Complaint Review: DEAN MICHAEL LOVE ILLEGAL DRUGS CATCH IT ON CAMERA.CA

This is yet another pack of lies from our friend Raymond J Rybachuk. He is actually just mad because we busted his land scam in belize that was nothing but an attempt to sell property he doesn't even own.

Here is but one example of the history of Raymond J Rybachuk, would you believe this man?:

COURT OF QUEENS BENCH OF MANITOBA
 
 
BETWEEN:
 




HER MAJESTY THE QUEEN,

)        For the Respondent:


 

)        Karen Molle


Respondent,

)        Anne Krahn


 

)


- and -

)        For the (Accused) Applicant:


 

)        Gerald S. Ashcroft


RAYMOND JAMES RYBACHUK,

)


 

)        Judgment delivered:


(Accused) Applicant.

)        August 28, 2001
MONNIN, J.
[1]              The accused, Raymond James Rybachuk, has been committed for trial on an indictment alleging that, between January 1, 1992 and March 18, 1997, he was in possession of proceeds of crime and was laundering proceeds of crime. Those charges are set out in a two-count indictment dated June 23, 1999.
[2]              Mr. Rybachuk has entered the special pleas of autrefois acquit and autrefois convict for each of those counts. His position is that he was previously tried on a four-count indictment alleging that he was trafficking in cocaine and was in possession of proceeds of crime from that trafficking, which counts dealt with events occurring within the period of time covered in the indictment currently before this court. On those two counts of possession of proceeds of crime, he was convicted on one and acquitted on the other.
[3]              On the motion before me, Mr. Rybachuk submits that he ought not to stand trial on the pending charge of possess proceeds of crime because:
(a)              at the previous trial, he was on trial for charges, in whole or in part, that were the same as the current charge;
(b)              the principle of res judicata and issue estoppel apply;
(c)               in all the circumstances, it would be an abuse of process to proceed with the charge; and
(d)              it would be in violation of s. 11(h) of the Canadian Charter of Rights and Freedoms were he to stand trial for this charge as well.
FACTUAL BACKGROUND
[4]              The first trial, which led to the conviction and acquittal that Mr. Rybachuk raises in his special pleas, originally proceeded on four counts. They related to two transactions, which the Crown alleged occurred on December 10, 1996 and on January 27, 1997. The Crown alleged that Mr. Rybachuk sold cocaine to a civilian agent working for the police at the time. With each count of trafficking was a charge of possession of proceeds of crime, namely, the amounts Mr. Rybachuk received for the alleged sales.
[5]              The trial proceeded by judge and jury. Mr. Rybachuk was convicted with respect to the transaction of December 10, 1996, on both the trafficking and possession charges. He was acquitted with respect to the transaction of January 27, 1997, on both the trafficking and possession charges.
[6]              The current indictment alleges possession of proceeds of crime and laundering proceeds of crime between January 1, 1992 and March 18, 1997. The court has been informed by the Crown on this motion that the allegations are based on evidence collected by the R.C.M.P., including accounting evidence of a forensic accountant. That evidence will attempt to show a discrepancy between the amounts spent by Mr. Rybachuk and his income from known sources during the period of time covered in the indictment. The Crown alleges that the amounts spent in excess of revenue are proceeds of Mr. Rybachuks involvement in the ongoing importation and distribution of cocaine. The Crown has informed me that the amounts referred to in the first indictment are not included in the amounts used by the forensic accountant in support of the second indictment.
[7]              In addition to financial forensic accounting evidence, the Crown will call evidence of individuals allegedly purchasing cocaine on behalf of Mr. Rybachuk in the United States and evidence showing how the cocaine was brought back to Canada. As well, the Crown wishes to re-introduce evidence of the civilian undercover police agent with respect to her involvement with Mr. Rybachuk, including evidence concerning the two transactions that form the basis of the first indictment.
AUTREFOIS ACQUIT AND AUTREFOIS CONVICT: SPECIAL PLEAS
[8]              Section 607 of the Criminal Code, R.S.C. 1985, c. C-46, allows an accused to plead special pleas of autrefois acquit and autrefois convict in answer to charges. Sections 608 and 609 set out the evidence that is to be considered and the general rules for determination of the issue of identity between the previous charges and the charges that the accused stands committed. The procedure provides that the pleas are to be disposed of by judge without jury before the accused is called on to plead further. The pleas are only available if the offences are the same in whole or in part. The prior charges must have been substantially the same, both factually and legally.
[9]              In R. v. Van Rassel, 1990 CanLII 124 (S.C.C.), [1990] 1 S.C.R. 225 at 234-35, one of the leading cases with respect to the plea of autrefois acquit, McLachlin J., as she then was, set out the conditions which must be met by the accused to avail himself of the plea:
         To make out the defence of autrefois acquit, the accused must show that the two charges laid against him are the same. In particular, he must prove that the following two conditions have been met:
 
(1)              the matter is the same, in whole or in part; and
(2)              the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments.
 
