Her Majesty the Queen v. Thompson

[Indexed as: R. v. Thompson]

Ontario Reports

Court of Appeal for Ontario,

Cronk, Watt and van Rensburg JJ.A.

January 20, 2014

118 O.R. (3d) 676 | 2014 ONCA 43

Case Summary

Criminal law — Res judicata — Issue estoppel — Application to revoke conditional sentence order dismissed as evidence Crown adducing to prove allegation that accused being in possession of cocaine was inadmissible hearsay — Crown then charging accused with being in possession of cocaine for purpose of trafficking and possession of the proceeds of crime — Accused arguing that issue estoppel preventing Crown from introducing evidence that accused was in possession of same cocaine that formed basis of unsuccessful application to revoke conditional sentence — Trial judge erring by staying trafficking charge — Conditional sentence order revocation decision not constituting final decision capable of giving rise to operation of issue estoppel in subsequent criminal trial.

The Crown brought an application to revoke a conditional sentence order on the ground that the accused had breached a term of the conditional sentence order ("CSO") by possessing cocaine. The presiding judge found that the statement filed at the hearing to establish that the accused was in possession of the cocaine was inadmissible hearsay. At the request of the Crown, she dismissed the allegation. In a separate proceeding, the accused was charged with possession of cocaine for the purpose of trafficking arising out of his alleged possession of the same cocaine and possession of the proceeds of crime. The trial judge found that issue estoppel precluded the Crown from introducing evidence that the accused was in possession of the cocaine. She entered a stay of proceedings in relation to the trafficking charge. The Crown appealed.

Held, the appeal should be allowed.

The first requirement of issue estoppel was met. The trial judge was correct in finding that the issue of possession of cocaine was decided in the accused's favour at the revocation proceedings. The second requirement is that the estoppel-creating decision has to be final. However, the CSO revocation did not constitute a final decision capable of giving rise to the operation of issue estoppel in a subsequent criminal trial. Revocation proceedings at their core are sentencing proceedings in which the offender is neither charged with an offence nor in jeopardy of further conviction on proof of further criminal conduct. Findings of fact made by a sentencing judge under s. 724(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46 cannot found an issue estoppel. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of issue estoppel, yet deny the same status to others. Moreover, the operation of issue estoppel in criminal cases falls within a narrow compass responsive to the unique characteristics of criminal trials. It would be inimical to such a restrictive scope to expand the doctrine to the circumstances revealed here. Finally, to permit CSO revocation proceedings to found the doctrine of issue estoppel would not be consistent with the policies that underlie the doctrine and its purposes. The Crown appeal is allowed.

R. v. Mahalingan, [2008] 3 S.C.R. 316, [2008] S.C.J. No. 64, 2008 SCC 63, 237 C.C.C. (3d) 417, EYB 2008-150418, J.E. 2008-2190, 243 O.A.C. 252, 300 D.L.R. (4th) 1, 381 N.R. 199, 61 C.R. (6th) 207, 79 W.C.B. (2d) 820, consd [page677]

