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Estoppel - Issue Estoppel and Criminal Law. 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. . R v Thompson
In R v Thompson (Ont CA, 2014), a criminal case, the court sets out with useful clarity some of the elements of the doctrine of issue estoppel, including some aspects that apply only to civil cases:The Decision Requirement in Issue Estoppel
[33] The doctrine of issue estoppel is concerned with particular issues common to two different pieces of litigation involving the same parties: R. v. Mahalingan, 2008 SCC 63 (CanLII), 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 17. When applied to a trial, the doctrine focuses on particular determinations of the issues supporting the verdict, not on the ultimate verdict itself, which is the business of double jeopardy: Mahalingan, at para. 17.
[34] Where the doctrine of issue estoppel applies, it prevents the Crown from re-litigating an issue that has been decided in the accused’s favour with finality in a prior criminal proceeding: Mahalingan, at para. 31.
[35] The first requirement for a claim of issue estoppel is that an issue has been decided in a prior proceeding: Mahalingan, at paras. 49 and 52. The onus of proving this threshold requirement falls upon the accused who seeks to invoke the doctrine: Mahalingan, at para. 52.
[36] To satisfy this onus, an accused must show that the question was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding: Mahalingan, at para. 52. It is not enough to show that the evidence was adduced in an earlier proceeding and an acquittal entered: Mahalingan, at para. 52. It must be a necessary inference, either from the judge’s findings or from the fact of the result, that the issue was resolved in the accused’s favour: Mahalingan, at para. 52.
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The Finality Requirement
[47] The second requirement of issue estoppel is that the estoppel-creating decision was final: Mahalingan, at para. 49. Findings on particular issues at trial are final, absent appellate reversal: Mahalingan, at para. 55.
[48] In many instances in which an accused seeks to invoke the preclusive effect of issue estoppel, the estoppel-creating proceeding and the proceeding in which the accused seeks to invoke the doctrine are both trials. It is clear from Mahalingan that the doctrine can operate in both jury and non-jury trials and where the finding said to create the estoppel was a positive finding or a finding based on reasonable doubt: Mahalingan, at para. 31.
[49] Since the proceeding alleged to create the estoppel in this case is not a trial proceeding, an issue arises whether a proceeding other than a trial can constitute an estoppel-creating proceeding that satisfies the finality requirement.
[50] In both Mahalingan and the earlier case of Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, both the estoppel-creating proceeding and that in which the doctrine was invoked were trials. But the terms “trial”, and “proceeding” and “proceedings”, appear in nearly equal measure in the decision in Mahalingan. On their face, the terms “proceeding” and “proceedings” include a trial but take in more ground than “trial”. The terms “proceeding” and “proceedings” could include both pre-trial and sentencing proceedings. Thus, it is helpful to examine some authorities in which an accused has tried to invoke issue estoppel when the estoppel-creating proceeding was not a criminal trial.
The Finality Requirement and Evidentiary Rulings
[51] The terms “proceeding” and “proceedings” would include a voir dire to determine the admissibility of evidence, as well as a preliminary inquiry at the conclusion of which a justice is required to decide whether there is sufficient evidence to put an accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[52] In Duhamel v. The Queen, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555, the appellant was tried separately on two counts of robbery charged in the same indictment. At the first trial, a voir dire was conducted to determine the admissibility of certain statements made by the appellant. The trial judge ruled the statements inadmissible. Duhamel was acquitted. A different judge presided at the second trial. Despite objections based on issue estoppel, the second trial judge conducted a voir dire and admitted the statements ruled inadmissible at the first trial. Duhamel was convicted. On appeal, he argued that issue estoppel precluded the Crown from re-litigating the admissibility of the statements ruled inadmissible at the first trial.
[53] 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.
[54] In Schweneke v. Ontario 2000 CanLII 5655 (ON CA), (2000), 47 O.R. (3d) 97 (C.A.), this court observed that issue estoppel would not apply where the accused had been discharged at the conclusion of a preliminary inquiry into charges of fraud, to preclude the determination in a subsequent civil action of whether he had in fact committed the alleged fraudulent acts. The court pointed out that a judge presiding at a preliminary inquiry does not make findings of fact. The judge decides only whether the evidence as a whole is sufficient to warrant a committal for trial. Such a determination could not found a subsequent claim of issue estoppel.
The Finality Requirement and Sentencing Proceedings
[55] In Punko, one of the appellants contended that issue estoppel could arise from findings of fact made by a sentencing judge under s. 724(2) of the Criminal Code after a jury trial. A majority of the Court concluded that such a finding could not serve as the basis for a claim of issue estoppel.
