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Supreme Court of Canada

Criminal law—Res judicata—Issue estoppel—Separate trials for commission of two robberies—Accused’s statements ruled inadmissible at first trial—Whether Crown estopped from relitigating the question of admissibility of accused’s statements at second trial—Whether “issue estoppel” should extend to findings on voir dire.

Appellant was charged with two counts of robbery and tried separately on each count. At the first trial, following a voir dire, statements made by the accused were declared inadmissible and the accused was acquitted. The second trial took place before a different judge. Despite the accused’s objections that the Crown was estopped from relitigating the issue of voluntariness of the statements, the trial judge held a voir dire and admitted the statements. The accused was subsequently convicted. His appeal from conviction and sentence was dismissed.

Held: The appeal should be dismissed.

The Crown is not estopped from relitigating the admissibility of a statement made by an accused and ruled inadmissible by a judge holding a voir dire in a previous criminal proceeding. In the absence of a right of appeal for findings on voir dire held during a preliminary inquiry and in the absence of an autonomous appeal for findings on voir dire held during trial, it is not desirable to extend the doctrine of res judicata to such findings and to depart from the traditional approach of the doctrine in the field of interlocutory findings.

People v. Williams, 322 N.E. 2d 461 (1975); People v. Gray, 222 N.W. 2d 515 (1974); People v. Mann, 280 N.W. 2d 577 (1979); R. v. Bellisimo (1980), 4 W.C.B. 453; R. v. Kienapple, [1975] 1 S.C.R. 729; Gushue v. The Queen, [1980] 1 S.C.R. 798, referred to.

APPEAL from a judgment of the Alberta Court of Appeal (1981), 131 D.L.R. (3d) 352, 64 C.C.C.

[Page 556]

(2d) 538, 25 C.R. (3d) 53, 17 Alta. L.R. (2d) 127, [1982] 1 W.W.R. 127, dismissing the accused’s appeal from his conviction and sentence on a charge of robbery. Appeal dismissed.

John James, for the appellant.

Peter Martin, for the respondent.

The judgment of the Court was delivered by

LAMER J.—Is the Crown estopped from relitigating the admissibility of a statement made by the accused which was ruled upon as inadmissible by a judge holding a voir dire in a previous criminal proceeding?

That is the issue raised by the facts of this case.

The Facts

Charged with two counts of robbery in the same indictment the accused moved successfully for severance. The trial of the first of the two counts resulted in a directed verdict of acquittal. Indeed, the only evidence tendered by the Crown was an alleged adoption through nods and statements of a statement made by a third party. Following a voir dire the statements were declared inadmissible. The trial for the other count took place before a different judge, who, over the accused’s objections based on “estoppel”, held a voir dire and admitted the statements as free and voluntary. The accused was convicted. At the preliminary inquiry the magistrate, subsequent to a voir dire, had found the statements admissible.

The Court of Appeal

The judgment of the Court of Appeal of Alberta (1981), 64 C.C.C. (2d) 538, was written by Moir J.A. and, as usual, is a thorough exposition of the law and analysis of its application to the facts of the case at bar.

[Page 557]

At first he acknowledged that “issue estoppel” is part of the criminal law, any doubt there may have existed on the matter having been settled by the unanimous decision of this Court in Gushue v. The Queen, [1980] 1 S.C.R. 798.

He then referred to “issue estoppel” as being derived from the concept of res judicata, and said that it “originates in the “estoppel per rem judicatam” “aspect of res judicata. As regards that particular aspect, he quoted Spencer Bower, The Doctrine of Res Judicata, 2nd ed., by A.K. Turner, London, Butterworths, 1969, that identifies the supportive policy considerations (referred to as “theories”) of the doctrine as being “the general interest of the community in the termination of disputes” (expedit reipublicae ut sit finis litium) and “the right of the individual to be protected from vexatious multiplication of suits and prosecutions” (nemo debet bis vexari pro uno et eodem delicto).

Moir J.A., having identified the particular aspect of the doctrine of res judicata he felt applicable to the case at bar as being “estoppel per rem judicatam and its two aforementioned supportive policy considerations, went on to quote with approval Spencer Bower as to the constituent elements of estoppel per rem judicatam, as follows (at p. 542):

The necessary constituents of estoppel per rem judicatam

19 Any party who is desirous of setting up res judicata by way of estoppel, whether he is relying on such res judicata as a bar to his opponent’s claim, or as the foundation of his own, and who has taken the preliminary steps required in order to qualify him for that purpose, must establish all the constituent elements of an estoppel of this description, as already indicated in the general proposition enunciated at the commencement of this chapter. That is to say, the burden is on him of establishing (except as to any of them which may be expressly or impliedly admitted) each and every of the following:

(i). that the alleged judicial decision was what in law is deemed such;

(ii) that the particular judicial decision relied upon was in fact pronounced, as alleged;

(iii) that the judicial tribunal pronouncing the decision had competent jurisdiction in that behalf;

[Page 558]

(iv) that the judicial decision was final;

(v) that the judicial decision was, or involved, a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised;

(vi) that the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem.

