



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Thompson, 2014 ONCA 43

DATE: 20140120

DOCKET: C55783

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dave Thompson

Respondent

Stephen Dawson, for the appellant

Carlos F. Rippell, for the respondent

Heard:  December 3, 2013

On appeal from a stay of proceedings entered on July 5,
    2012 by Justice Beth A. Allen of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2012 ONSC 3979, 288 C.C.C. (3d) 315.

Watt J.A.:

[1]

Issue estoppel is preclusive in its effect.  In a criminal case, it
    precludes the Crown from introducing evidence in later proceedings inconsistent
    with findings made in an accuseds favour in earlier proceedings.

[2]

In most criminal cases where issue estoppel is advanced by an accused,
    both the earlier and later proceedings are trials.  But not always.  Not here,
    at least.

[3]

In this case, the first proceeding was a revocation application under s.
    742.6 of the
Criminal Code
.  The Crown alleged that Dave Thompson (the
    respondent) breached a term of his conditional sentence order (CSO)  to keep
    the peace and be of good behaviour  after police officers found crack and
    powder cocaine in his bedroom.  The Crowns application failed because its evidence
    did not establish that the respondent was in possession of the substances seized.

[4]

The second proceeding was the prosecution of the respondent for
    possession of the same cocaine for the purposes of trafficking, and for
    possession of the proceeds of crime as a result of some money found during the
    same search.  The prosecution failed too.  The trial judge thought that issue
    estoppel precluded the Crown from introducing evidence that the respondent was
    in possession of cocaine for the purpose of trafficking, because that fact
    (possession of the cocaine) had been decided in the respondents favour on the
    revocation hearing.  The trial judge entered a stay of proceedings on the
    possession for the purpose count.

[5]

The Crown appeals.  As I will explain, I am satisfied that the trial
    judge erred in holding that issue estoppel precluded the Crown from introducing
    the evidence it sought to elicit to prove the count of possession of cocaine
    for the purpose of trafficking.  I would set aside the stay entered on that
    count and order a new trial.

THE BACKGROUND FACTS

[6]

A brief elaboration on what has already been said is sufficient
    background to the discussion that follows.

The Conditional Sentence
    Order

[7]

On April 7, 2010, the respondent pleaded guilty to and was convicted of
    trafficking in a controlled substance.  He was sentenced to a term of
    imprisonment of 15 months to be served in the community.  A compulsory
    condition of the CSO under s. 742.3(1)(a) of the
Criminal Code
required the respondent to keep the peace and be of good behaviour.

The Search and Seizure

[8]

About four months after the CSO had been imposed, police executed a
    warrant at the respondents house under the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19
. 
    The respondent was home when the warrant was executed.  In what was alleged to
    be the respondents bedroom, police found crack and powder cocaine and about
    $3,000 in Canadian currency alleged to be the proceeds of crime.

The Charges

[9]

As a result of the drugs and money found during the search, the
    respondent was charged with possession of cocaine for the purpose of
    trafficking and possession of the proceeds of crime.

The Revocation Hearing

[10]

About
    two and one-half months after the respondents arrest on the new charges, the
    Crown proceeded with a revocation hearing under s. 742.6 of the
Criminal
    Code
.  The Crown alleged that the respondent had breached the condition
    that he keep the peace and be of good behaviour by possessing powder and crack
    cocaine found during the search of his bedroom.

[11]

At
    the revocation hearing, Crown counsel (not Mr. Dawson) called no witnesses. 
    Relying on s. 742.6(4) of the
Criminal Code
, the Crown filed a written
    report of the respondents CSO supervisor and a signed statement from the
    investigating officer describing what happened on the search of the
    respondents home.  No certificate of analysis of the substances found during
    the search was filed.

[12]

During
    submissions at the revocation hearing, it became clear that the investigating
    officer who had signed the witness statement was present during the execution
    of the warrant, but did not himself make or otherwise participate in the seizures. 
    The officers description of both the location of the seizures and the nature
    of the substances found was simply a repetition of what he had been told by
    others.

[13]

Counsel
    for the respondent at the hearing took the position that the Crown had failed to
    adduce any admissible evidence that the respondent was in possession of cocaine
    when the police searched his home.  The statement filed on the hearing was
    inadmissible to prove where the substance was located when it was seized,
    because it was hearsay.  Thus, the Crown failed to establish the breach
    alleged.

[14]

Counsel
    for the Crown at the revocation hearing, although initially asserting that the
    evidence was sufficient to establish a breach, ultimately   acknowledged the
    hearsay nature of the officers statement and agreed that there was no
    admissible evidence to prove the material fact that cocaine was found in the
    accuseds possession.  He invited the judge to dismiss the application.

