R. v. Mahalingan (R.), (2008) 243 O.A.C. 252 (SCC)

• Judge: McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 14, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 243 O.A.C. 252 (SCC);2008 SCC 63

R. v. Mahalingan (R.) (2008), 243 O.A.C. 252 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] O.A.C. TBEd. NO.066

Her Majesty The Queen (appellant) v. Rathiskumar Mahalingan (respondent)

(31499; 2008 SCC 63; 2008 CSC 63)

Indexed As: R. v. Mahalingan (R.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache*, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

November 14, 2008.

Summary:

An accused charged with attempted murder was convicted by a jury of aggravated assault following a gang attack on two men (P and B). P testified that it was not the accused who first attacked him. B testified that it was the accused who first attacked P, but had told police that it was a "brand new" gang member. B acknowledged that the accused was a former gang member. The Crown's case rested almost entirely on B's evidence, as there was no forensic evidence. There was evidence of post-offence conduct (telephone calls to both P and B to dissuade them from implicating the accused). The accused was acquitted of obstruction of justice respecting those calls. The accused appealed against conviction, submitting that (1) the jury charge failed to outline the defence theory; (2) the judge erred in admitting a statement attributed to the accused admitting prior misconduct and excluding evidence capable of dispelling the prejudice; (3) the judge erred in ordering that potential jurors be identified only by number (not name); and (4) the accused's subsequent acquittal for obstructing justice should be admitted as fresh evidence and rendered inadmissible the evidence of the telephone call to B.

The Ontario Court of Appeal, Blair, J.A., dissenting in part, but concurring in the result, in a judgment reported (2006), 209 O.A.C. 198, admitted the fresh evidence, allowed the appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada dismissed the appeal. The court unanimously held that the trial judge's failure to outline the defence position for the jury required a new trial. The majority (McLachlin, C.J.C., Binnie, LeBel, Fish and Rothstein, JJ.), held that issue estoppel, properly constrained, should be retained in the criminal law. The majority held that issue estoppel did not apply in this case, because an acquittal in the second trial (obstruction) could not operate retroactively to render the evidence inadmissible in an earlier trial (aggravated assault). The minority (Charron, Deschamps and Abella, JJ.), concurred in the result, but opined that issue estoppel should be excised entirely from the criminal law.

* Bastarache, J., took no part in the judgment.

Criminal Law - Topic 88

General principles - Estoppel - When applicable - The accused was convicted of aggravated assault primarily on the evidence of B, who identified the accused and also testified as to a post-offence phone call from the accused attempting to dissuade him from testifying against the accused - After the aggravated assault trial, the accused was acquitted of an obstruction of justice charge respecting the alleged phone call - The judge, in that case, had a reasonable doubt whether the alleged call was ever made - On appeal from his aggravated assault conviction, the accused submitted that his subsequent acquittal on the obstruction charge was admissible as fresh evidence and that the acquittal rendered B's evidence of the phone call inadmissible (issue estoppel) - The Ontario Court of Appeal held that the evidence was admissible as fresh evidence and that the state of authorities required a new trial on the ground that B's evidence of the phone call was retrospectively rendered inadmissible on the ground of issue estoppel - The Supreme Court of Canada held that the Court of Appeal erred in holding that the subsequent acquittal on the obstruction charge required it to find that B.'s evidence of the telephone call from the accused was wrongly admitted at the first trial - The majority (McLachlin, C.J.C., Binnie, LeBel, Fish and Rothstein, JJ.) held that issue estoppel, properly limited, should be retained in the criminal law - The majority held that issue estoppel did not apply in this case, because an acquittal in the second trial (obstruction) did not operate retrospectively - However, where the accused was entitled to a new trial on other grounds (error in jury charge), the acquittal on the obstruction charge would estop the Crown from using evidence of the phone call as evidence of consciousness of guilt in the new aggravated assault trial (i.e., not retrospective application) - The minority (Charron, Deschamps and Abella, JJ.), concurred in the result, but opined that issue estoppel should be excised entirely from the criminal law - See paragraphs 1 to 79.

Criminal Law - Topic 88

General principles - Estoppel - When applicable - Issue estoppel in the criminal law, as applied in Canada since 1985 (R. v. Grdic (S.C.C.)), prevented the re-litigation of an issue decided in the accused's favour in a prior trial - The Supreme Court of Canada unanimously agreed that reform was required - The minority (Charron, Deschamps and Abella, JJ.) opined that issue estoppel should be excised entirely from the criminal law - The majority (McLachlin, C.J.C., Binnie, LeBel, Fish and Rothstein, JJ.) rejected complete removal of issue estoppel in favour of retaining it in a narrower, less problematic form, consistent with the scope intended in Grdic - The majority held that "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 ... 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. ... 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. ... 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." - The majority rejected the arguments advanced for a complete excise of issue estoppel from the criminal law, stating that "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. ... issue estoppel should be retained as part of Canadian criminal law." - See paragraphs 26, 75, 76.

Criminal Law - Topic 88

General principles - Estoppel - When applicable - The Supreme Court of Canada stated that "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 guilty on a different count. This can be cured by an instruction to the jury." - See paragraph 71.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - An accused charged with attempted murder was convicted by a jury of aggravated assault following a gang attack on two men (P and B) - P testified that it was not the accused who first attacked him - B testified that it was the accused, but had told police that it was a "brand new" gang member - B acknowledged that the accused was a former gang member - The Crown's case rested almost entirely on B's evidence, as there was no forensic evidence - The trial judge instructed the jury on the defence that B was not credible, but refused to instruct the jury on the defence that B's testimony was inconsistent with the exculpatory testimony of the other victim (P) - The Ontario Court of Appeal ordered a new trial - P's evidence was central to the accused's defence and the theory of the defence could not be fairly stated without some mention of it in the jury instructions - The trial judge's instruction to the jury had the effect of ignoring or undercutting a significant element of the accused's defence - The error was compounded by the trial judge's failure to instruct the jury on the available competing inferences they could draw from the evidence of gang rivalry - The Supreme Court of Canada agreed that the trial judge's failure to outline the defence position for the jury required a new trial.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See first Criminal Law - Topic 88 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See first Criminal Law - Topic 88 ].

