R. v. Jarvis, 2020 QCCQ 3001

Accurso c. R. 2020 QCCQ 3001 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-73-003792-120 500-73-003991-136 500-73-004096-141 500-73-004616-187 DATE: August 17, 2020 ______________________________________________________________________ BEFORE THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ ANTONIO ACCURSO and FRANCESCO BRUNO and FRANCESCO FIORINO and Adriano Furgiuele and Antonio GiraRdi Applicants - Accused v.

THE QUEEN Respondent-Prosecutor ______________________________________________________________________ DECISION ON AN APPLICATION TO REVISIT A DECISION DISMISSING FOUR APPLICATIONS AND REFUSING TO EXCLUDE EVIDENCE ______________________________________________________________________ [ 1 ] This Court previously dismissed four applications (the Jarvis Applications) to exclude evidence obtained following judicial authorizations and to stay the proceedings, pursuant to sections 7 , 8 , 10 , 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms [1] (the Jarvis Decision ) . [ 2 ] The Applicants [2] request that the Jarvis Decision be revisited in view of the Quebec Court of Appeal’s recent judgment in BT Céramiques inc. c.

Agence du revenu du Québec [3] and that this Court exclude the evidence obtained through the execution of several search warrants. [ 3 ] In order to understand the basis of this application, a brief overview of the proceedings thus far is useful. [ 4 ] In four separate files, the Applicants are charged with tax fraud, bribery and breach of trust, under the Criminal Code . [4] [ 5 ] Applicant Bruno was also co-accused with others in a previous trial, charged with tax fraud under the Tax Administration Act [5] and the Excise Tax Act [6] ( the BT case).

During the course of that trial, Larochelle J. granted an application to exclude evidence obtained pursuant to the same warrants as are at issue here [7] (the Larochelle decision). Larochelle J. held that the authorities had breached the principles set out in R. v.

Jarvis [8] by gathering incriminating evidence pursuant to the tax auditors’ coercive powers, with the underlying purpose of advancing a criminal investigation. [ 6 ] At the time the Jarvis Applications were initially presented before the undersigned [9] , the Larochelle decision had been overturned by Payette J. of the Superior Court (the Payette decision). [10] By the time the applications were heard, the Quebec Court of Appeal had granted leave to appeal the Payette decision. [11]

[ 7 ] On two separate occasions, in October 2018 and December 2018, the Applicants requested indefinite adjournments of their Jarvis Applications, in order to await the judgment of the Court of Appeal and possibly a further judgment by the Supreme Court of Canada in the BT case.

Both these requests for adjournment were denied. [12] Despite the obvious overlap of the issues at stake, this Court decided that the interests of justice weighed in favour of continuing the proceedings, given the potential for long delays and especially in view of the Applicants’ stated position that the Court of Appeal decision would not definitively put an end to their applications.

More specifically, the Applicants argued that even if the Court of Appeal confirmed the Payette decision, a hearing of the Jarvis Applications would be necessary since they rested on a new set of facts. [13] [ 8 ] The Jarvis Applications were heard over several weeks between February and May 2019 (the Jarvis hearing) and the Jarvis Decision was rendered on June 18, 2019, while the appeal from the Payette decision was still pending. [ 9 ] On March 12, 2020, while this Court [14] was continuing its case management of the four files, [15] the Court of Appeal rendered its judgment in BT, overturning the Payette decision.

On April 14, 2020, the Prosecution announced that it would not seek leave to appeal that decision to the Supreme Court of Canada. [16] The position of the parties [ 10 ] The Applicants argue that the Court of Appeal’s judgment in the BT case constitutes a material change in circumstances, enabling this Court to reconsider its Jarvis Decision . First, they argue that the principle of stare decisis obliges this Court to follow the precedent established by the Court of Appeal in BT. Second, they argue that the doctrine of issue estoppel mandates the exclusion of evidence pursuant to the Jarvis principles.

