Supreme Court Judgments

                                                 SUPREME COURT OF CANADA

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.

* 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 the value of finality in litigation. Trial judges, charged with the duty of determining whether the Crown has proved its case beyond a reasonable doubt, frequently state their findings in terms of having a reasonable doubt about an issue.  If having a reasonable doubt on a particular issue is not held to be a conclusive finding of fact, then very few issues will fall within issue estoppel’s ambit, and the ends of finality will be poorly served.

[31] I conclude that, properly understood, issue estoppel in Canadian criminal law operates to prevent 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.

[32] Subsequent cases, however, have read the principle of issue estoppel more broadly.  This overbroad reading is the primary source of the difficulties that currently attend the rule.

[33] The most significant extensions of the traditional rule of issue estoppel are first, the view that it operates to bar the Crown from leading evidence on any issue raised in a prior trial which resulted in an acquittal; and second, the view that it can operate retrospectively to bar or require the redaction of evidence from a first trial, where there is an acquittal on a subsequent charge involving evidence led at the first trial, as is argued in this appeal: R. v. G. (K.R.) (1991), 68 C.C.C. (3d) 268 (Ont. C.A.); R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), leave to appeal refused, [2000] 1 S.C.R. xviii; R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.).  As to the first issue, as is discussed above at paras. 18-26, issue estoppel does not mean that every piece of evidence led in a first trial which leads to an acquittal is inadmissible in a subsequent trial on another matter.  Only issues that were 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.  This would usually include the central issue in the case if it is a one-issue case, or particular issues in a multi-issue case, if the court at the second trial can discern from reviewing the transcript that a finding was made on a particular issue, even if on the basis of reasonable doubt.

[34] As to the second issue, issue estoppel should not be understood to operate retrospectively.  Nowhere in Grdic does Lamer J. suggest that acquittal in a subsequent trial would require a retrospective review of previous trials to determine if evidence led by the Crown in the second trial which resulted in an acquittal had been led in the first trial.  Nor does he suggest that if such evidence had been led, it would be deemed retrospectively to have been improperly received, requiring a new trial.

[35] Having defined the proper scope of the principle of issue estoppel, I turn to the arguments advanced by proponents of the abolition of issue estoppel in criminal cases.

B.      Is the Principle of Issue Estoppel Necessary to the Criminal Law?

[36] The first argument by proponents of eliminating issue estoppel from criminal law is that issue estoppel is not necessary, because other doctrines sufficiently address the concerns behind issue estoppel.

[37] Taking the principle of issue estoppel as a principle against relitigation of concluded issues, as advocated in these reasons, the question is whether, on the trial of an accused for an offence, the Crown can lead evidence capable of contradicting facts previously found in the accused’s favour at an earlier trial.  In my view, the principle prohibiting such relitigation remains essential to a fair, effective and respected criminal justice system.

[38] Like most principles of criminal law that have been repeatedly endorsed by the Court, issue estoppel has been sustained over the years because, whatever its problems, it serves the ends of justice.  Issue estoppel serves three purposes, all integral to a fair criminal justice system: (1) fairness to the accused who should not be called upon to answer questions already determined in his or her favour; (2) the integrity and coherence of the criminal law; and (3) the institutional values of judicial finality and economy.  While these three purposes have strong counterparts in the civil law context, they take on particular nuances in the criminal sphere.  With that in mind, I will consider each in turn.

[39] In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits.  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 state has the right to charge an accused and to prove the facts at a trial of the charge.  If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation.  To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata.

[40] Other rules of criminal law do not completely meet the fairness concern of not requiring the accused to answer factual and legal issues (short of the ultimate verdict) that have been resolved in his or her favour in a previous proceeding.

[41] The plea of autrefois acquit applies only to the final verdict, not to specific, underlying elements of the Crown’s case.

[42] 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 varies with the eye of the beholder.  Traditionally, it has been reserved for obviously egregious abuses of the Crown power, and this Court has said that successful reliance upon the doctrine will be extremely rare — only in “a process tainted to such a degree that it amounts to one of the clearest of cases”: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 120.  To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process: Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.), at pp. 1492-93.  To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes.  Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel.

[43] The rules of evidence restricting character evidence and evidence of similar facts are also unlikely to fully achieve the fairness goal that underlies the doctrine of issue estoppel.  In the first place, they cover a limited number of the determinations on  factual and legal issues that are covered by issue estoppel.  Character is clearly only one of many factual matters that may fall to be proved in support of a charge.  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.  Discrete factual issues, such as the issue of identity in Grdic, may not fit within the similar fact rule.

[44] The rules of evidence restricting character and similar fact evidence, moreover, are highly discretionary. While the burden is on the Crown to prove admissibility, as a tactical matter, an accused will feel a burden to make some case for why the evidence should not be admitted.  The admissibility of similar fact evidence, for example, 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.  Despite the burden being on the Crown, therefore, 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 complete protection offered by issue estoppel against having to relitigate factual issues already resolved in the accused’s favour is lacking.

[45] The second goal served by issue estoppel is the integrity and coherence of the criminal process.  Inconsistent verdicts are guarded against by the res judicata doctrines of autrefois convict and autrefois acquit.  However, the criminal law abhors not only inconsistent verdicts, but inconsistent findings on specific issues.  Inconsistent findings raise concerns about the fairness of the ultimate verdict and the integrity and coherence of the justice system as a whole.  Autrefois acquit and the rules restricting similar fact evidence cannot guard against inconsistent findings with the same certainty, rigour and scope as does issue estoppel.

[46] The third goal served by issue estoppel is preservation of the related institutional values of judicial finality and economy.  Judicial finality and economy are essential to preserving confidence in the justice system.  Criminal proceedings should not go on longer than necessary.  Once factual issues are determined one way or the other, they should be deemed finally determined, subject to appeal.  Relitigation should not be permitted.  This rule is consistent with the Crown’s duty to be diligent in garnering evidence and pursuing its case; the Crown will be encouraged in its duty by the knowledge that it will not be permitted a second chance.

[47] I conclude that issue estoppel serves important goals in the criminal process — goals that are not fully achieved by other doctrines and rules of evidence.  Issue estoppel remains a useful and, indeed, necessary part of our criminal law system. A simple, clear rule is required to prevent issues established in one criminal proceeding from being relitigated in a subsequent proceeding.  All would agree that an accused should not be required to defend himself against the same allegations twice; that inconsistent findings on matters of fact are abhorrent to the criminal law; and that finality and economy are important institutional values in the administration of justice.  Adequate protection of these goals requires, at a minimum, a rule that issues determined in one criminal trial cannot be relitigated in a subsequent criminal trial.

C.      Coherence With Basic Tenets of Criminal Law

[48] The second argument raised against issue estoppel is that it does not fit well with the fundamental criminal law concepts.

[49] The requirements of issue estoppel, whether in civil or criminal law, are: (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and (iii) 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: Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at p. 254, per Dickson J. (as he then was), adopting a statement by Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853 (H.L.), at p. 935.

[50] My colleague Charron J. argues that none of the three requirements of issue estoppel fit well in the criminal law context.  It follows, she suggests, that the concept has no place in criminal law and should be abandoned.

[51] The “lack of fit” identified by my colleague may result more from the breadth that Canadian law post-Grdic has conferred on the concept of issue estoppel than from the concept itself. I would argue that, if issue estoppel is understood simply as a rule preventing relitigation of decided issues, it works well within the criminal law context.

[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.

[53] This narrow compass does not render issue estoppel useless.  Most criminal trials are held before judges alone.  Judges are required to give reasons showing how they arrived at their verdict.  This involves making findings on critical issues.  Issue estoppel means that these findings must be accepted and cannot be relitigated in a subsequent trial, unless set aside on appeal.  Where the first proceeding was before a jury which renders a verdict of acquittal, it may be more difficult to determine whether a particular issue was resolved in favour of the accused.  The question is whether a finding in favour of the accused is logically necessary to the verdict of acquittal — a question to be determined with reference to the essential elements of the verdict.

[54] In jury trials, it may be harder to rely on issue estoppel, because in some cases it will be harder for the accused at the subsequent trial to establish what issues were decided in his or her favour at the first trial.  As noted above, the determination of whether a fact was decided at the first trial will be a factual issue at the second trial in each case.  In a one-issue trial, it may be easier to find an issue estoppel on the central issue at trial.  In a multi-issue trial, it may be more difficult.  But that does not mean that issue estoppel should be removed from the criminal law.  On a civil trial by jury, it may similarly be difficult to determine whether the jury resolved a particular issue in favour of the party asserting issue estoppel.  But we do not infer from the practical difficulty of proof that the doctrine should be removed from the civil law.

[55] The second requirement of issue estoppel is that the judicial decision which is said to create the estoppel be final.  Findings on particular issues at trial are final, unless overturned on appeal.  This applies equally in civil trials and criminal proceedings.  There is no concern on this count with “lack of fit” with criminal law principles.

[56] The third requirement of issue estoppel is mutuality — that the parties to the two proceedings at issue are the same.  Where issue estoppel is raised by the accused against the Crown, it is in complete harmony with other criminal law principles.  If the second trial is a criminal proceeding, the parties are always the same — the Crown and the particular accused person.  Allowing the accused to claim issue estoppel as to matters resolved in the accused’s favour at the first trial poses no problems.  If the second trial is not a criminal proceeding but an administrative proceeding, mutuality will not be met and the accused will not be able to raise a prior finding in his favour by way of issue estoppel: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63.  The same would appear to apply at a subsequent tort trial based on the same events as a prior criminal trial where the accused was convicted.  None of these results distort or strain the criminal law.