The Decision at the
    Revocation Hearing

[15]

The
    judge presiding at the revocation hearing thanked Crown counsel for
    acknowledging the hearsay nature of the officers statement and continued:

I do think its in breach of the requirement as outlined in
R.
    v. McIvor
from the Supreme Court of Canada and I simply cant rely on hearsay
    evidence for the material fact of Mr. Thompson being in possession of this drug
    or otherwise.  So I thank you for that.  So the proceeding will be marked
    dismissed.

[16]

The
    judge concluded her brief reasons in this way:

The federal Crown requested that the matter be dismissed after
    submissions and it was granted.  Sir, there is no need to apologize.  Quite
    frankly, you should be commended for the position youd taken after the
    submissions.

The Trial Proceedings

[17]

About
    20 months after the revocation hearing had concluded, the respondent appeared
    for trial on the charges arising out of the drugs and money found on the
    execution of the search warrant at his home.

[18]

At
    the outset of the trial proceedings, counsel for the respondent (not Mr.
    Rippell) sought a ruling that issue estoppel precluded re-litigation of the
    issue whether the respondent was in possession of controlled substances.  Crown
    counsel resisted the application.

The Decision of the
    Trial Judge

[19]

The
    trial judge concluded that the respondent had established the prerequisites for
    the operation of the doctrine of issue estoppel.  She explained her conclusion in
    these terms:

I am of the view that Mr. Thompson has met his burden to show
    that the requirements for the application on issue estoppel have been met. 
    There is no question about satisfaction of the first requirement  that the
    same issue of possession that was before the court in the conditional sentence
    hearing is now before the court to be tried.  The third element of common
    parties at both proceedings is also clearly satisfied.  In the Crowns view, it
    is not clear that Kelly, J. finally disposed of the specific issue of
    possession.

I disagree.  I find that Kelly, J. made a conclusive finding on
    a specific question of fact.  She made a determination on a material fact in
    the accuseds favour in concluding the Crown failed through the evidence
    presented in the signed witness statements to meet its burden to prove that Mr.
    Thompson was in possession of the drugs.  The parties were left with no uncertainty
    about that at the end of the proceeding.

This is the type of circumstance in the criminal context that
    is contemplated by the doctrine of issue estoppel.  Proceeding to trial would
    leave open the possibility for inconsistent findings on the issue of
    possession.  Mr. Thompson has a decision in his favour on possession.  It would
    be a patent injustice to him and not in the interests of the fair
    administration of justice for him to be faced once again with defending himself
    against the same allegation.

[20]

The
    trial judge entered a stay of proceedings on the count of possession of cocaine
    for the purpose of trafficking.  Counsel for the Crown (not Mr. Dawson)
    directed entry of a stay of proceedings on the proceeds count.

THE GROUNDS OF APPEAL

[21]

Crown
    counsel advances three grounds of appeal.  He submits that the trial judge:

i.

erred in applying issue estoppel when no issue had been resolved by the
    judge presiding at the revocation hearing;

ii.

erred in applying issue estoppel to an interlocutory ruling, thus exceeding
    the narrow scope of the doctrine; and

iii.

erred in failing to consider her residual discretion to refuse to enter
    a stay of proceedings where the conditions precedent to the operation of the
    doctrine of issue estoppel had been met.

Ground #1:  The Lack of a Decision on an Issue

[22]

This
    ground of appeal focuses on the requirement that there be a prior judicial
decision
or
finding
which is said to create the estoppel in a subsequent
    proceeding.

The Arguments on Appeal

[23]

For
    the appellant, Mr. Dawson emphasizes that the doctrine of issue estoppel
    imposes a stringent test for establishing the identity of issues between the
    estoppel-creating and the estoppel-applying proceedings.  In the
    estoppel-creating proceedings, an issue must be expressly resolved, or must
    necessarily be the only rational explanation for the verdict.

[24]

Mr.
    Dawson says that no issue was resolved at the revocation hearing.  No
    admissible evidence was adduced to prove the alleged breach.  Crown counsel
    invited the judge to dismiss the application.  That dismissal was not the
    equivalent of an acquittal although the trial judge treated it as if she were
    applying the special plea of
autrefois acquit
.  No decision.  No issue
    estoppel.

[25]

For
    the respondent, Mr. Rippell contends that the appellant has mischaracterized
    what occurred at the revocation hearing.  Evidence was adduced at the hearing
    in documentary form as s. 742.6(5) expressly permits.  This evidence has the
    same probative force as
viva voce
testimony to the same effect.  The
    judge at the revocation hearing made a conclusive finding on a specific
    contested factual issue:  possession of cocaine.  That finding satisfied the
    first prerequisite to engage the doctrine of issue estoppel.

