Supreme Court of Canada
Gushue v. R., [1980] 1 S.C.R. 798
Date: 1979-12-21
Frederick Steven Gushue (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1979: April 25; 1979: December 21.
Present: Laskin C.J. and Martland, Pigeon, Dickson, Estey, Pratte and Mclntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Issue estoppel—Acquittal of murder of robbery victim—Subsequent contradictory statement under oath—Conviction of robbery—Conviction for making contradictory statements in judicial proceedings—Criminal Code ss. 124, 302(c).
Appellant was acquitted on a charge of non-capital murder of the victim of a robbery. Some four years thereafter, appellant, while under investigation for other offences, made statements to the police that he had attempted to steal from the murdered person and had shot him when he resisted. Appellant was then charged with robbery and with perjury in denying under oath at the murder trial that he had shot the victim. He pleaded guilty to both charges but was discharged on the latter, the Provincial Judge holding that the Crown could not relitigate the shooting in view of the acquittal of murder. The Crown some six months later preferred an indictment for perjury (contrary to s. 121) and for making contradictory statements in judicial proceedings (contrary to s. 124). The main question in this appeal was whether appellant might invoke issue estoppel in respect of the two charges of which he was convicted, the s. 124 conviction and the robbery conviction.
Held: The appeals should be dismissed.
Issue estoppel is part of the criminal law of Canada. The question before the Court is not therefore whether issue estoppel is recognized but whether it has any application to the convictions here on the relevant facts. The gist of the charge under s. 124 is making the contradictory statement with intent to mislead the Court at the murder trial. Appellant is not placed in double jeopardy because he cannot be retried for murder and it is enough for him to rely in that respect on autrefois acquit. It was his subsequent admission under oath that he lied at the trial that added a new element and gave
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rise to a situation outside the ambit of the trial for murder. While it was contended that the fact of the later contrary admission could not give rise to a contradiction of a jury verdict, which must be regarded as conclusively true, and therefore that the later admission could not be “an intent to mislead the Court” there is here a question of policy. Unless it can be said that the subsequent prosecution is an attempt by the Crown to retry the accused, the preferable policy is to exclude issue estoppel especially where the contradictory statements consist of admissions of the accused himself. The charge of robbery and the conviction thereon raise related but also different considerations. Reliance on issue estoppel should not be foreclosed simply because appellant pleaded guilty. Robbery is not however an included offence on a charge of murder and appellant was not put in jeopardy of a conviction of robbery when he was tried for murder. The point argued here was that, on any view of the facts, the killer and robber were one and the same person and since appellant was acquitted of the killing he could not be guilty of the robbery. The trial judge’s charge however left to the jury not only whether the appellant himself killed while intending to rob but also whether he was associated with another in a common intention to rob and whether in that connection the other person did the killing in a situation that appellant knew or should have known that the killing would be a probable consequence of the robbery. It does not follow that appellant’s acquittal of murder necessarily meant that he was not a party to the robbery. The possibility or even the probability that the jury found in appellant’s favour is not enough. A finding on the relevant issue must be the only rational explanation of the jury.
Kienapple v. The Queen, [1975] S.C.R. 729; McDonald v. The Queen, [1960] S.C.R. 186; Wright, McDermott and Feely v. The Queen, [1963] S.C.R. 539; Sambasivam v. Public Prosecutor, Federation of Malaya, [1950] A.C. 458; D.P.P. v. Humphrys, [1976] 2 All E.R. 497; Connelly v. D.P.P., [1964] 2 All E.R. 401, applied; Sealfon v. United States (1948), 332 U.S. 575; Mraz v. The Queen (No. 2) (1956), 96 C.L.R. 62, referred to.
APPEALS from a judgment of the Court of Appeal for Ontario[1] dismissing appeals from con-
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victions under ss. 124 and 302(c) of the Criminal Code. Appeals dismissed.
Claude Thomson, Q.C, and Gavin MacKenzie, for the appellant.