[57] Mutuality, at its most basic level, simply means that the parties in the two proceedings must be the same: see C.U.P.E.; H. Stewart, “Issue Estoppel and Similar Facts” (2008), 53 Crim. L.Q. 382, at p. 383.  It has sometimes been understood, however, in the broader sense of requiring that the principle of issue estoppel apply to both parties in identical fashion.  In this sense, mutuality has never been part of Canadian criminal law, which recognizes that the presumption of innocence and the requirement that the Crown must prove every element of its case beyond a reasonable doubt trump issue estoppel.  Where the Crown seeks to estop an accused from contesting this innocence based on decisions against the accused in prior criminal proceedings, the claim for estoppel will fail.  To permit the Crown to rely on issue estoppel in these circumstances would offend the presumption of innocence and the requirement that the Crown in a criminal proceeding bears the burden of proving its case beyond a reasonable doubt.

[58] Canadian law has met the conflict that can occasionally arise between criminal law principles of presumed innocence and the Crown’s burden on the one hand, and the general rule that issue estoppel applies in the same way to both parties on the other, by concluding that in cases of conflict, the general criminal law principles prevail: Duhamel v. The Queen, [1984] 2 S.C.R. 555 (holding that the Crown is not estopped from seeking to admit a statement that was ruled inadmissible on a voir dire relating to an earlier trial).  In England, the same difficulty has been resolved by stating that issue estoppel has no place in English criminal law: R. v. Humphrys, [1976] R.T.R. 339 (H.L.), at p. 349, per Viscount Dilhorne.  The more circumscribed Canadian response seems entirely adequate and in my view does not support the conclusion that issue estoppel must be entirely excised from the criminal law.

[59] I conclude that issue estoppel, with the minor modification just discussed, fits well within the criminal context.  Far from conflicting with criminal law principles, it supports concerns fundamental to the criminal law — fairness to the accused, integrity and coherence of the criminal process, and finality.

D.      Problems Associated With Applying Issue Estoppel in the Criminal Law

[60] I now turn to the third argument raised against issue estoppel, that there are practical problems in its application which make it unworkable in criminal law.

[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.

[62] One apparent anomaly involves what has become known as the Ollis exception (R. v. Ollis, [1900] 2 Q.B. 758).  This anomaly arises where the Crown seeks to lead evidence underlying a previous acquittal to establish the accused’s state of mind in relation to a subsequent charge.  It has been held in Canada that issue estoppel does not apply in this situation: R. v. Arp, [1998] 3 S.C.R. 339.  At first blush, this appears to create an anomaly.

[63] In Arp, Cory J. summarized the holding in Ollis, as follows, at para. 78:

. . . the accused was charged with obtaining money by false pretences.  He had obtained funds in exchange for a cheque that was later dishonoured.  The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it.  The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused’s guilty state of mind.  The court [for Crown Cases Reserved] held that the evidence was properly admissible.

Cory J. concluded that the evidence of the prior acquittal was properly admitted in Ollis. The evidence was relevant to the state of mind of the accused at the time of the second offence, and did not seek to contradict the acquittal at the first trial.  As Professor Stewart notes, at pp. 392-93:

On this understanding of Ollis, the rationale for admitting the evidence from the first trial was that it showed that when the accused wrote the cheque at issue in the second trial, he knew he would not have the funds to cover it.  This rationale does not involve challenging the original acquittal; the acquittal, and the reasons for it, can be fully accepted, yet the facts surrounding the original allegation have probative value in the second trial. On this reading, Ollis does not involve issue estoppel because it involves accepting, rather than challenging, the outcome of the first proceeding. [Underlining added.]

[64] It might be argued that evidence that was accepted in the first case — that the accused did not know he lacked sufficient funds to cover the cheque — and led to an acquittal, was rejected in a second case, leading to a conviction.  However, confining issue estoppel to its proper domain of preventing relitigation of issues resolved in favour of the accused in an earlier proceeding, yields a different result.  In the first trial, the factual issue of state of mind was resolved in the accused’s favour on the basis of his evidence that he thought he had sufficient funds.  On the second trial, the evidence was called not to show that the earlier determination was in error, but to show that on the second occasion the accused could not have believed he had sufficient funds to cover the cheque, as he could not have made the same mistake twice.  This rationale does not involve challenging the judicial determination in the first trial or in any way rejecting the findings at the first trial as to the accused’s state of mind.  The original acquittal, and the reasons for it, stand unimpeached.  Yet, the facts on which it was based may have relevance in the second trial and can be admitted on that basis, without calling the first finding into question.  As Cory J. noted in Arp, a careful jury instruction is required in these circumstances (para. 78).

[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.

[66] Another apparent difficulty is the so-called Arp anomaly.  Issue estoppel holds that where an issue is decided in favour of the accused in a first trial that leads to an acquittal, evidence on that issue cannot be used as similar fact evidence in a subsequent trial.  Yet, the similar fact rule permits evidence of similar facts to be called in a multi-count trial.  This produces the following anomaly.  If the issue on which the Crown seeks to lead similar fact evidence was determined in a previous trial ending in acquittal, it is inadmissible on a second trial.  However, if the same fact is relevant to two offences being tried together, it may be admissible.  What determines admissibility is not the nature of the evidence, but whether it has been the subject of a previous trial that led to an acquittal.  At first glance, this does not seem right, since the evidence’s admissibility turns on what will sometimes be arbitrary factors leading to consecutive rather than multi-count trials.

[67] In Arp, this Court, per Cory J., held that the principle of issue estoppel, as applied to previous acquittals, “has no application where the alleged similar acts are the subject of a multi-count indictment” (para. 79).  However, uncertainty remains.  Does this mean that the Crown can lead evidence regarding acts which have been the subject of acquittals as similar fact evidence in a subsequent trial? (See L. Stuesser, “Admitting Acquittals as Similar Fact Evidence” (2002), 45 Crim. L.Q. 488.)  Or is the ruling in error, as others have suggested? (See R. Mahoney, “Acquittals as Similar Fact Evidence: Another View” (2003), 47 Crim. L.Q. 265; see also K. E. Wright, “Similar Fact Multiple Count Indictments — A Reply” (1994), 32 C.R. (4th) 301 (written before Arp).)

[68] It could be argued that Arp is in tension with the issue estoppel, as defined by Lamer J. in Grdic, because in a joint trial on multiple counts, the effect of Arp may be that the accused does not get the benefit of factual issues on which the jury has a reasonable doubt on one count.  Nevertheless, the approach in Arp can be justified for three reasons.

[69] First, in the Arp situation, the finality concern of issue estoppel does not arise because the two (or more) matters are being tried together.  There is no prior finding of fact.

[70] Second, the joint trial of multiple counts raises the problem of how to charge the jury if the law were to require that the evidence of one count be proven beyond a reasonable doubt before it could be used as similar fact evidence on another count.  The general rule from R. v. Morin, [1988] 2 S.C.R. 345, that individual pieces of evidence need not be proved on the reasonable doubt standard militates against holding (and charging a jury) that the evidence of one count cannot be used as similar fact evidence on another count unless the first count is proved beyond a reasonable doubt.  Given the rationales for issue estoppel, the difference in result depending on the order in which charges are tried or whether they are tried together, is defensible in this context.  The Court in Arp accepted this argument (at paras. 64-79) as the basis for distinguishing the multi-count indictment situation from the acquittal at a prior trial situation.

[71] Third, it has been suggested that the so-called Arp anomaly can be resolved with a jury instruction (see Stewart, at p. 396).  To satisfy the principle of issue estoppel where one trial follows another, what must be avoided at the second proceeding is reliance on issues that have earlier been resolved in the accused’s favour.  It follows that in a trial with multiple counts of similar allegations, what must be avoided is a situation where the trier of fact rejects the evidence led on one count, yet uses it to find guilt on a different count.  This can be cured by an instruction to the jury.

[72] Since R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, an essential step in the admissibility and use of similar fact evidence is the identification of the specific factual issue on which the evidence is probative of the improbability of coincidence.  This may be the identity of the offender, the unlikelihood that independent witnesses would tell similar stories, or any other relevant and probative inference.  In a multi-count indictment, the trier of fact should instruct himself, or in the case of a jury be instructed, that if the trier of fact rejects the evidence on such an issue in a particular count, then it cannot use that evidence in deciding the verdict in any other of the counts (see Stewart, at p. 396).  Indeed, Cory J. suggests a similar instruction in point (6) of the model jury charge in Arp (para. 80).

[73] In summary, if issue estoppel is understood according to its defining features, as discussed earlier, the inconsistency between the rule and other principles of evidence and common sense largely disappears.

E.       Conclusion on the Retention of Issue Estoppel on the Criminal Law

[74] There can be no doubt that the principle of issue estoppel, as applied in Canada since Grdic, has led to inconsistencies with other principles of criminal law and common sense.  The question on this appeal, as I see it, is whether these inconsistencies should lead this Court to remove issue estoppel entirely from Canadian criminal law, or whether it should modify the current Canadian position on issue estoppel to alleviate the difficulties.

[75] I have argued that an approach to issue estoppel that confines it to discrete issues decided in the accused’s favour in a previous proceeding is consistent with the history and theory of issue estoppel and, if adopted, would avoid the anomalies the broadened post-Grdic view of the doctrine has introduced.  I have also argued that, understood in this form, issue estoppel is an important component of the criminal law, and that other doctrines and rules of evidence afford only incomplete protection of the goals that underlie the doctrine: fairness to the accused, coherence and consistency of criminal proceedings and finality of judicial proceedings.

