ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-90000496-0000
DATE: 20120705

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DAVE THOMPSON Applicant

Brian Puddington, for the Crown

Paul Aubin, for the Defendant

HEARD: July 3, 2012

allen j. ( Orally )

R E A S O N S F O R J U D G M E N T

ISSUE AND BACKGROUND

[ 1 ] The question before the court on this application is whether the doctrine of issue estoppel operates to prevent the trial of the issue of possession of a controlled substance.

[ 2 ] On April 7, 2010 the accused Dave Thompson pleaded guilty and was convicted of trafficking in a controlled substance. He was given a 15-month conditional sentence. On a search warrant on his home executed on August 11, 2010 the police seized crack cocaine and powdered cocaine. He was arrested and charged with possession of cocaine for the purpose of trafficking and possession of proceeds obtained from crime. One of the conditions of his sentence was to keep the peace and be of good behaviour. The Crown alleges Mr. Thompson breached that condition of the conditional sentence order by being in possession of the cocaine.

[ 3 ] The Criminal Code at s.742.6 provides procedural guidelines for the conduct of a conditional sentence hearing. The hearing is essentially a continuation of the sentence hearing the purpose of which is to determine following upon a breach how the accused will serve the unexpired portion of his sentence. The clear intention of the hearing scheme is to provide an expedited proceeding that is governed by somewhat relaxed procedural and evidentiary rules. This hearing, where the Crown must prove the breach on a balance of probabilities, is required to be held within 30 days.

[ 4 ] An allegation of breach of a conditional sentence order must be supported by written evidence, the report of the accused’s supervisor containing, where appropriate, signed statements of witnesses. The content of the statements must be what would be admissible as viva voce evidence if the witness were called to testify. The facts alleged in the statements must therefore arise from personal knowledge of the material facts. Hearsay evidence is not admissible [R. v. McIvor, [2008] 1 S.C.R. 285, 2008 SCC 11 (S.C.C.)]. Section 742.6 of the Criminal Code provides, with leave of the court, that the accused may request the attendance of any witness for cross examination.

[ 5 ] A conditional sentence hearing in this case was held on October 21, 2010 before Kelly, J. The Crown sought to proceed by way of two signed statements by persons who were not present when the warrant was executed and had no personal knowledge of the material facts of Mr. Thompson’s alleged possession, those persons being a police officer and the accused’s supervisor. In his written statement, the officer stated he received information that an amount of crack cocaine was seized from the accused’s bedroom.

[ 6 ] The essential elements of possession are control and knowledge. Kelly, J appropriately raised the concern that she had no evidence before her that established the elements based on the witnesses’ personal knowledge. Before the court was second-hand information given to the officer that the crack cocaine was found in Mr. Thompson’s bedroom. Kelly, J. made clear through her words that she had no confidence Mr. Thompson had knowledge or control over the drugs:

There are certain rules that have to be followed, and based on what the Supreme Court says [in] McIvor, I can’t rely on the statement[s] of these witnesses – of the allegation of breach with respect to what was found. There’s not enough in this affidavit … for me to determine that the cocaine was essentially in the possession of Mr. Thompson at the time, constructively or not.

[Transcript, pp. 12-13]

[ 7 ] The Crown chose not to obtain a statement from, or call as a witness, the source of the information given to the officer about the drugs being found in Mr. Thompson’s bedroom. That witness would have been in a position to address questions about what formed the basis of his belief that it was Mr. Thompson’s bedroom where the drugs were found. Failing this the court lacked evidence to find a breach occurred.

[ 8 ] The Crown ultimately conceded it had only hearsay evidence on the material fact of possession [Transcript, p. 19]. The Crown therefore failed to meet its burden to prove possession. With the specific finding that she simply could not rely on hearsay evidence for the material fact of Mr. Thompson being in possession of this drug, Kelly, J. dismissed the proceeding. [Transcript, pp. 19-20]. Possession not being found, the issue of whether the drugs were for the purpose of trafficking is moot.

ANALYSIS

The Principles of Issue Estoppel

[ 9 ] The doctrine of issue estoppel normally comes into play where an accused has been finally acquitted of a criminal offence and is subsequently charged with a different offence where the facts surrounding the prior charge become relevant. The Supreme Court of Canada provided some direction on the operation of this concept in the criminal context. The doctrine is directed to preventing the Crown from calling into question issues determined in the accused’s favour in the earlier proceeding. The criteria required for the operation of estoppel are:

(a) the same question has been decided

(b) the judicial decision claimed to give rise to the estoppel is final; and

(c) the parties to the earlier judicial decision were the same persons as the parties in the proceeding where estoppel is being raised.

[R. v. Grdic, 1985 SCC 34, [1985] 1 S.C.R. 810, at para. 9 (S.C.C.)]

[ 10 ] The doctrine of issue estoppel seeks to finally bring an end to litigation pertaining to the same issue. It applies when all rights and obligations between the parties have been finally determined by an earlier judgment. But estoppel can also operate in relation to a single issue that may arise between the two parties where, while subsequently involved in litigating an issue involved in the first case, they confront each other in an altogether new cause of action. [R. v. Grdic, supra, at para. 8].

