ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0109-BR
DATE: 2014-12-16
B E T W E E N:
Her Majesty The Queen
Andrew Sadler, for the Crown
Respondent
- and -
Hank Proulx,
S. George Joseph, for the Applicant
Applicant
HEARD: December 10, 2014,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Reasons On Application for Bail Review
[1] This is an application by the accused, Hank Proulx, pursuant to s. 520 of the Criminal Code for a review of the detention order made by Justice of the Peace, M. Donio on July 4, 2014. Mr. Proulx asserts the oral reasons of the learned Justice of the Peace indicate he made an error of law in determining to detain Mr. Proulx.
[2] Counsel for both the accused and the Crown indicate that this application raises a novel legal issue. Mr. Proulx submits that the learned Justice of the Peace failed to address and properly apply the doctrine of issue estoppel to a consideration of his application for bail. The Crown argues to the contrary and in the alternative, argues that the doctrine does not apply to bail hearings. Counsel could find no reported cases dealing with the applicability of the doctrine to bail hearings.
[3] Mr. Proulx was first arrested on November 1, 2013, on a charge of possession of stolen property over $5,000.00 (a pick-up truck) contrary to ss. 354(1)(a) and 355(a) (the “First Charge”). He elected to be tried by a Justice of the Superior Court of Justice on December 10, 2013, and waived his right to a preliminary hearing.
[4] On January 13, 2014, he was charged with a further offence of break and enter to commit arson (the “Second Charge”), which is alleged to have occurred on the same day, November 1, 2013, as the charge of possession of stolen property.
[5] On June 11, 2014, he had a bail hearing in respect of the Second Charge. At the commencement of that hearing the Crown and Mr. Proulx’s counsel had the following exchange:
“MR. SADLER: We have the morning bail hearings.
THE COURT: M’hmm.
MR. SADLER: That’s for Mr. Proulx.
THE COURT: Okay.
MR. Sadler: Does the court have both the 348 information and the information from Superior Court?
THE COURT: For Proulx? No just the 348.
MR. SADLER: I understand that Mr. Proulx’s in custody on two informations. One of which he’s been committed to stand trial with Superior Court already. Is it Mr. Joseph’s intention for a bail hearing on both of those?
MR. JOSEPH: No just the one before the court.
MR. SADLER: And he’s still in custody on the 354?
MR. JOSEPH: Yes.
MR. SADLER: Okay very well.
MR. JOSEPH: I’ll address that with another crown if he gets out on this one.
THE COURT: Okay.”
[6] Justice of the Peace Gibbons presided at the bail hearing. The Crown relied solely on “submissions” as the evidentiary basis for the Crown’s position that Mr. Proulx be detained. For the purposes of this bail review, the defence points to the following submission made by the Crown (emphasis added):
“Mr. Sadler: Your Worship Mr. Proulx is before the court today for a bail hearing with respect to the offence before the court regarding a, an allegation of breaking and entering. He was arrested on the morning of November 1, 2013 with respect to another offence that is not before this court. That was with respect to an allegation of possession of stolen property. He was arrested again with respect to the offence that is before the court on or around the 31st of January 2014 with respect to the break and enter charge. On October 31st, 2013 John Wiekowski, W-I-E-C-K-O-W-S-K-I, the owner of a business located at 830 N. Vickers Street was finishing restoring work on a 1987 Ford F150 motor vehicle, license LE7636, that’s a truck that was inside the shop. He left the shop at approximately 23:00 hours, 11:00 o’clock in the evening, locking all the doors and all of the equipment being turned off. At approximately 6:42 on the morning of November 1st, 2013 Brian Ogima a witness driving by spotted a fire at 830 N. Vickers Street and called 911 requesting the fire department. The fire was extinguished and police were requested for assistance. The Fire Marshall was also requested as the fore appeared to be suspicious. As well the forensic unit from the Thunder Bay Police was requested. Mr. Wieckowski was spoken to at the scene and advised that the 1987 Ford F150 previously described was missing from inside the shop. The value of that vehicle was approximately $10,000.00. At approximately 11:11 on the morning of November 1st, 2013 Constable Graham Forshaw of the Thunder Bay Police located the stolen vehicle parked on the street by 824 McLaughlin Street. Mr. Proulx was inside the vehicle at