R. v. Mahalingan

R. v. Mahalingan
Collection
Supreme Court Judgments
Date
2008-11-14
Neutral citation
2008 SCC 63
Report
[2008] 3 SCR 316
Case number
31499
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 31499
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Mahalingan, [2008] 3 S.C.R. 316, 2008 SCC 63
Date: 20081114
Docket: 31499
Between:
Her Majesty The Queen
Appellant
and
Rathiskumar Mahalingan
Respondent
Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 82)
Partially Concurring Reasons:
(paras. 83 to 168)
McLachlin C.J. (Binnie, LeBel, Fish and Rothstein JJ. concurring)
Charron J. (Deschamps and Abella JJ. concurring)
* Bastarache J. took no part in the judgment.
______________________________
R. v. Mahalingan, [2008] 3 S.C.R. 316, 2008 SCC 63
Her Majesty The Queen Appellant
v.
Rathiskumar Mahalingan Respondent
Indexed as: R. v. Mahalingan
Neutral citation: 2008 SCC 63.
File No.: 31499.
2007: December 7; 2008: November 14.
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Criminal law — Charge to jury — Defence theory — Accused convicted of aggravated assault — Whether new trial should be ordered because trial judge’s instructions to jury on theory of defence inadequate.
Criminal law — Issue estoppel — Application — Whether doctrine of issue estoppel should be retained in criminal law.
The accused was acquitted on the charge of attempted murder arising out of a vicious gang attack, but convicted of the included offence of aggravated assault. The eyewitness who identified the accused as the first attacker also testified that, shortly before the trial commenced, the accused had telephoned him from jail asking that he not testify against him. The accused was subsequently charged with attempting to obstruct justice in relation to the alleged phone call. His trial on that charge occurred following the conclusion of the trial for attempted murder. The Crown adduced evidence of the telephone call mirroring that put forward at the attempted murder trial. The accused was acquitted. He appealed his aggravated assault conviction, arguing that the trial judge’s instructions to the jury on the theory of the defence were inadequate. The accused also argued that his acquittal for obstructing justice should be accepted as fresh evidence in his appeal of the aggravated assault conviction. Based on the doctrine of issue estoppel, he submitted that the acquittal had the retrospective effect of rendering the testimony about the phone call inadmissible at his trial for attempted murder. He further argued that, if the trial record were examined as if the phone call evidence had never been presented in the attempted murder trial, it could not be said that the jury’s verdict would necessarily have been the same. The Court of Appeal unanimously allowed the accused’s appeal against conviction and ordered a new trial on the ground that the trial judge had failed to outline the position of the defence in his instructions to the jury. The court was divided, however, on the fresh evidence application. A majority of the court granted the application and ordered a new trial on this basis as well. The dissenting judge found that the subsequent acquittal on the charge of obstructing justice did not retrospectively render inadmissible the evidence of the accused’s telephone call to the eyewitness and would have dismissed the application.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish and Rothstein JJ.: The Court of Appeal correctly ruled that the jury charge on the theory of the defence in the first trial was inadequate and a new trial should be ordered on that ground. [81]
With respect to issue estoppel, this principle should be retained as part of Canadian criminal law. Properly confined, issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality. The difficulties associated with the application of issue estoppel in criminal law arise from the fact that it has been extended to circumstances where justice does not support its application. The current Canadian approach to issue estoppel in criminal law should be modified to limit its application to precluding the Crown’s relitigating 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. When issue estoppel is understood simply as a rule preventing relitigation of decided issues, it works well within the criminal law context and the problems associated with applying issue estoppel in that context largely disappear. [2] [31] [51] [61] [76]
Properly confined, issue estoppel does not mean that every piece of evidence led in a first trial and leading to an acquittal is inadmissible in a subsequent trial on another matter. Only issues either necessarily resolved in favour of the accused as part of the acquittal or on which findings were made, even if on the basis of reasonable doubt, are estopped. The determination of whether an issue was decided at a first trial, either expressly or necessarily as a prerequisite to an acquittal must be based on a review of the relevant portions of the transcript of the first trial and, in particular, on the allegations, the nature of the Crown case, and the defence case. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding. Further, issue estoppel should not operate retrospectively to result in evidence being redacted from the record on a prior trial. The concern for finality, one of the principles which underlies the doctrine of issue estoppel, is inconsistent with retroactive application of issue estoppel. [23] [27] [33]
