Court File and Parties

COURT FILE NO.: CR-20-10000476-0000

DATE: 2022-12-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

BABA ISMAEL OUEDRAOGO

Counsel:

Brigid McCallum, for the Crown

John Fennel, for Mr. Ouedraogo

HEARD: November 25, 2022

BEFORE: R.F. GOLDSTEIN J.

Reasons for Judgment on Issue Estoppel Application

[1] Baba Ouedraogo was convicted of serious unrelated sexual offences in this Court and in the Ontario Court of Justice. Does issue estoppel apply to prevent the Crown from seeking Long Term Offender (“LTO”) or Dangerous Offender (“DO) designations in each proceeding? In my view, the answer is “no”. The Crown may do so.

The Proceedings In Superior Court Of Justice

[2] On November 2, 2019, Mr. Ouedraogo violently sexually assaulted A.O. in a stairwell. A.O. was 15 years old at the time. She was heavily intoxicated and incapable of consenting. Mr. Ouedraogo choked her, ripped her clothes, gave her a black eye, and caused her fingernail to rip. On April 7, 2022 I convicted Mr. Ouedraogo sexual assault contrary to s. 271 of the Criminal Code, sexual interference contrary to s. 151 of the Criminal Code, and choking to assist the commission of a sexual assault contrary to s. 256(s) of the Criminal Code: R. v. Ouedraogo, 2022 ONSC 2130.

[3] On June 1, 2022 I signed an assessment order pursuant to s. 752.1 of the Criminal Code. Crown counsel must obtain an assessment before proceeding on either a DO or an LTO application. Dr. Klassen, a psychiatrist, was appointed to carry out the assessment. The Attorney General must provide consent for the Crown to pursue a DO or LTO designation pursuant to s. 745(1)(a) of the Criminal Code. The parties anticipate that the Attorney General will consent. The LTO or DO hearing is scheduled for late January, 2023 before me.

The Proceedings In The Ontario Court Of Justice

[4] On January 15, 2021, Justice Silverstein of the Ontario Court of Justice found Mr. Ouedraogo guilty of sexual assault with a weapon, robbery, disguise with intent, and fail to comply with a recognizance order. Justice Silverstein ordered an assessment to be carried out by Dr. Rootenberg. Dr. Rootenberg is also a psychiatrist. The Crown has brought an LTO application before Justice Silverstein. That application is not yet complete.

The Agreed Facts

[5] The parties agree that the evidence in the two hearings will be largely the same. Dr. Rootenberg provided an assessment report and an addendum. Dr. Rootenberg testified before Justice Silverstein. Dr. Klassen has provided a report to the parties. I expect that he will testify in the proceeding before me.

[6] The parties further agreed:

While the transcripts and exhibits of both criminal trials are available for the judges hearing the applications, the demeanor of the witnesses at the trial was only available to the judge who heard the witnesses.

There was testimony at the provincial court hearing about programs and treatment available at provincial jails and federal penitentiaries. There was also testimony about provincial probation and federal parole resource available for supervising the Respondent upon release. The federal witness also testified about Long-Term Supervision and halfway houses. This evidence was based on and further explained documents from provincial and federal corrections. The same documents will be entered into evidence here, and similar testimony is expected; however, the witnesses and their testimony could be different.

Analysis

[7] Mr. Fennel, for Mr. Ouedraogo, brings a motion for directions on “when to bring an application based on issue estoppel to prevent the Crown from litigating the same issue twice.” His argument, based on the Supreme Court of Canada’s decision in R. v. Mahalingan, 2008 SCC 63, is that issue estoppel applies in criminal proceedings because an accused person ought not to face the same allegation twice. In other words, Mr. Fennel argues that Mr. Ouedraogo faces sentencing hearings where the factual record will be almost the same and the Crown seeks the same remedy. That, he argues, engages issue estoppel.

[8] With respect, I do not agree. There is no proper time for Mr. Ouedraogo to bring an application, because issue estoppel simply does not apply here. Issue estoppel plays an important but narrow role in criminal proceedings. As McLachlin C.J.C. stated in R. v. Mahalingan at para. 2:

Properly confined, in accordance with a proper reading of the majority reasons in Gridic, issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality.