Finally, they argue that maintaining the Jarvis Decision would amount to an abuse of process. [ 11 ] The Prosecution agrees that, as a general rule, a court may revisit one of its decisions as long as it is not functus officio. [17] However, they disagree that the Court of Appeal’s decision in the BT case constitutes a material change in circumstances, allowing for the Jarvis Decision to be revisited. They argue that because the Court of Appeal’s decision did not change the existing law or the Jarvis principles, this is not a case of stare decisis .

As far as issue estoppel is concerned, the Prosecution maintains that the preconditions have not been met. Finally, they argue that this is not a case of abuse of process. The issues [ 12 ] The Court will address the following issues in turn: 1. Does the Court of Appeal judgment in BT present a material change in circumstances allowing this Court to revisit the Jarvis Decision? 2. If so:

i) Does the principle of stare decisis mandate the exclusion of the evidence? or ii) Does the doctrine of issue estoppel mandate the exclusion of the evidence? or iii) Does maintaining the Jarvis Decision amount to an abuse of process? Analysis 1. Does the Court of Appeal judgment in BT present a material change in circumstances allowing this Court to revisit the Jarvis Decision ? [ 13 ] The test for a judge varying or revoking his or her own ruling was set out by the Supreme Court of Canada in R. v.

Adams [18] as follows: 30 As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place. [ 14 ] The Supreme Court later stated in R. v. Cole [19] that “[g]enerally speaking, the decision to exclude evidence under s. 24(2) should be final”. However, as the Supreme Court noted in R. v.

Calder [20] , in “very limited circumstances”, a “material change of circumstances” may justify a trial judge revisiting an exclusionary order. [ 15 ] This rule was recently addressed in Vellone c. R . [21] in which the Quebec Court of Appeal reiterated that the circumstances which would permit a court to revisit a 24(2) ruling are extremely rare: 31 Toutefois, dans l'arrêt R. c.

Calder , dont la ratio decidendi a été récemment reprise, la Cour suprême conclut qu'un changement notable de circonstances peut justifier, dans des cas très limités, un réexamen de l' article 24(2) de la Charte canadienne au sein de la même instance. Rédigeant les motifs de la majorité de la Cour suprême, le juge Sopinka conclut que "toute ordonnance relative au déroulement d'un procès peut être modifiée ou annulée s'il y a eu changement important des circonstances qui existaient au moment où elle a été rendue.

Pour que le changement soit important, il doit se rapporter à une question qui a justifié, au départ, la délivrance de l'ordonnance". Dans des motifs concordants, le juge La Forest dira même qu'il peine à imaginer un des cas exceptionnels qu'évoque le juge Sopinka. Dans l'arrêt R. c. Cook , la Cour suprême réaffirmera le principe de l'arrêt Calder , sans toutefois clarifier la nature des

circonstances exceptionnelles envisagées par le juge Sopinka; elle affirmera, toutefois, que "pareils cas seraient rarissimes". (References omitted) [ 16 ] The Court of Appeal in Vellone thus confirms the general rule that exclusion of evidence pursuant to section 24(2) of the Charter is final within that same proceeding.

The Court explains that such a rule exists in order to avoid prejudice to the accused as well as for practical considerations. [22] [ 17 ] Although the rulings at issue in many of the cases canvassed by the Court of Appeal in Vellone [23] involved the exclusion of evidence, in the present case, the Court must decide if the refusal to exclude evidence should be revisited.

Whether or not revisiting such a ruling should only be considered in rare cases, the decision to revisit must nevertheless be based on a material change in circumstances. [ 18 ] It bears emphasizing that the material change must relate to a matter that justified the ruling in the first place. [24] With this in mind, the Court will first review the position of the parties regarding the Jarvis hearing and then examine whether the ratio or the result of the Court of Appeal decision in BT constitutes a material change in circumstances requiring that the Jarvis Decision be revisited.

a) An overview of the Jarvis hearing: [ 19 ] In January 2018, the Prosecution presented an application for

summary dismissal of the Jarvis Applications, arguing that judicial resources would be wasted by relitigating the matter. [25] They noted that the evidence sought to be excluded was gathered pursuant to some of the very same warrants at issue in the Larochelle and Payette decisions and that the alleged Jarvis breach was based on the same facts.

