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Criminal - Estoppel. McCormack v. Evans
In McCormack v. Evans (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the dismissal of "a civil action against the respondents alleging malicious prosecution, negligent investigation and other civil wrongs".
Here the court considers, on the procedural facts of this case - whether the exclusion of wiretap evidence in a criminal proceedings necessarily entails it's exclusion in subsequent civil proceedings - here analysed from a issue estoppel perspective:[49] The trial judge held otherwise. First, he explained, “[t]here is… no authority of which I am aware that establishes that I am bound to adopt as factual findings at a civil trial the statements made by Crown counsel in prior criminal proceedings explaining the Crown’s reasons for exercising prosecutorial discretion in a certain way.” As for Beatty and Croll JJ.’s comments, no species of res judicata was made out, because there was no mutuality of issue: their comments were made in the context of criminal proceedings, not “the admissibility at this civil trial of the wiretap intercepts.” As he explained, at para. 47 of his admissibility ruling:In respect of the decisions of Justice Beatty and Justice Croll, I am not bound by the doctrine of issue estoppel, the rule against collateral attack, or the doctrine of abuse of process (as explained by Arbour J. in Toronto (City) v. C.U.P.E. 2003 SCC 63) to decide that the wiretap intercepts are inadmissible in this trial based on those decisions. The findings and conclusions made by Justice Beatty and by Justice Croll in support of their decisions (to the extent that such findings and conclusions are more than simply commentary on the evidence before them) do not determine the issue before me, that is, the admissibility at this civil trial of the wiretap intercepts. [50] The trial judge also considered the fact that the police conduct in this case had attracted negative comment from the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at paras. 33, 37. In that case, Binnie J. explained that “discovery of the identity of a source, and the circumstances under which his or her information was obtained by the police, may legitimately play a role in making out a full answer and defence”: Barros, at para. 37. He referred to the appellant’s case as an example “where the ‘source’ turned out to be non-existent, wholly unreliable, or had participated in an entrapment”: Barros, at para. 37. But this comment, the trial judge held, “was made in a different case and does not concern the issue before me, that is, the admissibility at this trial of evidence of the wiretap intercepts.”
[51] The trial judge observed that the wiretap authorization first issued back in 2003 had not been set aside and accordingly benefited from a presumption of validity. While a hearing as to admissibility – a “Garofoli” hearing – was scheduled, it never proceeded given that some charges had been stayed and others withdrawn. The trial judge further found that on the evidentiary record before him, he could not conclude that exclusion of the evidence would have been inevitable.
[52] Finally, the trial judge held that, even if the evidence would inevitably have been excluded from the criminal trial, different considerations governed admissibility at a civil trial. As he noted, “I would still need to decide the question of admissibility of the wiretap evidence at this trial of a civil action where different considerations than those in criminal proceedings must be addressed.”
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Judicial Commentary
[63] As for the judicial commentary of Beatty J. at the preliminary inquiry and Croll J. in the Superior Court of Justice, these must also be seen in context. First, as noted by the trial judge, issue estoppel did not govern because the parties to the respective criminal and civil proceedings were different: National Industries Inc. v. Kirkwood, 2023 ONCA 63, 30 C.C.L.I. (6th) 248, at para. 21, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 23.
[64] Perhaps more importantly, issue estoppel presumes that there exists a potentially binding ruling. Here, there were no rulings, just commentary. The commentary did no more than affirm what everyone already accepted: that the deception in the affidavit should not have occurred. Neither Beatty J. nor Croll J. purported to predict the outcome of a Charter voir dire. Nor could one expect that level of prescience, given the multi-factorial analysis that governs Charter review of warrants and authorizations. Nor could they anticipate this civil lawsuit. . R. v. Breton [issue estoppel]
In R. v. Breton (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against a Crown-successful "application for an order under s. 490(9) of the Criminal Code" ['Disposal of things seized'].
The court considered an issue estoppel argument - here where the defendant was acquitted of charges, but the Crown pursued the CCC 490(9) forfeiture application. The case is useful for distinguishing how different issues may or may not have estoppel attach to them:[1] Police seized over $1.2 million in cash secreted around the appellant’s house and garage, including $1,235,620 found inside a Rubbermaid tub buried under the dirt floor of the garage. There were numerous other items seized, including drugs, drug paraphernalia, motorized vehicles and the like. This appeal concerns only the cash found secreted in the garage.