Other doctrines and rules of evidence afford only incomplete protection of the goals that underlie the doctrine of issue estoppel. Fairness requires that an accused should not be called upon to answer factual and legal issues (short of the ultimate verdict) that have been resolved in his or her favour in a previous proceeding. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The plea of autrefois acquit applies only to the final verdict, not to specific, underlying elements of the Crown’s case. The remedy of abuse of process may or may not provide protection against relitigation of a particular issue. Abuse of process is a broad, somewhat vague concept, that has traditionally been reserved for obviously egregious abuses of the Crown power, and successful reliance upon the doctrine will be extremely rare and only in a process tainted to such a degree that it amounts to one of the clearest of cases. [39‑42] [75]
Similarly, the rules of evidence restricting character and similar fact evidence are also unlikely to achieve the fairness goal fully. They cover a limited number of the determinations on factual and legal issues that are covered by issue estoppel. It is also problematic that an issue decided in a prior trial may not be similar in the sense of the similar fact rule, which focuses on a pattern of criminal conduct going to the essence of the criminal act alleged. The rules of evidence restricting character and similar fact evidence, moreover, are highly discretionary. While the burden is on the Crown to prove admissibility, the accused is in effect called upon to make a case against evidence on a factual issue that has already been resolved in his or her favour. The admissibility of similar fact evidence depends on balancing the probative value of the evidence against the prejudice it may cause to the accused. The accused, to keep the evidence out, would normally attempt to cast doubt on its probative value or show unfair prejudice. The complete protection offered by issue estoppel against having to relitigate factual issues already resolved in the accused’s favour is lacking. [43‑44]
Here, the majority of the Court of Appeal erred in holding that the subsequent verdict of acquittal on the charge of obstruction of justice required it to find that the eyewitness’s evidence of the telephone call from the accused was wrongly admitted on the first trial. The approach to issue estoppel adopted by the majority casts the principle too broadly. This issue can be disposed of on the basis of the order of the verdicts. The acquittal in the second trial cannot operate retrospectively to render the evidence inadmissible in the earlier one. The order of the trials matters and is inherent in the notions of finality that issue estoppel and, more generally, res judicata support. [78‑79]
Per Deschamps, Abella and Charron JJ.: The trial judge’s failure to outline the position of the defence for the jury in the circumstances of this case necessitates a new trial. Although, in light of this conclusion, it is not necessary to deal with the fresh evidence application, the application of issue estoppel in the context of a criminal proceeding has proven problematic and should be reconsidered. This case provides an appropriate context to do so. [90]
As a form of res judicata, issue estoppel precludes the relitigation of an issue that has been finally decided by a court in another proceeding in the interests of ensuring finality in litigation. While it effectively serves this purpose in the civil context, issue estoppel has proven ill‑suited to address the concerns arising from abusive relitigation in the criminal context and as a result, should no longer find application in Canadian criminal law. Concerns about the prevention of abusive relitigation are better addressed in the criminal context by means of existing concepts and provisions other than issue estoppel, including the doctrine of abuse of process; the character evidence rules; the rules against multiple convictions and against collateral attack; the pleas of autrefois acquit and autrefois convict; and s. 11 (h) of the Canadian Charter of Rights and Freedoms . [84] [105] [149]
It is well established in the civil context that three preconditions must be met for issue estoppel to be successfully invoked. The requirement that the parties to both proceedings be the same or their privies — the mutuality requirement — is so unsuited to the criminal context that it has never made its way into Canadian criminal law. This precondition, which by definition would estop the accused as well as the Crown, does not accord with the presumption of innocence and the onus on the Crown to prove its case beyond a reasonable doubt. However, rather than rejecting issue estoppel in criminal law on the basis that the concept is a misfit, the Canadian approach has been to transform the concept in its transposition from the civil to the criminal context by excising the mutuality requirement from issue estoppel as it applies in criminal proceedings. Issue estoppel has become an entirely one‑sided doctrine in the criminal context, understood and applied solely to estop the Crown from relitigating issues previously decided in favour of an accused. Since mutuality can hardly be viewed as merely an incidental feature of issue estoppel, its elimination in the criminal context means that, at the outset, a court is dealing with a concept inherently different from that applied in the civil context. [112-114] [117] [120]