Underscoring that the identical issues had already been decided, albeit in a different trial, they argued that the applications had no reasonable chance of success (given the Payette decision overturning the exclusion of evidence) and that the Court’s case management powers should be used to refuse to hear them. [26] [ 20 ] The Applicants argued that theirs were brand-new applications and that they intended to present additional facts, unavailable or irrelevant to the matter before Larochelle J.

In this regard, they emphasized the importance of the evidence linked to the RCMP’s involvement in the case, which was not at issue before Larochelle J. [ 21 ] This Court dismissed the motion for

summary dismissal, [27] underscoring the legitimate interest and the right of an accused to request the exclusion of evidence allegedly obtained in breach of his constitutional rights, in a completely new trial. [ 22 ] For purposes of efficiency and judicial economy, the parties agreed that the evidence presented before Larochelle J. would form part of the evidence to be analyzed by this Court, as completed by the evidence of several additional witnesses.

As was explained in the Jarvis Decision [28] : The parties have agreed that the evidence presented in the Court of Quebec before Larochelle, J. be filed as evidence in the present matter. In addition, they have added some nuances and corrections as well as some additional evidence. Furthermore, the involvement of the RCMP is new to this matter, as the previous hearing focused only on the conduct of CRA and Revenu Québec agents. (References omitted) [ 23 ] Thus, despite the overlap in fact and in law, the Jarvis Applications were heard and decided as separate and distinct matters.

Nevertheless, as noted in the Jarvis Decision : [29] In reviewing each [ Jarvis ] factor, the analysis in R. v. BT is not only convincing, it also binds this Court as a matter of authoritative precedent or stare decisis . Nevertheless, where the present facts differ in a material way from those relied upon by in R. v. BT, a different conclusion may lie. (References omitted) [ 24 ] During some twenty days of hearings, this Court heard testimonial evidence and examined documentary evidence, including evidence previously adduced at the trial before Larochelle J.

Despite the considerable overlap in the evidence on the Jarvis applications, the factual conclusions reached in the Jarvis Decision are this Court’s alone. The Jarvis principles were applied based on this Court’s appreciation of the evidence presented.

b) The Court of Appeal decision in the BT case: [ 25 ] The Court of Appeal overturned the Payette decision and held that Larochelle J. did not commit errors of law in her Jarvis analysis, and that Payette J. should not have interfered with her findings. The Court of Appeal states: [30] 100 Le Code de procédure pénale prescrit, à l’instar du Code criminel en matière d’infractions poursuivies par procédure

sommaire, que la compétence de la Cour, siégeant à un deuxième niveau d’appel, est limitée aux questions de droit. Il ne lui revient donc pas de réviser les conclusions de fait arrêtées par la juge de première instance. Ce n’est qu’en présence d’une erreur de droit commise par le juge d’appel dans l’un ou l’autre des jugements entrepris que l’intervention de la Cour pourrait être justifiée . […] 108 Le juge des faits jouit d’une grande latitude pour apprécier la preuve et décider des conclusions qu’il faut en tirer .

Une cour d’appel, ici un juge de la Cour supérieure, ne peut intervenir simplement parce qu’elle diffère d’opinion . [31] [ 26 ] The Court of Appeal concluded that Payette J. failed to respect the limited scope of intervention of an appeal court reviewing a first instance decision. They emphasized that an appeal court faced with a mixed error of law and fact cannot substitute its own appreciation of the proof for that of the trial judge. They noted that Payette J. did not share the views of the trial judge on the evidence but that this did not amount to an error of law.

In the absence of a palpable and overriding error, it was inappropriate for the Superior

Court to have intervened. [32] [ 27 ] It was therefore the lack of deference afforded to Larochelle J’s conclusions that led to the Payette decision being overturned and not a misstatement or misapplication of the Jarvis principles. Quite to the contrary, the Court emphasized that : 131 La difficulté ici n’est pas tant le raisonnement du juge d’appel lorsqu’il apprécie de nouveau la preuve que la présence des erreurs de droit qu’il identifie dans le jugement de première instance.