Other cases referred to

Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44, 201 D.L.R. (4th) 193, 272 N.R. 1, J.E. 2001-1439, 149 O.A.C. 1, 34 Admin. L.R. (3d) 163, 10 C.C.E.L. (3d) 1, [2001] CLLC Â210-033, 7 C.P.C. (5th) 199, 106 A.C.W.S. (3d) 460; General Motors of Canada Ltd. v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, [1983] S.C.J. No. 9, 144 D.L.R. (3d) 385, 46 N.R. 139, 32 C.P.C. 138, 18 A.C.W.S. (2d) 133; Lucido v. Superior Court, 51 Cal. 3d 335, 795 P.2d 1223, 272 Cal. Rptr. 767 (1990); Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, 304 O.A.C. 106, 442 N.R. 140, 2013EXP-1164, J.E. 2013-639, EYB 2013-220248, 14 Admin. L.R. (5th) 1, 32 C.P.C. (7th) 223, 356 D.L.R. (4th) 595, 226 A.C.W.S. (3d) 139; R. v. Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555, [1984] S.C.J. No. 58, 14 D.L.R. (4th) 92, 57 N.R. 162, [1985] 2 W.W.R. 251, 35 Alta. L.R. (2d) 1, 57 A.R. 204, 15 C.C.C. (3d) 491, 43 C.R. (3d) 1, 13 W.C.B. 206; R. v. Grdic, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, [1985] S.C.J. No. 41, 19 D.L.R. (4th) 385, 59 N.R. 61, [1985] 4 W.W.R. 437, 19 C.C.C. (3d) 289, 46 C.R. (3d) 1; R. v. McIvor, [2008] 1 S.C.R. 285, [2008] S.C.J. No. 11, 2008 SCC 11, 229 C.C.C. (3d) 1, J.E. 2008-671, EYB 2008-131142, 290 D.L.R. (4th) 1, 372 N.R. 135, 55 C.R. (6th) 26, 76 W.C.B. (2d) 773; R. v. Punko, [2012] 2 S.C.R. 396, [2012] S.C.J. No. 39, 2012 SCC 39, 324 B.C.A.C. 23, 433 N.R. 60, 2012EXP-2689, 94 C.R. (6th) 285, 348 D.L.R. (4th) 418, 284 C.C.C. (3d) 285, J.E. 2012-1420, 101 W.C.B. (2d) 191; R. v. Wright, 1965 CanLII 338 (ON CA), [1965] 2 O.R. 337, [1965] O.J. No. 985, 50 D.L.R. (2d) 498, [1965] 3 C.C.C. 160, 45 C.R. 38 (C.A.); Schweneke v. Ontario (2000), 2000 CanLII 5655 (ON CA), 47 O.R. (3d) 97, [2000] O.J. No. 298, 130 O.A.C. 93, 48 C.C.E.L. (2d) 306, 41 C.P.C. (4th) 237, 94 A.C.W.S. (3d) 927 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11

Controlled Drugs and Substances Act, S.C. 1996, c. 19 [as am.]

Criminal Code, R.S.C. 1985, c. C-46, ss. 145(3)-(5.1), 524(3), 724(2) [as am.], (b), 742.3(1) (a), 742.6 [as am.], (4), (5) [as am.], (8), (9), (15) [as am.]

APPEAL by the Crown from a stay of proceedings entered by B.A. Allen J., sitting without a jury, [2012] O.J. No. 3148, 2012 ONSC 3979, 288 C.C.C. (3d) 315 (S.C.J.).

Stephen Dawson, for appellant.

Carlos F. Rippell, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: — 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.

[2] In most criminal cases where issue estoppel is advanced by an accused, both the earlier and later proceedings are trials. But not always. Not here, at least.

[3] In this case, the first proceeding was a revocation application under s. 742.6 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown alleged that Dave Thompson (the respondent) breached a term of his conditional sentence order ("CSO") -- to [page678] keep the peace and be of good behaviour -- after police officers found crack and powder cocaine in his bedroom. The Crown's application failed because its evidence did not establish that the respondent was in possession of the substances seized.

[4] The second proceeding was the prosecution of the respondent for possession of the same cocaine for the purposes of trafficking, and for possession of the proceeds of crime as a result of some money found during the same search. The prosecution failed too. The trial judge thought that issue estoppel precluded the Crown from introducing evidence that the respondent was in possession of cocaine for the purpose of trafficking, because that fact (possession of the cocaine) had been decided in the respondent's favour on the revocation hearing. The trial judge entered a stay of proceedings on the possession for the purpose count.

[5] The Crown appeals. As I will explain, I am satisfied that the trial judge erred in holding that issue estoppel precluded the Crown from introducing the evidence it sought to elicit to prove the count of possession of cocaine for the purpose of trafficking. I would set aside the stay entered on that count and order a new trial.

The Background Facts

[6] A brief elaboration on what has already been said is sufficient background to the discussion that follows.

The conditional sentence order

[7] On April 7, 2010, the respondent pleaded guilty to and was convicted of trafficking in a controlled substance. He was sentenced to a term of imprisonment of 15 months to be served in the community. A compulsory condition of the CSO under s. 742.3(1)(a) of the Criminal Code required the respondent to keep the peace and be of good behaviour.

The search and seizure

[8] About four months after the CSO had been imposed, police executed a warrant at the respondent's house under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The respondent was home when the warrant was executed. In what was alleged to be the respondent's bedroom, police found crack and powder cocaine and about $3,000 in Canadian currency alleged to be the proceeds of crime.

The charges

[9] As a result of the drugs and money found during the search, the respondent was charged with possession of cocaine [page679] for the purpose of trafficking and possession of the proceeds of crime.