The Governing Principles

[26]

Before
    examining the prerequisites to the application of the doctrine of issue
    estoppel, it is helpful to recall briefly the nature of revocation hearings
    under s. 742.6 of the
Criminal Code
.

Revocation Hearings under s. 742.6

[27]

A
    CSO revocation hearing is initiated by the arrest of the offender for an
    alleged breach of the order, or by the issuance of some other form of process
    to compel the offenders appearance before a court of competent jurisdiction.  The
    hearing is to be conducted within 30 days of the offenders arrest or compelled
    appearance, or as soon afterwards as is practicable in the circumstances.

[28]

The
    issue on the hearing is framed by the dispositive authority in s. 742.6(9):  Did
    the offender breach a condition of the CSO without a reasonable excuse?  The
    onus of proving the breach is on the Crown.  The onus of establishing a
    reasonable excuse is on the offender.  The standard of proof for both is proof
    on a balance of probabilities.

[29]

Breach
    of a condition of a CSO is
not
an offence.  Thus, a person alleged to
    have breached a condition of a CSO is not charged with an offence for the
    purposes of s. 11 of the
Charter
.  In some respects, CSO breach
    proceedings are like prosecutions for breach of probation, coupled with a
    revocation hearing to lift the suspension of a sentence:
R. v. McIvor
,
    2008 SCC 11, [2008] 1 S.C.R. 285, at para. 12.  The analogy is imperfect,
    however, because breach of probation
is
an offence, triable by indictment
    or summary conviction, and must be proven beyond a reasonable doubt.  A closer
    analogy might be bail revocation proceedings under s. 524(3) of the
Criminal
    Code
.
[1]


[30]

Parliament
    intended that allegations of a breach of the conditions in a CSO would be heard
    and determined in a simple, expedited manner, unencumbered by the formalities
    associated with criminal trial proceedings:
McIvor
, at para. 18.  For
    example, s. 742.6(4) permits documentary proof, rather than
viva voce
testimony, of the alleged breach.  Leave is required under s. 742.6(8) before
    the supervisor or any witness whose signed statement is included in the
    supervisors report may be cross-examined.

[31]

Despite
    Parliaments intention that alleged breaches of the conditions of a CSO be heard
    and determined in an expedited, less formal way, s. 742.6 does not countenance
    a complete departure from the ordinary rules of evidence.  The documentary
    evidence submitted  the CSO supervisors report and signed statements of
    witnesses  must not extend beyond what their respective authors could say if
    called to give
viva voce
testimony at the hearing:
McIvor
,
    at para. 24.  It would seem logically to follow that the offender is entitled
    to challenge any part of the Crowns documentary evidence that fails to comply
    with the rules of evidence  like the hearsay rule  and the judge presiding on
    the revocation hearing would be required to rule on the challenge.

[32]

Section
    742.6(9) defines the dispositive authority of the presiding judge where the
    Crown has proven a breach of a condition of the CSO and the offender has failed
    to establish a reasonable excuse for the breach.  Where the Crown fails in its
    proof, or the offender establishes a reasonable excuse, the allegation is
    dismissed.  Section 742.6(15) also anticipates that the allegation may be
    withdrawn.

The Decision Requirement in Issue Estoppel

[33]

The
    doctrine of issue estoppel is concerned with particular issues common to two
    different pieces of litigation involving the same parties:
R. v.
    Mahalingan
, 2008 SCC 63, [2008] 3 S.C.R. 316, at para. 17.  When applied
    to a trial, the doctrine focuses on particular determinations of the issues
    supporting the verdict, not on the ultimate verdict itself, which is the
    business of double jeopardy:
Mahalingan
, at para. 17.

[34]

Where
    the doctrine of issue estoppel applies, it prevents the Crown from
    re-litigating an issue that has been decided in the accuseds favour with
    finality in a prior criminal proceeding:
Mahalingan
, at para. 31.

[35]

The
    first requirement for a claim of issue estoppel is that an issue has been
    decided in a prior proceeding:
Mahalingan
, at paras. 49 and 52.  The
    onus of proving this threshold requirement falls upon the accused who seeks to
    invoke the doctrine:
Mahalingan
, at para. 52.

[36]

To
    satisfy this onus, an accused must show that the question was or must
    necessarily have been resolved on the merits in the accuseds favour in the
    earlier proceeding:
Mahalingan
, at para. 52.  It is not enough to
    show that the evidence was adduced in an earlier proceeding and an acquittal
    entered:
Mahalingan
, at para. 52.  It must be a necessary inference,
    either from the judges findings or from the fact of the result, that the issue
    was resolved in the accuseds favour:
Mahalingan
, at para. 52.