Si articulée et défendable que puisse être sa lecture de la preuve administrée en première instance , encore faut-il que la juge ait commis les erreurs de droit qu’il lui impute pour pouvoir revoir la preuve. Or, et cela dit avec égards, le jugement d’instance ne comporte pas les erreurs de droit que le juge d’appel lui impute ou, s’il en est, elles sont sans incidence. Il ne pouvait donc pas substituer son appréciation de la preuve à celle de la juge d’instance.

La déférence s’imposait à l’égard des réponses données par la juge d’instance lorsqu’elle analyse la preuve à la lumière de chacun des facteurs énumérés dans l’arrêt Jarvis . [33] (Emphasis added) [ 28 ] Thus, the Court of Appeal decision did not change or clarify the law as it applies to the Jarvis principles, nor did it find flaws in the legal reasoning applied by Payette J., which this Court followed in the Jarvis Decision .

As such, the Court of Appeal’s judgment in the BT case does not constitute a material change in circumstances. [ 29 ] Apart from the content of the Court of Appeal judgment, the Applicants also submit that the result of the judgment provides a material change in circumstances, because the reinstatement of the Larochelle decision undeniably results in contradictory judgments. As the Supreme Court noted in R. v.

Mahalingan , the criminal law abhors inconsistent findings on specific issues. [34] [ 30 ] Indeed, based on its very own appreciation of the evidence presented in the Jarvis hearing, this Court came to a different conclusion than that of Larochelle J. However, contrary to what the Applicants argue, the Court of Appeal’s decision does not require that this Court come to the same conclusion as that of Larochelle J.

This Court’s findings of fact are owed equal deference to those of Larochelle J. [ 31 ] As the Supreme Court explained in R. v Biniaris : [35] 24 Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues.

Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. [ 32 ] As Watt J.A. noted in R. v. Thompson , [36] “consistency is not the exclusive yardstick by which we gauge the integrity of judicial decisions.

We need also consider whether eliminating potential inconsistency — by displacing the full determination of factual issues — would undermine public confidence in the judicial system”. [ 33 ] Hence, the fact that two judges seized with separate (albeit very similar) applications reach different conclusions regarding an alleged Charter violation, does not constitute a “material change in circumstances” requiring that one of the decisions be revisited. [ 34 ] For these reasons, the Court finds that the Court of Appeal judgment in BT does not provide a material change in circumstances required to revisit a ruling and it is thus not necessary to answer Question 2.

Nevertheless, the Court will briefly address the issues raised therein. 2. (

i) Does the principle of stare decisis mandate the exclusion of the evidence? [ 35 ] The Applicants argue that the principle of stare decisis should lead this Court to revisit its decision and alter its conclusion in order to conform to the Court of Appeal’s result in BT. [ 36 ] They refer to the general principles of the doctrine, as explained in the leading Supreme Court case of R. v . Comeau , [37] requiring that a lower court apply the decisions of higher courts to the facts before it.

They argue that there are no “compelling conditions” [38] present here that would allow this Court to depart from the binding authority on the matter at issue. [ 37 ] Clearly, a lower court applying the law to the same facts, as identified in a higher court decision, is obliged to apply the identical reasoning and result. Indeed, the binding nature of precedent was expressed in two earlier rulings in these files. First, in refusing to revisit its decision refusing to grant a postponement, this Court underscored that if Mr.

Bruno wished to proceed only on the basis of Larochelle J.’s factual findings, the doctrine of stare decisis could lead the Court to summarily dismiss his Jarvis application, following the decision of Payette J. [39] Later, in its Jarvis Decision , the Court referred to the binding precedent framed by the Payette decision, to the extent the factual conclusions were identical. [40] [ 38 ] The Applicants underscore that the Court of Appeal unequivocally confirmed the Larochelle decision to exclude the documents seized pursuant to the same warrants at issue here.

They refer to the following passage of the Court of Appeal decision: 184 Partant de la conclusion bien fondée de la juge d'instance que les documents et renseignements saisis en possession de l'ARC ont été obtenus illégalement par cette dernière, la saisie pratiquée par l'ARQ devenait elle-même illégale.