The revocation hearing

[10] About two and one-half months after the respondent's arrest on the new charges, the Crown proceeded with a revocation hearing under s. 742.6 of the Criminal Code. The Crown alleged that the respondent had breached the condition that he keep the peace and be of good behaviour by possessing powder and crack cocaine found during the search of his bedroom.

[11] At the revocation hearing, Crown counsel (not Mr. Dawson) called no witnesses. Relying on s. 742.6(4) of the Criminal Code, the Crown filed a written report of the respondent's CSO supervisor and a signed statement from the investigating officer describing what happened on the search of the respondent's home. No certificate of analysis of the substances found during the search was filed.

[12] During submissions at the revocation hearing, it became clear that the investigating officer who had signed the witness statement was present during the execution of the warrant, but did not himself make or otherwise participate in the seizures. The officer's description of both the location of the seizures and the nature of the substances found was simply a repetition of what he had been told by others.

[13] Counsel for the respondent at the hearing took the position that the Crown had failed to adduce any admissible evidence that the respondent was in possession of cocaine when the police searched his home. The statement filed on the hearing was inadmissible to prove where the substance was located when it was seized, because it was hearsay. Thus, the Crown failed to establish the breach alleged.

[14] Counsel for the Crown at the revocation hearing, although initially asserting that the evidence was sufficient to establish a breach, ultimately acknowledged the hearsay nature of the officer's statement and agreed that there was no admissible evidence to prove the material fact that cocaine was found in the accused's possession. He invited the judge to dismiss the application.

The decision at the revocation hearing

[15] The judge presiding at the revocation hearing thanked Crown counsel for acknowledging the hearsay nature of the officer's statement and continued:

I do think it's in breach of the requirement as outlined in R. v. McIvor from the Supreme Court of Canada and I simply can't rely on hearsay evidence [page680] for the material fact of Mr. Thompson being in possession of this drug or otherwise. So I thank you for that. So the proceeding will be marked dismissed.

[16] The judge concluded her brief reasons in this way:

The federal Crown requested that the matter be dismissed after submissions and it was granted. Sir, there is no need to apologize. Quite frankly, you should be commended for the position you'd taken after the submissions.

The trial proceedings

[17] About 20 months after the revocation hearing had concluded, the respondent appeared for trial on the charges arising out of the drugs and money found on the execution of the search warrant at his home.

[18] At the outset of the trial proceedings, counsel for the respondent (not Mr. Rippell) sought a ruling that issue estoppel precluded relitigation of the issue whether the respondent was in possession of controlled substances. Crown counsel resisted the application.

The decision of the trial judge

[19] The trial judge concluded that the respondent had established the prerequisites for the operation of the doctrine of issue estoppel. She explained her conclusion in these terms [at paras. 20-22]:

I am of the view that Mr. Thompson has met his burden to show that the requirements for the application on issue estoppel have been met. There is no question about satisfaction of the first requirement -- that the same issue of possession that was before the court in the conditional sentence hearing is now before the court to be tried. The third element of common parties at both proceedings is also clearly satisfied. In the Crown's view, it is not clear that Kelly, J. finally disposed of the specific issue of possession.

I disagree. I find that Kelly, J. made a conclusive finding on a specific question of fact. She made a determination on a material fact in the accused's favour in concluding the Crown failed through the evidence presented in the signed witness statements to meet its burden to prove that Mr. Thompson was in possession of the drugs. The parties were left with no uncertainty about that at the end of the proceeding.

This is the type of circumstance in the criminal context that is contemplated by the doctrine of issue estoppel. Proceeding to trial would leave open the possibility for inconsistent findings on the issue of possession. Mr. Thompson has a decision in his favour on possession. It would be a patent injustice to him and not in the interests of the fair administration of justice for him to be faced once again with defending himself against the same allegation.

[20] The trial judge entered a stay of proceedings on the count of possession of cocaine for the purpose of trafficking. Counsel [page681] for the Crown (not Mr. Dawson) directed entry of a stay of proceedings on the proceeds count.

The Grounds of Appeal

[21] Crown counsel advances three grounds of appeal. He submits that the trial judge

(i) erred in applying issue estoppel when no issue had been resolved by the judge presiding at the revocation hearing;

(ii) erred in applying issue estoppel to an interlocutory ruling, thus exceeding the narrow scope of the doctrine; and

(iii) erred in failing to consider her residual discretion to refuse to enter a stay of proceedings where the conditions precedent to the operation of the doctrine of issue estoppel had been met.