[76] These arguments satisfy me that the principle of issue estoppel should be retained as part of Canadian criminal law.

[77] It is not necessary in this case to resolve the question of whether issue estoppel applies to situations where there is a disposition such as a stay at a first trial: see, for example, R. v. Regan (1999), 131 C.C.C. (3d) 286 (N.S.S.C.); Rulli.  On the one hand, cases of stays often involve determinations not based on the merits, and thus may not give rise to any factual findings (or, as Professor Stewart points in relation to entrapment, factual findings contrary to the accused may have been made, since entrapment is not even considered until after a finding of guilt has been made (pp. 389-90)).  On the other hand, in many cases where a stay was issued for reasons such as  abuse of process or unreasonable delay, the factors which led to the stay may still be compelling when an attempt is made by the Crown to use the evidence at a later proceeding.  It may well be that a more flexible approach such as abuse of process should be used for these cases, rather than issue estoppel.  However, as this case does not engage a fact situation involving a stay of proceedings, I leave that issue for a future case.

IV.     Application

[78] I agree with my colleague Charron J. that 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 Balasingam’s evidence of the telephone call from the accused was wrongly admitted on the first trial.  On my view of the case, this is not because the principle of issue estoppel has no application whatsoever in the criminal law, but because the version of the principle adopted by the majority of the court below casts the principle too broadly.

[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.

[80] It may be useful, however, to comment on how issue estoppel may apply on the retrial of the aggravated assault charge in this case.  That retrial will now occur after the acquittal on the obstruct charge about the phone call.  Although the ultimate admissibility of the phone call evidence in the new trial will be for the trial judge to decide, the approach to issue estoppel outlined in these reasons would likely lead to issue estoppel applying.  Whether the phone call took place was the central issue in the obstruct trial.  The trial judge in the obstruct trial had a reasonable doubt that the call was made, based on both the lack of credibility of the Crown’s main witness, and on the fact that no telephone records were tendered at trial to corroborate a call having been made, and the trial judge was of the view that one could expect such records to exist if a call was made, as the call was alleged to have been a long distance call made from a jail.  It would follow that the acquittal on the obstruct charge estops the Crown from using evidence of the phone call as evidence of consciousness of guilt in the new aggravated assault trial.  This is so, even though the acquittal in the obstruct trial is based on a reasonable doubt that the call took place, rather than an express factual finding that the phone call did not take place.

[81] Like my colleague Charron J., I agree that the Court of Appeal correctly ruled that the jury charge in the first trial was inadequate and I would order a new trial on that ground.

[82] In the result, I would dismiss the appeal.

The reasons of Deschamps, Abella and Charron JJ. were delivered by

Charron J. —

1.       Overview

[83] This appeal concerns the application of issue estoppel in Canadian criminal law.  Issue estoppel, which forms part of the doctrine of res judicata, originated in the civil context.  It precludes the relitigation of an issue that has been finally decided in a prior judicial proceeding.  The doctrine of issue estoppel has been transposed into Canadian criminal law but, from the start, not without serious mutation to fit its new environment.  Significantly, the notion of mutuality that underlies one of three preconditions for the operation of issue estoppel has been abandoned as entirely unsuited to the criminal context.  As a result, we are from the outset dealing with a very different concept from that applied in the civil context.  In addition, the application of issue estoppel in criminal cases has given rise to a number of difficulties both in principle and in practice, leading to the question posed on this appeal — should the doctrine of issue estoppel be retained in the field of criminal law?

[84] For reasons that follow, I conclude that the concerns about abusive relitigation that issue estoppel guards against in the civil context are better addressed in the criminal context by means of existing concepts and provisions other than issue estoppel.  Depending on the particular circumstances, these include the doctrine of abuse of process; character evidence rules — in particular the similar fact evidence rule; the rule against multiple convictions in Kienapple v. The Queen, [1975] 1 S.C.R. 729; the rule against collateral attack; the codified pleas of autrefois acquit and autrefois convict under s. 607  of the Criminal Code , R.S.C. 1985, c. C-46 ; and s. 11( h )  of the Canadian Charter of Rights and Freedoms .  This arsenal of related concepts is both better tailored to the nature of criminal law proceedings and sufficient to meet the specific concerns that may arise from the relitigation of issues in the criminal context.  There is therefore no need to transform issue estoppel to make it fit in the criminal law.  Rather, issue estoppel, as a discrete concept, should no longer find application in Canadian criminal law.

2.       The Circumstances Giving Rise to the Alleged Estoppel

[85] The circumstances that give rise to the alleged issue estoppel in this case are the following.

[86] The appellant, Rathiskumar Mahalingan, was charged with attempted murder arising out of a vicious gang attack that took place in Markham, Ontario, in June of 2002.  Two co-accused were charged with aggravated assault of the same victims.  Identity was the central issue at trial for all three accused.  Following a trial by judge and jury, Mahalingan was acquitted of attempted murder, but convicted of the included offence of aggravated assault.  One of the co-accused was also convicted of aggravated assault; the other co-accused, who presented alibi evidence, was acquitted.  Mahalingan’s case is the only one that concerns us on this appeal.

[87] Mahalingan appealed his conviction and sentence to the Court of Appeal for Ontario:  (2006), 80 O.R. (3d) 35.  He raised several grounds on his conviction appeal, including the adequacy of the trial judge’s instructions to the jury on the theory of the defence.  He also applied to introduce fresh evidence, arguing that it impacted on an item of post-conduct evidence which formed part of the Crown’s case against him.  One of the complainants, Balasingam, testified at trial that, shortly before the trial commenced, Mahalingan had telephoned him from jail asking him not to testify against him.  Mahalingan was charged with attempting to obstruct justice in relation to the phone call but, subsequent to his trial for attempted murder, he was acquitted on that charge.  On appeal, Mahalingan sought to introduce as fresh evidence his acquittal on the obstructing justice charge, arguing that it had the retrospective effect of rendering Balasingam’s evidence about the call inadmissible.

[88] Sharpe J.A., writing for a unanimous court, allowed Mahalingan’s appeal against conviction and ordered a new trial on the ground that the trial judge failed to outline the position of the defence in his instructions to the jury.  The court was divided, however, on the fresh evidence application.  All three justices expressed the view that the application of issue estoppel in criminal law may well be a matter this Court might wish to reconsider.  However, Sharpe J.A. (Rouleau J.A. concurring) felt bound to give effect to the principle that precludes the admission of evidence underlying an acquittal, thereby retrospectively rendering the evidence of Mahalingan’s phone call inadmissible.  Given this effect, it was his view that it could not be said that the result in the attempted murder trial would have been the same, absent the inadmissible evidence.  Accordingly, a majority of the court admitted the fresh evidence and ordered a new trial on this basis as well.

[89] Blair J.A. disagreed with his colleagues on the appropriate application of issue estoppel only, finding that the subsequent acquittal on the charge of obstructing justice did not retrospectively render inadmissible the evidence of Mahalingan’s telephone call to Balasingam.  He would have dismissed the fresh evidence application.

[90] I agree with the Court of Appeal that 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.  Accordingly, I would dismiss the appeal for the reasons of Sharpe J.A. on this issue.  In light of this conclusion, it is not necessary to deal with the fresh evidence application to dispose of the appeal.  However, I agree with the unanimous court below that the application of issue estoppel in the context of a criminal proceeding has proven problematic and should be reconsidered.  Further, the circumstances of this case provide a proper context for doing so.

[91] In light of my agreement with the reasons of Sharpe J.A. on the failure of the trial judge to outline the defence position, I will only review the facts to the extent necessary to provide context to the question of issue estoppel raised by the fresh evidence application.

3.       The Evidence at Trial

[92] The charge against Mahalingan arose from a vicious gang attack on two victims, Chanthuru Perinpanathan and Muraly Balasingam.  The central issue at trial was the identity of the attackers.  The victims were seated in a parked car when they were approached by a group of young men armed with swords, axes and machetes.  The attackers targeted Perinpanathan first.  He was seated in the back of the two‑door car, behind the passenger seat.  Balasingam, who was seated in the driver’s seat, was attacked next.

[93] Perinpanathan testified that the first attacker opened the passenger-side door, folded the front seat forward, and kicked him in the face.  The attack escalated from there and he lost consciousness.  Therefore, he could not identify the attackers.  However, he stated that he knew Mahalingan and that Mahalingan was not the first attacker.

[94] Contrary to his passenger’s testimony, Balasingam indicated that Mahalingan was the first attacker.  He testified that Mahalingan opened the door, kicked  Perinpanathan and then stabbed him with a long dagger from outside the passenger door.  According to Balasingam, Mahalingan subsequently yelled words of encouragement to the other attackers from behind the car.

[95] There was no forensic evidence tying Mahalingan to the crime and Balasingam was the only eyewitness purporting to identify him.  The Crown therefore relied heavily on his testimony.  The Crown also tendered evidence of a gang-related motive for the attack and pointed to post‑offence conduct which suggested that  Mahalingan was involved in the incident.  The post-offence conduct consisted of two phone calls allegedly made by Mahalingan, one to Perinpanathan and the other to Balasingam.  Only the latter forms the subject matter of the fresh evidence application.