[I]t must be recognized that the plea of autrefois acquit is based on the principle of justice and fairness and that the Criminal Code does not require that the charges be absolutely identical. Despite the technical form of the relevant sections of the Criminal Code, the substantive point is a simple one: could the accused have been convicted at the first trial of the offence with which he is now charged?
[10]         Mr. Rybachuks position is that the offences in the first indictment were the same, in whole or in part, as the pending charge of possession of proceeds of crime.
[11]         The Crown disagrees, arguing that the two matters are not the same, in whole or in part, and that Mr. Rybachuk could not have been convicted at the first trial of the crime for which he is now charged.
[12]         I agree with the Crowns position that there is no identity of charges as required by the Criminal Code. The offence for which Mr. Rybachuk now stands charged is not in substance or in fact the same as the offences for which he was charged previously, convicted and acquitted. Were the Crown seeking to have the jury convict again on the proceeds arising from the two transactions which were the basis of the first trial, the argument might have merit. However, there is nothing preventing the Crown from adducing evidence of the previous conviction in support of its allegations that the substantial discrepancy between spending and income arises from trafficking in cocaine.
[13]         As to the acquittal, other considerations apply, but they do not change the determination of the special pleas raised at this stage. Accordingly, Mr. Rybachuks pleas of autrefois acquit and autrefois convict are not accepted, and Mr. Rybachuk will be required to enter pleas to the two counts in the indictment.
RES JUDICATA AND ISSUE ESTOPPEL
[14]         In the alternative, Mr. Rybachuk has argued that res judicata and issue estoppel are available to him and the Crown should be estopped from re-litigating any issue decided with respect to the offences of December 10, 1996 and January 27, 1997 relating to possession of proceeds of crime.
[15]         There is a distinction between the special pleas referred to previously and the common law defence of res judicata or issue estoppel. Issue estoppel, which is part of the doctrine of res judicata, refers to the principle that when an issue of fact has been determined in a previous proceeding, the issue cannot be litigated again between the same parties in a future lawsuit. See Regina v. Owens, [1970] 2 C.C.C. 38 at 43-44 (B.C. C.A.).
[16]         In order to successfully raise the defence, the accused must satisfy the court that, in the earlier proceedings, there was a determination of a question of fact in favour of the accused vital to the later charge and which operates as an estoppel against the Crown so as to bar the later prosecution. The requirements for issue estoppel are that:
(a)              the judicial determination involved a determination of the same question as that sought to be determined in the litigation in which estoppel is raised;
(b)              the judgment was final and made by a court of competent jurisdiction;
(c)               the parties are the same.
[17]         It should be noted that unlike the special pleas of autrefois acquit and autrefois convict, there is no plea of issue estoppel. It is a defence. It is part of the general plea of not guilty and the common law defences protected by the Criminal Code. See D.J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at 267.
[18]         Accordingly, issue estoppel must arise after a plea of not guilty. The proper procedure for making an application for an order of acquittal on the ground of issue estoppel is after all of the Crowns evidence has been adduced as only then will the trier of fact be able to determine whether there has been a determination of the same question in the first proceeding. See Canada (Attorney General) v. Ukrainetz, [1994] S.J. No. 1 (Q.B.) at para. 13.
[19]         Therefore, it would appear that the request for an alternative determination of the motion based upon issue estoppel is premature, as it would be dependent upon the evidence that would be tendered before the court on this trial.
[20]         However, I can assume, for the purposes of this motion, that there will be a plea of not guilty entered to the two charges based in part upon the issue of res judicata. While I will reserve the determination of whether issue estoppel applies to the end of the Crowns evidence, I wish to deal with some of the issues raised by the parties at this time in order to provide them with some guidance of the evidentiary matters which will be before the court in the near future.
[21]         The Crown has alleged that in order to raise issue estoppel, the question must be one that is decided in favour of the accused. It, therefore, argues that issue estoppel does not preclude adducing facts surrounding the conviction in the second trial.
[22]         I agree. The evidence of a conviction in the first trial is properly evidence that the jury can be asked to consider with respect to the charges which Mr. Rybachuk now faces. It is not an attempt to re-litigate the issue, but rather to use the conviction as evidence for the purposes of determination of another issue, namely, whether Mr. Rybachuk was in possession of proceeds of crime or did utilize the funds in a manner contrary to the provisions of the Narcotic Control Act.
[23]         As to the transaction of January 27, 1997, the Crown says it is not seeking in this prosecution a determination inconsistent with the findings of the first jury. It says that it is not seeking to re-litigate Mr. Rybachuks guilt or innocence with respect to the sale on that day. It is simply seeking to present it as evidence that the jury may accept or reject in order to consider the charges currently pending. It says that it is not seeking a determination of the same question as in the first trial. Therefore, the possibility of an inconsistent verdict is not triggered.
[24]         The Crowns argument raises the delicate issue of the use to be made of an acquittal. Based upon the evidence to date, including the transcripts I have read of the first trial and the judges charge to the jury, I am satisfied that the same issue is not going to be determined at this trial. However, the question of whether the Crown could lead evidence for the purpose of having the jury consider the evidence in a manner inconsistent with the findings made by a previous jury is troubling.
[25]         In Grdic v. The Queen, 1985 CanLII 34 (S.C.C.), [1985] 1 S.C.R. 810 at 825-26, speaking on behalf of the majority, Lamer J. stated:
         However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re-litigating 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] 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.
[26]         The Crown is admittedly seeking to tender the evidence of the transaction of January 27, 1997, for the purpose of having the jury accept it as evidence of criminal conduct, namely, the trafficking of drugs on the day in question. Otherwise, it has no relevance to the Crowns case. Although the Crown is not seeking at the end of the day that the jury find Mr. Rybachuk guilty of trafficking in drugs on the day in question, it will be seeking to have it consider that transaction as evidence of Mr. Rybachuks involvement in drug trafficking. The jury could only do so by concluding that it was a drug transaction that occurred on the day in question. I have serious concerns that from an evidentiary viewpoint, the Crown can lead evidence seeking a finding that is inconsistent with the acquittal.
[27]         The issue as it relates to the evidentiary issue has not been fully argued before me and I would allow the Crown the opportunity, before this evidence is attempted to be tendered, to have the matter more fully argued if it wishes to do so. However, at this time, I do not believe that the doctrine of issue estoppel prevents the case from proceeding on the basis of the indictment as it now stands.
[28]         Mr. Rybachuk also raises an abuse of process, arguing that the Crown is unreasonably splitting a case. He relies upon R. v. Jewitt, 1985 CanLII 47 (S.C.C.), [1985] 2 S.C.R. 128 at 135, wherein Dickson C.J.C., speaking for the court, stated:
         The Ontario Court of Appeal recently reviewed the authorities in R. v. Young (1984), 40 C.R. (3d) 289, per Dubin J.A., (Howland C.J.O. and Martin J.A. concurring) and concluded on p. 329:
 