the time and was at that time arrested for possession of stolen property and the vehicle was recovered. When Mr. Proulx was taken to the police station his clothing was seized with respect to the possibility of arson and sent for testing to the Centre of Forensic Sciences. Also seized from Mr. Proulx was a part book of matches, two sets of keys and a digital camera. Mr. Wieckowski later identified the two keys and the camera seized from Mr. Proulx as his property that were kept inside his office and that had gone missing and been stolen during the break, enter and arson. Mr. Proulx did not have any cigarettes when he was arrested. Mr. Wiekowski later located the point of entry for the break in. Located a steel push bar which was laying outside a broken window on the south side of (inaudible) hut. The window was not broken before the arson and the steel bar was moved from a scrap pile at the front of a business. On November 22nd, 2013 at approximately 2:15 in the afternoon Detective Constable Anderson reviewed video obtained from a business across the street for the Auto Body Shop where the fire had happened and the vehicle had been stolen from. Observed the, that at 6:11 in the morning the overhead garage door at the Auto Body Shop opened. The stolen truck backed out and proceeded southbound on N. Vickers Street. At 6:36 the fire was seen in the front t window and no was seen, seen to, no one was seen to enter prior to the arson or after the fire started…
Accordingly, I apologize I misspoke earlier. On the 16th of January 2014 police attended and arrested Mr. Proulx at the District Jail for break, enter and commit arson. That is an overview of the summary of the allegations. I can indicate that police officers were taken, sorry the pictures were taken. There was significant damage as indicated by the damage estimate with respect to the fire that occurred at the scene. That’s the substance of the allegations with respect to the offence. Mr. Proulx has a criminal record.
MR. JOSEPH: It’s admitted.
MR. SADLER: I’ll as that the record be entered as the first exhibit.
THE COURT: Thank you. Entered in as Exhibit One is the criminal record for Hank Proulx and this has been admitted by defence. Thank you.
EXHIBIT NUMBER ONE: Record of Hank Proulx – Produced and Marked
MR. SADLER: That’s the Crown’s case for the bail hearing.”
[7] The defence argues the only reason the underlined references were included in the Crown submission was to militate in favour of a decision by Justice of the Peace Gibbons to detain Mr. Proulx. The Crown argues these references to the alleged stolen property were made only because it was circumstantial evidence of Mr. Proulx’s involvement with the arson charge.
[8] After hearing evidence of Mr. Proulx and his proposed surety as to his bail plan, Justice of the Peace Gibbons decided to release Mr. Proulx on conditions. Her decision went on for six pages of transcript during which she made only one reference to the stolen property in one sentence where she said “The truck that was alleged to have been stolen was recovered however the building and the contents received significant damage to the amount of almost half a million dollars between the building and its contents in terms of the fire that resulted”.
[9] Counsel for Mr. Proulx then arranged for a second bail hearing in respect of the First Charge. It was heard before Justice of the Peace Donio on July 4, 2014.
[10] At that hearing, the Crown again relied solely on “submissions” to Justice of the Peace Donio as the evidentiary basis for the Crown’s position that Mr. Proulx should be detained. The fire was mentioned although no specific reference was made to the fact that Mr. Proulx had been charged with break and enter for the purpose of committing arson. Facts relating to how Mr. Proulx was found in the alleged stolen truck, with property from the auto body shop that burned and his criminal record were submitted by the Crown as the basis for why he should be detained.
[11] Counsel for Mr. Proulx then proceeded to file the transcript of the proceedings before Justice of the Peace Gibbons. He indicated he did not intend to call any other evidence. He then argued that the principle of res judicata should apply to this second bail hearing. As the issue was the same, (the detention of Mr. Proulx), it had been decided (release) between the same parties, Mr. Proulx’s counsel argued that Justice of the Peace Donio had to give effect to the principle of res judicata (or issue estoppel) and release Mr. Proulx on the same conditions as had been imposed by Justice of the Peace Gibbons.