[2] The appellant was charged with possession of the proceeds of crime and various other offences. At trial, he successfully challenged the search warrant under which the seizures were made, a challenge brought pursuant to s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge excluded all of the evidence under s. 24(2) of the Charter. The exclusion of the evidence resulted in the Crown calling no evidence and, as a corollary, acquittals being entered.
[3] This left the question of what to do with the cash – should it be returned to the appellant or forfeited to the Crown? The Crown brought an application for an order under s. 490(9) of the Criminal Code, R.S.C. 1985, c. C-46. Although the Crown originally sought the forfeiture of almost all seized items, in the end, the Crown focused on the seized cash. The appellant countered with an application to have the evidence excluded from the forfeiture proceeding. This time the trial judge[1] denied the s. 24(2) application, declining to exclude the cash and evidence surrounding its seizure from the forfeiture proceeding. He ultimately ordered that the cash found in and under the garage be forfeited to the Crown.
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ii. Law of issue estoppel following an acquittal
[37] Issue estoppel is one branch of res judicata, which is a doctrine that prevents unfair relitigation of matters that have already been decided: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 14-16. In the context of criminal cases, it “prevent[s] the Crown from 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”: Mahalingan, at para. 31. Issue estoppel serves the goals of (1) fairness to the accused, who should not have to confront issues already decided in their favour; (2) integrity and coherence of the criminal law; and (3) judicial finality and economy: Mahalingan, at paras. 2, 38.
[38] Issue estoppel has three core requirements:(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies: Mahalingan, at para. 49. [39] To satisfy the first requirement, an accused must show that the question “was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding”: Mahalingan, at para. 52. The question will be whether the finding said to be in favour of the accused is one that is “logically necessary” to the acquittal, to be determined by reference to the essential elements of the verdict: Mahalingan, at para. 53. In a multi-issue jury trial where there are no reasons, it will sometimes be harder to rely on issue estoppel because it will not always be clear which issues were decided in favour of the accused: Mahalingan, at para. 54; Punko, at para. 22.
[40] In Punko, the Supreme Court applied the test from Mahalingan in the context of a multi-issue jury trial. The issue was whether the Crown was estopped from proving that a chapter of the Hells Angels was a criminal organization because the issue was decided adversely to the Crown in a prior jury trial. At the first jury trial, the appellants were acquitted of counts allegedly committed for the benefit of, or at the direction of, a criminal organization. The Supreme Court concluded that issue estoppel did not apply and that it was open to the Crown to seek to prove the criminal organization issue at the second trial. This is because where there is more than one logical explanation for a verdict, and if one of these explanations does not depend on the relevant issue having been resolved in favour of the accused, the verdict cannot be relied upon in support of issue estoppel: Punko, at para. 8.
iii. Application
[41] In my view, issue estoppel did not preclude the Crown from arguing at the forfeiture hearing that the cash the appellant possessed was obtained unlawfully, for two reasons:(1) A finding about whether the seized cash was obtained unlawfully was not logically necessary to the appellant’s acquittal.
(2) Regardless, the trial judge cannot have made any findings about the cash found in and under the garage, since it was not in evidence. [42] We need to start by grounding ourselves in why the appellant was acquitted across the board. Here, the trial judge did not provide reasons explaining why he entertained a reasonable doubt as to one or more of the elements of the offence. Rather, following the exclusion of the evidence under s. 24(2), and the Crown opting to call no evidence, acquittals were necessarily entered. This is reflected in the trial judge’s brief endorsement offering his sole explanation for acquitting the appellant: “As [Crown] calls no evidence, I find Marcel Breton not guilty”. That is it.
[43] The appellant argues that Grdic governs this appeal. He contends that the verdict of not guilty is tantamount to a “declaration of innocence” for all purposes: R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 371. Leaning on Grdic, the appellant maintains that it makes no difference whether the appellant was acquitted as a result of a Charter application or whether he was acquitted after a full review of the evidence, given that Grdic, at p. 825, makes clear that an “‘acquittal is the equivalent to a finding of innocence’”. And if he has been found innocent, he cannot have been unlawfully in possession of the disputed cash.
[44] I do not read Grdic in the same way as the appellant. In my view, it does not stand for the proposition advanced by the appellant.