[9] And further at para. 31:

… properly understood, issue estoppel in Canadian criminal law operates to prevent the Crown from re-litigating an issue that has been determined in the accused's favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt.

[10] In R. v. Thompson, 2014 ONCA 43, Watt J.A. noted at para. 59 that issue estoppel serves three purposes that are integral to a fair system of criminal justice:

• Fairness to the accused who ought not to have to answer questions already decided in his or her favour;
• The integrity and coherence of the criminal law; and,
• The institutional values of judicial finality and integrity.

[11] None of these principles are compromised by having multiple DO or LTO proceedings. In my view, issue estoppel does not apply for these two reasons:

• The language of the Criminal Code makes it clear that an offender can be subject to more than one LTO, and, by implication, more than one DO; and,
• Issue estoppel does not apply to individual sentencing decisions.

The language of the Criminal Code makes it clear that an offender can be subject to more than one LTO, and, by implication, more than one DO

[12] The language of the Criminal Code, especially s. 755(2), when read in conjunction with R. v. Johnson, 2003 SCC 46, makes it clear that an offender can be subject to more than one LTO, and, by implication, more than one DO. Although the Criminal Code is silent on the issue of multiple DO proceedings, s. 755(2) does contemplate more than one LTO designation at a time. That section states:

755 (2) The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years.

[13] The Criminal Code’s use of the plural clearly means that more than one LTO can be in force at any time. The ten-year limit is simply the application of the principle of totality by Parliament.

[14] A trial judge faced with a DO application is required to consider whether the long-term supervision provisions apply. As the Supreme Court stated in Johnson at para. 40:

… the British Columbia Court of Appeal was correct to conclude that a sentencing judge must take into account the long-term offender provisions prior to declaring an offender dangerous and imposing an indeterminate sentence. If a sentencing judge is satisfied that the sentencing options available under the long-term offender provisions are sufficient to reduce the threat to the life, safety or physical or mental well-being of other persons to an acceptable level, the sentencing judge cannot properly declare an offender dangerous and thereupon impose an indeterminate sentence, even if all of the statutory criteria have been satisfied.

[15] Thus, if multiple LTO orders are in force, each of those LTO applications may well have started out as a DO application. It is difficult to read s. 755(2) of the Criminal Code, when read in conjunction with Johnson, as doing anything other than contemplating more than one DO application at any given time.

Issue Estoppel Does Not Apply To Individual Sentencing Decisions

[16] In R. v. Punko, 2012 SCC 39 the accused were charged with two different sets of offences. In the first, the provincial Crown prosecuted several alleged members of the Hell’s Angels with multiple offences, including criminal organization offences. The accused were convicted of some offences, but acquitted of the criminal organization offences. The federal Crown prosecuted the accused for drug trafficking for the benefit of a criminal organization, the Hell’s Angels. The trial judge granted an application staying the federal prosecution on the basis of issue estoppel – he found, based on the sentencing reasons of the first trial judge, that the jury must have decided that the Hell’s Angels were not a criminal organization. The federal Crown was therefore estopped from proceeding. The British Columbia Court of Appeal allowed the Crown’s appeal. The Supreme Court of Canada dismissed the accused’s further appeal.

[17] Deschamps J., for the majority, noted at para. 8 that “not all issues raised in a previous trial can be the subject of issue estoppel. Rather, the Crown is precluded from relitigating only those issues that were decided in favour of the accused at the earlier trial… Moreover, the resolution of an issue in favour of the accused must be a ‘necessary inference from the trial judge’s findings or from the fact of the acquittal’ (R. v. Mahalingan at para. 52).” A judge considering the issue must consider whether the finding was “logically necessary to the acquittal – a question of logic and law”: R. v. Punko at para. 9.

