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CASE COMMENT: Which court do I appeal to? The Court of Appeal for Ontario provides further clarity on the ‘interlocutory vs final order’ distinction in Cheung v. Samra
November 17, 2018
Justin
November 26, 2018

Same facts, Different case: Dealing with concurrent criminal and civil proceedings (considerations for criminal lawyers using the result of one case in another)

Sometimes, one or even two civil proceedings will arise from the same allegations that underlie a criminal proceeding. Take, for example, the physician who is accused of assaulting a patient during a medical examination. The police investigate and initiate a criminal proceeding that will eventually lead to a trial. At the same time, the College of Physicians and Surgeons conducts its own investigation that will lead to a disciplinary hearing before a College tribunal. Finally, the complainant launches a private civil action against the doctor that could result in a civil trial.

Concurrent proceedings produce all kinds of issues that counsel will want to consider. For example, how do the proceedings relate to each other in respect of their timing, the evidence that can be used in each proceeding, and whether the disposition from one case can be relied on in another?

In this post, Goddard Nasseri examines if and to what extent the result from one kind of case can be used in another, and provide some of the key takeaways for counsel to bear in mind.

DISPOSITIONS

Although different kinds of proceedings arising from the same facts will often proceed concurrently, the actual trials or hearings occur at different times. Because of factors such as counsel’s availability, the dockets in a court system or tribunal, and the witnesses’ schedules, proceedings arising from the same facts could occur months, if not years apart. Both Crown and defence counsel will want to consider some of the issues that arise when a verdict in a criminal trial precedes or follows a final judgment or order in an administrative or civil proceeding.

SITUATION 1A: CRIMINAL ACQUITTAL

First, let’s consider the implications of an acquittal in a criminal trial before any civil trial or hearing happens. While a defendant may understandably celebrate this result, it will not help much with the future civil proceedings.

It is settled law that because the “beyond a reasonable doubt” burden of proof in a criminal proceeding is significantly higher than the “balance of probabilities” standard in civil proceedings, an acquittal in a criminal trial is not proof of innocence in the civil case. A defendant is barred from raising any issue estoppel or abuse of process claim and will have to defend the allegations on the significantly lower “balance of probabilities” standard.[1]

TAKEAWAYS:

  1. Manage expectations and ensure that your client is aware that an acquittal in the criminal proceeding does not end the matter. She or he will still have to defend any subsequent administrative hearing or civil trial.
  2. Although the acquittal is not dispositive in the civil proceedings, defence counsel may have obtained significant admissions from witnesses or relied on key evidence to secure the acquittal. Consider why you may have been successful in the criminal trial and make sure you are communicating with your client’s counsel in the other proceedings so they can take advantage of this information in the next trial. They may even be able to leverage something you learned during the criminal trial to resolve the civil proceedings early.

SITUATION 1B: CRIMINAL CONVICTION

A conviction in a criminal proceeding is often fatal to a defendant’s chance in front of a tribunal or civil court.  If a defendant receives a criminal conviction for an alleged act, then it has been proven beyond a reasonable doubt that she or he is guilty. The conviction is admissible as prima facie evidence that the defendant is guilty of the acts alleged in a subsequent civil trial or proceeding, where the burden of proof is much lower.[2]

The only exception to this rule is if the defendant can convince a court or tribunal why the conviction should not be taken as proof of certain underlying facts, and that a trial is needed.[3] This is a tall order: The defendant will have to convince the court either that (i) the criminal trial was tainted by fraud or there is fresh evidence that puts the criminal conviction’s validity in doubt,[4] or (ii) that fairness requires that the original criminal verdict should not be binding in the new proceeding.[5]

TAKEAWAYS:

  1. If your client is convicted, confer with his or her civil counsel  (of course, with your client’s consent) immediately so that they can consider whether to try resolving the civil proceedings quickly. At this point, reaching a plea agreement with a disciplinary prosecutor or making a good faith settlement offer in a private action may result in the client avoiding significant legal fees on a trial or proceeding that will inevitably result in a finding of liability.
  2. If there is any compelling reason that the criminal conviction should not be dispositive in the civil proceeding, inform civil counsel immediately so that they can make this argument.
  3. Consider, as quickly as possible, whether there is an appeal available from the criminal conviction, and file the notice of appeal expeditiously. The Court of Appeal for Ontario discussed this situation in Mohammed v. York Fire and Casualty Insurance Co., where it noted that, in two prior cases, Persad v. State Farm Fire,[6]and Ottenbrite v. State Farm and Casualty Co,[7] courts declined to consider criminal convictions in civil cases where the criminal convictions were actively under appeal.[8]
  4. Discuss the possibility of a Corbettapplication with your client’s defence counsel: This application would ask a trial judge to exercise her or his discretion to refuse to permit the cross-examination of an accused on his prior criminal record if the probative value of the record is outweighed by its prejudicial effect.[9] Although these applications commonly arise in criminal cases, “there is a place for Corbett applications in civil cases.”[10] In Hutton v. Way, the Ontario Court of Appeal held that the use of a criminal conviction in a civil damages trial was improper, and should have been prohibited pursuant to a Corbett application that the appellant had brought during the trial.[11]
  5. When advising your client, bear in mind that a disciplinary prosecutor and plaintiff’s lawyer can still cross-examine a defendant about a criminal conviction pursuant to section 22 of the Ontario Evidence Act. The law on what constitutes a “crime” under section 22 appears to be unsettled. Although Criminal Codeconvictions would clearly apply, at least one case suggests that the provision does not apply to provincial offences,[12] whereas other authorities have suggested that it does.[13]