[45] Indeed, the suggestion that the fact of an acquittal precludes any issue raised in a previous trial from being dealt with at a subsequent proceeding has been referred to as a “misreading” of Grdic: Mahalingan, at para. 22. It is only those issues that were specifically decided in the accused’s favour during the first trial, either by way of a factual finding or a reasonable doubt, that become the subject of issue estoppel at the subsequent proceeding. As the majority in Mahalingan found, whether the Crown was estopped from relitigating an issue is dependent, not on the fact of the acquittal, but on “whether the issue in question has been decided in the accused’s favour in a previous proceeding”: at para. 21. To proceed otherwise is to conflate the concept of double jeopardy on the ultimate verdict (not in issue here), with the central concern behind issue estoppel, which is to preclude the litigation of issues that have been specifically resolved in reaching a verdict: Mahalingan, at para. 21.
[46] Therefore, not every issue at a trial that results in an acquittal will be estopped at a subsequent proceeding. Only those issues that were “expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal” are estopped from reconsideration: Mahalingan, at para. 23. This is to be decided on the whole of the record. The whole of the record here demonstrates that no estoppel on the issue of whether the seized cash was obtained unlawfully arises from the acquittal.
[47] First, I agree with the Crown that a finding about whether the seized cash was obtained unlawfully was not logically necessary to the appellant’s acquittal. Therefore, the trial judge was not bound by issue estoppel on this point, and it was open to him to conclude that the cash found in and under the garage was the proceeds of crime, satisfying the requirement in s. 490(9) that “possession of it by the person from whom it was seized is unlawful”.
[48] The appellant was charged with and acquitted of possession of the proceeds of crime under ss. 354(1)(a) and 355(a) of the Criminal Code. This offence can be broken down into at least three elements: the property must have been obtained or derived from the commission of an indictable offence in Canada, the property was in the accused’s possession, and the accused must have known the property was unlawfully obtained: R. v. Farnsworth, 2017 ABCA 358, 356 C.C.C. (3d) 255, at paras. 32-36.
[49] Failure to prove any of these elements beyond a reasonable doubt would result in an acquittal. We simply cannot conclude that any one of these issues was “logically necessary” to the acquittal. For example, if the trial judge were convinced that the seized cash was proceeds of crime but was not satisfied either that the appellant was in possession of it or that he had knowledge of its origins, this would have resulted in an acquittal. As the trial judge provided no reasons other than a brief endorsement on the indictment noting that the Crown had called no evidence, it cannot be said which issue or issues were resolved for purposes of arriving at the acquittal. This is not unlike a jury verdict where the basis of the acquittal is not explained, and all we know is that the trier of fact had a reasonable doubt about something, more than one thing or possibly everything.
[50] I recognize that in a situation where the Crown calls no evidence, we might conclude that the trial judge must have had a reasonable doubt about every element of the offence. Having been presented with zero evidence, how could the trial judge have been convinced of anything beyond a reasonable doubt? But it does not follow that issue estoppel should apply in these circumstances. Issue estoppel in the criminal context is necessarily narrow: Mahalingan, at para. 1; Punko, at para. 7. It only applies to findings that are logically necessary to a verdict: Mahalingan, at para. 53. In a multi-issue jury trial, “it will be rare for an acquittal to ground issue estoppel, because such an acquittal will often have more than one possible basis”: Punko, at para. 22; Mahalingan, at paras. 24, 54. In my view, this case is analogous to a multi-issue jury trial, in the sense that there is more than one possible basis for the acquittal and there are no reasons explaining what the basis is.
[51] Second, regardless of what we can logically infer from the verdict of acquittal, in my view the trial judge cannot have made any finding with respect to the seized cash at the criminal trial because the seized cash was not before him, having been excluded as inadmissible under s. 24(2).
[52] To understand what the appellant was acquitted of, we must look to the indictment. The indictment does not specify the seized cash from in and under the garage. It simply alleges that the appellant was in possession of “proceeds of property of a value exceeding five thousand dollars” in general terms:Marcel Donald BRETON, on or about the 1st day of December in the year 2009 at the Township of Gorham, in the said Region, unlawfully did have in his possession proceeds of property of a value exceeding five thousand dollars, knowing that all or part of the currency was obtained or derived directly or indirectly from the commission in Canada of an offence punishable by indictment, contrary to Section 354(1)(a) of the Criminal Code thereby committing an offence under Section 355(a) of the Criminal Code. [Emphasis added.] [53] Even though the trial judge surely had a reasonable doubt about whether the appellant possessed proceeds “of a value exceeding five thousand dollars” given that the Crown called no evidence, it does not follow that the trial judge had a reasonable doubt about whether the seized cash was the proceeds of crime. Quite simply, that cash was not in evidence at the trial at the point that the decision to acquit was made and so the trial judge cannot have made any findings about its status, either explicitly or on the basis of reasonable doubt, one way or the other.
