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Criminal - Estoppel. Canada (Privacy Commissioner) v. Facebook, Inc.
In Canada (Privacy Commissioner) v. Facebook, Inc. (Fed CA, 2024) the Federal Court of Appeal considers 'promissory estoppel' in a regulatory offence context:[126] .... Similarly, promissory estoppel can be raised against a public authority (Malcolm v. Canada (Minister of Fisheries and Oceans), 2014 FCA 130, 460 N.R. 357 at para. 38 [Malcolm]).
....
[134] Finally, estoppel in a public law context has narrow application, and "“requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped”" (Malcolm at para. 38). The Commissioner cannot be prevented from carrying out its statutory duty today because of an equivocal representation made over a decade prior. . R. v. Wilson
In R. v. Wilson (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal, here where separate judges heard two separate (severed) sexual offence charges regarding separate alleged victims but the same defendant. The first count convicted relying on similar fact evidence from the second alleged victim, but the second count was dismissed. Consequently the first count judge granted a mistrial: "... on the basis that the respondent was acquitted in the subsequent trial involving child two."
This unusual similar fact situation was previously addressed in the case of R v Mahalingan (SCC, 2008) [raised by the Crown], which "stands for the proposition that an acquittal in a subsequent trial cannot operate retrospectively to render evidence inadmissible which had already been accepted in an earlier trial" - which was rare criminal 'issue-estoppel' reasoning:[15] ... The Supreme Court’s decision in Mahalingan stands for the proposition that an acquittal in a subsequent trial cannot operate retrospectively to render evidence inadmissible which had already been accepted in an earlier trial: Mahalingan (SCC), at para. 79.
[16] The trial judge understood Mahalingan (SCC) to apply only when the first trial was completed. Because he had not yet sentenced the respondent, the trial was not formally completed: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12. The trial judge therefore concluded that Mahalingan did not apply.
[17] The trial judge reopened the case, allowed the fresh evidence application and declared a mistrial in accordance with R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219.
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(1) Did the trial judge err by failing to follow Mahalingan?
[18] In order to understand the significance of Mahalingan, it is necessary to review the background law relating to issue estoppel. I summarize the historical context and review Mahalingan. I then consider the trial judge’s interpretation of Mahalingan (SCC).
(a) Background of Issue Estoppel
[19] Issue estoppel is a legal doctrine which estops the re-litigation of disputed issues and prevents a party against whom an issue has been decided from proffering evidence to contradict the earlier result: R. v. Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at para. 77. The doctrine is concerned with “whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding”: Mahalingan (SCC), at para. 16.
[20] The application of issue estoppel to acquittals in criminal proceedings has been controversial. The foundational Canadian decision – and the source of the confusion – is R. v. Grdic, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810. In that case the court held that an acquittal is the equivalent to a finding of innocence: Grdic, at p. 825. As applied in Grdic, issue estoppel prevented the Crown from prosecuting the accused for perjury based on alibi evidence given at an earlier trial where he had been acquitted. As observed by McLachlin C.J. in Mahalingan, the estoppel principle in Grdic was “clearly concerned with the relitigation of an issue that had, in a previous proceeding, been resolved in the accused’s favour”: Mahalingan (SCC), at para. 27.
[21] In G.(K.R.), this court applied the Grdic principle to set aside a conviction based on a subsequent acquittal: G.(K.R.), at paras. 5-7, 17. The appellant in G.(K.R.) was convicted of sexual offences against two children based in part on the similar fact evidence of a third child. In a later trial, the appellant was acquitted of the third child’s allegations. On appeal against the convictions entered at the first trial, the appellant sought to introduce the acquittal as fresh evidence and invited this court to consider the trial record as if the testimony of the third child were not there. The court was asked to decide whether the absence of this testimony would reasonably have been expected to affect the result: G.(K.R.), at para. 8. Citing the Grdic principle that an acquittal is equivalent to a finding of innocence, the court held that “there would be a clear miscarriage of justice if allegations of conduct, of which [the appellant] was innocent, played a part in his conviction for these offences”: G.(K.R.), at para. 13. On this basis, the court admitted the acquittal, removed the testimony of the third child from the record, set aside the convictions, and ordered a new trial: G.(K.R.), at para. 17.
[22] In the years following G.(K.R.), the exclusion of similar fact evidence on the basis of issue estoppel became the subject of criticism.[1] Some jurisdictions have completely rejected the reasoning the Grdic.[2] It was suggested that the case law has misinterpreted Grdic, which was a case about issue estoppel, and misapplied it to bar otherwise admissible similar fact evidence. It was said that the concerns “underlying issue estoppel do not apply to similar fact” evidence, with estoppel requiring that the identical legal issue be decided in both cases.[3]
[23] The Supreme Court of Canada mitigated the impact of issue estoppel on the use of similar fact evidence when it decided R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339. In Arp the Supreme Court confirmed that the estoppel principle from Grdic does not apply “to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding”: Arp, at para. 79. In relation to the test for admission of similar fact evidence as opposed to conviction, the Supreme Court held that there “is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it”: Arp, at para. 79. Accordingly, Arp confirmed that, in a trial involving similar fact evidence, the trier of fact may use the evidence from one count on which there was an acquittal to assess an accused’s liability on other counts once an improbability of coincidence is established.
