Issue Estoppel

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General Principles

See also: Res Judicata

The Crown may not lead evidence on the basis of "issue estoppel" for any issues that "were decided in the accused's favour, whether the basis of a positive factual finding or a resonable doubt" in a previous trial.[1]


The burden is upon the accused to establish some evidence to show that the issue was previously decided.[2] It is not permitted that the full burden on a balance of probabilities be placed on the accused.[3]


The requirements of issue estoppel are adopted from the civil context with some modification. It requires:[4]

  1. that the same question has been decided;
  2. that the judicial decision which is said to create the estoppel was final;
  3. 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; and
  4. that the application of the rule does not contravene "general criminal law principles".

Establishing issue estoppel is difficult in a jury trial as it is not usually easy to identify what issues were decided in the accused's favour at the first trial.[5] The facts inferred by the sentencing judge in a jury trial may be sufficient to establish issue estoppel for future judges.[6]

The doctrine cannot be founded upon false evidence where the falsity was discovered only after trial.[7]

Effect of Issue Estoppel

The estoppel does not prevent the Crown from calling evidence on issues raised in a previous trial that resulted in an acquittal.[8] It will only prohibit calling of evidence inconsistent with findings on issues that were expressly resolved in the accused favour (by factual finding or reasonable doubt) in the previous trial that produced the acquittal.[9]

The doctrine cannot be used to relieve the Crown from proving all essential elements of an offence at trial.[10]

Multi-count Trial

In a trial on with multiple counts, "Where the judge rejects the evidence lead on one count, it cannot be used to find guilt on another account”.[11]

However, this does not rule out the ability for the Court to take evidence of alcohol consumption as evidenced wars dangerous driving despite an acquittal for impaired driving.[12]


Issue estoppel cannot be used to prevent a prosecution against the accused for perjury where they testified in a prior trial that resulted in a conviction against the accused.[13]

New Issues Raised

Advancing new arguments or making new claims does not avoid issue estoppel.[14]

Evidential Voir Dire

Issue estoppel does not apply to voir dire rulings pertaining to the admissibility of evidence in criminal proceedings.[15] Nor does it apply to the validity of a search warrant or breach of s. 8 of the Charter of Rights and Freedoms.[16]

Sentencing Decision

A decision on a conditional sentence is not a "final decision" that engages issue estoppel.[17]

  1. R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316, per McLachlin CJ, at para 22
    Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 SCR 460, per Binnie J (7:0)
  2. Mahaligan, supra
    R v Punko, 2011 BCCA 55, per Kirkpatrick JA upheld at 2012 SCC 39 (CanLII)
  3. Punko (BCCA), ibid.
  4. Mahalingan, supra
  5. Mahalingan, ibid., at para 54
  6. R v Punko, 2010 BCSC 70 (CanLII), per Leask J – Crown prevented from relitigating the issue of whether Hells Angels was a criminal organization
  7. R v Gueshe, [1980] 1 SCR 798, 1979 CanLII 56 (SCC), per Laskin CJ
  8. Mahaligan, supra, at para 22 (does not"...prevent[] the Crown from leading evidence on any issue raised in a previous trial that resulted in an acquittal")
  9. Mahaligan, supraTemplate:AtLs
    R v Grdic, [1985] 1 SCR 810, 1985 CanLII 34 (SCC), per Lamer J, at para 37 (It will "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")
  10. R v MB, 2011 ONCA 76, per Goudge JA
  11. R v Settle, 2010 BCCA 426 (CanLII), per Smith and Bennett JJA – context of evidence of alcohol consumption used on impaired driving and dangerous operation
  12. Settle, ibid.
  13. R v TWL, 1993 ABCA 408, per curiam
  14. Currie v Ontario (Attorney General), 2017 ONCA 266 (CanLII), per curiam (3:0), at para 16
  15. R v Duhamel, 1984 CanLII 126 (SCC), [1984] 2 SCR 555, per Lamer J (5:0) ("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.")
    R v Price, 2017 BCSC 330 (CanLII), per Punnett J, at paras 10 to 12
  16. R v Van Den Meerssche, 1989 CanLII 7133 (BC CA), per Wallace JA
  17. R v Thompson, 2014 ONCA 43 (CanLII), per Watt JA (3:0)