[54] In my view, this conclusion is entirely consistent with the goals of issue estoppel, as set out in Mahalingan, at para. 38.
[55] First, there is no unfairness to the appellant because the issue of whether he unlawfully possessed the cash in and under the garage was not determined at his trial because it was not litigated in light of the exclusion of the evidence – including the cash itself – pursuant to s. 24(2).
[56] Second, this result does not undermine the integrity or coherence of the criminal process, because the appellant’s acquittal of possession of the proceeds of crime did not entail or depend on a finding that the seized cash was not the proceeds of crime.
[57] Finally, and for the same reasons, this conclusion does not undermine the institutional values of finality and judicial economy. While these values are of course essential to preserving the public’s confidence in the administration of justice, and relitigation is barred in order to preserve these values, there was no original litigation on the core issue in this case that resulted in findings upon which issue estoppel could rest. . R. v. Ouedraogo [issue estoppel]
In R. v. Ouedraogo (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal sentencing appeal.
The court finds that 'issue estoppel' did not apply, here where the court allowed a Crown "Long Term Offender (“LTO”) application to proceed although the same parties had litigated the same issue in the Ontario Court of Justice (“OCJ”)":(1) Issue 1: Denial of an Order to Estop the LTO Designation for These Offences
[17] The appellant objected to the imposition of a LTSO in this case to “prevent the Crown from litigating the same issue twice”, as the factual record is similar and the same remedy was sought. The sentencing judge refused to do so, holding that issue estoppel did not apply and that the Crown was permitted to seek LTSOs in both this and the OCJ sentencing proceedings.
[18] The appellant concedes that a consecutive sentence is appropriate as this trial was separate from the OCJ trial and sentence. However, he claims that no LTSO should be imposed as the appellant was already subject to a 10-year LTSO pursuant to the OCJ sentence and both offences were considered in imposing that sentence.
[19] I do not agree. As noted by this sentencing judge, issue estoppel does not apply to individual sentencing decisions. While the Crown may not lead evidence that is inconsistent with findings made in an accused’s favour in a prior LTO proceeding, that is to ensure fairness to an accused and avoid inconsistent verdicts: R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 52-57. That, however, does not mean there cannot be two verdicts in two different LTO proceedings.
[20] In R. v. Thompson, 2014 ONCA 43, 118 O.R. (3d) 676, at para. 61, leave to appeal to S.C.C. refused, 35932 (September 25, 2014), this court held that:Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an issue estoppel. It would seem incongruous to permit findings made in some sentencing proceedings to serve as a foundation for the operation of the doctrine, yet deny the same status to others. [Citations omitted.] [21] Moreover, the language of the Criminal Code makes it clear that an offender can be subject to more than one LTSO. Section 755(2) of the Code provides that,The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years. [Emphasis added.] [22] Use of the plural “periods” suggests that an offender can be subject to more than one LTSO.
[23] In sum, issue estoppel does not apply to individual sentencing decisions as different sentencing judges may arrive at different conclusions as to the appropriateness of a sentence, including a LTSO: see R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at para. 19; Thompson, at para. 61. One judge is not bound by another’s decision regarding an LTSO as each application is focussed on the sentence for the offence before them.
[24] In imposing the OCJ sentence, the OCJ judge properly considered the appellant’s subsequent conviction. Likewise, this sentencing judge properly considered the appellant’s prior conviction and the OCJ sentence in deciding an appropriate sentence for these offences and bearing in mind the appellant’s pattern of behaviour and future risk of reoffending. . Canada (Privacy Commissioner) v. Facebook, Inc.
In Canada (Privacy Commissioner) v. Facebook, Inc. (Fed CA, 2024) the Federal Court of Appeal considers 'promissory estoppel' in a regulatory offence context:[126] .... Similarly, promissory estoppel can be raised against a public authority (Malcolm v. Canada (Minister of Fisheries and Oceans), 2014 FCA 130, 460 N.R. 357 at para. 38 [Malcolm]).
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[134] Finally, estoppel in a public law context has narrow application, and "“requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped”" (Malcolm at para. 38). The Commissioner cannot be prevented from carrying out its statutory duty today because of an equivocal representation made over a decade prior. . R. v. Wilson
In R. v. Wilson (Ont CA, 2024) the Ontario Court of Appeal allowed a Crown appeal, here where separate judges heard two separate (severed) sexual offence charges regarding separate alleged victims but the same defendant. The first count convicted relying on similar fact evidence from the second alleged victim, but the second count was dismissed. Consequently the first count judge granted a mistrial: "... on the basis that the respondent was acquitted in the subsequent trial involving child two."