[96] Balasingam testified that Mahalingan called him from jail shortly before the trial commenced, asking him not to testify.  Balasingam said that Mahalingan apologized to him and indicated that he had not been the target of the attack.  Instead, Mahalingan “came for” Perinpanathan, with whom he had a “beef” (A.R., at pp. 927-28).  After some delay, Balasingam reported the call to the authorities.

4.       The Fresh Evidence Application

4.1     The Acquittal on the Charge of Attempt to Obstruct Justice

[97] On June 27, 2003, Mahalingan was charged with attempting to obstruct justice in relation to the alleged call to Balasingam.  The trial of the obstruction charge occurred after Mahalingan’s attempted murder trial concluded on September 27, 2003.  The Crown adduced evidence of the telephone call mirroring that which was put forward at the attempted murder trial.  On October 26, 2004, Marchand J. acquitted Mahalingan.  In brief oral reasons, Marchand J. described Balasingam as “a very unsavoury character”, commenting that it was “very hard to find worse” (A.R., at p. 166).  After reviewing Balasingam’s testimony and finding him “highly intelligent and resourceful but unworthy of belief”, he concluded as follows:

I think that it would be most dangerous to convict someone on the uncorroborated evidence of such a witness.  His testimony leaves me with some doubt as to whether the offence has been made, has been made out.  I believe that it was.  I believe that it likely was, at least, but I have a reasonable doubt that it did. [A.R., at p. 170]

4.2     The Court of Appeal’s Decision on the Fresh Evidence Application

[98] Mahalingan 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, which precludes the Crown from relitigating any issue that has been finally determined in favour of an accused in a previous proceeding, he submitted that the acquittal had the retrospective effect of rendering Balasingam’s testimony about the phone call inadmissible at his trial for attempted murder.  He further argued that, if the trial record was 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.  Accordingly, in Mahalingan’s view, issue estoppel operated to ground a new trial.

[99] As indicated earlier, Mahalingan’s argument was accepted by the majority of the Court of Appeal.  As the trial judge’s reasons for acquittal indicated that he had a reasonable doubt that the June 8, 2003 call from Mahalingan to Balasingam was ever made, Sharpe J.A. concluded that the Crown was estopped from relitigating that question.  Further, the majority felt bound by previous decisions of the Court of Appeal for Ontario to give the acquittal retrospective effect, thereby rendering inadmissible the evidence of the phone call to Balasingam.  In the absence of this evidence, the result of the trial could reasonably be expected to have been different.  Accordingly, the majority admitted the fresh evidence and, on that basis as well, set aside the conviction and ordered a new trial.

[100]      Blair J.A. dissented on this point. In his view, this Court’s decision in Grdic v. The Queen, [1985] 1 S.C.R. 810, “does not stand for the proposition that issue estoppel may be applied retrospectively to undermine the legitimacy of an earlier conviction otherwise rightly entered on evidence properly before the earlier tribunal at the time. Grdic speaks to the question of issue estoppel prospectively” (para. 79 (emphasis in original)).

[101]      Blair J.A. supported this conclusion with reference to the principles underlying issue estoppel, being: to promote finality in litigation; to prevent double jeopardy and unfairness to the accused; and to guard against inconsistent verdicts.  In his view, none of these principles are served by the retrospective application of issue estoppel, rendering its application meaningless in the circumstances of this case.

[102]      Furthermore, denying retrospective application of issue estoppel accorded with this Court’s decision in R. v. Arp, [1998] 3 S.C.R. 339, wherein Cory J. noted: “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” (para. 79).  In Blair J.A.’s view:

“There is nothing unfair or logically irreconcilable about” the jurors in the case under appeal having found that the appellant had likely made the phone call in question and the remarks attributed to him in it, and in their having used that balance‑of‑probability finding as part of their consideration in concluding that the appellant was guilty of aggravated assault.  [para. 85]

[103]      Blair J.A. emphasized that the Crown could have proceeded against Mahalingan on a multi-count indictment, preferring both charges at once.  In his opinion, the fact that the Crown chose to prosecute the obstruction charge at a later date should not operate to undermine the validity of the prior conviction. 

[104]      In the result, Blair J.A. would not have admitted the fresh evidence to retrospectively render the telephone call inadmissible.

5.       Analysis

5.1     Res Judicata — The Bar Against Abusive Relitigation

[105]      Issue estoppel precludes the relitigation of an issue that has been finally decided by a court in another proceeding.  It is a form of res judicata, which this Court has succinctly described as meaning “something that has clearly been decided” (Duhamel v. The Queen, [1984] 2 S.C.R. 555, at p. 561).  In Grdic, Wilson J., writing in dissent but not on this point, explained the relationship between res judicata and issue estoppel as follows (at p. 815):

The doctrine of res judicata reflects the fundamental premise that there must at some point be an end to litigation.  Accordingly, the doctrine is generally treated as part of the law of estoppel.  In its broadest sense a plea of res judicata is an allegation that the entire legal rights and obligations flowing between the parties, including questions of both law and fact, have been conclusively disposed of by an earlier judgment:  see Badar Bee v. Habib Merican Noordin, [1909] A.C. 615 (P.C.)  An estoppel, however, can apply also to a single issue which may arise between two parties who, although litigating for the second time regarding issues related factually to their first case, face each other in an altogether new cause of action:  see Hoystead v. Commissioner of Taxation, [1926] A.C. 155 (P.C.)

The precise nature of res judicata and, in turn, its boundaries are difficult to establish.  It has been referred to variously by this Court as a plea (Muir v. Carter (1889), 16 S.C.R. 473); a defence (Wright v. The Queen, [1963] S.C.R. 539); a presumption (Cargill Grain Co. v. Foundation Co. of Canada Ltd., [1965] S.C.R. 594); a concept (R. v. Riddle, [1980] 1 S.C.R. 380); a term of art (Duhamel); a doctrine (Grdic); and a principle (Boucher v. Stelco Inc., [2005] 3 S.C.R. 279, 2005 SCC 64).

[106]      Accordingly, res judicata may be best understood by reference to its underlying concerns about the relitigation of decided issues.  Ensuring finality in litigation is, at its core, a matter of fairness and justice.  As a general rule, persons should not be twice vexed by the same cause.  In the criminal context, the protection against double jeopardy has acquired a constitutional dimension under s. 11( h )  of the Charter . Putting a stop to repeated litigation is also important for the efficiency and reputation of the judicial system.  It avoids the squandering of scarce judicial resources and the scandal of inconsistent findings between courts.

[107]      Issue estoppel is but one of many legal doctrines concerned with the prevention of abusive relitigation.  In the criminal context, related concepts include the doctrine of abuse of process; the rule against multiple convictions in Kienapple; the rule against collateral attack; the codified pleas of autrefois acquit and autrefois convict under s. 607 of the Code; and s. 11( h )  of the Charter .  As I will explain, evidentiary rules, in particular the similar fact evidence rule, are also tailored to address concerns arising from the unjustified relitigation of issues in the criminal context.

[108]      The importance of the doctrine of res judicata to the administration of justice is unquestionable.  It has been variably described as lying “at the heart of the administration of justice” (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at para. 15); as a “fundamental principle of our system of justice” (R. v. Van Rassel, [1990] 1 S.C.R. 225, at p. 238); and as “a cornerstone of the justice system in Canada” (D. J. Lange, The Doctrine of Res Judicata in Canada (2nd ed. 2004), at p. 4).

[109]      However, just as litigation, by its very nature, is not a one-sided process, so too the quest for justice and fairness is not unidimensional.  In some circumstances, justice and fairness will require a stop to the repeated attack of one litigant by another, while in other circumstances, the ends of justice will command otherwise.  For example, as we shall see, the prosecution of perjury may well require the relitigation of an issue that has been finally disposed of in favour of an accused.  Perjury strikes at the very roots of our system of justice and, therefore, the interest in finality must give way, even at the risk of seemingly inconsistent verdicts.

[110]      The application of the doctrine of res judicata and related concepts must therefore be understood as often requiring a balancing of competing interests, counselling against the imposition of absolute, inflexible rules to guide its application.  As stated by Binnie J. in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44:  “The rules governing issue estoppel should not be mechanically applied.  The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case” (para. 33).  Further, even when the moving party has established the preconditions to the operation of issue estoppel, “the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied” (para. 33 (emphasis in original)).

[111]      While the rationale for the doctrine of res judicata is easily identifiable and its importance readily understood, its application has proven complex and has at times been a source of confusion in the law.  As stated earlier, this case is concerned with one application of the doctrine that has proven particularly difficult — issue estoppel in the context of a criminal proceeding.

5.2     The Three Preconditions of Issue Estoppel

[112]      It is well established in the civil context that three preconditions must be met for issue estoppel to be successfully invoked:  (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies:  Danyluk, at para. 25.  The latter requirement is grounded in the notion of mutuality.  I will therefore refer to it as the mutuality requirement.  The mutuality requirement requires not only that the parties to the relevant proceedings be the same, but also that each be equally bound by the final determination of the issue.  As explained in J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1090:

The rule that only parties and their privies can take advantage of a previous decision follows from the maxim that “estoppels must be mutual”: a party can take advantage of a judgment only if it would have been bound had the judgment gone the other way.

[113]      Identifying the elements of issue estoppel is deceptively simple, but applying the concept can prove rather complex, as evidenced by the considerable body of jurisprudence it has generated:  see Lange for a useful discussion of the relevant jurisprudence.  I will examine each element of issue estoppel in turn and discuss its application in the criminal context, starting with the requirement of mutuality.  As we shall see, this requirement is so unsuited to the criminal context that it has never made its way into Canadian criminal law.