Ground #1: The lack of a decision on an issue

[22] This ground of appeal focuses on the requirement that there be a prior judicial decision or finding which is said to create the estoppel in a subsequent proceeding.

The arguments on appeal

[23] For the appellant, Mr. Dawson emphasizes that the doctrine of issue estoppel imposes a stringent test for establishing the identity of issues between the estoppel-creating and the estoppel-applying proceedings. In the estoppel-creating proceedings, an issue must be expressly resolved, or must necessarily be the only rational explanation for the verdict.

[24] Mr. Dawson says that no issue was resolved at the revocation hearing. No admissible evidence was adduced to prove the alleged breach. Crown counsel invited the judge to dismiss the application. That dismissal was not the equivalent of an acquittal although the trial judge treated it as if she were applying the special plea of autrefois acquit. No decision. No issue estoppel.

[25] For the respondent, Mr. Rippell contends that the appellant has mischaracterized what occurred at the revocation hearing. Evidence was adduced at the hearing in documentary form as s. 742.6(5) expressly permits. This evidence has the same probative force as viva voce testimony to the same effect. The judge at the revocation hearing made a conclusive finding on a specific contested factual issue: possession of cocaine. That finding satisfied the first prerequisite to engage the doctrine of issue estoppel. [page682]

The governing principles

[26] Before examining the prerequisites to the application of the doctrine of issue estoppel, it is helpful to recall briefly the nature of revocation hearings under s. 742.6 of the Criminal Code.

Revocation hearings under s. 742.6

[27] A CSO revocation hearing is initiated by the arrest of the offender for an alleged breach of the order, or by the issuance of some other form of process to compel the offender's appearance before a court of competent jurisdiction. The hearing is to be conducted within 30 days of the offender's arrest or compelled appearance, or as soon afterwards as is practicable in the circumstances.

[28] The issue on the hearing is framed by the dispositive authority in s. 742.6(9): Did the offender breach a condition of the CSO without a reasonable excuse? The onus of proving the breach is on the Crown. The onus of establishing a reasonable excuse is on the offender. The standard of proof for both is proof on a balance of probabilities.

[29] Breach of a condition of a CSO is not an offence. Thus, a person alleged to have breached a condition of a CSO is not "charged with an offence" for the purposes of s. 11 of the Canadian Charter of Rights and Freedoms. In some respects, CSO breach proceedings are like prosecutions for breach of probation, coupled with a revocation hearing to lift the suspension of a sentence: R. v. McIvor, [2008] 1 S.C.R. 285, [2008] S.C.J. No. 11, 2008 SCC 11, at para. 12. The analogy is imperfect, however, because breach of probation is an offence, triable by indictment or summary conviction, and must be proven beyond a reasonable doubt. A closer analogy might be bail revocation proceedings under s. 524(3) of the Criminal Code.[^1]

[30] Parliament intended that allegations of a breach of the conditions in a CSO would be heard and determined in a simple, expedited manner, unencumbered by the formalities associated with criminal trial proceedings: McIvor, at para. 18. For example, s. 742.6(4) permits documentary proof, rather than viva voce testimony, of the alleged breach. Leave is required under s. 742.6(8) before the supervisor or any witness whose [page683] signed statement is included in the supervisor's report may be cross-examined.

[31] Despite Parliament's intention that alleged breaches of the conditions of a CSO be heard and determined in an expedited, less formal way, s. 742.6 does not countenance a complete departure from the ordinary rules of evidence. The documentary evidence submitted -- the CSO supervisor's report and signed statements of witnesses -- must not extend beyond what their respective authors could say if called to give viva voce testimony at the hearing: McIvor, at para. 24. It would seem logically to follow that the offender is entitled to challenge any part of the Crown's documentary evidence that fails to comply with the rules of evidence -- like the hearsay rule -- and the judge presiding on the revocation hearing would be required to rule on the challenge.

[32] Section 742.6(9) defines the dispositive authority of the presiding judge where the Crown has proven a breach of a condition of the CSO and the offender has failed to establish a reasonable excuse for the breach. Where the Crown fails in its proof, or the offender establishes a reasonable excuse, the allegation is dismissed. Section 742.6(15) also anticipates that the allegation may be withdrawn.

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] 3 S.C.R. 316, [2008] S.C.J. No. 64, 2008 SCC 63, 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 relitigating 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. [page684] 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.

The principles applied

[37] I would not give effect to this ground of appeal.