Edward Then and Miss Michael A. MacDonald, for the respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—The main question in this appeal, which is here by leave of this Court, is whether the appellant may invoke issue estoppel in respect of two charges of which he was convicted, namely, giving contradictory evidence in different judicial proceedings, contrary to s. 124 of the Criminal Code, and robbery, contrary to s. 302(c) of the Criminal Code. These charges and the convictions thereon followed his acquittal on a charge of non-capital murder of the victim of the robbery, one Morris Mayzel.
The appellant gave evidence at his trial for murder and, being asked directly “Did you shoot Morris Mayzel?”, he answered, “No, I did not”. The appellant was associated in a robbery scheme with one Edward McDonald who testified for the Crown. Gushue’s evidence was that he did not enter the victim’s tailor shop but rather that he withdrew from the scheme and that it was McDonald who entered the tailor shop alone. McDonald testified that it was he who withdrew and that Gushue had entered the tailor shop where the proprietor was shot and killed. I am not concerned here to elaborate on the evidence given at the trial for murder. I add merely that there was evidence that after the killing, Gushue sold a revolver which, according to expert evidence, was the murder weapon. Gushue maintained that he got it from McDonald after the killing of Mayzel.
About four years after his acquittal, the appelant accused, while under investigation for other offences, made statements to the police that he had attempted to steal from Mayzel and had shot
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him when he resisted. A few months later Gushue pleaded guilty to a charge of robbery of Mayzel. At the same time he was charged with perjury in denying under oath at the murder trial that he had shot Mayzel. He pleaded guilty to that charge as well, but the Provincial Judge after hearing the facts, ordered that a plea of not guilty be entered and proceeded to hold a preliminary inquiry at which Gushue testified on a voir dire as to the admissibility of his statements to the police. When asked about the statements, he said that the statements that he had shot Mayzel were true. The Provincial Judge nonetheless discharged Gushue, holding that the Crown could not relitigate the issue of the shooting in view of the acquittal of murder.
Six months later the Crown applied for and obtained the consent of a County Court Judge to prefer an indictment against Gushue for perjury, contrary to s. 121 of the Criminal Code and for making contradictory statements in judicial proceedings contrary to s. 124. The perjury charge was based on the accused’s evidence at the murder trial that he did not shoot Mayzel. The charge of making contradictory statements in judicial proceedings was based on Gushue’s denial at his murder trial that he had shot Mayzel and his assertion on the voir dire at the subsequent preliminary inquiry on the charge of perjury that his statements to the police that he shot Mayzel were true.
At his trial on these charges before Graburn County Court Judge and a jury, the judge directed the jury to acquit the accused of perjury because, in view of the finding of the jury on the trial for murder, a second jury would have to make a contrary finding and it was precluded from doing so. The accused was, however, found guilty of the charge under s. 124.
Appeals were launched by the Crown against the acquittal of perjury and by the accused against his convictions of robbery on his plea of guilty and against his conviction of the charge under s. 124. Martin J.A., who spoke for a five-judge Court of
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Appeal, affirmed the convictions of the accused; and, although of the opinion on the Crown’s appeal that the prior acquittal of murder did not preclude conviction of perjury at that trial, and that a new trial would therefore be in order, he concluded that in view of the conviction under s. 124, a conviction of perjury would be contrary to the principle laid down by this Court in Kienapple v. The Queen[2]. The appeal from the acquittal of perjury was thereupon dismissed and that matter is not before this Court.
As to the two convictions which are here, and the assertion of the accused that they are properly met by issue estoppel, I think it desirable to say at the outset that issue estoppel is part of the criminal law of Canada, and I would affirm the position of this Court in the matter, as expressed in McDonald v. The Queen[3] and Wright, McDermott and Feeley v. The Queen[4]. The Court accepted the statement of law of the availability of issue estoppel in criminal proceedings made by the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya[5].