                  I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the communitys sense of fair play and decency and to prevent the abuse of a courts process through oppressive or vexatious proceedings.
[29]         Relying also on Regina v. B reflex, (1986), 29 C.C.C. (3d) 365 at 375 (Ont. C.A.), the defence argues that, under certain circumstances, the splitting of a case may amount to an abuse of process. In that case, the Ontario Court of Appeal held that the splitting of a case could amount to an abuse of process:
(1)      where the second trial is such that it will, in effect, force the accused to answer for the same delinquency twice; or
 
(2)      where the second trial is such that it will, in effect, relitigate matters that have already been decided on the merits, raising the spectre of inconsistent verdicts; or
 
(3)      where the second trial is brought because of malice or spite so as to harass the accused and not for any proper purpose.
[30]         I accept the Crowns argument that Mr. Rybachuk is not being asked to answer for the same delinquency twice. The evidence of possession of proceeds of crime is different and deals with different issues than those that were placed before the jury in the first trial. Apart from my comments raised with respect to the transaction of January 27, 1997, I agree that there is no attempt to re-litigate matters that have already been decided on the merits and there will be no issue of inconsistent verdicts. There is no evidence of malice on the part of the Crown in the prosecution.
[31]         For these reasons, I do find no abuse of process in the laying of the second indictment.
[32]         As to the argument that there is a breach of a Charter right, s. 11(h) of the Charter provides protection against being tried a second time for an offence for which one has been acquitted, or against being tried or punished again for an offence for which one has been found guilty and punished. I do not believe that Mr. Rybachuk, at this stage, has set out a breach of that protection. The prosecutions are not for offences for which he has been convicted or acquitted previously for the reasons I have set out above.
[33]         The motion is therefore dismissed.