[38] The ultimate issue before the judge presiding at the revocation hearing was whether the Crown had proven, on a balance of probabilities, that the respondent had breached the "keep the peace and be of good behaviour" condition of the CSO. The conduct alleged to constitute the breach consisted of the respondent's possession of the crack and powder cocaine that was discovered on the execution of the search warrant at his home.

[39] The presiding judge found that the Crown had failed to provide admissible evidence proving that the respondent had possessed cocaine. She dismissed the allegation at the request of the Crown. The inevitable result of this decision is that the issue of possession of cocaine was decided in the respondent's favour at the revocation proceedings. The first requirement of issue estoppel has been met. The application of the doctrine cannot be defeated on this basis.

Ground #2: The finality requirement

[40] The second ground of appeal focuses on the nature of the proceedings in which the estoppel-creating decision was made. For ease of reference, I will excerpt once again the relevant part of the trial judge's reasons giving effect to the doctrine.

The reasons of the trial judge

[41] The trial judge explained why she applied the doctrine of issue estoppel in these terms [at paras. 20-22]:

I am of the view that Mr. Thompson has met his burden to show that the requirements for the application on [sic] issue estoppel have been met. There is no question about satisfaction of the first requirement -- that the same issue of possession that was before the court in the conditional sentence hearing is now before the court to be tried. The third element of common parties at both proceedings is also clearly satisfied. In the Crown's view, it is not clear that Kelly, J. finally disposed of the specific issue of possession.

I disagree. I find that Kelly, J. made a conclusive finding on a specific question of fact. She made a determination on a material fact in the accused's favour in concluding the Crown failed through the evidence presented in the signed witness statements to meet its burden to prove that Mr. Thompson was in possession of the drugs. The parties were left with no uncertainty about that at the end of the proceeding.

This is the type of circumstance in the criminal context that is contemplated by the doctrine of issue estoppel. Proceeding to trial would leave open [page685] the possibility for inconsistent findings on the issue of possession. Mr. Thompson has a decision in his favour on possession. It would be a patent injustice to him and not in the interests of the fair administration of justice for him to be faced once again with defending himself against the same allegation.

The arguments on appeal

[42] For the appellant, Mr. Dawson says that findings made at CSO revocation hearings cannot found a claim of issue estoppel in later trial proceedings. He submits that despite the references to both "proceedings" and "trial" in Mahalingan, the decision only makes sense if the prior proceeding is a trial.

[43] Mr. Dawson emphasizes that issue estoppel is applied narrowly in the criminal law. It is not invoked simply because a prior decision or ruling was made on an issue common to two proceedings. The estoppel-creating decision must be final. Findings on particular issues at trial are final. Not so, rulings made at preliminary inquiries or in sentencing hearings. Rejection of this claim of issue estoppel is consistent with the goals served by and the principles that underlie the doctrine.

[44] For the respondent, Mr. Rippell disputes the appellant's submission that issue estoppel is limited to findings made at trial. The doctrine does not apply to interlocutory rulings made at a preliminary inquiry, or to discharges granted at the conclusion of preliminary inquiries, because no right of appeal exists in either case. Besides, judges presiding at preliminary inquiries cannot make findings of fact, which are critical elements in issue estoppel.

[45] Mr. Rippell contends that a CSO revocation hearing is more akin to a prosecution for breach of probation than any other kind of proceeding. As with findings made at the conclusion of a prosecution for breach of probation, findings made at revocation hearings, he says, can satisfy the finality requirement in issue estoppel. The fact that CSO revocation proceedings are sentencing proceedings, like proceedings under s. 724(2) of the Criminal Code, does not in itself foreclose issue estoppel under R. v. Punko, [2012] 2 S.C.R. 396, [2012] S.C.J. No. 39, 2012 SCC 39. Further, policy considerations favour the application of issue estoppel in these circumstances because it encourages diligence by the Crown in collecting and presenting evidence at the revocation hearing, the object of which is to deprive the offender of his or her liberty.

The governing principles

[46] This ground of appeal requires consideration of a further prerequisite for the operation of the doctrine of issue estoppel in [page686] a criminal case. It is necessary to examine whether this requirement -- finality of the estoppel-creating decision -- bars the application of the doctrine where the finding said to create the estoppel occurred in sentencing proceedings.