There are thin but nonetheless discernible lines between issue estoppel and inconsistent verdicts and double jeopardy. I prefer to take Sealfon v. United States[6] as involving a recognition of issue estoppel in the criminal law by the Supreme Court of the United States, rather than as resting merely on double jeopardy, that is on an attempt by the prosecution to re-try an accused of an offence of which he had previously been acquitted. So too, there is recognition of issue estoppel by the High Court of Australia in Mraz v. The Queen (No. 2)[7], even though it may be urged that it rests on inconsistent verdicts. In so far as the House of Lords in the recent case of Director of Public
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Prosecutions v. Humphrys[8] denied that issue estoppel could be raised in criminal proceedings, it does not commend itself to me. I prefer, as compatible with the view taken by this Court, the obiter acceptance of issue estoppel in the earlier House of Lords’ judgment in Connelly v. Director of Public Prosecutions[9]. I think it important to note, however, that on the assumed acceptance of issue estoppel in criminal proceedings, the House of Lords in the Humphrys case saw a prosecution for perjury as an exception on the policy ground that although an accused cannot be re-tried for an offence of which he has been acquitted, he is not to be permitted to escape the consequences of having testified falsely at his trial.
The question before this Court is, therefore, not whether issue estoppel is recognized in Canadian criminal law but whether, as in the McDonald case and in the Wright, McDermott and Feeley case, it has any application to the two convictions of the accused in this case on the relevant facts. There is always, of course, an initial difficulty in giving effect to a plea of issue estoppel where it is directed to the verdict of a jury which consists either of a bare finding of guilty or one of not guilty. How can it be ascertained on what issue or issues the finding rested for the purpose of foreclosing a relitigation of that issue or those issues in a subsequent criminal prosecution?
Counsel for the accused conceded that there cannot be any scrutiny of the evidence to determine what issues were before the jury. A surer guide may be found in the charge of the trial judge. There were, however, several issues left to the jury and not only the issue whether Gushue alone shot Mayzel in the course of a robbery. Martin J.A., in the Court of Appeal, gave the following summary of the charge:
The judge who presided over the trial of Gushue for the murder of Mayzel instructed the jury that if Gushue fired the shot which killed Mayzel while committing the
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offence of robbery, he was guilty of murder or, alternatively, he was guilty of murder if he and McDonald formed a common intention to rob Mayzel and to assist each other in the robbery, and in carrying out the common intention McDonald killed Mayzel and Gushue knew or ought to have known that the killing of Mayzel would be a probable consequence of the carrying out or attempting to carry out the proposed robbery. I observe that this latter direction was more favourable to Gushue than the direction to which by law he was entitled, as it was not necessary in the circumstances in order to find him guilty of murder that the jury should find that he knew or ought to have known that the killing of Mayzel was a probable consequence of carrying out the common purpose to rob him.
If the jury followed the instruction which they were given by the trial judge (as I think we must assume they did), they may have acquitted Gushue either because:
(a) they found that he had withdrawn from the plan to rob Mayzel, or entertained a reasonable doubt on the question, or
(b) although they were satisfied that Gushue was a party to the robbery, they entertained a reasonable doubt whether McDonald rather than Gushue, killed Mayzel, and whether Gushue knew or ought to have known that the killing of Mayzel by McDonald was a probable consequence of the common intention to commit robbery.
I draw particular attention to the misdirection in favour of the accused, imposing as it did a larger burden on the Crown than was warranted in law. Counsel for the accused invoked the Mraz case, supra, and especially the judgment of Chief Justice Dixon, at p. 68, where that learned judge said the following:
…It is nothing to the point that the verdict may have been the result of a misdirection of the judge and that owing to the misdirection the jury may have found the verdict without understanding or intending what as a matter of law is its necessary meaning or its legal consequences. The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact; it does not matter that the finding may be thought to be due to the jury having been put upon the wrong track by some direction of the presiding judge or to the jury having got on the wrong track unaided. It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so
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long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur… And, as has already been said, this applies in pleas of the Crown.