The Principles Applied

[37]

I
    would not give effect to this ground of appeal.

[38]

The
    ultimate issue before the judge presiding at the revocation hearing was whether
    the Crown had proven, on a balance of probabilities, that the respondent had breached
    the keep the peace and be of good behaviour condition of the CSO.  The conduct
    alleged to constitute the breach consisted of the respondents possession of the
    crack and powder cocaine that was discovered on the execution of the search
    warrant at his home.

[39]

The
    presiding judge found that the Crown had failed to provide admissible evidence
    proving that the respondent had possessed cocaine. She dismissed the allegation
    at the request of the Crown.  The inevitable result of this decision is that the
    issue of possession of cocaine was decided in the respondents favour at the
    revocation proceedings.  The first requirement of issue estoppel has been met.  The
    application of the doctrine cannot be defeated on this basis.

Ground #2:  The Finality Requirement

[40]

The
    second ground of appeal focuses on the nature of the proceedings in which the estoppel-creating
    decision was made.  For ease of reference, I will excerpt once again the
    relevant part of the trial judges reasons giving effect to the doctrine.

The Reasons of the Trial
    Judge

[41]

The
    trial judge explained why she applied the doctrine of issue estoppel in these
    terms:

I am of the view that Mr. Thompson has met his burden to show
    that the requirements for the application on [
sic
] issue estoppel have
    been met.  There is no question about satisfaction of the first requirement 
    that the same issue of possession that was before the court in the conditional
    sentence hearing is now before the court to be tried.  The third element of common
    parties at both proceedings is also clearly satisfied.  In the Crowns view, it
    is not clear that Kelly, J. finally disposed of the specific issue of
    possession.

I disagree.  I find that Kelly, J. made a conclusive finding on
    a specific question of fact.  She made a determination on a material fact in
    the accuseds favour in concluding the Crown failed through the evidence
    presented in the signed witness statements to meet its burden to prove that Mr.
    Thompson was in possession of the drugs.  The parties were left with no
    uncertainty about that at the end of the proceeding.

This is the type of circumstance in the criminal context that
    is contemplated by the doctrine of issue estoppel.  Proceeding to trial would
    leave open the possibility for inconsistent findings on the issue of
    possession.  Mr. Thompson has a decision in his favour on possession.  It would
    be a patent injustice to him and not in the interests of the fair
    administration of justice for him to be faced once again with defending himself
    against the same allegation.

The Arguments on Appeal

[42]

For
    the appellant, Mr. Dawson says that findings made at CSO revocation hearings
    cannot found a claim of issue estoppel in later trial proceedings.  He submits
    that despite the references to both proceedings and trial in
Mahalingan
,
    the decision only makes sense if the prior proceeding is a trial.

[43]

Mr.
    Dawson emphasizes that issue estoppel is applied narrowly in the criminal law. 
    It is not invoked simply because a prior decision or ruling was made on an issue
    common to two proceedings.  The estoppel-creating decision must be final. 
    Findings on particular issues at trial are final.  Not so, rulings made at
    preliminary inquiries or in sentencing hearings.  Rejection of this claim of
    issue estoppel is consistent with the goals served by and the principles that
    underlie the doctrine.

[44]

For
    the respondent, Mr. Rippell disputes the appellants submission that issue
    estoppel is limited to findings made at trial.  The doctrine does not apply to
    interlocutory rulings made at a preliminary inquiry, or to discharges granted
    at the conclusion of preliminary inquiries, because no right of appeal exists
    in either case.  Besides, judges presiding at preliminary inquiries cannot make
    findings of fact, which are critical elements in issue estoppel.

[45]

Mr.
    Rippell contends that a CSO revocation hearing is more akin to a prosecution
    for breach of probation than any other kind of proceeding.  As with findings
    made at the conclusion of a prosecution for breach of probation, findings made
    at revocation hearings, he says, can satisfy the finality requirement in issue
    estoppel.  The fact that CSO revocation proceedings are sentencing proceedings,
    like proceedings under s. 724(2) of the
Criminal Code
, does not in
    itself foreclose issue estoppel under
R. v. Punko
, 2012 SCC 39, [2012]
    2 S.C.R. 396.  Further, policy considerations favour the application of issue
    estoppel in these circumstances because it encourages diligence by the Crown in
    collecting and presenting evidence at the revocation hearing, the object of
    which is to deprive the offender of his or her liberty.


The Governing Principles

[46]

This
    ground of appeal requires consideration of a further prerequisite for the
    operation of the doctrine of issue estoppel in a criminal case.  It is
    necessary to examine whether this requirement  finality of the estoppel-creating
    decision  bars the application of the doctrine where the finding said to
    create the estoppel occurred in sentencing proceedings.