He then found as lacking, and fatal to appellant’s case, two of those constituent elements: “Finality”, and “Identity of issues”.

On “finality” he said (at p. 543):

From this arises the related issue as to whether or not interlocutory matters can found an issue estoppel. It seems in principle they can do so but only for a limited purpose. By its very definition, an interlocutory issue is not a final judgment. However, a decision on the interlocutory question may be final and conclusive for the purpose of the proceedings in which it is adjudicated. Outside of those proceedings, however, it cannot bind the parties because it was not a final determination of any issue essential to the verdict.

On “identity” the essence of what he said is in the following passage of his judgment (at p. 544):

Clearly, the key is to determine whether the issue sought to be estopped is fundamental to the prior decision. This contemplates the premise that the prior decision could not have been obtained without the point in issue being resolved in favour of the party urging the estoppel. Collateral matters cannot found an estoppel. Only fundamental matters lead to that result.

and later on, when concluding, he commented on both elements as follows (at pp. 548-49):

Applying the tests of finality and identity of issue of this case is all that remains to be done. On the surface it appears that the ruling made at the earlier trial cannot be challenged; it is to this extent final and conclusive. However, it is clear that the ruling cannot apply to the ruling made by the Provincial Court Judges: Kaufman, Admissibility of Confessions, 3rd ed. (1979), p. 63. Nor

[Page 559]

can the ruling of one trial Judge bind another where a new trial is ordered: R. v. Hilson (1958), 121 C.C.C. 139 at p. 142, 15 D.L.R. (2d) 725 at p. 727, 28 C.R. 262 at p. 266. This is so even though, at the first trial the statement was ruled admissible and the Court of Appeal found nothing wrong with the ruling. This appears to me to say that it is for the trial Judge to determine admissibility on the evidence before him and he is not bound by the interlocutory rulings made at an earlier trial even though the statement is the same.

Further, the identity of issue position is clearly fatal to the appellant’s position. The issue sought to be estopped must be clearly and unequivocally decided by the Court in the first proceeding as a fundamental step in the logic of the decision. The appellant relies upon the specific finding of the first trial Judge where he specifically held the statement was not voluntary and therefore inadmissible. It is true the issue on the voir dire was identical. That is a far cry from establishing that the decision of the first trial Judge was fundamental to the acquittal. As it is put by Spencer Bower and Turner (para. 211): “Is the determination… so fundamental to the substantive decision that the latter cannot stand without the former”.

The substantive decision is the verdict of acquittal. The interim ruling merely decided that the statement was not admissible. It did not decide any substantive rights. It did not decide an issue of fact or law fundamental to the guilt or innocence of the appellant on the first robbery charge.

If one approaches the finding upon a voir dire on the admissibility of statements made by an accused as if it were the usual interlocutory finding on the admissibility of evidence, where relevancy and the probative value of facts are central to the determination, then I agree that such a decision would never enjoy the finality even less the identity required to bring into play the doctrine of issue estoppel. Indeed, the circumstances considered by the judge in deciding the admissibility of a particular piece of evidence are directly related to the facts to be proved in support of the charge and to the nature of the evidence being adduced. Admissibility of such evidence is to be

[Page 560]

determined in the light of the factual setting of each case. Of course there cannot be estoppel and, on this, I cannot but agree with Moir J.A. But there is, I respectfully submit, a great difference between such determinations and those where the finding is unrelated to innocence and guilt and the circumstances being considered have nothing whatsoever to do with the material or mental elements of the alleged crime. Such is the case when, for example, the Crown wishes to adduce evidence electromagnetically obtained (s. 178.11  Cr.C .); as will possibly be the case for certain findings on evidence under s. 24(2)  of the Canadian Charter of Rights and Freedoms . And such is also the case for voir dires on “confessions”.

A voir dire on the admissibility of a statement made by an accused has been properly coined “a trial within a trial”. (See for example, Fred Kaufman, The Admissibility of Confessions, 3rd ed., Toronto, The Carswell Co. Ltd., 1979, at p. 35.)