[ 11 ] It is the second circumstance identified by the Court in R. v. Grdic that characterizes the situation before this court. The earlier proceeding involved an allegation of breach of a conditional sentence order in relation to the issue of possession of drugs in the context of what is in essence a sentencing proceeding and the second proceeding where estoppel is now raised is at a trial where Mr. Thompson’s guilt for possession will be determined.

[ 12 ] Critical to the operation of the doctrine is that the court in the earlier proceeding must have arrived at specific findings on a question of fact. There must be certainty from the earlier proceeding as to the issue on which the court’s findings were based. It is from that vantage point that the Crown is prevented in a later proceeding from disputing facts that formed the substance of the earlier judgment [R. v. Grdic, supra, paras. 10 and 11]. This ensures fairness to the accused. It avoids inconsistent verdicts and promotes the idea of finality.

[ 13 ] Issue estoppel is most often raised in relation to trial proceedings where there is a question of whether the Crown is seeking at a subsequent trial to dispute an issue on a material fact that was finally decided in the accused’s favour in an earlier trial. The concern is generally with inconsistent verdicts. The concern facing this court is not with inconsistent verdicts but rather with the potential for inconsistent findings on the same issue.

[ 14 ] The Supreme Court of Canada in a more recent decision addresses this distinction in examining the value of issue estoppel in maintaining fairness in the criminal justice system. The Court identifies three purposes served by the doctrine:

(a) fairness to the accused who should not be called upon to answer questions already determined in their favour;

(b) the integrity and coherence of the criminal law; and

(c) the institutional values of judicial finality and economy.

[R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 38 and 39 (S.C.C.)]

[ 15 ] Considering the second purpose, the integrity and coherence of the criminal law, the Court expands the concern to include avoidance of inconsistent findings of fact on particular issues:

However, the criminal law abhors not only inconsistent verdicts, but inconsistent findings on specific issues. Inconsistent findings raise concerns about the fairness of the ultimate verdict and the integrity and coherence of the justice system as a whole.

[ 16 ] The Court later concludes:

All would agree that an accused should not be required to defend himself against the same allegations twice; that inconsistent findings on matters of fact are abhorrent to the criminal law; and that finality and economy are important institutional values in the administration of justice. Adequate protection of these goals requires, at a minimum, a rule that issues determined in one criminal trial cannot be re-litigated in a subsequent trial.

[ 17 ] The burden rests with the accused to prove the requirements for the application of issue estoppel are satisfied, that the issue the Crown seeks to litigate in subsequent proceedings has previously been determined conclusively in earlier proceedings.

Issue Estoppel Applied to Conditional Sentences

[ 18 ] The Provincial Court of British Columbia considered the application of issue estoppel to a circumstance similar to that facing this court. The accused in that case was charged with possession of controlled substances and given a conditional sentence. He was alleged to have breached conditions of the conditional sentence order. The judge at the hearing into the breach of the conditional sentence order found the Crown did not satisfy its onus to prove possession on a balance of probabilities. The trial judge was faced with deciding whether, considering the stricter burden of proof at trial, issue estoppel could operate to bar re-litigation of the issue of possession based as it would be on essentially the same facts as presented at the earlier proceeding [R. v. Palmer, [2008] B.C.J. No. 2050, paras. 2-5 (B.C.P.C.)].

[ 19 ] This issue was addressed by Shaun Laubman in his article on conditional sentences and issue estoppel. Laubman observed that a breach of a conditional sentence, unlike a breach of probation or a breach of parole, does not give rise to a new offence which allows issue estoppel to be available as a possible bar to trial on the same facts. In the following commentary Laubman arrives at a useful analysis of the effect of the differing burdens of proof on the operation of issue estoppel.

Given the provisions providing for the expeditious disposition of breach hearings, it is quite possible that they will often be decided before the underlying offence is dealt with. However, … [the higher standard of proof at trial] would dictate that a finding that the offender did not breach the condition to keep the peace and be of good behaviour on the balance of probabilities test would mean the Crown would be unable to prove guilt for the underlying offence beyond a reasonable doubt. Even if the more inclusive interpretation for “keep the peace and be of good behaviour” advanced in Whitty is adopted, so long as some evidence relating to the underlying offence is tendered, a finding that there has been no breach necessarily includes a determination that no new offence has been committed. The three-part test for estoppel will be satisfied as the fundamental question of whether the offender committed an offence will be determined at the breach hearing.

Shaun Laubman, “Conditional Sentences and Issue Estoppel”, 50 Crim. L.Q. 283 (2005) at pp. 290 and 298]

CONCLUSION

[ 20 ] I am of the view that Mr. Thompson has met his burden to show that the requirements for the application of 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.

[ 21 ] 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.

[ 22 ] 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.

DISPOSITION

[ 23 ] For the reasons set out above, I enter a judicial stay of the proceedings with respect to possession of a controlled substance for the purpose of trafficking on count one of the indictment.

[ 24 ] The judicial stay does not apply to the charge of possession of proceeds obtained from crime on count 2 of the indictment.

Allen J.

Released: July 5, 2012

COURT FILE NO.: 11-90000496-0000
DATE: 20120705

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Crown – and – DAVE THOMPSON Defendant

REASONS FOR JUDGMENT Allen J.

Released: July 5, 2012