Peut-être aurait-elle pu perquisitionner les personnes visées par la vérification de l'ARC, si elles étaient toujours en possession des documents ou renseignements recherchés ou d'une copie de ceux-ci, ce qu'il n'y a pas lieu de décider, mais elle ne pouvait tout simplement pas profiter du fruit de mandats obtenus illégalement. Si ce raccourci était autorisé, le risque d'abus serait grand, une agence de l'État pouvant, en tout état de cause, profiter des perquisitions de l'autre, et ce, sans égard à la légalité des moyens utilisés pour les obtenir.

L'administration de la justice et la protection des droits protégés en souffriraient. (Emphasis added)

[ 39 ] The Court of Appeal clearly approved the reasoning of Larochelle J. Nevertheless, this passage does not provide the binding precedent that the Applicants allege. While the factual determinations of Larochelle J. provided the basis for her sound conclusions in law, the Court of Appeal also recognised that on a different reading of the facts, the application of those same legal principles could yield a different, yet proper, result. [41] [ 40 ] In essence, the Court of Appeal found that Larochelle J. committed no reversible error of law in applying the Jarvis principles.

Therefore, applying the appropriate deference to her factual findings, the Court held that her decision to exclude the evidence was well- founded. [ 41 ] However, as canvassed above, the Court of Appeal’s decision in BT did not modify the state of the law applicable to the Jarvis principles nor did it offer any new guidance constituting binding vertical authority, compelling this Court to amend its Jarvis Decision . The Court of Appeal reiterated the Jarvis principles, without altering or adding to them , and determined that Larochelle J. did not commit any reversible errors of law.

To the extent that the Court of Appeal decision can be said to provide a legal precedent, it relates to the appropriate standard of review. [ 42 ] The Applicants also submit that the principle of horizontal stare decisis should similarly lead this Court to amend its conclusions, in order to avoid inconsistent precedents in decisions from the same court. [42] However, despite coming to opposite conclusions, it cannot be said that the two first-instance Jarvis decisions create inconsistent precedents.

Both are examples of the application of the law as explained by the Supreme Court in Jarvis , to the particular set of facts of each application.

The principles of Jarvis are dealt with consistently in both cases, but because the application of the legal principles depends on an eminently factual determination, it is entirely tenable that different views of the facts lead to different conclusions. [ 43 ] The principle of stare decisis does not alter this Court’s Jarvis Decision . 2. (ii) Does the doctrine of issue estoppel mandate the exclusion of the evidence? [ 44 ] In Canadian criminal law, issue estoppel operates to prevent the Crown from re-litigating issues that have already been decided in an accused person's favour in a prior criminal proceeding. [43] As explained by the Supreme Court of Canada in Mahalingan : [44] 39 [...] [I]t is clear that fairness to the accused 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. [...] The state has the right to charge an accused and to prove the facts at a trial of the charge.

If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence to the issue would be to violate the fundamental function of res judicata . [ 45 ] In R .v.

Thompson, [45] the Ontario Court of Appeal stressed that the question of issue estoppel is not focused on favourable outcomes for an accused, but on eliminating unfairness that would arise from vexatious, baseless or unjustified litigation: 70 It is self-evident that the application of issue estoppel in these circumstances would produce a result more favourable to the accused. But issue estoppel is not intended to achieve favourable outcomes for the accused — it aims to achieve fairness, through the elimination of vexatious litigation. And the essence of vexatiousness is not mere repetition of litigation.

Rather, it is harassment through baseless or unjustified litigation: Lucido , at p. 351 Cal. 3d. [ 46 ] Issue estoppel serves three purposes, each one integral to a fair system of criminal justice. These are: fairness to the accused who should not be called upon to answer questions already decided in his or her favour; the integrity and coherence of the criminal law; and the institutional values of judicial finality and integrity. [46] [ 47 ] In Mahalingan , the Supreme Court set out three requirements for issue estoppel to be operative in a criminal proceeding: [47] 1.

The issue has been decided by a judicial decision in a prior criminal proceeding; 2. the judicial decision said to create the estoppel is final; and 3. the parties to the judicial decision in both proceedings are the same . [ 48 ] Had this Court found a material change of circumstances sufficient to revisit the Jarvis Decision , it would have found that issue estoppel did not apply because: 1.