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 R. v. Grdic, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, [1985] S.C.J. No. 41, 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 R. v. Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555, [1984] S.C.J. No. 58, 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 [page687] 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 relitigating 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), 2000 CanLII 5655 (ON CA), 47 O.R. (3d) 97, [2000] O.J. No. 298 (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. [page688]

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] 2 S.C.R. 125, [2013] S.C.J. No. 19, 2013 SCC 19, 356 D.L.R. (4th) 595, at para. 8; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001 SCC 44, 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, 795 P.2d 1223 (1990), at p. 343 Cal. 3d, 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.

[61] First, revocation proceedings at their core are sentencing proceedings in which the offender is neither charged with an [page689] offence nor in jeopardy of further conviction on proof of further criminal conduct. The revocation hearing may be regarded as a continuation of sentencing proceedings where proof of a breach is analogous to the proof of aggravating facts: McIvor, at para. 12. Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an issue estoppel: Punko, at para. 19. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of the doctrine, yet deny the same status to others.

[62] Second, Mahalingan makes the point that the operation of issue estoppel in criminal cases falls within a narrow compass responsive to the unique characteristics of criminal trials: Mahalingan, at paras. 2 and 17. It would be inimical to such a restrictive scope to expand the doctrine to the circumstances revealed here.

[63] Third, to permit CSO revocation proceedings to found the doctrine of issue estoppel would not be consistent with the policies that underlie the doctrine and its purposes.

[64] Public confidence in the integrity of the judicial system is threatened whenever two tribunals render inconsistent verdicts. Undoubtedly, applying issue estoppel in this case eliminated the possibility of any inconsistency between the CSO revocation and criminal trial determinations. But we must remember that 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: Lucido, at p. 347 Cal. 3d.

[65] CSO revocation proceedings and criminal trials serve different public interests. Different concerns may shape the Crown's pursuit of each.

[66] A CSO revocation hearing assesses whether conditions imposed as part of a sentence for a prior crime have been violated such that the prior sentence should be varied or terminated and the offender incarcerated. Revocation hearings are part of the continuing consequences of an offender's original conviction. Any sanction imposed follows from that crime, not from the substance of new criminal allegations against the offender. If the Crown succeeds at the revocation hearing, the result is not a fresh conviction. Indeed, the result may be nothing at all, or at worst, termination of the CSO and incarceration.

[67] The fundamental role and responsibility of the CSO revocation hearing judge is not to determine whether the offender is guilty of a crime. The hearing judge's job is to decide whether a breach of condition has been proven to have occurred and, if it [page690] has, what to do about it. The limited nature and the likely timing of this hearing -- within 30 days of the offender's arrest or compelled appearance, absent an extension -- may mean that not all evidence bearing on the underlying factual allegations is available or adduced.

[68] To pre-empt trial of a new charge by according preclusive effect to a revocation decision, which is designed to perform a wholly independent social and legal task, would undermine the function of the criminal trial process as the designated forum for ultimate determinations about guilt or innocence of newly alleged crimes: Lucido, at p. 349 Cal. 3d.

[69] From the point of view of judicial economy, we could say that the application of issue estoppel in circumstances like these

(i) would reduce, by one, the number of court proceedings because of the preclusive effect of issues decided adversely to the Crown at the revocation proceeding; and

(ii) by increasing the stakes at the revocation hearing, might encourage the Crown to prosecute first and eliminate the need for a revocation hearing.

But there is another side -- the importance of preserving the criminal trial process as the exclusive forum for deciding whether an alleged offender is guilty or innocent of committing new crimes: Lucido, at pp. 350-51 Cal. 3d.

[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. It is neither vexatious nor unfair for a person serving a conditional sentence to be subjected to both a revocation hearing and a criminal trial. Indeed, an informed public might expect no less.

[71] As I have said, I would give effect to this ground of appeal.

Ground #3: Failure to consider discretion

[72] The final ground of appeal is an alternative claim of error advanced in the event that we determine that the doctrine of issue estoppel applies in this case. The submission is that the trial judge erred in failing to consider that she had a residual discretion not to apply issue estoppel even if all the requirements to invoke the doctrine were met. [page691]

[73] It is perhaps unnecessary to consider this ground because I have concluded that issue estoppel did not bar relitigation of the possession issue at trial. But out of deference to the submissions of counsel, and in the event of further review, I will deal with the claim briefly.

The decision of the trial judge

[74] The reasons of the trial judge contain no reference to the availability of any residual discretion not to give effect to issue estoppel where the conditions for its application would otherwise be met. The record with which we were provided reveals no mention of any such discretion.