The issue is the admissibility of the statement irrespective of its content. The trial of that issue is held by a trier other than the trier of fact, and this is so even though they may be the same physical person: the judge holding the voir dire is acting in a different capacity than when considering the statement’s probative value as a trier of fact. The facts relevant to the issue are foreign to the issue of guilt. They concern the circumstances leading up to and of the making of the statement and have nothing to do with those of the alleged offence. The accused may testify and his cross-examination is limited to those facts, and the Crown cannot ask questions pertaining to the offence, though some judgments have held that he may, for the sole purpose of assessing his credibility, be asked whether his statement was true. In fact it is conceivable, were the law to permit so (and I think in many ways desirable in terms of saving time, specially that of jurors and witnesses), that the voir dire be held outside the proceedings dealing with the offence, even before. Though the state-

[Page 561]

ment itself is tendered as relevant to innocence or guilt, its admissibility, based on the circumstances surrounding its being made, is a completely autonomous question. And for that reason, lack of finality or of identity with an issue necessarily a component of the finding of guilt or of innocence is to me, with respect, of no relevance in deciding this case.

The question to be now addressed is, whether or not the particular nature of these interlocutory findings would justify an extension of the doctrine so as to apply to them. They have not yet been put within the reach of the doctrine by most of the common law jurisdictions that have extended issue estoppel to criminal law (save the States of Illinois in People v. Williams, 322 N.E. 2d 461 (1975), and Michigan, in People v. Gray, 222 N.W. 2d 515 (1974), and People v. Mann, 280 N.W. 2d 577 (1979), and one decision in Canada, R. v. Bellisimo (1980), 4 W.C.B. 453 (Ont. Co. Ct.).

Much has been written and said on issue estoppel and res judicata.

Although res judicata has, since the decision of this Court in Kienapple v. The Queen, [1975] 1 S.C.R. 729, become a term of art in Canada, I will refer to it in its broadest and traditional sense.

A clear exposition on the matter may be found in Martin L. Friedland’s Double Jeopardy, Oxford, Clarendon Press, 1969, and more recently in Jacques Fortin’s Preuve pénale, Montréal, Éditions Thémis Inc., 1984, and need not be repeated here at any length.

In short, res judicata means “something that has clearly been decided” and is the reason given by the Romans and the legal systems stemming from theirs, such as ours, to a doctrine that strives to achieve the following:

[Page 562]

Having regard to fairness to an accused

(a) that a person not be put in jeopardy once again after an acquittal (autrefois acquit);

(b) that a person not be punished twice for the same conduct (autrefois convict and the Kienapple principle);

and, having regard to the efficiency and reputation of the judicial system,

(c) that matters that have been fully litigated between parties be not reopened, over and over;

(d) that the scandal of conflicting decisions be avoided.

This case illustrates the undesirability of relitigation, as being costly and time consuming, and prone to the risk of conflicting decisions.

There is no doubt in my mind that if there is a bar to an extension of the doctrine of res judicata to rulings on confession voir dires, it does not stem from principle or logic. It is desirable that we avoid relitigation of the issue and, as in this case, the risk of conflicting decisions. And, if a voir dire is “a trial within a trial” logic commands such an extension unless there are overriding reasons not to do so. In fact, I even think the doctrine could be extended in such cases beyond its actual application to criminal matters so as to introduce “mutuality” (i.e. a finding being a bar not only to the Crown but to the accused when adverse to his interest). 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. But as I have already said, the facts relevant to the finding and the finding itself on such a voir dire are foreign to the facts to be proved by the Crown as regards the commission of the offence by the accused; therefore, what would inure to the Crown through “mutuality” of the finding in no way relaxes its burden of proving facts.

[Page 563]

Be that as it may, I do not think it desirable that we extend the doctrine, with or without “mutuality”, to such findings.

To begin with, I cannot see the doctrine develop so as to include the findings on the voir dires held at preliminaries. Indeed, when considering the voir dire per se, “the trial” within a “trial” is no less a “trial” because it is held in the course of a preliminary. But there is one major reason against the extension: there is no appeal, and error is generally subject to limited review. This is sufficient to deal with that aspect.

At the trial level, the situation as regards appeal is not much better. Though the voir dire is in a sense autonomous, it is nevertheless totally dependent upon the main trial for its appeal process. Let us postulate error on the part of the judge in determining the admissibility of the statement. 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.

If we exclude mutuality, all findings at preliminary inquiries and for the same reason those findings at trial that are beyond the reach of review through appeal, the doctrine could then only find application when the statement is excluded, the accused acquitted and the exclusion is based on an error of law. This offers very little payload in terms of avoiding relitigation and noth-

[Page 564]

ing or little as regards avoiding the danger of conflicting decisions.

The change to the law being a major departure from the traditional approach of the doctrine in the field of interlocutory findings, I think there is a burden placed upon whomsoever invites the change to satisfy this Court that there is clear advantage to the administration of justice in developing the law in this direction.

In the absence of an autonomous appeal of such findings, I do not think that appellant has made that case.

I would therefore dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: James & Taylor, Calgary.

Solicitor for the respondent: R.W. Paisley, Edmonton.





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