Issue estoppel further requires that the issue to be estopped be the same as the one decided in the prior decision. The fact that significant difficulties may be encountered in deciding whether a particular question was distinctly put in issue and clearly determined in a prior criminal proceeding signals that issue estoppel may not be a suitable mechanism to address concerns arising from relitigation in the criminal context. The accused’s need for protection against unjustified relitigation will usually be more acute when the prior adjudication has resulted in an acquittal. Yet it is in this context that defining the issue to be estopped proves most difficult as a result of the nature of criminal proceedings, which focus on the question whether the accused is guilty or not guilty of the offence charged, not on an array of distinct issues. In a jury trial, the final decision is delivered in the form of an unexplained verdict of “guilty” or “not guilty”, making it extremely difficult to identify with certainty whether or not the issue sought to be estopped has been finally decided. In cases that fall outside the ambit of the pleas of autrefois acquit and autrefois convict and s. 11 (h) of the Charter , the doctrine of abuse of process can provide a more effective and principled mechanism for guarding against abusive prosecutions in the criminal context. [112] [122] [124] [131]
Finally, for issue estoppel to be successfully invoked, the issue in question must also have been conclusively determined. Determining whether a decision is final for the purpose of issue estoppel has raised some controversy in the case law, even in the context of civil litigation. In the criminal context, the finality assessment takes on an added layer of complexity by virtue of the varying burdens of proof applicable at different stages of a criminal proceeding. Because the burden of proof in a criminal trial is beyond a reasonable doubt, a verdict of “not guilty” encompasses a broad range of circumstances, from factual innocence to proof just short of beyond a reasonable doubt. Taking account of the many shades of doubt upon which a verdict of “not guilty” could reasonably be based, complicates the finality assessment for the purposes of issue estoppel considerably, and underscores the impracticality of an absolute rule precluding the admission of evidence underlying a prior acquittal in a subsequent proceeding. [134-135] [144]
The application of issue estoppel as an absolute rule precluding the admission of prior acquittal evidence in all cases regardless of the basis for the acquittal or of the relevance of the evidence in that subsequent proceeding is inconsistent with the basic rule favouring the admission of all relevant evidence, subject to countervailing concerns. That is not to say that an acquittal should have no bearing on the admissibility of its underlying evidence in a subsequent criminal proceeding, but issue estoppel has not proven the optimum analytical framework for deciding questions of admissibility in this context. The question of admissibility of prior acquittal evidence will depend, not on an absolute rule barring its admissibility in all cases, but on the careful weighing of the probative value of the evidence to an ultimate issue in the subsequent proceeding, as against the unfairness of requiring the accused to defend himself repeatedly against the same allegations on the issue in question, in accordance with the familiar similar fact evidence test. Finally, the doctrine of res judicata, which is intended in this context to protect an accused against repeated attacks in respect of matters already adjudicated in his favour, can have no retroactive application to impugn the first proceeding. If at all relevant, the principle of res judicata could only find application in respect of a subsequent proceeding. [132-133] [145] [147]
The application to introduce fresh evidence ought to have been dismissed. The eyewitness’s testimony about the phone call, although clearly relevant, constitutes evidence that the accused committed the criminal offence of obstructing justice, a discreditable act that falls outside the scope of the indictment. The testimony is therefore a form of bad character evidence which, in theory, is subject to the general exclusionary rule. However, in the context of the accused’s trial on the attempt murder charge, he would have had no credible basis to argue that the probative value of the evidence about the phone call was outweighed by the potential prejudicial effect of having the jury hear evidence that he may have committed the offence of obstructing justice. Therefore, the evidence about the phone call was properly admitted at trial and there is no reason to overturn the conviction on the ground of its admission. The proposed fresh evidence does not impact that conclusion. The subsequent acquittal on the charge of obstructing justice does not retroactively render this evidence inadmissible on the basis of issue estoppel. The doctrine of res judicata does not have any retroactive effect and none of the principles that underlie that doctrine find application in these circumstances. There is nothing about the subsequent obstructing justice proceeding that undermines the reliability of the verdict on the attempt murder charge. [165-167]
Cases Cited
By McLachlin C.J.
Explained: Grdic v. The Queen, [1985] 1 S.C.R. 810; referred to: Gushue v. The Queen, [1980] 1 S.C.R. 798; R. v. G. (K.R.) (1991), 68 C.C.C. (3d) 268; R. v. Rulli (1999), 134 C.C.C. (3d) 465, leave to appeal ref’d, [2000] 1 S.C.R. xviii; R. v. Verney (1993), 87 C.C.C. (3d) 363; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; Carl Zeiss Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Duhamel v. The Queen, [1984] 2 S.C.R. 555; R. v. Humphrys, [1976] R.T.R. 339; R. v. Arp, [1998] 3 S.C.R. 339; R. v. Ollis, [1900] 2 Q.B. 758; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. Regan (1999), 131 C.C.C. (3d) 286.