This unusual similar fact situation was previously addressed in the case of R v Mahalingan (SCC, 2008) [raised by the Crown], which "stands for the proposition that an acquittal in a subsequent trial cannot operate retrospectively to render evidence inadmissible which had already been accepted in an earlier trial" - which was rare criminal 'issue-estoppel' reasoning:[15] ... The Supreme Court’s decision in Mahalingan stands for the proposition that an acquittal in a subsequent trial cannot operate retrospectively to render evidence inadmissible which had already been accepted in an earlier trial: Mahalingan (SCC), at para. 79.
[16] The trial judge understood Mahalingan (SCC) to apply only when the first trial was completed. Because he had not yet sentenced the respondent, the trial was not formally completed: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 12. The trial judge therefore concluded that Mahalingan did not apply.
[17] The trial judge reopened the case, allowed the fresh evidence application and declared a mistrial in accordance with R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219.
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(1) Did the trial judge err by failing to follow Mahalingan?
[18] In order to understand the significance of Mahalingan, it is necessary to review the background law relating to issue estoppel. I summarize the historical context and review Mahalingan. I then consider the trial judge’s interpretation of Mahalingan (SCC).
(a) Background of Issue Estoppel
[19] Issue estoppel is a legal doctrine which estops the re-litigation of disputed issues and prevents a party against whom an issue has been decided from proffering evidence to contradict the earlier result: R. v. Cowan, 2021 SCC 45, 409 C.C.C. (3d) 287, at para. 77. The doctrine is concerned with “whether an issue to be decided in proving the current action is the same as an issue decided in a previous proceeding”: Mahalingan (SCC), at para. 16.
[20] The application of issue estoppel to acquittals in criminal proceedings has been controversial. The foundational Canadian decision – and the source of the confusion – is R. v. Grdic, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810. In that case the court held that an acquittal is the equivalent to a finding of innocence: Grdic, at p. 825. As applied in Grdic, issue estoppel prevented the Crown from prosecuting the accused for perjury based on alibi evidence given at an earlier trial where he had been acquitted. As observed by McLachlin C.J. in Mahalingan, the estoppel principle in Grdic was “clearly concerned with the relitigation of an issue that had, in a previous proceeding, been resolved in the accused’s favour”: Mahalingan (SCC), at para. 27.
[21] In G.(K.R.), this court applied the Grdic principle to set aside a conviction based on a subsequent acquittal: G.(K.R.), at paras. 5-7, 17. The appellant in G.(K.R.) was convicted of sexual offences against two children based in part on the similar fact evidence of a third child. In a later trial, the appellant was acquitted of the third child’s allegations. On appeal against the convictions entered at the first trial, the appellant sought to introduce the acquittal as fresh evidence and invited this court to consider the trial record as if the testimony of the third child were not there. The court was asked to decide whether the absence of this testimony would reasonably have been expected to affect the result: G.(K.R.), at para. 8. Citing the Grdic principle that an acquittal is equivalent to a finding of innocence, the court held that “there would be a clear miscarriage of justice if allegations of conduct, of which [the appellant] was innocent, played a part in his conviction for these offences”: G.(K.R.), at para. 13. On this basis, the court admitted the acquittal, removed the testimony of the third child from the record, set aside the convictions, and ordered a new trial: G.(K.R.), at para. 17.
[22] In the years following G.(K.R.), the exclusion of similar fact evidence on the basis of issue estoppel became the subject of criticism.[1] Some jurisdictions have completely rejected the reasoning the Grdic.[2] It was suggested that the case law has misinterpreted Grdic, which was a case about issue estoppel, and misapplied it to bar otherwise admissible similar fact evidence. It was said that the concerns “underlying issue estoppel do not apply to similar fact” evidence, with estoppel requiring that the identical legal issue be decided in both cases.[3]
[23] The Supreme Court of Canada mitigated the impact of issue estoppel on the use of similar fact evidence when it decided R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339. In Arp the Supreme Court confirmed that the estoppel principle from Grdic does not apply “to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding”: Arp, at para. 79. In relation to the test for admission of similar fact evidence as opposed to conviction, the Supreme Court held that there “is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it”: Arp, at para. 79. Accordingly, Arp confirmed that, in a trial involving similar fact evidence, the trier of fact may use the evidence from one count on which there was an acquittal to assess an accused’s liability on other counts once an improbability of coincidence is established.