The Finality Requirement

[47]

The
    second requirement of issue estoppel is that the estoppel-creating decision was
    final:
Mahalingan
, at para. 49.  Findings on particular issues at trial
    are final, absent appellate reversal:
Mahalingan
, at para. 55.

[48]

In
    many instances in which an accused seeks to invoke the preclusive effect of
    issue estoppel, the estoppel-creating proceeding and the proceeding in which
    the accused seeks to invoke the doctrine are both trials.  It is clear from
Mahalingan
that the doctrine can operate in both jury and non-jury trials and where the
    finding said to create the estoppel was a positive finding or a finding based
    on reasonable doubt:
Mahalingan
, at para. 31.

[49]

Since
    the proceeding alleged to create the estoppel in this case is not a trial
    proceeding, an issue arises whether a proceeding other than a trial can constitute
    an estoppel-creating proceeding that satisfies the finality requirement.

[50]

In
    both
Mahalingan
and the earlier case of
Grdic v. The Queen
,
    [1985] 1 S.C.R. 810, both the estoppel-creating proceeding and that in which
    the doctrine was invoked were trials.  But the terms trial, and proceeding
    and proceedings, appear in nearly equal measure in the decision in
Mahalingan
. 
    On their face, the terms proceeding and proceedings include a trial but
    take in more ground than trial.  The terms proceeding and proceedings
    could include both pre-trial and sentencing proceedings.  Thus, it is helpful
    to examine some authorities in which an accused has tried to invoke issue
    estoppel when the estoppel-creating proceeding was not a criminal trial.

The Finality Requirement and Evidentiary
    Rulings

[51]

The
    terms proceeding and proceedings would include a
voir dire
to
    determine the admissibility of evidence, as well as a preliminary inquiry at
    the conclusion of which a justice is required to decide whether there is
    sufficient evidence to put an accused on trial for the offence charged or any
    other indictable offence in respect of the same transaction.

[52]

In
Duhamel v. The Queen
, [1984] 2 S.C.R. 555, the appellant was tried
    separately on two counts of robbery charged in the same indictment.  At the
    first trial, a
voir dire
was conducted to determine the admissibility
    of certain statements made by the appellant.  The trial judge ruled the
    statements inadmissible.  Duhamel was acquitted.  A different judge presided at
    the second trial.  Despite objections based on issue estoppel, the second trial
    judge conducted a
voir dire
and admitted the statements ruled
    inadmissible at the first trial.  Duhamel was convicted.  On appeal, he argued
    that issue estoppel precluded the Crown from re-litigating the admissibility of
    the statements ruled inadmissible at the first trial.

[53]

The
    Supreme Court of Canada unanimously affirmed the judgment of the Alberta Court
    of Appeal rejecting the extension of the doctrine of issue estoppel to include,
    as estoppel-creating findings, rulings on the admissibility of evidence, at
    least in the absence of a discrete right of appeal from decisions on
    admissibility.

[54]

In
Schweneke v. Ontario
(2000), 47 O.R. (3d) 97 (C.A.), this court observed
    that issue estoppel would not apply where the accused had been discharged at
    the conclusion of a preliminary inquiry into charges of fraud, to preclude the
    determination in a subsequent civil action of  whether he had in fact committed
    the alleged fraudulent acts.  The court pointed out that a judge presiding at a
    preliminary inquiry does not make findings of fact.  The judge decides only whether
    the evidence as a whole is sufficient to warrant a committal for trial.  Such a
    determination could
not
found a subsequent claim of issue estoppel.

The Finality Requirement and Sentencing
    Proceedings

[55]

In
Punko
, one of the appellants contended that issue estoppel could arise
    from findings of fact made by a sentencing judge under s. 724(2) of the
Criminal
    Code
after a jury trial.  A majority of the Court concluded that such a
    finding could not serve as the basis for a claim of issue estoppel.

[56]

Findings
    of fact under s. 724(2)(b) of the
Criminal Code
, the majority
    reasoned, do not constitute a judicial determination
on the merits
of
    the case. Rather, these findings are judicial determinations made only for the
    purpose of sentencing:
Punko
, at para. 11.  Findings of fact made by
    the sentencing judge under s. 724(2)(b) of the
Criminal Code
cannot be
    relied upon to support a claim of issue estoppel:
Punko
, at para.
    19.

[57]

Revocation
    hearings under s. 724.6 are sentencing proceedings  more accurately perhaps,
    the continuation of sentencing proceedings:
McIvor
, at para. 12.  Proof
    of a breach of a condition of the CSO is analogous to the proof of aggravating
    facts at the initial sentencing hearing:
McIvor
, at para. 12.  The
    offender is not charged with an offence and is not at risk of conviction.