The doctrine does not apply retrospectively; 2. the decision at issue was interlocutory; and 3. it could not apply to the Applicants who were not parties to the earlier proceedings. 1) Retrospective application: [ 49 ] As noted above, issue estoppel requires a judicial decision in a prior criminal proceeding. The doctrine is plainly expressed by Watt J.A. in R. v. Thompson [48] as follows: Issue estoppel is preclusive in its effect.

In a criminal case, it precludes the Crown from introducing evidence in later proceedings inconsistent with findings made in an accused's favour in earlier proceedings. [ 50 ] At the time of the Jarvis hearing before this Court, there was no possibility of the Applicants claiming issue estoppel since the issue (assuming it could be termed “final”), had not been decided in Bruno’s favour. The contrary decision of the Court of Appeal, dated eighteen months after the Jarvis Decision , cannot be said to constitute a prior criminal proceeding.

[ 51 ] In Mahalingan , the Supreme Court held that issue estoppel cannot apply retrospectively if it is to serve the values of judicial finality and economy. [49] [ 52 ] In that case, the accused was convicted of aggravated assault based on the testimony of an eyewitness, who also said that the accused called him to ask him not to testify. In the accused’s subsequent trial on obstruction of justice charges related to that phone call, the accused was acquitted.

On his appeal from the aggravated assault charge, the accused argued that issue estoppel had the retrospective effect of rendering testimony about the phone call inadmissible at the assault trial. The Supreme Court held that the acquittal in the second trial could not operate retrospectively to render the evidence inadmissible in the earlier one: [50] 79 This issue can be disposed of on the basis of the order of the verdicts. The acquittal in the second trial cannot operate retrospectively to render the evidence inadmissible in the earlier case (this appeal).

The order of the trials matters , and is inherent in the notions of finality that issue estoppel, and res judicata more generally, support. (Emphasis added) [ 53 ] However, since the Supreme Court ordered a new trial on other grounds (the trial judge’s failure to outline the position of the defence for the jury), [51] the majority held that at the new trial , issue estoppel could apply: [52] 80 It may be useful, however, to comment on how issue estoppel may apply on the retrial of the aggravated assault charge in this case.

That retrial will now occur after the acquittal on the obstruct charge about the phone call . (Emphasis added) [ 54 ] In the present case, the Court is not faced with concerns of “relitigation” such as costs and preserving judicial resources, because the Jarvis Applications have already been heard and decided.

Applying issue estoppel in these circumstances would undermine the institutional values of judicial finality and economy, which are “essential goals to preserving confidence in the justice system”. [53] 2) An interlocutory ruling: [ 55 ] The issue decided by Larochelle J. and confirmed by the Court of Appeal is an interlocutory ruling regarding admissibility of evidence, which is not subject to issue estoppel. [54] This question was addressed by the Supreme Court of Canada in Duhamel v. The Queen . [55] [ 56 ] In Duhamel , the accused was tried separately on two counts of robbery charged in the same indictment.

At the first trial, statements made by the accused were ruled inadmissible and the accused was acquitted. At the second trial, the same statements were ruled admissible by a different judge, and the accused was convicted.