By Charron J.
Referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729; Grdic v. The Queen, [1985] 1 S.C.R. 810; R. v. Arp, [1998] 3 S.C.R. 339; Duhamel v. The Queen, [1984] 2 S.C.R. 555; Muir v. Carter (1889), 16 S.C.R. 473; Wright v. The Queen, [1963] S.C.R. 539; Cargill Grain Co. v. Foundation Co. of Canada Ltd., [1965] S.C.R. 594; R. v. Riddle, [1980] 1 S.C.R. 380; Boucher v. Stelco Inc., [2005] 3 S.C.R. 279, 2005 SCC 64; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; R. v. Van Rassel, [1990] 1 S.C.R. 225; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44; R. v. Humphrys, [1976] R.T.R. 339; R. v. Hogan, [1974] 1 Q.B. 398; McIntosh v. Parent, [1924] 4 D.L.R. 420; Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; Gushue v. The Queen, [1980] 1 S.C.R. 798; R. v. Morin, [1988] 2 S.C.R. 345; Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 98; R. v. Cullen (1989), 52 C.C.C. (3d) 459; R. v. G. (K.R.) (1991), 68 C.C.C. (3d) 268; R. v. Verney (1993), 87 C.C.C. (3d) 363; R. v. Ollis, [1900] 2 Q.B. 758; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. B. (L.) (1997), 9 C.R. (5th) 38; R. v. Kirk (2004), 188 C.C.C. (3d) 329; R. v. Oldford (1999), 139 C.C.C. (3d) 288; R. v. D. (L.E.), [1989] 2 S.C.R. 111.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (h).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 8(3) , 607 .
Authors Cited
Boilard, Jean‑Guy. Guide to Criminal Evidence, vol. 1. Cowansville, Que.: Yvon Blais, 1991 (loose‑leaf updated September 2008, Issue 48).
Cross and Tapper on Evidence, 11th ed. by Colin Tapper. New York: Oxford University Press, 2007.
Delisle, J. R. “Three Recent Decisions of the Supreme Court of Canada Affecting the Law of Similar Fact Evidence” (1992), 16 Prov. Judges J. 13.
Friedland, Martin L. Double Jeopardy. Oxford: Clarendon Press, 1969.
Gorman, Wayne. “Multiple Count Indictments and the Impact of the Accused Being Acquitted on a Count Subsequently Used as Similar Fact Evidence” (1994), 30 C.R. (4th) 222.
Lange, Donald J. The Doctrine of Res Judicata in Canada, 2nd ed. Markham, Ont.: LexisNexis Butterworths, 2004.
Mahoney, Richard. “Acquittals as Similar Fact Evidence: Another View” (2003), 47 Crim. L.Q. 265.
Mirfield, Peter. “Shedding a Tear for Issue Estoppel”, [1980] Crim. L.R. 336.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 4th ed. Concord, Ont.: Irwin Law, 2005.
Rosenberg, Marc. “Evidence of Similar Acts and Other Extrinsic Misconduct”, in National Criminal Law Program, Criminal Evidence, vol. 1. Vancouver: Federation of Law Societies of Canada, 1994, s. 8.1.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Stewart, Hamish. “Issue Estoppel and Similar Facts” (2008), 53 Crim. L.Q. 382.
Stuesser, Lee. “Admitting Acquittals as Similar Fact Evidence” (2002), 45 Crim. L.Q. 488.
Wright, Keith E. “Similar Fact Multiple Count Indictments — A Reply” (1994), 32 C.R. (4th) 301.
APPEAL from a judgment of the Ontario Court of Appeal (Sharpe, Blair and Rouleau JJ.A.) (2006), 80 O.R. (3d) 35, 209 O.A.C. 198, 208 C.C.C. (3d) 515, [2006] O.J. No. 1619 (QL), 2006 CarswellOnt 2421, setting aside the accused’s conviction for aggravated assault and ordering a new trial. Appeal dismissed.
Lucy Cecchetto and Sunita Srivastava, for the appellant.