[12] The learned Justice of the Peace took a break to review the transcript. Having reviewed it he made the following ruling:
“The Court: I had an opportunity to be honest this morning at break I really got through about two pages and I just did not have time before we had to deal with the Balmoral matter. I did, over my lunch review it very carefully from beginning to end and as I went through it (the transcript) I am not convinced entirely that this matter which was before the court was a factor considered in all of the bail hearing. There was a passing reference to it by Her Worship when, in giving her judgment only so much and I did not, just bear with me. So Her Worship says the allegations before the court are quite serious that the break and enter resulted in fire with significant damage and the only portion of her transcript from what I could see in her judgment says, the truck was alleged to have been stolen and was recovered and that is all she says on the matter and then says however that building and contents received significant damage to the amount of almost a half a million dollars between the building and the contents in terms of the fire that resulted. So you know did she, was the charge that is currently before me, the 354 (1) (a) and 355(a), were those part and parcel of the bail hearing? I am not satisfied that they were. It is my belief that the focus of the bail hearing from what I can read in the transcript was specifically the other matters of which I do not have the information for. I am not even sure what those charges are. So, I am not satisfied that the transcript is sufficient documentation for me to consider that this matter was proper before the court in terms of a bail hearing so if I were going to order another release I do not accept that I am bound by the decision that she made because her decision that she made was based on something else, not this charge part of it because it was laid after, after that, it would appear. So in terms of that that is my decision on that part. If I am going to consider his release then I am going to, to have a bail hearing proper before me. Not simply rely on the transcript.” (emphasis added)
[13] Further argument ensued about the applicability of the doctrine of res judicata. Justice of the Peace Donio then made his decision as follows:
“DONIO, J:
I have listened to the arguments extensively and carefully from both parties, I have reviewed thoroughly and carefully the proceedings from the June 11th, 2014 matter before Her Worship Gibbon and that was a bail hearing on the charges of break and enter. Sometimes reading this causes me more questions that it does give answers. I do not know why things did or did not happen. You know there was no 524 application before the court. This particular charge came from the 2nd of November 2013 and it was not included as part of the bail hearing so you know things happen. They do not need my approval for things to happen or not happen but when I am not faced with the situation of having to deal with it it just raises questions in my mind and I want you to know that I am considering what I am looking at in all of these matters.
I accept that Crown is not divisible. I realize that the Crown is one and whereas we are independent judicial officers the Crown is one and that is how it is and that creates some difficulties in some situations as it does in this one. I went back and I re-read very carefully the submissions and the Crown at the time said Mr. Proulx is before the court today for a bail hearing with respect to the offence before the court regarding an allegation of breaking and entering. He was arrested on the morning of November 1st, 2013 with respect to another offence that is not before the court. So what that was absent any explanation would be purely speculation only part as to what it was or what it was not.
He was arrested again with respect to the offence that is before this court on or around the 31st of January 2014 with respect to the break and enter charge so again I guess that is the matter for which this bail hearing was held and I thought it was break, enter and there was arson because the arson word comes in on some cases but not always so whether it is part and parcel of that information and charge I do not know because I have not seen that information.
The reference with regards to the vehicle was something that was mentioned to the Crown but in my reading of the transcript the circumstances surrounding the reference to the truck looked to me to be the establishing of when the place of the business was named or somebody was working there to when it was not and again it talked about Mr. Wiekowski who was the owner of the business, located at the venue in question, 830 N. Vickers Street. Was finishing restoring work on a 1987 F150 motor vehicle. That is the truck that was inside the shop and that is the only reference to that truck and it says he left the shop at approximately 23:00 hours, 11:00 o’clock in the evening locking all the doors and all of the equipment being turned off. At approximately 6:42 in the morning, Brian Ogima, a witness driving by spotted a fire at 830 Vickers Street North and called 911 requesting the fire department. So the fire was extinguished, the police were requested for assistance. The Fire Marshall was called in as well as the forensic unit from the Thunder Bay Police was brought in. The owner of this shop in question was then spoken to a the scene and advised that there may be a vehicle that was missing from inside the shop, the value of the vehicle and then at 11:11 in the morning a Constable located the vehicle parked on a street and somebody was inside the vehicle.
