece of the later prosecution
    simply because of a legal error on the part of the first trial judge in his
    selection of the appropriate reme
dy.

[21]

We do not accept the respondents
    argument that abuse of process cannot apply because there was no Crown misconduct.
    It has long been held that
prosecutorial misconduct
    is not a precondition to a finding of abuse of process:
R. v. Keyowski
(1988),
    40 C.C.C. at p. 483;
R. v. Pietrangelo
2008 ONCA 449, 233 C.C.C. (3d)
    338, at para. 66. In our view, the circumstances here meet the clearest of
    cases standard for abuse of process.

Disposition

[22]

Accordingly, the appeal is allowed and a new trial is ordered.

RELEASED: October 28, 2011 (R.J.S.)

M.J. Moldaver J.A.

K. Feldman J.A.

Robert J. Sharpe J.A.