R. Philip Campbell, for the respondent.
The judgment of McLachlin C.J. and Binnie, LeBel, Fish and Rothstein JJ.
was delivered by
The Chief Justice —
I. Introduction
[1] I have read the reasons of my colleague Justice Charron and agree with them, with the exception of their treatment of issue estoppel. Issue estoppel, as applied in Canada since Grdic v. The Queen, [1985] 1 S.C.R. 810, has created perplexing difficulties and fostered calls for reform. That reform is required is beyond doubt. The only question is whether that reform should take the form of excising issue estoppel entirely from the criminal law, as my colleague contends, or whether the principle should be retained in a narrower, less problematic form.
[2] I favour the latter approach. In my view, the difficulties associated with the application of issue estoppel in criminal law arise from the fact that it has been extended to circumstances where justice does not support its application. Properly confined, in accordance with a proper reading of the majority reasons in Grdic, issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality. Other concepts, such as abuse of process, character evidence rules, and the rules governing the admissibility of similar fact evidence, do not completely or effectively guarantee these goals. Though it 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. I would therefore decline to throw out issue estoppel in its entirety. Rather, I would modify the current Canadian approach to issue estoppel in criminal law, confining it to the focused compass of precluding the Crown from leading evidence which is inconsistent with findings made in the accused’s favour in a previous proceeding.
[3] Applying this principle to the facts in this case, I conclude that issue estoppel does not operate against the Crown. The accused argues that issue estoppel means that evidence admitted on his first trial, the verdict under appeal, must now be deemed to have been improperly admitted on the ground that he was acquitted on a second charge where the subject matter of the second charge was the same as the impugned evidence led at the first trial. In my view, this argument invokes the doctrine of issue estoppel in a manner that is overbroad. I agree with Blair J.A., dissenting in the Court of Appeal, that properly understood, issue estoppel does not operate retrospectively to require the ordering of a new trial. However, as a new trial is required on other grounds, I would dismiss the appeal.
II. Background
[4] In order to assess the applicability of the doctrine of issue estoppel in this case, it is necessary to retain in clear focus the sequence of events giving rise to the accused’s claim.
[5] The first trial of the accused, Mahalingan, was for attempted murder. The charge against Mahalingan and two other men arose out of the attack of two men in a parked car by a gang of approximately fifteen men. Mahalingan was charged with attempted murder, and his two co-accused were charged with aggravated assault. The main issue was the identity of the attackers.
[6] The Crown’s case rested mainly on the evidence of Balasingam, the driver of the parked vehicle. Balasingam testified that Mahalingan was the man who first attacked the passenger, Perinpanathan. Balasingam testified that, after kicking Perinpanathan, Mahalingan attacked Perinpanathan with a long dagger. He also testified that he later saw Mahalingan standing at the rear of the car, yelling encouragement to the other attackers. In addition to evidence of what happened at the scene of the crime, the Crown relied on Balasingam’s evidence that after the events, Mahalingan, while in jail, telephoned him to apologize and to ask Balasingam not to testify against him. The defence attacked Balasingam’s credibility. Balasingam had a lengthy criminal record including offences of dishonesty, and there were numerous inconsistencies in his various accounts of the attack and Mahalingan’s involvement. The jury convicted Mahalingan of the lesser charge of aggravated assault.
[7] Mahalingan was subsequently charged with obstruction of justice, based on Balasingam’s evidence that Mahalingan had telephoned him and asked him not to testify against him. A judge acquitted Mahalingan of this charge.
[8] On appeal from the charge of aggravated assault, Mahalingan applied to have the acquittal on the charge of obstruction of justice admitted as fresh evidence. His intention was to use the acquittal to argue that Balasingam’s evidence of the telephone call was improperly admitted on the prior attempted murder trial, on the ground that to allow its admissibility to stand would offend the principle of issue estoppel.
[9] All members of the Court of Appeal expressed concern with this argument and with the state of the law concerning issue estoppel in criminal proceedings in Canada. However, the majority, per Sharpe J.A., felt compelled by prior authority to accede to the accused’s argument and grant the motion for fresh evidence. Blair J.A. dissented, arguing that properly understood, the doctrine of issue estoppel did not apply retrospectively to compel the conclusion that Balasingam’s evidence of the telephone call had been improperly admitted in the first trial.