Then the focus again is back to Mr Proulx. There was no, at least from what I have read, there was no lot of issue around the truck being stolen. The focus from what I read of Mr. Proulx he was taken to the police station. His clothing was seized with respect to the possibility of arson, sent for testing to the Centre for Forensic Sciences. Lists a number of items that were seized and then it goes on so that the extent of the reference to the vehicle. Again it talks about Mr. Proulx being at the District Jail for break, enter and commit arson so not the commit arson is referenced in here but not in all of the pieces.
The argument of defence counsel, and I will try and do a synopsis and not put words in your mouth and not quote you verbatim, basically argues that you know the substantive matter that is before the court has already been dealt with by another justice and I ought to simply release Mr. Proulx on the strength of the release that was there at that time. The argument being the factors that are here today in substantive, the charge of possession of property belonging to an individual of a value exceeding $5000.00 knowing that the property was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1)(a) and 355 of the Criminal Code. So since that was already determined that I should simply go along with the form of release, the prior form of release, The Exhibit Number Two from Her Worship Gibbon that was a release with a surety in the amount of $5000.00 without deposit.
In reading the closing arguments, again the closing arguments on both sides did not talk about the issue of possession over. The charge was breaking and entering and again arson comes into reference there and again I looked back to the actual reasons for judgment of Her Worship and in looking at it on pages 31 lines 25 and onward the only reference she makes to the truck was lines 25 and 26 or 24 and 25 maybe, I cannot tell exactly where it is, but essentially she says the truck that was alleged to have been stolen was recovered and then she goes on to the building and the contents received.
So I am not satisfied that the issue of theft over was a portion of this and while it was referenced, it was referenced very, very little and I am not accepting of the notion that I am bound by the decision that Her Worship made with regards to releasing him as it was because his matter has already been determined by the court. The matter that was dealt with by the court I am satisfied was a charge other than the one that is currently before the court today.
MR. JOSEPH: Then he should be detained?
THE COURT: I am sorry?
MR. JOSEPH: Then he should be detained if that’s your ruling?
THE COURT: Yes he will be detained.”
The Law
[14] As noted above, counsel could not locate any authorities directly on point. However, several cases were referred to me setting out the principles counsel urged me to apply to this particular situation.
[15] Counsel provided four authorities. Three are from the Supreme Court of Canada and one is a fairly recent decision of the Ontario Court of Appeal. The decision of the Ontario Court of Appeal (R v. Thompson, 2014 ONCA 43) and two of the decisions of the Supreme Court of Canada (R v. Punko, 2012 SCC 39, and R v. Duhamel, 1984 126 (SCC), [1984] 2 S.C.R. 555) discussed circumstances where ultimately the Court decided that the principle of issue estoppel should not apply to a particular criminal law problem or issue raised in the case before it. The cases did not stand for the proposition that issue estoppel should never apply in the criminal context. However, none of the three cases addressed issues arising out of a bail review. Accordingly, I did not find these authorities particularly helpful in resolving this specific matter.
[16] The majority decision in R v. Mahalingan, 2008 SCC 63, contains an exhaustive and thorough discussion of the concept of res judicata and issue estoppel. The majority decision came to the general conclusion, that if properly understood, the doctrine of issue estoppel does have a place in Canadian criminal law. Again, it was not considering a bail case. However, the principles set out in Mahalingan properly state the law and in considering several of the statements of principle contained in the case, as they apply to Canadian criminal law, a framework emerges by which it is possible to determine whether or not Justice of the Peace Donio erred in law in determining the matter in the way that he did.