[18] Deschamps J. also considered the role of a sentencing judge at para. 12:

A sentencing judge must also accept as proven facts that are implicit in the jury's verdict of guilty (s. 724(2)(a) Cr. C.). These are not determinations of the sentencing judge, but simply his elucidation of the facts the jury must have relied on to convict the accused. The sentencing judge has no duty to elucidate or make findings with respect to a jury's verdict of acquittal. Any observation the sentencing judge makes in that regard may indicate his or her own views, but it is not a determination that binds a judge sitting on a subsequent motion based on issue estoppel. In every case, the judge in the subsequent proceeding must determine whether the sentencing judge's elucidation of the jury's verdict meets the standard of logical necessity. Findings made by a sentencing judge regarding a jury's determinations in a multi-issue trial cannot be used to circumvent the standard of logical necessity established in Mahalingan, but only to confirm a conclusion reached by applying that standard.

[19] In other words, as Watt J.A. put it in R. v. Thompson, 2014 ONCA 43 at para. 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.

[20] Thompson was convicted of trafficking in a controlled substance. He pleaded guilty and was sentenced to a conditional sentence of 15 months. A statutory term of his sentence was that he keep the peace and be of good behaviour. The police later executed a search warrant at Thompson’s home. They found cocaine and cash, alleged to be proceeds of crime. The possession of cocaine was manifestly not a sign of good behaviour. As a result, the Crown moved to revoke his conditional sentence. The police charged Thompson with possession of cocaine for the purposes of trafficking as well as the possession of proceeds of crime.

[21] At the revocation hearing Crown counsel simply read in a report prepared by a police officer about the cocaine found at Thompson’s address. The officer prepared the report based on information from other police officers. The Crown did not file a certificate of analysis. The judge refused to revoke the conditional sentence. In submissions the judge stated that he could not decide the possession issue based only on the hearsay statement in the report. Eventually Crown counsel agreed and invited the judge to dismiss the application.

[22] Thompson went to trial on the substantive charge several months after the revocation hearing. The trial judge stayed the proceedings on the basis of issue estoppel. Watt J.A. decided that revocation proceedings and sentencing proceedings are fundamentally different. Revocation proceedings are sentencing proceedings. The offender is not in jeopardy of further conviction – the revocation hearing is the continuation of a sentencing hearing. Proof of the breach is analogous to aggravating factors. Findings of fact made by a sentencing judge cannot found issue estoppel. Moreover, revocation proceedings and trials serve different public interests and concern different issues.

[23] DO and LTO proceedings form part of the sentencing process. The interpretation of the dangerous offender provisions must be guided by the fundamental purposes and principles of sentencing set out in the Criminal Code. The primary sentencing purpose of the dangerous offender regime is the protection of the public: R. v. Johnson, 2003 SCC 46 at paras. 23 and 29; R. v. Hatchwell, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39 at p. 43.

[24] A DO or LTO designation is a sentence. That is taken directly from the language of s. 753(4) the Criminal Code:

753. (4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

[25] A sentence is simply not the same thing as a verdict. A DO designation is a sentence, as is an LTO designation. It is arrived at as a matter of law, evidence, and logic. But because a DO or LTO is a sentence, different sentencing judges may arrive at different conclusions as to the appropriateness of any given sentence. There is usually a range of reasonable outcomes at any sentencing hearing. Simply because a sentencing judge decides that a DO or LTO designation is not appropriate in a given case does not mean that another sentencing judge may make a different decision in a different case. To do otherwise would undermine the principle that sentencing judges are afforded deference.

[26] As a practical matter, different judges often impose different sentences where many of the same facts apply. For example, if the Crown were not seeking an LTO or DO designation before me, Crown counsel would certainly be free to put in evidence of Mr. Ouedraogo’s criminal record, including the conviction by Justice Silverstein. The Crown could, no doubt, put Justice Silverstein’s reasons for judgment and reasons for sentence before me to prove the circumstances of the conviction as an aggravating factor. If Justice Silverstein ordered a pre-sentence report, that report could be put before me. The converse of all those things is true as well. The key limit on the sentence I could impose on Mr. Ouedraogo would only be the principle of totality. The Criminal Code contemplates totality where multiple LTO’s are imposed.

Disposition

[27] The motion for directions is dismissed. The DO hearing will proceed as contemplated.

R.F. Goldstein J.

Released: December 20, 2022