III. Analysis
[10] The Crown took the position that this Court should overrule the settled law in Canada concerning issue estoppel and rule that issue estoppel has no place in criminal proceedings. Alternatively, the Crown argued that issue estoppel should not be applied in retrospective fashion, so as to unravel completed trials. I cannot accept the first submission, but endorse the second.
[11] Issue estoppel has been a constant element in Canadian criminal law for over three decades, if not longer. This alone does not compel its survival. If it is clearly unhelpful and unnecessary, then it should be jettisoned. However, this Court should approach with caution a plea to oust a doctrine it has repeatedly endorsed, and only accede to the plea upon clear demonstration that it fails to serve the ends of justice.
[12] Three arguments are advanced against maintaining issue estoppel. The first is that it is not necessary, because other doctrines adequately guard against the problems to which the doctrine of issue estoppel is directed. The second is that the requirements of issue estoppel do not fit well with the premises of the criminal law. The third is that the doctrine, as applied in criminal law, is unworkably problematic. I will consider each argument in turn.
[13] However, before turning to the arguments for and against issue estoppel, it may be helpful to review its place in the law and the development of the Canadian position on issue estoppel.
A. Issue Estoppel in the Criminal Law: The Current Canadian Position
[14] The common law developed two doctrines to deal with problems of unfair relitigation, consistency of result and finality. Both come out of the broad concept known as res judicata.
[15] The first branch of res judicata is sometimes called cause of action estoppel in the civil context, or double jeopardy in the criminal context. An argument on this basis asserts that the cause of action in a current proceeding is the same as the cause of action in a proceeding previously litigated, with the result that the current action should not proceed. In criminal law, the double jeopardy principle finds expression in the pleas of autrefois acquit and autrefois convict.
[16] The second branch of res judicata is issue estoppel. Issue estoppel is concerned not with whether the cause of action in two proceedings is the same, but with whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding. The causes of action may be (and typically are) different. Issue estoppel in Canada has historically applied to both civil and criminal law.
[17] While double jeopardy is concerned with the total cause of action and the ultimate result of the litigation, issue estoppel is concerned with particular issues arising in two different pieces of litigation. As will be discussed more fully below, much of the difficulty associated with issue estoppel in the criminal context is the result of conflating the focus of double jeopardy on the ultimate verdict with the proper and narrower concern of issue estoppel, which is particular determinations on the issues supporting the verdict. If issue estoppel is confined to prior determinations of issues, the difficulties largely vanish.
[18] The conflation of the result-based double jeopardy principle and issue estoppel can be traced to this Court’s decision in Grdic. Two views of issue estoppel were expressed in Grdic. A majority of five, per Lamer J. (as he then was), took the view that “any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused” (p. 825). Lamer J. went on to state: “This is so even though the judgment might well be the result of a reasonable doubt on that issue . . .” (p. 825). Accordingly, Lamer J. held that since identity was the central issue in the first trial in Grdic, and since the trial judge had a reasonable doubt about identity, the Crown was estopped from relitigating that issue (pp. 825-26). In short, if an issue supporting an acquittal is resolved in favour of the accused on one offence, on whatever basis, evidence to contradict the finding on that issue cannot subsequently be re-led on different charges.
[19] By contrast, Wilson J., dissenting, held that because the trial judge’s reasons in Grdic were based on a reasonable doubt about identity, rather than an affirmative factual finding of lack of identity, the Crown was not estopped from calling evidence going to the issue of identity (pp. 817-18).
[20] In sum, both Lamer J. and Wilson J. confirmed the applicability of the principle of issue estoppel in criminal law. Both saw it as a principle that prevented relitigation of an issue decided in the accused’s favour in a prior trial. They differed only on whether the principle extended to issues resolved in the accused’s favour on the basis of a reasonable doubt. The majority of the Court, per Lamer J., held that it did; the dissenting justices, per Wilson J., held that it did not. (Lamer J. and Wilson J. also differed on the limits of the fraud exception to issue estoppel; however, that issue does not arise in this appeal.)