[17] Chief Justice McLachlin wrote the majority decision. She found that the doctrine of issue estoppel should be retained in a narrower, less problematic form than had emerged from previous jurisprudence, as evidenced from the leading decision on the issue to that point Grdic v. The Queen, 1985 34 (SCC), [1985] 1 S.C.R. 810. She held at para. 51 in Mahalingan that “if issue estoppel is understood simply as a rule preventing relitigation of decided issues, it works well in the criminal context”. She then went on to describe at paragraphs 51 through 56 the three fundamental aspects of the doctrine;
was there an issue decided in a prior proceeding; (para 52- 54)
was there a final judicial decision; (para 55) and
were the parties to the two proceedings the same (para 56).
[18] In my view her comments at paragraph 52 have particular bearing for the matter before me. Justice McLachlin stated:
[52] The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding. This requires the court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in the accused’s favour in a prior criminal proceeding. The onus of establishing this is on the accused who seeks to bar proof of the issue alleged to have already been resolved. To establish this, the 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. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour. This approach is consistent with how the requirement is applied in civil cases. It should be remembered that we are not dealing with res judicata which focuses on the fact of acquittal, but on issue estoppel — whether a particular issue has already been resolved in favour of the accused.
[19] Following the discussion of the general principles, she concludes at paragraphs 61 and 65:
[61] If issue estoppel is understood simply as preventing relitigation of issues resolved in the accused’s favour on a prior trial, the problems associated with applying issue estoppel in the criminal context largely disappear. As discussed above, no insurmountable difficulties of principle arise. The remaining concern is that, in practice, applying issue estoppel in criminal cases may lead to inconsistencies and anomalies
[65] If the Crown is not trying to contradict the factual finding at the first trial, issue estoppel does not apply. The relevant question is whether the Crown is leading evidence which is inconsistent with the factual findings in the first trial (even if those findings were arrived at on the basis of reasonable doubt). A jury charge to this effect, coupled with a caution not to use the evidence underlying the prior acquittal to support reasoning that the accused in fact committed the offence for which he was previously acquitted, suffice to preserve the protections offered by the principle of issue estoppel, without rendering the trial unworkable.
Analysis
[20] The arguments in this case focused on whether or not the learned Justice of the Peace had committed an error of law concerning the application of the doctrine of issue estoppel. There were no alternative submissions as to the merits of any findings Justice of the Peace Donio made about the primary, secondary, or tertiary grounds as are usually the case in bail review matters.
[21] From the decision in Mahalingan, it is clear that the first consideration in applying the doctrine is to analyze if the issue has actually been decided in the prior matter.
[22] In my view, the oral reasons of Justice of the Peace Donio indicate he first and foremost considered the matter of whether or not an issue he was to decide had actually been decided previously by Justice of the Peace Gibbons.
[23] I do not agree with the submission of Mr. Proulx that the issue before Justice Gibbons and Justice Gibbon was the same because it was simply an issue of whether or not he should be detained. While this is the ultimate result of a decision in a bail hearing, it is not a completely accurate description of the issue before a bail adjudicator.
[24] I accept the submission of the Crown that the issue to be decided in any bail hearing is a prospective assessment of the risk relating to whether the accused should be detained in light of the possibility of occurrences set out in s. 510(10)(a) through (c), (the oft referred to primary, secondary, and tertiary grounds for detention). This risk assessment is something that takes place in context. It does not occur in a vaccum. Among the factors is a consideration of an accused’s criminal record and how that relates to the actual charge before the bail court.
[25] In my view, the commission of different offences creates different categories of risk for an accused and therefore, a different issue for each charge when considered by an adjudicator regarding the question of bail.
[26] At the opening of the first bail hearing, counsel for Mr. Proulx made it clear he was only dealing with one charge and would deal with the other charge with another Crown. The parties had the choice to have the issue of bail for Mr. Proulx adjudicated once or twice. They chose twice. The defence chose twice. This wasn't forced on the accused. It may not have been the best or most efficient way to deal with the issue of Mr. Proulx’s continued detention but both parties chose to do it that way. They framed the issue of the first bail hearing as only dealing with the arson charge. The possessi