5.3     The Mutuality Requirement

[114]      On the one hand, applying the mutuality requirement is more straightforward in the criminal context because the concerned parties and their privies are usually easier to identify than in the civil context.  On the other hand, the mutuality requirement, 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.  In the course of explaining why issue estoppel has no place in English criminal law, Viscount Dilhorne in R. v. Humphrys, [1976] R.T.R. 339 (H.L.), at p. 348, referred to R. v. Hogan, [1974] 1 Q.B. 398, as a useful illustration of some of the undesirable consequences of applying issue estoppel in the criminal context.

[115]      Hogan had been convicted of causing grievous bodily harm with intent to do so.  Following his conviction, the victim died and Hogan was charged with murder.  At his trial for murder, the Crown contended that Hogan was estopped from putting in issue any of the matters which could be taken as concluded against him at his first trial.  The trial judge agreed.  Viscount Dilhorne summarized the trial judge’s ruling and its effect as follows (at pp. 348-49):

While there was no direct authority on the question, he held that issue estoppel applied between the Crown and the defendant in criminal proceedings and that it was mutual with the result that the defendant was estopped from challenging issues decided against him just as much as the prosecution were estopped from challenging a finding on an issue in the defendant’s favour in the earlier trial.  He therefore had held that Hogan could not challenge the findings at his first trial (1) that the victim had suffered grievous bodily harm; (2) that it had been inflicted deliberately; (3) that it had been inflicted without lawful excuse; and (4) that it had been inflicted with the intention of causing grievous bodily harm.  He also held that, as self‑defence had been put forward at the first trial unsuccessfully, Hogan could not again put that forward on his trial for murder.  The result was that the jury at the murder trial had only to consider whether the death was caused by the injury inflicted in respect of which he had been found guilty at his first trial and the defence put forward of provocation.  So the application of issue estoppel meant that the jury at the murder trial, although sworn to give a true verdict according to the evidence, were required to accept the conclusions of another jury on evidence which that jury had heard.

[116]      Viscount Dilhorne saw “no escape from the conclusion that, if issue estoppel applies in criminal cases, it must apply equally to both parties, to the Crown and the defendant, as it does to the parties to civil litigation”.  However, it was his position that “issue estoppel has not and never has had a place in English criminal law and it is very undesirable that it should have” (p. 349).  He was therefore of the opinion that the ruling of the trial judge in Hogan was wrong.

[117]      In my view, there can be no question that the trial judge’s ruling in Hogan would not be accepted in this jurisdiction either.  However, rather than following the English approach and 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.  As Lamer J. (as he then was) stated in Duhamel:  “Indeed, mutuality of issue estoppel has been excluded in criminal law because of the Crown’s burden of proving in each and every case all of the elements of the offence” (p. 562).  Duhamel also illustrates how the transposition of issue estoppel into criminal law does not always accord with the rules of criminal procedure.

[118]      Duhamel was charged with two counts of robbery and tried separately on each count.  At the first trial, his statements were ruled inadmissible and he was acquitted.  The second trial took place before a different judge.  Rejecting Duhamel’s objections that the Crown was estopped from relitigating the issue of the voluntariness of his statements, the trial judge held a voir dire and admitted the statements.  Duhamel was convicted.

[119]      This Court upheld the conviction, holding that issue estoppel did not apply to the issue of voluntariness of an accused’s statement, even though the three elements of issue estoppel were clearly made out on the facts of the case.  Lamer J. explained how the application of issue estoppel to rulings on confession voir dires would have undesirable consequences, given the limited right of review from such decisions:

If the statement is wrongly excluded, even through error of law, but the accused nevertheless convicted, benefit of the doctrine of res judicata would then be founded upon an error of law beyond the reach of redress.  Indeed, the Crown has no appeal from that conviction.  Similarly, if the statement is excluded through error of fact, and the accused acquitted, again the erroneous finding is beyond the reach of the courts as the Crown’s right to appeal is limited to matters of law.

If mutuality is introduced, matters are even worse. A statement wrongfully admitted in proceedings resulting in an acquittal would follow and prejudice an accused throughout all of his other trials.  [p. 563]

[120]      Therefore, as we can see, the concept of issue estoppel may have been transposed into Canadian criminal law, but not without serious mutation — from the start, the mutuality requirement had to be excised to accord with our system of criminal justice.  In addition, the fundamental incompatibility of issue estoppel with the rules of criminal procedure quickly became apparent.  In order to find harmony with the presumption of innocence and the Crown’s burden in a criminal trial, 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 we are at the outset dealing with a concept inherently different from that applied in the civil context.  I turn next to the remaining elements of issue estoppel.

5.4     The Same Question Requirement

[121]      The same question requirement for issue estoppel (as opposed to “cause of action estoppel” which is not relevant to our discussion) will be met when the question sought to be estopped has been “distinctly put in issue and directly determined” by a court of competent jurisdiction in a prior proceeding:  McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. S.C., App. Div.), at p. 422, quoted in Danyluk, at para. 24.  In order to satisfy this test, the question must not only have been distinctly put in issue in the earlier proceeding, it must have been “fundamental to the decision arrived at”:  Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at p. 255.  It must also be clear that the question was determined in favour of the moving party.  This Court in Gushue v. The Queen, [1980] 1 S.C.R. 798, at p. 807, adopted the following statement from M. L. Friedland, Double Jeopardy (1969), at p. 134:

The possibility or even the probability that the jury found in the accused’s favour on a particular issue is not enough.  A finding on the relevant issue must be the only rational explanation of the verdict of the jury.

[122]      Determining whether a question was distinctly put in issue and clearly determined in a prior proceeding can prove difficult at times, even in the context of a civil action with its precise system of pleadings and, in the vast majority of cases, with the assistance of a reasoned judgment delivered by a judge sitting alone.  The exercise is rendered considerably more difficult in the criminal context as a result of the nature of criminal proceedings.  The pleading is a simple “guilty” or “not guilty”.  Likewise, the proceeding is focussed on the question whether the accused is guilty or not guilty of the offence charged, not on an array of distinct issues as often is the case in a civil proceeding.  Furthermore, 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.

[123]      Of course, it will be possible at times to determine from the record whether a distinct question was finally determined in favour of the accused in a criminal proceeding.  When the alleged estoppel originates from a trial by judge alone, it may be clear from the reasons for judgment.  In a jury trial, as this Court explained in Gushue, a detailed examination of the trial judge’s charge to the jury may assist in defining the issues at play.  When the individual evidential issue in question constitutes one of the essential elements of the criminal offence and the verdict is guilty, it may be taken to have been “distinctly put in issue and directly determined” (McIntosh, at p. 422).  That being said, many evidential issues do not constitute essential elements of the offence, in which case even a verdict of guilty may not say much about how a particular issue was determined.  The difficulties are further exacerbated in the context of acquittals.  As  Professor Peter Mirfield notes:

While a conviction must, logically, mean that the tribunal of fact has found certain definite facts to be proved beyond reasonable doubt, an acquittal may be simply a declaration of non‑satisfaction involving no definite findings of fact.

(“Shedding a Tear for Issue Estoppel”, [1980] Crim. L.R. 336, at p. 343)

[124]      Of course, the fact that significant difficulties may be encountered in deciding whether a particular issue was effectively determined in a prior criminal proceeding does not, in and of itself, necessarily militate against the retention of issue estoppel in criminal law.  However, in my view, it does signal that issue estoppel may not be a suitable mechanism to address concerns arising from relitigation in the criminal context.  After all, the accused’s need for protection against unjustified relitigation will usually be more acute when the prior adjudication has resulted in an acquittal.  Yet, as we have seen, it is in precisely that context that defining the issue to be estopped proves most difficult.

[125]      Because res judicata, at its core, aims to prevent unjustified or abusive relitigation, the doctrine of abuse of process easily comes to mind as an alternative mechanism that may prove more suitable in some circumstances.  Grdic itself provides a good illustration.

[126]      Grdic was charged with impaired driving and driving with a blood alcohol level over .08.  The arresting officer testified that he stopped Grdic on the day in question and a breathalyzer certificate showed that he had provided two breath samples, both over .08.  Grdic’s defence at trial was mistaken identity.  After hearing his alibi evidence, the trial judge acquitted him on both counts, stating as follows (at p. 813):

It is quite apparent that perjury has been committed in this Court room. I think it is not up to me to resolve that problem.  I think it is up to somebody else and I dismiss both counts.

[127]      At the subsequent trial for perjury in respect of his alibi testimony, Grdic was acquitted on the basis of issue estoppel.  The trial judge held that the issue before him — the truthfulness of Grdic’s alibi — had been conclusively determined in his favour at the earlier trial.  This ruling was overturned on appeal but restored by a majority decision of this Court, finding that issue estoppel was indeed available to Grdic.

[128]      The Court was divided on whether it had been finally determined in the prior proceeding that Grdic was not driving the vehicle at the time in question.  Lamer J.,  writing for the majority, was of the opinion that the question had been finally determined in the accused’s favour.  He explained as follows (at p. 826):

The accused, by his defence, is saying: the breathalyzer test taken that evening cannot be mine because I could not be there since I was at home.

The only avenue of acquittal open to the trial court, therefore, given that defence and the nature of the case, was a finding by the trial judge that there was reasonable doubt that the appellant was the person investigated at 6:30 p.m.  That issue, subject to certain exceptions, cannot be re-litigated, because, as a matter of law for the purpose of the application of the doctrine of res judicata, there has been made in his favour a finding that he was not driving his car at 6:30 p.m.  [Emphasis in original.]