[56] Findings of fact under s. 724(2)(b) of the Criminal Code, the majority reasoned, do not constitute a judicial determination on the merits of the case. Rather, these findings are judicial determinations made only for the purpose of sentencing: Punko, at para. 11. Findings of fact made by the sentencing judge under s. 724(2)(b) of the Criminal Code cannot be relied upon to support a claim of issue estoppel: Punko, at para. 19.
[57] Revocation hearings under s. 724.6 are sentencing proceedings – more accurately perhaps, the continuation of sentencing proceedings: McIvor, at para. 12. Proof of a breach of a condition of the CSO is analogous to the proof of aggravating facts at the initial sentencing hearing: McIvor, at para. 12. The offender is not charged with an offence and is not at risk of conviction.
Policy Considerations
[58] To the extent that it remains unclear whether sentencing proceedings can serve as an estoppel-creating mechanism, it may be helpful to consider whether the policy considerations that are the genesis of the doctrine of issue estoppel favour one conclusion or the other in this case. The relevance of policy considerations has been recognized in non-criminal cases, albeit in the context whether a court has a discretion to refuse to apply issue estoppel if it will work an injustice, even where the preconditions to its application have been met: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), 2013 SCC 19, 356 D.L.R. (4th) 595, at para. 8; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), 2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 62 and 67.
[59] Issue estoppel serves three purposes. Each purpose is integral to a fair system of criminal justice:i. fairness to the accused who should not be called upon to answer questions already decided in his or her favour;
ii. the integrity and coherence of the criminal law; and
iii. the institutional values of judicial finality and integrity. Mahalingan, at paras. 38-39, and 44-47. See also, Lucido v. Superior Court, 51 Cal. 3d 335 (1990), at p. 343, where the Supreme Court of California concluded that the failure to prove the commission of an offence at a probation revocation hearing did not preclude a subsequent prosecution for the same offence.
The Principles Applied
[60] I would give effect to this ground of appeal. In my view, a CSO revocation decision should not be classified as a final decision capable of giving rise to the operation of issue estoppel in a subsequent criminal trial. I have reached that conclusion for several reasons relating to:i. the nature of revocation proceedings;
ii. the narrow scope of the doctrine of issue estoppel in criminal cases; and
iii. the purposes that underlie issue estoppel. The case also discusses the residual discretion given to civil courts to waive application of the doctrine of issue estoppel in some cases:[81] For nearly half a century, the jurisprudence in this province has left no room for the exercise of a residual discretion in the application of the doctrine of issue estoppel. Where the requirements for the application of the doctrine have been established, issue estoppel applies to preclude re-litigation of an issue decided in the accused’s favour at a prior trial: R. v. Wright, 1965 CanLII 338 (ON CA), [1965] 2 O.R. 337 (C.A.), at pp. 340-341.
[82] In non-criminal proceedings, the Supreme Court of Canada has recognized a residual discretion in the application of issue estoppel. A court may decline to apply the doctrine where its application would create an injustice: Penner, at paras. 1, 31 and 36; Danyluk, at paras. 62-67. In the context of court proceedings, the residual discretion is to be accorded a very limited application: Danyluk, at para. 62; General Motors of Canada Ltd. v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, at p. 101.
[83] The exercise of a residual discretion to decline to apply issue estoppel is governed by considerations of fairness. Unfairness may arise in two principal ways that overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the estoppel-creating proceeding. Second, even where the prior proceeding was conducted with scrupulous fairness and in accordance with its purposes, it may be unfair to use the results of the estoppel-creating proceeding to preclude the subsequent proceeding: Penner, at para. 39.
[84] To determine whether the operation of issue estoppel would create unfairness through according preclusive effect to the results of a prior proceeding in a subsequent proceeding requires a nuanced inquiry. Relevant factors in this inquiry may include, but are not limited to:i. the nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings (Penner, at paras. 42 and 45);
ii. the reasonable expectations of the parties in relation to the scope and effect of the prior proceeding as informed by the text and purpose of the enabling legislation (Penner, at para. 47);
iii. the risk of adding to the complexity and length of the estoppel-creating proceeding by attaching undue weight to its results through the application of issue estoppel (Penner, at para. 62);
iv. the availability of an appeal from the finding in the estoppel-creating proceeding (Danyluk, at para. 74); and
v. whether, in all the circumstances of the case, the application of issue estoppel would work an injustice (Danyluk, at para. 80).
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