It was the further contention of counsel for the accused that the acquittal of murder was a positive determination that Gushue did not kill Mayzel, that there was no evidence that Gushue was a party to a killing by McDonald and, consequently, it was wrong to leave it to a second jury on the charge under s. 124 to second guess the jury that acquitted him of murder. It was submitted that if this was allowed, it would mean that a collateral attack could be made on jury verdicts, that the policy of finality of jury verdicts which are not appealed would be circumvented and that the accused would lose the benefit of the presumption of innocence.
I do not think that these submissions are telling in favour of the application of issue estoppel in respect of the charge under s. 124. The gist of the charge under that provision is making the contradictory statement with intent to mislead the Court, that is at the murder trial. The accused is not placed in double jeopardy because he cannot be retried for murder; indeed, it is enough for him to rely on autrefois acquit. The surfacing of his subsequent admission under oath that he lied at the trial for murder adds a new element and gives rise to a situation outside of the ambit of the trial for murder. It was contended, however, that the logic of the situation is in favour of the accused, that the jury finding that the accused did not kill Mayzel must be regarded as conclusively true, and the fact of the later contrary admission cannot give rise to a contradiction and there could not, therefore, be an intent to mislead the Court.
Logical as this submission may appear to be, what we have to resolve here is a question of policy based on the premise that issue estoppel cannot be founded on false evidence where the falsity is disclosed by subsequent evidence not available at the trial from which issue estoppel is alleged to arise. In my view, unless it can be said that the
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subsequent prosecution is an attempt by the Crown to re-try the accused—and that is not the case here—the preferable policy is to exclude issue estoppel, especially when the contradictory statements on which the charge under s. 124 is founded consist of admissions of the accused himself.
In the result, I agree with Martin J.A. that the conviction of the accused under s. 124 should be affirmed.
The charge of robbery and the conviction thereon raise related but also different considerations. I would not in this case foreclose reliance on issue estoppel simply because the accused pleaded guilty to the charge of robbery. It must be noted, however, that robbery is not an included offence on a charge of murder (see s. 589(3) of the Criminal Code), and hence the accused, as Martin J.A. pointed out, was not put in jeopardy of a conviction of robbery when he was tried for murder. What was urged by counsel for the accused was that, on any view of the facts, the killer and robber of Mayzel were one and the same person, and since the accused was acquitted of the killing he could not be guilty of robbery. The accused’s evidence that he did not enter the tailor shop must have been accepted by the jury, so it was contended, in order to acquit him of the killing and, correlatively, this excluded any possibility of his implication in the robbery.
However, the trial judge’s charge to the jury left to them not only the issue whether the accused himself killed Mayzel while intending to rob him. He also left to them the issue whether he was associated with McDonald in a common intention to rob Mayzel and to assist each other in carrying it out and whether in that connection McDonald killed Mayzel and Gushue knew or ought to have known that the killing would be a probable consequence of carrying out or attempting to carry out the robbery. Accepting for present purposes that the misdirection on this point, to which I referred earlier, is no bar to issue estoppel, it does not follow that the accused’s acquittal of murder, which could have been by reason of the misdirec-
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tion, necessarily meant that he was not a party to the robbery.
I am of opinion that the question of issue estoppel in respect of the robbery conviction is put to rest by the following statement, which I adopt, in Friedland, Double Jeopardy (1969), at p.134:
... The possibility or even the probability that the jury found in the accused’s favour on a particular issue is not enough. A finding on the relevant issue must be the only rational explanation of the verdict of the jury.
The point has already been made that the accused could not have been convicted of robbery on his trial for murder. Moreover, it is not the same conduct that is involved in the charge of robbery as in the charge of murder under the alternative direction to the jury given by the trial judge. In the circumstances, I do not think it is correct to say that the accused was being subjected to a second prosecution for a different aspect of the same conduct which was necessarily involved in his trial for murder. I agree, therefore, with Martin J.A. that the contentions on behalf of the accused in respect of the robbery conviction fail.
In the result, the appeals are dismissed.
Appeals dismissed.
Solicitors for the appellant: Campbell, Godfrey & Lewtas, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.