The issue on appeal was whether issue estoppel precluded the Crown from relitigating the admissibility of the statements ruled inadmissible at the first trial. [ 57 ] On appeal, Moir J.A. held that the Crown was not estopped from relitigating the issue because “an interlocutory ruling is not a final judgment” and cannot bind the parties outside of the proceedings in which it was adjudicated. [56] [ 58 ] The Supreme Court of Canada unanimously affirmed the judgment of the Alberta Court of Appeal rejecting the extension of the doctrine of issue estoppel to include, as estoppel-creating findings, rulings on the admissibility of evidence, at least in the absence of a discrete right of appeal from decisions on admissibility. [ 59 ] In Cliche , the Quebec Court of Appeal dealt with the question of relitigating alleged Charter breaches at a second trial, following a mistrial . [57] Beauregard J.A. stated: 13 Avec égards, si les deux instructions doivent être présidées par deux juges différents, je ne suis pas d'avis qu'il y a une distinction à faire, pour les fins qui nous intéressent, entre l'instruction d'un procès rendue nécessaire par suite, d'une part, d'un désaccord chez les jurés ou d'un avortement décrété par le juge qui préside l'instruction et, d'autre part, l'instruction d'un procès parce qu'un premier verdict a été annulé par un tribunal d'appel. 14 Dans les deux cas, il s'agit de tenir une nouvelle instruction au cours de laquelle le nouveau juge doit décider, selon ce qu'il a devant lui et en son âme et conscience, quels éléments de preuve doivent être présentés au jury . 15 Quelle que soit la raison qui a causé la tenue de la nouvelle instruction, l'administration de la preuve sera faite de la même façon, avec la même nécessité pour le juge de statuer sur la recevabilité des éléments de preuve. 16 De fait, l'intimé concède que, lors d'une instruction d'un procès rendue nécessaire par le désaccord des jurés, chacune des parties a le droit strict à une instruction "de novo".

Exactement comme dans le cas d'un nouveau procès ordonné par une cour d'appel. (Emphasis added) [ 60 ] In the case of R. v. Bordo , [58] in a new trial ordered by the Court of Appeal, the Crown argued that issue estoppel should prevent relitigating a disclosure motion, submitting that the Court of Appeal conclusively ruled on the issue. As Cournoyer J. highlights: 85 In the context of a new trial ordered by a court of appeal, relitigation of the same issues is part and parcel of the normal process once a new trial is ordered.

A new trial starts with a fresh deck. [ 61 ] Similarly, it stands to reason that a judge presiding an entirely new and separate trial will not be bound by a Charter ruling made by another, regardless of a higher court ruling endorsing it. In his article, “Continuity of Judicial Rulings After a Mistrial” [59] (cited with approval by the Court of Appeal in Cliche ), [60] author Don Macdougall states that “ Duhamel stands for the proposition that a trial judge is not bound by the interlocutory rulings made at an earlier trial, even if a higher court finds no error with the ruling .”

(Emphasis added) [ 62 ] In R. c. Timm , [61] the accused raised issue estoppel after the Court of Appeal ordered a new trial for his accomplice, finding that the evidence seized was illegally obtained. On his own appeal, the accused argued that he should also benefit from the exclusion of the evidence. The Quebec Court of Appeal held that issue estoppel did not apply to a ruling excluding evidence under section 24(2) of the Charter , where the accused was not a party to the previous decision.

In addition, the Court made the following observation: [62] Il aurait suffi également d'opposer ici à l'appelant un autre principe selon lequel on ne peut invoquer comme irréfutables les décisions sur des incidents du verdict comme l'admissibilité d'une preuve. [ 63 ] Other courts have also consistently held that Duhamel continues to constitute binding authority and that an interlocutory decision, including a Charter ruling, cannot found a claim of issue estoppel. [63] 3) Applicants who were not parties to the earlier proceedings: [ 64 ] Even if issue estoppel was available to Bruno, it could not be argued by the other Applicants, as they were not parties to the Larochelle decision.

This requirement for claiming issue estoppel is unambiguous. 2. (iii) Does maintaining the Jarvis Decision amount to an abuse of process? [ 65 ] The Applicants argue, in the alternative, that maintaining the Jarvis Decision would amount to an abuse of process. They refer to R. v. Schertzer, [64] where Nordheimer J. did not allow the Crown to relitigate the illegality of searches that had been decided by a different judge in a related file.

Although issue estoppel did not apply because the issue was an interlocutory ruling, [65] the judge concluded that: [66] 18 […] To redo that exercise in this proceeding not only wastes judicial resources but raises the spectre of inconsistent decisions being reached that would clearly and understandably undermine the credibility of the judicial process in the eyes of any member of the public, not to mention the parties here. [ 66 ] In applying the doctrine of abuse of process to prevent the issue being revisited, Nordheimer J. drew a distinction between the stringent criteria applicable when the accused seeks a stay of proceedings based on abuse of process (reserved for the clearest cases of egregious abuses) and the criteria applicable when the accused seeks the narrower remedy of precluding the Crown from relitigating an evidentiary ruling. [67] [ 67 ] Firstly, it is apparent here, just as with the Applicants’ issue estoppel argument, that the chronology of the matter at hand raises obstacles to their position.