[24] Then came Mahalingan.
(b) Mahalingan
[25] The accused was convicted of aggravated assault. The eyewitness who identified him as the attacker testified that, shortly before the trial commenced, the accused had telephoned him from jail asking that the eyewitness not testify against him. The accused was subsequently charged with attempting to obstruct justice in relation to the alleged phone call. The accused’s trial on that charge occurred following the conclusion of the first trial. The Crown adduced evidence of the telephone call mirroring that evidence put forward at the initial trial. The accused was acquitted on the obstruction of justice charge. He appealed his aggravated assault conviction, seeking to have his acquittal for obstructing justice accepted as fresh evidence in his appeal.
[26] Based on the doctrine of issue estoppel, he submitted that the acquittal had the retrospective effect of rendering the testimony about the phone call inadmissible at his initial trial.
(c) The Court of Appeal for Ontario
[27] The Court of Appeal unanimously allowed the accused’s appeal against conviction and ordered a new trial on the ground that the trial judge had failed to outline the position of the defence in his instructions to the jury: R. v. Mahalingan (2006), 2006 CanLII 12957 (ON CA), 80 O.R. (3d) 35, at paras. 37, 69, 70 (“Mahalingan (ONCA)”). The court was divided, however, on the fresh evidence application.
[28] Sharpe J.A., writing for the majority, recognized and agreed with the criticism of the treatment of issue estoppel, see Mahalingan (ONCA) at para. 62:The exclusion of similar fact evidence on the basis of issue estoppel has been the subject of trenchant criticism by academic and other authors. [References omitted, included in footnote.[4]] [29] Sharpe J.A. agreed with cases that called for the Supreme Court to clarify issue estoppel but concluded that the court was bound by the holding in Grdic and subsequent case law affirming that interpretation: Mahalingan (ONCA), at paras 60-61.
[30] Blair J.A., in dissent, explained why he disagreed. He concluded that the subsequent acquittal on the charge of obstructing justice did not retrospectively render inadmissible the evidence of the accused’s telephone call to the eyewitness and would have dismissed the application for fresh evidence, see Mahalingan (ONCA), at para. 78:I do not accept that the acquittal is admissible and useable for these purposes. While I agree with my colleague that this is an area of the law that the Supreme Court of Canada may wish to reassess – for the reasons articulated in the literature he canvasses – I do not share his view that we are bound by authority either in the Supreme Court of Canada or in this court to come to a different conclusion. [31] Blair J.A. further explained at paras. 81 and 82:Indeed, the retrospective application of issue estoppel in the circumstances of this case at least, is meaningless. It is meaningless because it does not respond to any of the basic principles that underpin the notion of issue estoppel, namely:(a) to promote finality in litigation (in this case, it accomplishes the opposite, by fostering yet another proceeding);
(b) to prevent double jeopardy and unfairness to the accused, who should not be required to defend himself or herself continuously against the same allegations, once the legal system has determined the issue in his or her favour (that is not the case here); and
(c) to guard against inconsistent verdicts (again, not a concern here, as attempting to obstruct justice was not an issue at the attempt murder/aggravated assault trial, and the two different triers of fact were operating on the basis of a different standard of proof). ...
Consequently, I do not view Grdic as precluding us from dismissing this ground of appeal. Indeed, it seems to me that the Supreme Court's more recent decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 129 C.C.C. (3d) 321 suggests the contrary. (d) The Supreme Court of Canada
[32] On appeal from this court, the Supreme Court took the opportunity to clarify the law. Chief Justice McLachlin, writing for the majority, referred to Grdic as having created “perplexing difficulties” and referred to the “calls for reform”: Mahalingan (SCC), at para. 1. Rather than eliminate issue estoppel entirely from criminal law – as Charron J. said in dissent – McLachlin C.J. opted to narrow its application. As she said at para. 2:I would modify the current Canadian approach to issue estoppel in criminal law, confining it to the focused compass of precluding the Crown from leading evidence which is inconsistent with findings made in the accused’s favour in a previous proceeding. [33] Chief Justice McLachlin specifically adopted the reasoning of Blair J.A. and concluded that “properly understood, issue estoppel does not operate retrospectively to require the ordering of a new trial”: Mahalingan (SCC), at para. 3. This new approach, per McLachlin C.J., would cause the difficulties to “largely vanish”: Mahalingan (SCC), at para. 17.
[34] And to further clarify, McLachlin C.J. concluded at para. 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. [35] The Supreme Court clearly modified the use of issue estoppel that had operated in G. (K.R.). Chief Justice McLachlin explicitly referred to G.(K.R.) as one of the “most significant extensions of the traditional rule of issue estoppel” by expanding issue estoppel to “operate retrospectively to bar or require the redaction of evidence from a first trial, where there is an acquittal on a subsequent charge”: Mahalingan (SCC), at para. 33. Rather than adopting this view, McLachlin C.J. clearly says “issue estoppel should not be understood to operate retrospectively”: Mahalingan (SCC), at para. 33.
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