Wednesday, October 28, 2015

Effect of an acquittal

Palermo, [2006] O.J. No. 3191 (Durno) at para 51-52:

39 Mr. Perrin relies on R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.) and R. v. Grdic [1985] 1 S.C.R. 810 as establishing that a verdict of not guilty means the event did not happen, or was irrevocably and conclusively deemed not to have occurred. It is contended the trial judge failed to give the appellant the benefit of the acquittals, or, in effect, that she failed to apply the binding findings of that trial. .,..52 While the cases relied upon by the appellant support a position that an acquittal is the equivalent of a finding of innocence, when the defence introduced the evidence of that conduct, it was some undisputed evidence that there had been a series of phone calls in the past which the complainant believed were harassing her. After a trial, the charges of criminal harassment, harassing telephone calls and mischief were dismissed. That verdict did not eliminate the relevance of the complainant's belief that she was being harassed at this trial, nor the course of conduct. In that context the trial judge was entitled to, and did, consider the previous conduct. That the conduct was not found to have established the offence, means the conduct was not, in law, criminal harassment, harassing telephone calls or mischief; it does not change the complainant's opinion, or its effect on her.

Mahalingan, [2006] O.J. No. 1619 (ONCA): 79 As Sharpe J.A. notes, the appellant's argument is premised on the principle - enunciated in Grdic v. The Queen (1985), 19 C.C.C. (3d) 289(S.C.C.) and in R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.) - that an acquittal is equivalent to a finding of innocence, thus precluding the Crown on estoppel grounds from relying, in subsequent criminal proceedings, on facts essentially determined in favour of the accused in the first proceedings. Grdic involved an attempt by the Crown to use the facts underlying an acquittal in a subsequent proceeding, however. It did not deal with an attempt to employ the issue estoppel principle retrospectively, and there was of course no analysis of whether it would make sense to do so. In my view, therefore, Grdic does not stand for the proposition that issue estoppel may be applied retrospectively to undermine the legitimacy of an earlier conviction otherwise rightly entered on evidence properly before the earlier tribunal at the time. Grdicspeaks to the question of issue estoppel prospectively. As Lamer J. said at 293-294, adopting the words of Professor Friedland in his text,Double Jeopardy,1:

- As a matter of fundamental policy in the administration of criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent of a finding of innocence [emphasis added].
80 It is in that context that Lamer J's later remark in Grdic to the effect that the Crown is estopped (in such proceedings) from re-litigating "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", must be read.

Rulli, [1999] O.J. No. 966 (ONCA) at 23-24: I delivered the judgment of the court in Verney. I said at pp. 370-1 and 374:...Fundamental to this ground of appeal is the concept that an acquittal is more than a finding of not guilty and is in law a declaration of innocence for all purposes. This must be so, because the verdict of not guilty restores to the accused the presumption of innocence.......In the result, while the court's disposition restored the appellant's presumption of innocence, it did not amount to a declaration of innocence. On the other hand, that presumption of innocence cannot again be challenged in a new trial or in any other criminal trial because of the judicial stay. While acknowledging the limitations of the comparison to G.(K.R.) and Verney, I consider this aspect of the appeal to be yet another reason to interfere in this case.

Field, [2004] O.J. No. 1437 (OSCJ): 27 Canadian courts have clearly held that an acquittal is more than a mere finding of "not guilty", but is in law, a "positive declaration of innocence for all purposes". This concept is central to the rule that facts which once supported charges subsequently disposed of by way of acquittals, are inadmissible for any purpose, including for the purpose of demonstrating similar fact....29 In G. (K.R.) (1991), 5 O.R. (3d) 406, 68 C.C.C. (3d) 268 at 271 (Ont. C.A.). the Court held that a conviction could not stand where similar fact evidence led at trial was the subject of separate charges upon which the accused was ultimately acquitted. The court reasoned as follows in referring to R. v. Grant, [1991] 3 S.C.R. 139, 67 C.C.C. (3d) 268 at p. 279 (S.C.C.):
- ... it is a well-established principle of the criminal law that an acquittal is the equivalent of a finding of innocence. It must be conclusively assumed, therefore, that the appellant was innocent of the allegations made against him by M.D. It seems to me that there would be a clear miscarriage of justice if allegations of conduct, of which he was innocent, played a part in his conviction for these offences.
...31 The Crown's argument is that a judicial stay of proceedings entered as a remedy for a Charter violation, does not involve a "consideration of the allegations on their merits" or constitute a positive finding of innocence. While recognizing that in Jewitt, the Supreme Court of Canada held that a judicial stay of proceedings for entrapment was "tantamount to an acquittal", the Crown points out that Dickson, C.J.C.'s cautioned that:

- [the] assimilation [of a judicial stay] to an acquittal should only be for the purposes of enabling an appeal by the Crown", since a Respondent who successfully argues entrapment "may not deserve an acquittal.
32 In cases subsequent to Jewitt, however, the Supreme Court of Canada has repeatedly stated that acquittals and judicial stays of proceedings are indistinguishable for all practical purposes. In R. v. Barnes, [1991] 1 S.C.R. 449, 63 C.C.C. (3d) 1 at p. 12 (S.C.C.) Lamer C.J.C., writing for the majority, stated that "a stay of proceedings is, for all practical purposes, 'tantamount to a judgment or verdict of acquittal'". In his judgment for the unanimous Court in R. v. C.I.P. Inc., [1992] 1 S.C.R. 843, 71 C.C.C. (3d) 129 at p. 145 (S.C.C.) Stevenson J. stated that "[t]he imposition of a stay is, to all intents and purposes, an acquittal". Similarly, in his majority judgment in R. v. Potvin, infra, 1993), [1993] 2 S.C.R. 880, 83 C.C.C. (3d) 97 at p. 111 (S.C.C.) Sopinka J. stated:
- I see no valid reason to distinguish between an acquittal on the merits and a judicial stay. In light of the interest protected under s. 11(b), the differences between an acquittal and a judicial stay are purely technical. In both cases the accused can plead autrefois acquit and no proceedings may be brought in respect of the same charge unless the acquittal or stay is set aside on appeal. ... I doubt that the public understands the difference. An [emphasis added] unpopular acquittal generates as much public indignation as a stay.

Roberts, [2006] B.C.J. No. 1875 (see para 13): Application by Roberts for an order compelling the Crown to remove his name as an alleged co-conspirator from the indictment of Martin, and to not lead evidence to attempt to prove that he conspired with Martin — Roberts and Martin were charged with several conspiracy and drug exportation and trafficking offences — Roberts successfully applied to have the charges stayed on the basis of unreasonable delay — Martin's trial was due to proceed imminently — Roberts argued that the stay of proceedings amounted to a declaration that he was innocent of the charges and that no evidence could be led to prove the existence of a conspiracy between Martin and Roberts — Roberts submitted that such evidence would violate his right to life, liberty and security of the person because he would be unable to defend such allegations — Roberts sought the removal of his name from all transcripts of intercepted communications, return of all items seized from him, and destruction of any copies of his private communications or documents — HELD: Motion dismissed — Roberts did not have standing to challenge the form of the indictment, nor to object to the tendering of the evidence that the Crown might adduce at Martin's trial — Roberts was not entitled to a declaration of innocence in a criminal proceeding against another individual — The merits of the case against Roberts were never tried and he was never found innocent of being a co-conspirator of Martin — Roberts did not establish that the leading of such evidence would violate his rights under the Canadian Charter of Rights and Freedoms. I find the following noteworthy: Morgan, [1995] O.J. No. 18 (Fairgrieve J):
26 I do not think that the majority judgment in Grdic v. The Queen (1985), 19 C.C.C. (3d) 289 (S.C.C.), precludes that finding. At pp. 293-294, Lamer J. stated:
- 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 Martin L. Friedland, Double Jeopardy (1969), Clarendon Press, Oxford, 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.

- 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.

- However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from relitigating 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, [1970] 5 C.C.C. 147, [1970] 3 O.R. 213; contra Villemaire v. The Queen (1962), 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.
I do not think that a s. 103 application can be regarded as "a subsequent criminal proceeding" in the sense that Lamer J. used the phrase. There is no fact at issue here that must be proved beyond a reasonable doubt.27 Moreover, while Lamer J. suggested, in the second paragraph of the passage just quoted, that if the trial judge in M. Grdic's first trial had not believed the accused, he should have convicted him, the Court has more recently restated the obvious fact that even complete rejection of an accused's evidence will not necessarily result in a finding that guilt has been proved beyond a reasonable doubt: see R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), per Cory J. at p. 409. Similarly, there have been many recent cases where courts have acknowledged that obviously guilty persons will be acquitted as a result of the exclusion of evidence obtained after a Charter violation: see, for example, Carthy J.A.'s statement in R. v. Young (1993), 12 O.R. (3d) 529, at p. 537. (Ont. C.A.). It would not seem logical to equate such an acquittal at trial with "a finding of innocence", or to suggest that the accused's probable conduct, even where it did not result in any criminal conviction, should be disregarded if a later application requires consideration of whether he should be permitted to have firearms or other weapons in his possession.

D.J.W., [2003] O.J. No. 3057 (SCJ, Beaulieu J.): 94 I do not want Mr. D.J.W. to view his acquittal as a finding of innocence; the acquittal is merely a finding that the Crown has not proven his guilt beyond a reasonable doubt. Sheppard (Nfld. S.C.T.D.), [1992] N.J. No. 73: In this case acquittal of the Respondent does not indicate her innocence. Rather her acquittal was warranted because the correct procedure was not followed by the Crown in introducing computer printouts as evidence....

Thanks to Yossi Schochet, a true scholar for these cases.

Of the Law Societies of Upper Canada and Nunavut

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