Wilson J., in dissent, disagreed that the question whether Grdic was the person driving the car at 6:30 p.m. had been determined in his favour.  On the contrary, she was of the view that the trial judge “expressly refrained from making any finding on that issue”  (pp. 817-18).  In reaching this conclusion, Wilson J. emphasized that the necessary finding of fact must be explicit in the initial verdict in order to properly ground an estoppel.  She explained:

Such facts must be perceived as having been affirmatively found by the original court and cannot be such as must be gathered only inferentially from the initial verdict or as to the finding of which the initial verdict reflects only a reasonable doubt.  [p. 821]

[129]      Of course, issue estoppel cannot be invoked by an accused if the issue was determined in his favour as a result of fraud, perjured testimony being one such instance. However, the Court held that it was not open to the Crown on a perjury trial to relitigate an issue finally decided in favour of the accused unless it is tendering, in addition to or in lieu of the evidence previously adduced, evidence that was not available by the exercise of reasonable diligence at the time of the first trial.  Here, the evidence relevant to the falsity of Grdic’s alibi was available to the Crown at the time of the original trial.  Although the Crown was taken by surprise by the appellant’s alibi, it could have introduced the evidence necessary to disprove his alibi on rebuttal but chose not to do so.  In these circumstances, the Crown was precluded from prosecuting the accused on the charge of perjury.

[130]      While the parties’ argument and, in turn, the Court’s analysis were couched in terms of issue estoppel, it is my view that the same result could have been reached by applying the doctrine of abuse of process.  The Court, in essence, held that the Crown could not withhold available rebuttal evidence that went to the central issue at trial — whether Grdic was driving the vehicle at the time in question — because to do so would amount to the Crown lying in wait to spring this evidence against the accused on a subsequent charge for perjury.  A perjury charge cannot be a colourable attempt to retry the accused.

[131]      The ultimate concern in cases such as Grdic is not so much the prevention of unnecessary relitigation of particular factual issues but the prevention of the abusive prosecution itself.  In cases that fall outside the ambit of the pleas of autrefois acquit and autrefois convict and s. 11( h )  of the Charter , such as Grdic, it is my view that the doctrine of abuse of process can provide a more effective and principled mechanism for guarding against abusive prosecutions.

[132]      Short of barring the entire proceeding, issue estoppel has been invoked to bar the admission of particular items of evidence in a criminal trial. One area where the application of issue estoppel has proven particularly unprincipled is in respect of similar fact evidence.  Indeed, the absolute bar against admission of similar fact acquittal evidence in a subsequent criminal proceeding, as adopted by some Canadian courts, has been the subject of much academic criticism.  See:  L. Stuesser, “Admitting Acquittals as Similar Fact Evidence” (2002), 45 Crim. L.Q. 488; W. Gorman, “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; J.-G. Boilard, Guide to Criminal Evidence, vol. 1 (loose-leaf), at pp. 4-130 and 4-131; D. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at pp. 56-57.  The application of issue estoppel as an absolute rule precluding the admission of prior acquittal evidence in all cases regardless of context is inconsistent with the basic rule favouring the admission of all relevant evidence, subject to countervailing concerns.  Stuesser explains (at p. 490):

Truth is our ultimate goal in a criminal trial.  As Justice McLachlin said in R. v. Seaboyer, “It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues.”  The imposition of an absolute bar may exclude highly probative evidence and this runs counter to the trend in the law of evidence where flexibility is favoured over rigid rules of exclusion.  Today categorical rules of exclusion are few.  [Citation omitted.]

[133]      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 again, issue estoppel has not proven the optimum analytical framework for deciding questions of admissibility in this context.  The difficulties arising from the application of issue estoppel to assess the admissibility of similar fact evidence are better explained in the discussion of the last of the three preconditions for issue estoppel — the finality requirement.

5.5     The Finality Requirement

[134]      In order to raise an estoppel, the issue in question must have been conclusively determined as between the parties in a prior proceeding.  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.  For example, the law does not appear settled concerning the effect of the appeal process on the question of finality.  Of particular relevance here, however, is the layer of complexity added to the finality assessment by virtue of the varying burdens of proof applicable at different stages of a criminal proceeding.

[135]      As we know, the essential elements of the offence and the ultimate verdict must be proven beyond a reasonable doubt to ground a conviction in a criminal trial. However, that standard does not apply to individual items of evidence:  R. v. Morin, [1988] 2 S.C.R. 345.  Rather, the decision on the elements of the offence, and thereby the ultimate verdict, is the result of a cumulative pooling of the individual items of evidence.  We have already seen how the criminal burden of proof raises difficulties in identifying  whether precise issues were determined in the prior proceeding, particularly in the case of acquittals.  Even where the question to be estopped can be determined with sufficient precision, the burden of proof also impacts the finality requirement — again, particularly in the case of acquittals.  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.  To ignore this reality is to disregard a foundational aspect of our criminal law system.  Taking account of the many shades of doubt upon which a verdict of “not guilty” could reasonably be based, however, complicates the finality assessment for the purposes of issue estoppel considerably.  What degree of proof is required in a criminal proceeding to give rise to  estoppel on a particular issue in a subsequent proceeding?

[136]      The reality that a verdict of “not guilty” may not, from an evidentiary standpoint, be equivalent to a finding of innocence is reflected in the application of issue estoppel in the civil context.  A civil action based on criminal wrongdoing is not barred by an acquittal in the criminal court.  Indeed, the weight of present authority appears to be reflected in the decision Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 98 (C.A.), where the court ruled that a verdict of acquittal is not admissible in a subsequent civil trial to prove that the party did not commit the impugned act.  As noted by Catzman J.A. (at p. 102):

Eminent Canadian, British and American text writers are unanimous in the view that evidence of a verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence:  see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Markham: Butterworths, 1992), at p. 1045; Wigmore, Evidence in Trials at Common Law, vol. 4 (Chadbourn rev., 1972), para. 1346a and vol. 5 (Chadbourn rev., 1974), para. 1671a; McCormick on Evidence, 4th ed., vol. 2 (1992), para. 298, at pp. 298‑99; Jones on Evidence, 6th ed., vol. 2 (1972), para. 12:25, at pp. 388‑91; Cross on Evidence, 7th ed. (1990), p. 107.

[137]      The finality of an acquittal for the purposes of criminal law, of course, raises different considerations, including those of a constitutional character.  Much of the controversy in this area of the law arises from the following often-quoted statement by Lamer J. in Grdic on the meaning of an acquittal in Canadian law:

There are not different kinds of acquittals and, on that point, I share the view that “as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence” (see Friedland, Double Jeopardy (1969), at p. 129; also Chitty i, 648; R. v. Plummer, [1902] 2 K.B. 339 at p. 349).  To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of “not proven”, which is not, has never been, and should not be part of our law.  [Emphasis added; p. 825.]

[138]      This statement requires elaboration.  In the context of the protection against double jeopardy, it is beyond question that the law does not reach behind an acquittal.  It matters not on what basis the accused is acquitted.  As between the state and the accused, the determination is final.  This protection against double jeopardy is not only well entrenched in the common law, it is now embodied in s. 11( h )  of the Charter :

11.       Any person charged with an offence has the right

                                                                            . . .

(h)       if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

It also finds expression in the now-codified special pleas of autrefois acquit and autrefois convict under s. 607  of the Criminal Code .  To say that “an acquittal is the equivalent to a finding of innocence” for all purposes, however, does not reflect the state of the law (Grdic, at p. 825).

[139]      Indeed, after adopting Friedland’s statement on the meaning of an acquittal quoted above, Lamer J. in Grdic expounded on the effect of an acquittal for the purpose of res judicata as follows:

However, this 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.  But it does mean 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 (see R. v. Carlson, [1970] 3 O.R. 213; contra, Villemaire v. The Queen (1962), 39 C.R. 297 at p. 300).  This is so even though the judgment might well be the result of a reasonable doubt on that issue, and even when the judge has said so or expressed views that indicate clearly that his finding, though inuring to the benefit of the accused, had been arrived at with reluctance and the judge has suggested that it is not conclusively in favour of the accused.  [Emphasis added; pp. 825-26.]

[140]      In the years following Grdic, this statement was interpreted by some courts as creating an absolute bar against the admission of evidence underlying an acquittal in a subsequent proceeding, regardless of the basis for the acquittal or of the relevance of the evidence in that subsequent proceeding:  see, for example, R. v. Cullen (1989), 52 C.C.C. (3d) 459 (Ont. C.A.); R. v. G. (K.R.) (1991), 68 C.C.C. (3d) 268 (Ont. C.A.); R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.).  Although the language in the underlined passage above is certainly suggestive of an absolute exclusionary rule, it is not to be interpreted as such, for, as Grdic itself admits of an exception — a hard and fast rule excluding the admission of relevant evidence underlying a prior acquittal will not serve the ends of justice in all circumstances.  Indeed, Grdic notes that in appropriate circumstances fraud, such as perjury, could be set up against an accused to deny him the benefit of issue estoppel (p. 827).  In such cases, society’s interest in prosecuting the perjurer tips the balance in favour of allowing the relitigation of an issue previously decided.

