Similar fact evidence and issue estoppel

R. v. D.N.C., 2011 ONCA 672 is an interesting case dealing with the concepts of issue estoppel and similar fact evidence. An accused was charged with certain offences; the charges were (improperly) stayed by the trial judge. The Crown did not proceed further with the earlier charges. At a much later trial the Crown sought to rely upon the facts underlying the initial charge as being "similar facts". The Court of Appeal held such reliance was improper - the judge's stay, though improper, was sufficient to bar subsequent use of the allegations in a fashion inconsistent with the stay:

[6] In Mahalingan, McLachlin C.J., writing for the majority, held at para. 2, that issue estoppel "plays an indispensible role in ensuring fairness to the accused" provided that it is confined to precluding the Crown "from leading evidence which is inconsistent with findings made in the accused's favour in a previous proceeding." Issue estoppel rests on the principle that fairness "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" (para. 39).

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Issue estoppel

[12] In our view, in the particular circumstances of this case, the "judicial stay" granted at the first trial constituted, in functional terms, "a judicial determination on the merits" in favour of the appellant within the meaning of Mahalingan attracting the preclusive effect of issue estoppel.

[13] First, it is clear from the record that the trial judge at the first trial had concluded that if an adjournment were refused, dismissal of the charges was inevitable. As we have noted, Crown counsel stated that because the complainant refused to testify, the "only avenue left in the prosecution" was an adjournment in the hope that the forensic tests might yield some evidence supporting the prosecution. The trial judge recognized in his reasons for granting the stay that if he were simply to refuse the requested adjournment, the inevitable result would be the dismissal of the charges.

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[18] It follows that the Crown should not have been permitted to adduce evidence of the January 8, 2001 incident as similar fact evidence. As the order terminating the first prosecution was, in the peculiar circumstances of this case, the functional equivalent of an acquittal, the rule of issue estoppel enunciated in Mahalingan precluded the Crown from relying on that evidence.

Abuse of process

[19] Even if the label "judicial stay" excluded the application of issue estoppel, we would reach the same conclusion on the basis of abuse of process. McLachlin C.J., clearly rejected, at para. 42 of Mahalingan, the proposition that abuse of process could or should be routinely used to "achieve the fairness goal that underlies the doctrine of issue estoppel." However, at para. 77, McLachlin C.J. expressly stated that it was not necessary in Mahalingan "to resolve the question of whether issue estoppel applies to situations where there is a disposition such as a stay at a first trial" and went on to suggest that perhaps the "more flexible" approach of abuse of process can play a role in some cases. Although the examples McLachlin C.J. provided involved situations of stays granted on grounds such as unreasonable delay that do not engage a determination of the merits of the Crown's case, were it necessary, we would apply abuse of process to the present case.

[20] As explained above, the disposition made by the first trial judge, amounted, in substance, to a judicial determination on the merits in favour of the appellant. We cannot agree that the appellant should be deprived of the benefit of that determination because the judge attached a legally erroneous label to the disposition he made. It would be fundamentally unfair to the appellant to be faced with the same allegations as the centerpiece of the later prosecution simply because of a legal error on the part of the first trial judge in his selection of the appropriate remedy.

[21] We do not accept the respondent's argument that abuse of process cannot apply because there was no Crown misconduct. It has long been held that prosecutorial misconduct is not a precondition to a finding of abuse of process: R. v. Keyowski (1988), 40 C.C.C. at p. 483; R. v. Pietrangelo 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 66. In our view, the circumstances here meet the "clearest of cases" standard for abuse of process.