Policy Considerations

[58]

To
    the extent that it remains unclear whether sentencing proceedings can serve as
    an estoppel-creating mechanism, it may be helpful to consider whether the
    policy considerations that are the genesis of the doctrine of issue estoppel
    favour one conclusion or the other in this case.  The relevance of policy
    considerations has been recognized in non-criminal cases, albeit in the context
    whether a court has a discretion to refuse to apply issue estoppel if it will
    work an injustice, even where the preconditions to its application have been
    met:
Penner v. Niagara (Regional Police Services Board)
, 2013 SCC 19,
    356 D.L.R. (4th) 595, at para. 8;
Danyluk v. Ainsworth Technologies Inc
.,
    2001 SCC 44, [2001] 2 S.C.R. 460, at paras. 62 and 67.

[59]

Issue
    estoppel serves three purposes.  Each purpose is integral to a fair system of
    criminal justice:

i.

fairness to the accused who should not be called upon to answer
    questions already decided in his or her favour;

ii.

the integrity and coherence of the criminal law; and

iii.

the institutional values of judicial finality and integrity.

Mahalingan
, at paras. 38-39, and 44-47.  See
    also,
Lucido v. Superior Court
, 51 Cal. 3d 335 (1990), at p. 343,
    where the Supreme Court of California concluded that the failure to prove the
    commission of an offence at a probation revocation hearing did not preclude a
    subsequent prosecution for the same offence.

The Principles Applied

[60]

I
    would give effect to this ground of appeal.  In my view, a CSO revocation
    decision should not be classified as a final decision capable of giving rise to
    the operation of issue estoppel in a subsequent criminal trial.  I have reached
    that conclusion for several reasons relating to:

i.

the nature of revocation proceedings;

ii.

the narrow scope of the doctrine of issue estoppel in criminal cases;
    and

iii.

the purposes that underlie issue estoppel.

[61]

First,
    revocation proceedings at their core are sentencing proceedings in which the
    offender is neither charged with an offence nor in jeopardy of further
    conviction on proof of further criminal conduct. The revocation hearing may be
    regarded as a continuation of sentencing proceedings where proof of a breach is
    analogous to the proof of aggravating facts:
McIvor
, at para. 12. 
    Findings of fact made by a sentencing judge under s. 724(2)(b) cannot found an
    issue estoppel:
Punko
, at para. 19.  It would seem incongruous to
    permit findings made in some sentencing proceedings to serve as a foundation
    for the operation of the doctrine, yet deny the same status to others.

[62]

Second,
Mahalingan
makes the point that the operation of issue estoppel in
    criminal cases falls within a narrow compass responsive to the unique characteristics
    of criminal trials:
Mahalingan
, at paras. 2 and 17.  It would be
    inimical to such a restrictive scope to expand the doctrine to the
    circumstances revealed here.

[63]

Third,
    to permit CSO revocation proceedings to found the doctrine of issue estoppel would
    not be consistent with the policies that underlie the doctrine and its
    purposes.

[64]

Public
    confidence in the integrity of the judicial system is threatened whenever two
    tribunals render inconsistent verdicts.  Undoubtedly, applying issue estoppel
    in this case eliminated the possibility of any inconsistency between the CSO
    revocation and criminal trial determinations.  But we must remember that
    consistency is not the exclusive yardstick by which we gauge the integrity of
    judicial decisions.  We need also consider whether eliminating potential
    inconsistency  by displacing the full determination of factual issues  would
    undermine public confidence in the judicial system:
Lucido
, at p.
    347.

[65]

CSO
    revocation proceedings and criminal trials serve different public interests. 
    Different concerns may shape the Crowns pursuit of each.

[66]

A
    CSO revocation hearing assesses whether conditions imposed as part of a
    sentence for a prior crime have been violated such that the prior sentence
    should be varied or terminated and the offender incarcerated.  Revocation
    hearings are part of the continuing consequences of an offenders original
    conviction.  Any sanction imposed follows from that crime, not from the
    substance of new criminal allegations against the offender.  If the Crown
    succeeds at the revocation hearing, the result is not a fresh conviction. 
    Indeed, the result may be nothing at all, or at worst, termination of the CSO
    and incarceration.

[67]

The
    fundamental role and responsibility of the CSO revocation hearing judge is not
    to determine whether the offender is guilty of a crime.  The hearing judges
    job is to decide whether a breach of condition has been proven to have occurred
    and, if it has, what to do about it.  The limited nature and the likely timing
    of this hearing  within 30 days of the offenders arrest or compelled
    appearance, absent an extension  may mean that not all evidence bearing on the
    underlying factual allegations is available or adduced.