[141]      As stated earlier, the application of the doctrine of res judicata requires a balancing of competing interests between finality of litigation on the one hand, and ensuring that justice is done in the particular circumstances of the case on the other. Absolute rules do not fit easily within this balancing exercise.  It should therefore come as no surprise that the seemingly absolute proposition in Grdic did not find application in the subsequent case of Arp.

[142]      It is not necessary for our purposes to review the facts or the analysis in Arp in any detail.  It suffices to recall the following. Arp was tried and convicted of two counts of murder.  The evidence on each count was admissible as similar fact on the other.  One of the principal issues before this Court concerned the proper charge to a jury on the use it could make of similar fact evidence in arriving at its verdict on each count.

[143]      Based on the reasoning that an acquittal is equivalent to a finding of innocence, Arp argued the following (at para. 76):

The appellant submits that if a conviction is obtained on one count in a multi‑count indictment but the accused is acquitted on the other count, then the conclusion must be that the same person did not commit both offences, and the conviction is tainted to the extent that it was based on the similar fact evidence.  As the appellant points out, the problem of inconsistent verdicts would disappear if the jury were directed, at the outset of their deliberations, to decide beyond a reasonable doubt whether both offences were committed by the same person.

[144]      The Court rejected this argument.  Cory J., in writing for the Court, affirmed the fundamental principle enunciated in Grdic, but rejected the notion that it created an absolute rule precluding the admission of evidence underlying a prior acquittal in a subsequent proceeding.  He explained as follows (at para. 78):

The principle enunciated in Grdic is fundamental to our system of justice.  It seeks to ensure that an accused need not repeatedly defend himself against the same allegations.  Nevertheless, in certain circumstances, the fact of an accused’s prior acquittal may have relevance to an ultimate issue in a subsequent trial.  For example, in R. v. Ollis, [1900] 2 Q.B. 758, the accused was charged with obtaining money by false pretences.  He had obtained funds in exchange for a cheque that was later dishonoured.  The accused was acquitted at his first trial on the basis that when he gave the cheque to the complainant, he expected to receive funds to cover it.  The accused was later again indicted with obtaining money by false pretences, and at his second trial the Crown adduced the evidence of the first complainant as relevant to the accused’s guilty state of mind.  The court held that the evidence was properly admissible.  As Widgery J. stated in G. (an infant) v. Coltart, [1967] 1 All E.R. 271 (Q.B.), at p. 276:

. . . it may well happen that evidence relating to the charge giving rise to the acquittal will be called on the subsequent charge, but, if it is so called, it will be called because it has relevance to the subsequent charge quite independently of any question whether the accused was guilty or innocent on the first charge.

On the basis of this reasoning, the evidence of the prior acquittal in Ollis was correctly admitted.  It was admitted to prove intent.  Even if the accused was acquitted of the first charge, the fact that he had been tried on similar charges once before went to his knowledge of wrongdoing irrespective of his guilt on the first charge.  The fact of his prior trial and acquittal could be admitted for this limited purpose, but would of course require a careful instruction from the trial judge.  Yet, in most situations, it will be unfair and inappropriate to admit the evidence underlying the prior acquittal as similar fact evidence in a subsequent trial of the same accused.  [First and third emphasis added; second emphasis added in Arp.]

[145]      It may be argued that the so-called “Ollis exception” would only permit evidence of the bare fact of the acquittal, and not the underlying evidence, to be admitted.  I would not accept that argument.  The bare fact of the prior acquittal in R. v. Ollis, [1900] 2 Q.B. 758, would not have any significance in the subsequent proceeding without relating some of the underlying facts.  Therefore, as the underlined text quoted above makes apparent, 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 repeatedly defend himself against the same allegations on the issue in question.  In most cases, given the importance of maintaining the integrity of the verdict in the prior proceeding, the latter will trump.  In short, as we can recognize here, the admissibility of the evidence will be determined in accordance with the familiar similar fact evidence test.  I will elaborate later on how the similar fact test is entirely suited to deal with questions of admissibility in this context.  But first, I return to the analysis in Arp.

[146]      As for Arp’s argument that the Grdic principle applied to the circumstances of his case, Cory J. rejected the argument outright, stating as follows (at para. 79):

Even so, I cannot accept the proposition that the principle set out in Grdic, supra, applies to verdicts rendered by the same trier of fact in respect of charges tried together in a single proceeding.  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.  There may very well be good reasons to exclude similar fact evidence underlying a prior acquittal in a subsequent proceeding.  However, the principle has no application where the alleged similar acts are the subject of a multi‑count indictment.  There a careful instruction from the trial judge will be required.  It will be necessary to explain to the jury that evidence adduced on one count upon which the jury would acquit may be used in assessing the liability on another count or counts.  [Emphasis added.]

[147]      Similarly, 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 as contended in the case before us.  As we shall see, if at all relevant, the principle of res judicata could only find application in respect of a subsequent proceeding.

5.6     Conclusion on Issue Estoppel and the Criminal Law

[148]      As stated at the beginning of this analysis, the precise nature of res judicata and, in turn, its boundaries are difficult to establish.  This uncertainty, however, is not due to any lack of clarity concerning its underlying purpose or rationales, or to any doubt about its importance to the administration of justice, whether in the civil or criminal context.  Nor is the imprecision about the particulars of res judicata owed to faulty legal doctrine.  It is attributable, rather, to the multitude and diversity of circumstances in which res judicata finds necessary application, and the resulting variety of forms that it assumes.  The key to achieving any certainty and coherence in the law in this area is to choose the proper mechanism to suit the particular context.

[149]      Issue estoppel, as a distinct and well-defined form of res judicata originating  in the civil context, continues to serve well the ends of justice and fairness in that area of the law.  However, in its transposition into the criminal law issue estoppel has proven ill‑suited to address the concerns arising from relitigation in that context.  As we have seen, the doctrine lost one of its three limbs from the start, and determining the other two in a principled manner has proven difficult ever since.  The result has been a confused and inconsistent application of the doctrine of issue estoppel in the criminal law context.  The question on this appeal is whether these inconsistencies warrant the complete elimination of the doctrine of issue estoppel from Canadian criminal law, or whether issue estoppel as it is applied in criminal proceedings retains enough principled or practical import to justify its retention.

[150]      In her treatment of this question, the Chief Justice agrees that issue estoppel, as applied in criminal cases since Grdic, “has created perplexing difficulties” and that reform is required “beyond doubt” (para. 1).  In her view, the difficulties that currently attend the application of issue estoppel in criminal cases stem primarily from the unwarranted extension of the rule to “any issue raised in a prior trial which resulted in an acquittal” and from the “view that it can operate retrospectively” as argued on this appeal (paras. 32-33 (emphasis in original)).  She therefore concludes that if issue estoppel is properly understood “according to its defining features” and is narrowly confined “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”, the difficulties associated with its application in the criminal context largely disappear (paras. 2 and 73).

[151]      I respectfully disagree that the numerous difficulties discussed earlier stem simply from a misapplication of the rule of issue estoppel.  As demonstrated above, the  problems that almost inevitably follow its application in the criminal context are not due to courts overextending the doctrine of issue estoppel so as to bar any issue raised in a  prior trial.  In fact, I know of no case that has applied the doctrine in such a way.  The difficulties are rooted, rather, in the fundamental incompatibility of issue estoppel — even when applied narrowly as intended — with the particular nature and concerns inherent to criminal law proceedings.  This basic misfit counsels against the application of issue estoppel in the criminal law in the first place.  It cannot be cured by mandating strict adherence to the rule — in my respectful view, it requires rather that the concept of issue estoppel find no further application in criminal law.

[152]      Eliminating issue estoppel does not mean that no bar to abusive relitigationwould exist in the criminal context.  On the contrary, there is an arsenal of related  criminal law concepts that are entirely more suited to meet the specific concerns that arise from the possibility of relitigation in the criminal context. Concern that the inherent discretion involved in the application of some of these concepts may not provide adequate protection for an accused, in my respectful view, is misplaced.  As we have seen, issue estoppel is ultimately a discretionary exercise which itself admits of certain exceptions.  It is true that a “simple, clear rule” guiding the application of issue estoppel in the criminal context would effectively “prevent issues established in one criminal proceeding from being relitigated in a subsequent proceeding” (Chief Justice’s reasons, at para. 47).  However, the inherent inflexibility of an absolute rule is part of the problem.  Consider the following example which essentially mirrors the fact situation in G. (K.R.), a case which my colleague identifies at para. 33 of her reasons as exemplary of the over‑extension of the doctrine of issue estoppel.

[153]      An accused is convicted on charges of sexual assault on two children.  At trial, the Crown introduces similar fact evidence through the testimony of a third child, A.B., who is not one of the complainants but who allegedly was also sexually assaulted by the accused. In convicting the accused, the trial judge expressly relies on the similar fact evidence of A.B.  Subsequently, the accused is charged with sexually assaulting A.B. and is acquitted.  The accused appeals his conviction.  The question is whether the accused’s conviction should be overturned based on the fresh evidence of his subsequent acquittal.  If the issue is framed in terms of issue estoppel, I would agree that the clear and simple answer is no, the conviction should not be overturned because the doctrine cannot apply retrospectively.  Hence, an appellate court would indeed be wrong to overturn the conviction on the basis of issue estoppel.  In my view, however, the just outcome in this scenario requires a more nuanced approach than the absolute rule of issue estoppel can provide.  I will explain.