The arguments on appeal

[75] For the appellant, Mr. Dawson begins by readily acknowledging that this court has previously decided that, in a criminal case, a trial judge has no residual discretion to refuse to apply the doctrine of issue estoppel where the conditions precedent to its operation have been satisfied.

[76] Mr. Dawson says that when an accused invites a trial judge to apply the doctrine of issue estoppel, the judge should nonetheless consider both of the following issues:

(i) whether the conditions precedent to the operation of the doctrine have been satisfied in the proceedings; and

(ii) if the conditions precedent have been established, whether the doctrine should be applied to preclude litigation of the common issue.

[77] Mr. Dawson points out that the Supreme Court of Canada has held that in civil proceedings, a court retains a discretion not to apply issue estoppel, where to do so would cause a real injustice. To decide whether to exercise this residual discretion, a court should consider several factors, including

(i) the purposes, processes and stakes involved in the prior proceedings;

(ii) whether a significant difference between the two proceedings would make for an injustice if the results of the first proceeding precluded the second proceeding;

(iii) whether the first proceeding was intended to create a final resolution; and

(iv) whether, at the time of the first proceeding, the parties reasonably expected that it would create a final resolution. [page692]

These principles, Mr. Dawson submits, should apply in criminal cases. After all, the criminal law has always recognized discretion when an accused seeks a stay of proceedings.

[78] For the respondent, Mr. Rippell takes the position that for nearly half a century the law in this province has been that, in criminal cases, a judge has no residual discretion to decline to apply the doctrine of issue estoppel where its conditions precedent have been established. The decision in Grdic leaves no room for discretion. And the court in Mahalingan makes no mention of discretion in advocating a simple, clear, narrowly focused rule responsive to the unique characteristics of the criminal trial.

[79] Mr. Rippell adds that, in principle, discretion should be accorded no place in the application of issue estoppel in criminal proceedings. The doctrine controls the mischief of repetitious proceedings. To import into issue estoppel a residual discretion would undermine the fairness and finality the doctrine was created to promote.

[80] In the alternative, Mr. Rippell contends that recognition of a residual discretion would not yield a contrary result here. The Crown could easily have established the respondent's possession of cocaine at the revocation hearing by introducing statements of the seizing officers. It failed to do so despite the significant issues at stake at the revocation hearing. The Crown should not get a second chance.

The governing principles

[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 relitigation 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, [1965] O.J. No. 985 (C.A.), at pp. 340-41 O.R.

[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, [1983] S.C.J. No. 9, at p. 101 S.C.R.

[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 [page693] 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).

[85] The decisions of the Supreme Court of Canada in Grdic, Mahalingan, Punko and Duhamel contain no reference to a residual discretion to decline to apply issue estoppel in criminal cases. The issue does not appear to have been raised in argument, much less discussed or decided by the court.

The principles applied

[86] But for the governing jurisprudence of the Supreme Court and this court, my conclusion regarding this ground of appeal might well be different. However, in light of that jurisprudence by which this court is bound, I conclude that this ground of appeal must be rejected. [page694]

[87] The decision of this court in Wright makes it clear that, in criminal cases, a judge has no discretion to refuse to apply issue estoppel where the conditions for its operation have been established. No later decision of this court has overruled or qualified this unequivocal statement of principle in Wright.

[88] Moreover, the decisions of the Supreme Court of Canada that recognize a residual discretion to decline to apply issue estoppel do not involve criminal proceedings as both the estoppel-creating and estoppel-applying proceedings. The majority in Mahalingan makes it clear that although issue estoppel in criminal cases shares many features with its civil law equivalent, criminal law issue estoppel is a stand-alone doctrine responsive to the unique characteristics of criminal trials: Mahalingan, at para. 2.

[89] Finally, nothing said, or arising by necessary implication from anything said, in the Supreme Court of Canada jurisprudence on issue estoppel in criminal law casts any doubt on the "no discretion" principle pronounced in Wright.

Conclusion

[90] For these reasons, I would allow the appeal, set aside the stay of proceedings entered by the trial judge and order a new trial on the count charging the respondent with possession of cocaine for the purpose of trafficking.

Appeal allowed.

Notes

[^1]: Failure to comply with the terms of a form of judicial interim release is also an offence triable either way under s. 145(3)-(5.1) depending on the form of release.

End of Document