[24] Then came Mahalingan.
(b) Mahalingan
[25] The accused was convicted of aggravated assault. The eyewitness who identified him as the attacker testified that, shortly before the trial commenced, the accused had telephoned him from jail asking that the eyewitness not testify against him. The accused was subsequently charged with attempting to obstruct justice in relation to the alleged phone call. The accused’s trial on that charge occurred following the conclusion of the first trial. The Crown adduced evidence of the telephone call mirroring that evidence put forward at the initial trial. The accused was acquitted on the obstruction of justice charge. He appealed his aggravated assault conviction, seeking to have his acquittal for obstructing justice accepted as fresh evidence in his appeal.
[26] 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 initial trial.
(c) The Court of Appeal for Ontario
[27] 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: R. v. Mahalingan (2006), 2006 CanLII 12957 (ON CA), 80 O.R. (3d) 35, at paras. 37, 69, 70 (“Mahalingan (ONCA)”). The court was divided, however, on the fresh evidence application.
[28] Sharpe J.A., writing for the majority, recognized and agreed with the criticism of the treatment of issue estoppel, see Mahalingan (ONCA) at para. 62:The exclusion of similar fact evidence on the basis of issue estoppel has been the subject of trenchant criticism by academic and other authors. [References omitted, included in footnote.[4]] [29] Sharpe J.A. agreed with cases that called for the Supreme Court to clarify issue estoppel but concluded that the court was bound by the holding in Grdic and subsequent case law affirming that interpretation: Mahalingan (ONCA), at paras 60-61.
[30] Blair J.A., in dissent, explained why he disagreed. He concluded 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 for fresh evidence, see Mahalingan (ONCA), at para. 78:I do not accept that the acquittal is admissible and useable for these purposes. While I agree with my colleague that this is an area of the law that the Supreme Court of Canada may wish to reassess – for the reasons articulated in the literature he canvasses – I do not share his view that we are bound by authority either in the Supreme Court of Canada or in this court to come to a different conclusion. [31] Blair J.A. further explained at paras. 81 and 82:Indeed, the retrospective application of issue estoppel in the circumstances of this case at least, is meaningless. It is meaningless because it does not respond to any of the basic principles that underpin the notion of issue estoppel, namely:(a) to promote finality in litigation (in this case, it accomplishes the opposite, by fostering yet another proceeding);
(b) to prevent double jeopardy and unfairness to the accused, who should not be required to defend himself or herself continuously against the same allegations, once the legal system has determined the issue in his or her favour (that is not the case here); and
(c) to guard against inconsistent verdicts (again, not a concern here, as attempting to obstruct justice was not an issue at the attempt murder/aggravated assault trial, and the two different triers of fact were operating on the basis of a different standard of proof). ...
Consequently, I do not view Grdic as precluding us from dismissing this ground of appeal. Indeed, it seems to me that the Supreme Court's more recent decision in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, 129 C.C.C. (3d) 321 suggests the contrary. (d) The Supreme Court of Canada
[32] On appeal from this court, the Supreme Court took the opportunity to clarify the law. Chief Justice McLachlin, writing for the majority, referred to Grdic as having created “perplexing difficulties” and referred to the “calls for reform”: Mahalingan (SCC), at para. 1. Rather than eliminate issue estoppel entirely from criminal law – as Charron J. said in dissent – McLachlin C.J. opted to narrow its application. As she said at para. 2: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. [33] Chief Justice McLachlin specifically adopted the reasoning of Blair J.A. and concluded that “properly understood, issue estoppel does not operate retrospectively to require the ordering of a new trial”: Mahalingan (SCC), at para. 3. This new approach, per McLachlin C.J., would cause the difficulties to “largely vanish”: Mahalingan (SCC), at para. 17.
[34] And to further clarify, McLachlin C.J. concluded at para. 79: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 case (this appeal). The order of the trials matters, and is inherent in the notions of finality that issue estoppel, and res judicata more generally, support. [35] The Supreme Court clearly modified the use of issue estoppel that had operated in G. (K.R.). Chief Justice McLachlin explicitly referred to G.(K.R.) as one of the “most significant extensions of the traditional rule of issue estoppel” by expanding issue estoppel to “operate retrospectively to bar or require the redaction of evidence from a first trial, where there is an acquittal on a subsequent charge”: Mahalingan (SCC), at para. 33. Rather than adopting this view, McLachlin C.J. clearly says “issue estoppel should not be understood to operate retrospectively”: Mahalingan (SCC), at para. 33.
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