[154]      On the one hand, if the trial judge in the second trial finds that A.B. fabricated the allegation against the accused and that the alleged sexual assault never occurred, it would only be just to overturn the accused’s conviction on the first trial which, in part, rested on the reliability of A.B.’s testimony.  The proposed fresh evidence could well impact on the question of admissibility of A.B.’s similar fact evidence.  Yet, the application of issue estoppel would not permit a court to grant this remedy to the accused because issue estoppel does not apply retrospectively.  On the other hand, if the trial judge in the second trial concludes that the sexual assault on A.B. likely happened, but acquits  because he is not satisfied of the accused’s guilt beyond a reasonable doubt, the unavailability of issue estoppel is of no concern.  There is no principled reason to overturn the conviction in the first trial.  The result would be the same if all three allegations were tried together.  In other words, the proposed fresh evidence, when taken with the other evidence adduced at trial, could not reasonably be expected to have affected the result.

[155]      Therefore, the just outcome in this example cannot be determined by a “clear and simple” application of the rules governing issue estoppel.  As explained earlier, the varying burdens of proof applicable in a criminal proceeding require a more nuanced approach.  The question is therefore better determined by applying the usual Palmer criteria for the admissibility of fresh evidence (Palmer v. The Queen, [1980] 1 S.C.R. 759) and, in this example, the rules governing the admissibility of similar fact evidence.

[156]      If it were necessary to redefine issue estoppel as a distinct concept for effective application in the criminal context, res judicata, in its widest sense, might prove sufficiently flexible to accommodate this development and, for better clarity, the concept could be given a different name.  The continuation of common law rules and principles that provide justifications, excuses or defences under s. 8(3)  of the Criminal Code , would allow this approach.  However, it is neither necessary nor advisable to go down that path.  Existing criminal law concepts are adequate to the task of preventing abusive prosecution in the criminal context.  I now turn to the circumstances of the present case.

6.       Application to This Case

[157]      There was no dispute at trial that Balasingam’s evidence about the phone call from Mahalingan was admissible, and understandably so.  The evidence was clearly admissible.  It will be helpful, however, to identify the evidentiary rule at play and explain why the evidence was admissible under that rule.  As I will explain, the admissibility of this item of evidence is governed by the similar fact evidence rule.  The same analytical framework will apply if the Crown seeks to adduce evidence of the alleged phone call at the new trial, albeit with a considerable shift in the balancing of factors given the intervening acquittal on the obstructing justice charge.

[158]      We start from the cardinal principle of our law of evidence that any relevant information may be admitted in evidence, unless it is subject to an exclusionary rule.  The evidence about the phone call was clearly relevant to an issue in the case.  As stated earlier, the identity of the attackers was the central issue at trial.  Mahalingan’s alleged apology to Balasingam over the telephone and his admission that he had come for Perinpanathan, if believed by the jury, were highly probative on the issue of identity, counselling in favour of their admission.

[159]      There is, however, an exclusionary rule at play here — the “very old rule of the common law” prohibiting the prosecution from adducing “evidence of misconduct beyond what is alleged in the indictment which does no more than blacken [the accused’s] character”:  R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, at paras. 31-32. As noted in Handy, at paras. 32-33, this general exclusionary rule dates at least as far back as Harrison’s Trial in 1692 and was

[s]ubsequently, and most famously . . . laid down by Lord Herschell L.C. [in] Makin v. Attorney‑General for New South Wales, [1894] A.C. 57 (P.C.), in these terms, at p. 65:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.

[160]      It is clear that the rule extends not only to criminal acts, but to “similar acts” of a discreditable nature:  Handy, at para. 34.  Indeed, the rule finds its most common application in cases where the Crown seeks to introduce evidence that the accused committed discreditable acts similar to that in respect of which he is charged, hence the label “similar fact evidence rule”.  However, the rule also extends to criminal or otherwise discreditable acts that bear no similarity to the offence with which the accused is charged. Marc Rosenberg, now Rosenberg J.A., provided the following useful example in an article quoted to make the same point in R. v. B. (L.) (1997), 9 C.R. (5th) 38 (Ont. C.A.), at para. 31:

[A]ssume that it can be shown that the deceased was killed by a bullet from a particular gun.  The Crown wishes to introduce evidence that the day before, the accused broke into a gun store and stole that particular gun.  The fact that the accused committed the disreputable act of break, enter and theft is really incidental to the case.  What the Crown needs that evidence for is to show that the accused had possession of the murder weapon at a time proximate to the killing.  From this the jury will be asked to infer that he had the gun at the time of the killing and therefore that he is the killer.

(“Evidence of Similar Acts and Other Extrinsic Misconduct”, in National Criminal Law Program, Criminal Evidence (1994), vol. 1, s. 8.1, at p. 4)

[161]      In this example, there is no similarity between the break and enter and theft of the gun and the murder.  Yet, the proposed evidence of the accused’s prior conduct is discreditable and the same evidentiary rule — the “similar fact evidence rule” — applies.  This inconsistency has led several authors and courts to note that the label “similar fact evidence rule” is somewhat of a misnomer: Sopinka, Lederman and Bryant, at pp. 525-26; Paciocco and Stuesser, at p. 50; Cross and Tapper on Evidence (11th ed. 2007), at p. 404;  B. (L.), at para. 6; R. v. Kirk (2004), 188 C.C.C. (3d) 329 (Ont. C.A.), at para. 14; R. v. Oldford (1999), 139 C.C.C. (3d) 288 (Nfld. C.A.), at para. 8.  However, the label is so entrenched that we still conveniently refer to the rule as the “similar fact evidence rule”.  I will continue to do so here, even though, in effect, it is a character evidence rule that encompasses all evidence of discreditable conduct that falls outside the scope of the indictment.

[162]      The rationale for the rule has often been repeated and needs no elaboration here.  It is sufficient for our purposes to repeat Binnie J.’s succinct description of the policy basis justifying the exclusion of similar fact evidence, stated in Handy, at para. 37:

The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree.  Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value.  It ought, in general, to form no part of the case which the accused is called on to answer.  It is excluded notwithstanding the general rule that all relevant evidence is admissible: Arp, supra, at para. 38; Robertson, supra, at p. 941; Morris, supra, at pp. 201‑2; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 613.

[163]      The similar fact evidence rule therefore precludes the Crown from adducing evidence that the accused engaged in criminal or discreditable conduct beyond what is alleged in the indictment, unless it is established on a balance of probabilities that the probative value of the evidence in relation to an issue in the case outweighs its potential prejudicial effect.  Much has been discussed in prior jurisprudence about relevant factors to be considered in assessing the probative value and potential prejudicial effect of  evidence and it is not necessary in the context of this appeal to discuss these factors at length.  Keeping in mind that no list can be exhaustive, Paciocco and Stuesser provide a useful digest of factors that have been identified in the case law in assessing the probative value and potential prejudicial effect of similar fact evidence (pp. 46-47).

[164]      It is important to note, however, what is not meant by “prejudicial” in this context because, in its widest sense, any evidence that tends to prove guilt is prejudicial to the accused because it is detrimental to his position.  Obviously, that is not the kind of prejudice targeted by the similar fact evidence rule.  Professor Delisle defines the meaning of prejudice in this context succinctly as follows:

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly.  The trier who learns of the accused’s previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.  [Emphasis in original.]

(J. R. Delisle, “Three Recent Decisions of the Supreme Court of Canada Affecting the Law of Similar Fact Evidence” (1992), 16 Prov. Judges J. 13, at p. 15; see also R. v. D. (L.E.), [1989] 2 S.C.R. 111, at pp. 127‑28, quoted in B. (L.), at para. 22.)

[165]      Balasingam’s testimony about the phone call, although clearly relevant, constitutes evidence that Mahalingan 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 his trial on the attempt murder charge, Mahalingan 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.  It is unsurprising that the admissibility of this evidence was not disputed.

[166]      Therefore, the evidence about the phone call to Balasingam 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.  As explained previously, the subsequent acquittal on the charge of obstructing justice does not retroactively render this evidence inadmissible on the basis of issue estoppel.   Blair J.A. was correct in refusing to give the doctrine of res judicata any retroactive effect as none of the principles that underlie res judicata find application in these circumstances.  He was also correct in his conclusion on the application to introduce fresh evidence.  There is nothing about the subsequent obstructing justice proceeding that undermines the reliability of the verdict on the attempt murder charge.  As Blair J.A. aptly puts it at para. 89:

The same issue was not before the two triers. There is no exposure to double jeopardy. The jury in this case appropriately weighed the evidence that was properly before it, and found Mr. Mahalingan guilty of aggravated assault. In doing so they had only to be satisfied on a balance of probabilities that the phone call took place and that the appellant said what was attributed to him. To convict on the subsequent obstruct justice charge, Justice Marchand had to be satisfied beyond a reasonable doubt that the charge had been made out. As he said, he was not.  There is nothing inconsistent, unfair, or logically irreconcilable in those verdicts:  Arp.  [Footnote omitted.]

[167]      I would have therefore dismissed the application to introduce fresh evidence and rejected the issue estoppel question raised by the application.  The question whether the evidence of the alleged phone call would be admissible at the new trial is one best determined, if need be, in the context of the evidence at that new trial and taking into account the intervening acquittal.

7.       Disposition

[168]      In the result, I would dismiss the appeal and confirm the order for a new trial based on Sharpe J.A.’s reasons on the inadequacies of the jury instructions on the theory of the defence.

Appeal dismissed.

Solicitor for the appellant:  Attorney General of Ontario, Toronto.

Solicitors for the respondent:  Lockyer Campbell Posner, Toronto.