Since the Jarvis hearing has already taken place, it is too late to speak of saving judicial resources or avoiding inconsistent decisions. [ 68 ] In any event, the approach followed in Schertzer was specifically criticized by the Quebec Court of Appeal in R. c. Cliche , [68] in the following terms: 47 In R. v. Schertzer , Nordheimer, J., of the Ontario Superior Court of Justice, held that the prosecution could not relitigate a decision rendered by a fellow judge in another case involving the accused, which decision had declared certain searches unreasonable.

The judge stated that, while the Supreme Court of Canada ruling in Duhamel was such that the doctrines of estoppel or res judicata did not prevent the accused from relitigating the decision that had declared the searches unreasonable, the accused could, based on the doctrine of abuse of process, refuse to allow the prosecution to argue anew that the searches were valid. With all due respect, if a judgment is not res judicata and a party is not barred from relitigating it, it cannot be said that if it does so, there is an abuse of process.

There might be abuse of process, however, if the party were unreasonable in the manner in which it chose to relitigate the matter. (Emphasis added) [ 69 ] In addition, in R. v.

Mahalingan , [69] the Supreme Court questions the appropriateness of resorting to the doctrine of abuse of process in matters where the requirements of issue estoppel are not met. 42 To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process. (Emphasis added) [ 70 ] It must also be noted that in this case, the Jarvis Applications were “relitigated” at the request of the Applicants, who opposed the Crown’s motion for

summary dismissal. They argued that the Jarvis Applications were based on new evidence, and were separate and distinct from the application decided by Larochelle J. and Payette J. [ 71 ] It cannot be said that proceeding with the Jarvis hearing was an abuse of process, nor that the continuation of the proceedings, based on evidence ruled admissible would now be abusive. [ 72 ] It is neither vexatious nor unfair for the Applicants to continue to face criminal charges in circumstances where this Court has determined that there was no breach of the Jarvis principles, based on the evidence presented.

The Court of Appeal’s decision in BT does not undermine this Court’s Jarvis Decision . The possibility that if convicted, the Applicants may successfully appeal the Jarvis Decision is a function of the regular course of criminal prosecutions, and shares no common features with the doctrine of abuse of process. FOR THESE REASONS, THE COURT:

dismisses the application to revisit the Jarvis Decision . __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me François Blanchette Me Marie-Claire Émond Attorneys for the Respondent-Prosecutor (PPSC) Me Marc Labelle Me Kim Hogan Labelle, Côté, Tabah Attorneys for Antonio Accurso Me Julie Lepage Attorney for Francesco Bruno Me Isabel J.

Schurman Me Michèle Meleras Schurman Grenier Strapatsas Attorneys for Francesco Fiorino Me Gérard Soulière Linteau Soulière & Associés, avocats Attorney for Adriano Furgiuele Me Isabelle Lamarche Morneau, L'Écuyer, La Leggia, Rouleau et avocats Attorney for Antonio Girardi Date of hearing: June 15, 2020. [4] The charges in each file can be summarised as follows: - The Plan of Action charges ( 500-73-003792-120 and 500-73-004616-187 ) concern Applicants Accurso, Bruno, Fiorino, Furgiuele and Girardi. The charges stem from a document found in the office of Fiorino (Bruno’s accountant) in 2008.

It is alleged that Furgiuele, a CRA employee, drafted this document as a 17-step plan to allow Bruno's companies (B.T. Céramiques (BT) and 3703436 Canada Inc.) to elude the payment of taxes and to cover any traces of illicit activity involving corrupt CRA employees; - The Infiltration charges ( 500-73-003991-136 ) against Fiorino stem from his involvement as the accountant for five different companies in the context of alleged fraudulent schemes and bribery of CRA agents between 2004 and 2006; [7] Agence du revenu du Québec c . B.T. Céramiques inc. , 2015 QCCQ 14534 .