[68]

To
    pre-empt trial of a new charge by according preclusive effect to a revocation
    decision, which is designed to perform a wholly independent social and legal
    task, would undermine the function of the criminal trial process as the
    designated forum for ultimate determinations about guilt or innocence of
    newly-alleged crimes:
Lucido
, at p. 349.

[69]

From
    the point of view of judicial economy, we could say that the application of
    issue estoppel in circumstances like these:

i.

would reduce, by one, the number of court proceedings because of the
    preclusive effect of issues decided adversely to the Crown at the revocation
    proceeding; and

ii.

by increasing the stakes at the revocation hearing, might encourage the
    Crown to prosecute first and eliminate the need for a revocation hearing.

But there is another side  the importance of
    preserving the criminal trial process as the exclusive forum for deciding
    whether an alleged offender is guilty or innocent of committing new crimes:
Lucido
,
    at pp. 350-351.

[70]

It
    is self-evident that the application of issue estoppel in these circumstances
    would produce a result more favourable to the accused.  But issue estoppel is
    not intended to achieve favourable outcomes for the accused  it aims to
    achieve fairness, through the elimination of vexatious litigation.  And the
    essence of vexatiousness is not mere repetition of litigation.  Rather, it is
    harassment through baseless or unjustified litigation:
Lucido
, at p.
    351.  It is neither vexatious nor unfair for a person serving a conditional
    sentence to be subjected to both a revocation hearing and a criminal trial. 
    Indeed, an informed public might expect no less.

[71]

As
    I have said, I would give effect to this ground of appeal.

Ground #3:  Failure to Consider Discretion

[72]

The
    final ground of appeal is an alternative claim of error advanced in the event
    that we determine that the doctrine of issue estoppel applies in this case. 
    The submission is that the trial judge erred in failing to consider that she
    had a residual discretion
not
to apply issue estoppel even if all the
    requirements to invoke the doctrine were met.

[73]

It
    is perhaps unnecessary to consider this ground because I have concluded that
    issue estoppel did not bar re-litigation of the possession issue at trial.  But
    out of deference to the submissions of counsel, and in the event of further
    review, I will deal with the claim briefly.

The Decision of the
    Trial Judge

[74]

The
    reasons of the trial judge contain no reference to the availability of any
    residual discretion not to give effect to issue estoppel where the conditions
    for its application would otherwise be met.  The record with which we were
    provided reveals no mention of any such discretion.

The Arguments on Appeal

[75]

For
    the appellant, Mr. Dawson begins by readily acknowledging that this court has
    previously decided that, in a criminal case, a trial judge has no residual
    discretion to refuse to apply the doctrine of issue estoppel where the
    conditions precedent to its operation have been satisfied.

[76]

Mr.
    Dawson says that when an accused invites a trial judge to apply the doctrine of
    issue estoppel, the judge should nonetheless consider both of the following issues:

i.

whether the conditions precedent to the operation of the doctrine have
    been satisfied in the proceedings; and

ii.

if the conditions precedent have been established, whether the doctrine should
    be applied to preclude litigation of the common issue.

[77]

Mr.
    Dawson points out that the Supreme Court of Canada has held that in civil
    proceedings, a court retains a discretion not to apply issue estoppel, where to
    do so would cause a real injustice.  To decide whether to exercise this
    residual discretion, a court should consider several factors, including:

i.

the purposes, processes, and stakes involved in the prior proceedings;

ii.

whether a significant difference between the two proceedings would make
    for an injustice if the results of the first proceeding precluded the second
    proceeding;

iii.

whether the first proceeding was intended to create a final resolution;
    and

iv.

whether, at the time of the first proceeding, the parties reasonably
    expected that it would create a final resolution.

These principles, Mr. Dawson submits, should apply in
    criminal cases.  After all, the criminal law has always recognized discretion
    when an accused seeks a stay of proceedings.

[78]

For
    the respondent, Mr. Rippell takes the position that for nearly half a century
    the law in this province has been that, in criminal cases, a judge has no
    residual discretion to decline to apply the doctrine of issue estoppel where
    its conditions precedent have been established.  The decision in
Grdic
leaves no room for discretion.  And the court in
Mahalingan
makes no
    mention of discretion in advocating a simple, clear, narrowly-focused rule
    responsive to the unique characteristics of the criminal trial.

[79]

Mr.
    Rippell adds that, in principle, discretion should be accorded no place in the
    application of issue estoppel in criminal proceedings.  The doctrine controls
    the mischief of repetitious proceedings.  To import into issue estoppel a
    residual discretion would undermine the fairness and finality the doctrine was
    created to promote.