[21] Some of the difficulty with the application of issue estoppel appears to find its genesis in a misreading of the majority in Grdic that the fact of an acquittal estops the Crown from relitigating any fact that was in issue in the first trial, whether or not it can be shown that the particular issue was decided in the accused’s favour in the first case. The basis for this extension of the principle may lie in Lamer J.’s comment in Grdic that “[t]here are not different kinds of acquittals” (p. 825) — a comment made at the outset of his analysis in response to concerns about the trial judge’s comments that one of the witnesses on identity must have committed perjury. Lamer J.’s concern appears to have been to rebut any suggestion that the acquittal was somehow tainted or not genuine, as a result of the finding of perjury. It was in this context that he stated that all acquittals are equal and that one cannot go behind them. Lamer J. then turned to res judicata and issue estoppel. The balance of the analysis focuses, not on the acquittal, but on whether the issue of identity had been decided in the first trial. Lamer J. expressly affirmed that a prior acquittal on a different charge “does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re-litigating all or any of the issues raised in the first trial” (p. 825), limiting the scope of issue estoppel to “any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal” (p. 825). Whether the Crown was estopped was discussed as dependent, not on the fact of an acquittal in a previous proceeding, but on whether the issue in question has been decided in the accused’s favour in a previous proceeding. On the facts of Grdic, Lamer J. found that the issue of identity had been decided in favour of the accused in the first trial, based on a review of the record of the first trial, including the defence led, and the nature of the case (Grdic, at p. 826).
[22] To the extent that Grdic has been read as preventing the Crown from leading evidence on any issue raised in a previous trial that resulted in an acquittal, this is a misreading of the majority’s holding. Only issues which were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel.
[23] It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies. The determination of whether an issue was decided at a first trial, either expressly or necessarily as a prerequisite to an acquittal, must be based on a review of the relevant portions of the transcript of the first trial, in particular, the allegations, the nature of the Crown’s case, and the defence’s case: Grdic, at p. 826. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding.
[24] In a one-issue trial, like Grdic, the effect of issue estoppel is that the Crown will normally be estopped from calling evidence about the central issue in the trial on a subsequent trial (subject to Ollis-exception situations as discussed below, where the Crown is not seeking to contradict the factual finding from the first trial). But in a more complex multi-issue trial, depending on the facts, the Crown may not be estopped on all issues. This is because the acquittal must have been based on only one factual issue, or because it may not be possible to discern which issue the acquittal is based on.
[25] In such a case, it may not be clear that the relevant issue was resolved in the accused’s favour on the first trial. An example of a situation where issue estoppel did not apply, because it was not clear an issue was decided in the accused’s favour in the first trial, can be seen in this Court’s decision in Gushue v. The Queen, [1980] 1 S.C.R. 798. In Gushue, the Court considered whether issue estoppel applied where the accused had been acquitted of murder in the course of a robbery involving a co-accused, and was subsequently charged with the robbery. This Court held that issue estoppel did not apply to prevent the robbery charge from proceeding, because different theories of liability were left to the jury at the murder trial, with the effect that the acquittal on the murder charge did not necessarily require a finding of fact that the accused had not participated in a robbery (pp. 806-7).
[26] In summary, the majority reasons in Grdic stand for the following proposition. The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused’s favour or resolved on the basis of a reasonable doubt. Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case). Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. In my view, these propositions should be affirmed as correct statements of the law. Moreover, it should follow from these propositions that the Crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused’s favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.
[27] On the issue of whether issue estoppel should operate retrospectively, I note that Grdic was clearly concerned with the relitigation of an issue that had, in a previous proceeding, been resolved in the accused’s favour. This accords with the principle of issue estoppel, which has always been concerned with the relitigation of previously concluded issues. Neither Lamer J. nor Wilson J. suggested issue estoppel should operate retrospectively to result in evidence being redacted from the record on a prior trial. The concern for finality, one of the principles which underlies the doctrine of issue estoppel, is inconsistent with retroactive application of issue estoppel.
[28] On the issue of whether issue estoppel should extend to matters resolved on the basis of reasonable doubt, the majority reasons of Lamer J. in Grdic are sound and should be retained.
[29] First, to exclude issues resolved on the basis of reasonable doubt from the scope of issue estoppel gives insufficient weight to the principle that an accused should not be required to answer twice to the same allegations. Once a trial judge has concluded that the Crown has failed to prove a factual issue, the matter is decided against the Crown, and the Crown should be estopped from relitigating it. It should not matter whether the Crown failed to prove the fact because the trial judge had a reasonable doubt, or because the trial judge expressly found against the fact the Crown is trying to prove. The burden on the Crown to prove its case beyond a reasonable doubt is a fundamental aspect of our criminal justice system. The Crown should not be able to look to the standard of proof as an excuse to relitigate matters.
[30] Second, to exclude issues resolved on the basis of a reasonable doubt from the scope of issue estoppel gives insufficient weight to th