Cases Noticed:

R. v. Grdic, [1985] 1 S.C.R. 810; 59 N.R. 61, refd to. [para. 1].

R. v. Gushue, [1980] 1 S.C.R. 798; 30 N.R. 204, refd to. [para. 25].

R. v. K.R.G. (1991), 51 O.A.C. 294; 68 C.C.C.(3d) 268 (C.A.), refd to. [para. 33].

R. v. Rulli (M.) (1999), 120 O.A.C. 357; 134 C.C.C.(3d) 465 (C.A.), leave to appeal denied [2000] 1 S.C.R. xviii; 253 N.R. 193, refd to. [para. 33].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 33].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 42].

Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.), refd to. [para. 42].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 49].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853, refd to. [para. 49].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 56].

R. v. Duhamel, [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204, refd to. [para. 58].

R. v. Humphrys, [1976] R.T.R. 339 (H.L.), refd to. [para. 58].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 62].

R. v. Ollis, [1900] 2 Q.B. 758, refd to. [para. 63].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 70].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 72].

R. v. Regan (G.A.) (1998), 174 N.S.R.(2d) 193; 532 A.P.R. 193; 131 C.C.C.(3d) 286 (S.C.), refd to. [para. 77].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 84].

Muir v. Carter (1889), 16 S.C.R. 473, refd to. [para. 105].

R. v. Wright, [1963] S.C.R. 539, refd to. [para. 105].

Cargill Grain Co. v. Foundation Co. of Canada Ltd., [1965] S.C.R. 594, refd to. [para. 105].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91; 18 A.R. 525, refd to. [para. 105].

Bourdon et al. v. Stelco Inc., [2005] 3 S.C.R. 279; 341 N.R. 207; 2005 SCC 64, refd to. [para. 105].

Boucher v. Stelco Inc. - see Bourdon et al. v. Stelco Inc.

R. v. Van Rassel, [1990] 1 S.C.R. 225; 105 N.R. 103; 27 Q.A.C. 285, refd to. [para. 108].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 110].

R. v. Hogan, [1974] 1 Q.B. 398, refd to. [para. 114].

McIntosh v. Parent, [1924] D.L.R. 420 (Ont. C.A.), refd to. [para. 121].

Rizzo et al. v. Hanover Insurance Co. (1993), 64 O.A.C. 230; 14 O.R.(3d) 98 (C.A.), refd to. [para. 136].

R. v. Cullen (1989), 36 O.A.C. 195; 52 C.C.C.(3d) 459 (C.A.), refd to. [para. 140].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 155].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 9 C.R.(5th) 38 (C.A.), refd to. [para. 160].

R. v. Kirk (A.G.) (2004), 189 O.A.C. 314; 188 C.C.C.(3d) 329 (C.A.), refd to. [para. 161].

R. v. Oldford (D.) (1999), 180 Nfld. & P.E.I.R. 114; 548 A.P.R. 114; 139 C.C.C.(3d) 288 (Nfld. C.A.), refd to. [para. 161].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 164].

Authors and Works Noticed:

Boilard, Jean-Guy, Guide to Criminal Evidence (1991) (2008 Looseleaf Update, Issue 48), vol. 1, pp. 4-130, 4-131 [para. 132].

Cross and Tapper on Evidence (11th Ed. 2007), p. 404 [para. 161].

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, p. 15 [para. 164].

Friedland, Martin L., Double Jeopardy (1969), p. 134 [para. 121].

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, generally [para. 132].

Lange, Donald J., The Doctrine of Res Judicata in Canada (2nd Ed. 2004), p. 4 [para. 108].

Mahoney, Richard, Acquittals as Similar Fact Evidence: Another View (2003), 47 Crim. L.Q. 265, generally [para. 67].

Mirfield, Peter, Shedding a Tear for Issue Estoppel, [1980] Crim. L.R. 336, p. 343 [para. 123].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), pp. 46, 47 [para. 163]; 50 [para. 161]; 56, 57 [para. 132].

Rosenberg, Marc, Evidence of Similar Acts and Other Extrinsic Misconduct, in National Criminal Law Program: Criminal Evidence (1994), vol. 1, p. 4, s. 8.1 [para. 160].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2 nd Ed. 1999), pp. 525, 526 [para. 161]; 1090 [para. 112].

Stewart, Hamish, Issue Estoppel and Similar Facts (2008), 53 Crim. L.Q. 382, pp. 383 [para. 57]; 389, 390 [para. 77]; 392, 393 [para. 63]; 396 [para. 72].

Stuesser, Lee, Admitting Acquittals as Similar  Fact  Evidence  (2002),  45  Crim.  L.Q.

488, p. 490 [para. 132].

Wright, Keith E., Similar Fact Multiple Count Indictments - A Reply (1994), 32 C.R.(4th) 301, generally [para. 67].

Counsel:

Lucy Cecchetto and Sunita Srivastava, for the appellant;

R. Philip Campbell, for the respondent.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Lockyer Campbell Posner, Toronto, Ontario, for the respondent.

This appeal was heard on December 7, 2007, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On November 14, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C. (Binnie, LeBel, Fish and Rothstein, JJ., concurring) - see paragraphs 1 to 82;

Charron, J. (Deschamps and Abella, JJ., concurring) - see paragraphs 83 to 168;

Bastarache, J., did not participate in the judgment.