[80]

In
    the alternative, Mr. Rippell contends that recognition of a residual discretion
    would not yield a contrary result here.  The Crown could easily have
    established the respondents possession of cocaine at the revocation hearing by
    introducing statements of the seizing officers.  It failed to do so despite the
    significant issues at stake at the revocation hearing.  The Crown should not
    get a second chance.

The Governing Principles

[81]

For
    nearly half a century, the jurisprudence in this province has left no room for
    the exercise of a residual discretion in the application of the doctrine of
    issue estoppel.  Where the requirements for the application of the doctrine
    have been established, issue estoppel applies to preclude re-litigation of an
    issue decided in the accuseds favour at a prior trial:
R. v. Wright
,
    [1965] 2 O.R. 337 (C.A.), at pp. 340-341.

[82]

In
    non-criminal proceedings, the Supreme Court of Canada has recognized a residual
    discretion in the application of issue estoppel.  A court may decline to apply
    the doctrine where its application would create an injustice:
Penner
,
    at paras. 1, 31 and 36;
Danyluk
, at paras. 62-67.  In the context of
    court proceedings, the residual discretion is to be accorded a very limited
    application:
Danyluk
, at para. 62;
General Motors of Canada Ltd. v.
    Naken
, [1983] 1 S.C.R. 72, at p. 101.

[83]

The
    exercise of a residual discretion to decline to apply issue estoppel is
    governed by considerations of fairness.  Unfairness may arise in two principal
    ways that overlap and are not mutually exclusive.  First, the unfairness of
    applying issue estoppel may arise from the unfairness of the estoppel-creating
    proceeding.  Second, even where the prior proceeding was conducted with
    scrupulous fairness and in accordance with its purposes, it may be unfair to
    use the results of the estoppel-creating proceeding to preclude the subsequent
    proceeding:
Penner
, at para. 39.

[84]

To
    determine whether the operation of issue estoppel would create unfairness
    through according preclusive effect to the results of a prior proceeding in a subsequent
    proceeding requires a nuanced inquiry.  Relevant factors in this inquiry may
    include, but are not limited to:

i.

the nature and extent of any differences between the purposes, processes
    or stakes involved in the two proceedings (
Penner
, at paras. 42 and
    45);

ii.

the reasonable expectations of the parties in relation to the scope and
    effect of the prior proceeding as informed by the text and purpose of the
    enabling legislation (
Penner
, at para. 47);

iii.

the risk of adding to the complexity and length of the estoppel-creating
    proceeding by attaching undue weight to its results through the application of
    issue estoppel (
Penner
, at para. 62);

iv.

the availability of an appeal from the finding in the estoppel-creating
    proceeding (
Danyluk
, at para. 74); and

v.

whether, in all the circumstances of the case, the application of issue
    estoppel would work an injustice (
Danyluk
, at para. 80).

[85]

The
    decisions of the Supreme Court of Canada in
Grdic
,
Mahalingan
,
Punko
and
Duhamel
, contain no reference to a residual
    discretion to decline to apply issue estoppel in criminal cases.  The issue
    does not appear to have been raised in argument, much less discussed or decided
    by the Court.


The Principles Applied

[86]

But
    for the governing jurisprudence of the Supreme Court and this court, my
    conclusion regarding this ground of appeal might well be different.  However,
    in light of that jurisprudence by which this court is bound, I conclude that
    this ground of appeal must be rejected.

[87]

The
    decision of this court in
Wright
makes it clear that, in criminal
    cases, a judge has no discretion to refuse to apply issue estoppel where the
    conditions for its operation have been established.  No later decision of this
    court has overruled or qualified this unequivocal statement of principle in
Wright
.

[88]

Moreover,
    the decisions of the Supreme Court of Canada that recognize a residual
    discretion to decline to apply issue estoppel do
not
involve criminal
    proceedings as both the estoppel-creating and estoppel-applying proceedings. 
    The majority in
Mahalingan
makes it clear that although issue estoppel
    in criminal cases 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:
Mahalingan
, at para. 2.

[89]

Finally,
    nothing said, or arising by necessary implication from anything said, in the
    Supreme Court of Canada jurisprudence on issue estoppel in criminal law casts any
    doubt on the no discretion principle pronounced in
Wright
.

CONCLUSION

[90]

For
    these reasons, I would allow the appeal, set aside the stay of proceedings
    entered by the trial judge, and order a new trial on the count charging the
    respondent with possession of cocaine for the purpose of trafficking.

Released: January 20, 2014 (EAC)

David Watt J.A.

I agree.  E.A. Cronk J.A.

I agree.  K. van Rensburg
    J.A.





[1]
Failure to comply with the terms of a form of judicial interim release is also
    an offence triable either way under s. 145(3)-(5.1) depending on the form of
    release.