SITUATION 1C: GUILTY PLEA

A conviction after a guilty plea is treated as prima facie evidence that the accused committed the acts charged in a subsequent civil proceeding.[14]  One court has explained that “because a plea of guilty and the facts in support of it are admissions, they may be introduced against an accused person as an admission in certain situations at subsequent judicial proceedings.”[15] Nevertheless, the Ontario Court of Appeal has held that, “[a]lthough an admission can be admitted in evidence against a party in a subsequent criminal or civil case, it is always open to the party who has made the admission to testify that he or she never made the admission, or to qualify it in some other way.”[16]

SITUATION 2: TRIBUNAL FINDING

Sometimes a tribunal may hold a disciplinary hearing and render a decision before a defendant’s criminal trial occurs.

Regardless of whether the tribunal acquits or convicts the defendant, the decision is unlikely to affect the criminal trial. The leading text on res judicata explains that:

A tribunal decision, civil in nature, will not found issue estoppel in a criminal proceeding because of the significantly different evidentiary procedures which govern the two proceedings, and because of the purpose and policy of the different decision-making forums.[17]

This begs the question of whether, at the very least, a defendant can be cross-examined about a disciplinary conviction in a criminal trial. S. 12 of the Canada Evidence Act allows a witness to “be questioned as to whether the witness has been convicted of any offence”. However, at least one authority raises serious doubt about whether a disciplinary finding constitutes an offence.[18]

In the Saskatchewan case R. v. Steveley, Dawson J. held that a police officer charged with a criminal offence could not be cross-examined on a prior discipline finding (based on the same facts) under the Police Act.[19] His Honour said that s. 12 of the Canada Evidence Act “is a legislated exception to the general rules of evidence that the Crown is not entitled to introduce evidence tending to show that the accused is a person of previously bad character,” and that to “allow the Crown to cross-examine an accused for something other than a “conviction for an offence” flies in the face of the well-established rules of evidence, which rules have been formulated to ensure a fair trial.”[20] In Dawson J.’s view, a finding of misconduct before a tribunal does not constitute a “conviction”.[21]

The R. v. Steveley case is a Saskatchewan Queen’s Bench authority, and has not received any judicial consideration at the appellate level, or outside of that province.

TAKEAWAYS:

  1. Read up on the law of res judicataand be prepared to object to any argument the Crown may make about relying on the findings of the disciplinary panel as proof of your client’s guilt.
  2. Be prepared to rely on the Steveleyauthority if the Crown wants to cross-examine your client about the disciplinary convictions. Stevelely is not binding authority.

SITUATION 3: CIVIL JUDGMENT

Criminal and tribunal proceedings generally occur before civil trials. This is because the civil litigation process is complicated (due to procedures such as discoveries, mediation, etc.) and the backlog of cases in our civil courts. However, it is at least possible in some circumstances that a civil judgment may be released before a criminal trial. For example, a complainant may have pursued a civil action for assault in Small Claims Court, where procedures are simpler than in Superior Court, and it is possible to get a speedy trial. In such a case, there could be a civil judgment before the defendant faces his or her criminal trial.

Regardless, a civil verdict is of little use in the criminal proceeding. As the authors of Sopinka, Lederman & Bryant – The Law of Evidence in Canada, 4th ed. explain, a civil judgment is “worthy of less respect in a subsequent proceeding and should not, as a general rule, be admissible as prima facie proof of the commission of the relevant acts or the existence of negligent conduct. It cannot logically raise such a presumption of fact or law.”[22]

A civil judgment could not be relied on against a defendant in a criminal trial given the different standard of proof and that the elements of the crime might be distinguishable from the elements of the cause of action for which the defendant was found liable in the civil proceeding.

TAKEAWAYS:

Notwithstanding the limited extent to which lawyers can rely on a civil judgment, there may have been evidence introduced during the civil trial that could be useful for the criminal proceeding. Both defence and Crown counsel should be diligent in reviewing the judgment in the civil trial and ensuring that that they are informed about any facts and evidence that may assist their cases.

[1] See  Alan Bryant, Sidney Lederman, Michelle Fuerst, Sopinka, Lederman & Bryant – The Law of Evidence in Canada,4th ed., (Markham: LexisNexis, 2015) at 1403. See also Donald Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis Canada, 2015) at 552: “An acquittal on a criminal charge does not have the same evidentiary impact on a subsequent civil proceeding as a conviction has and it does not estop an issue in the subsequent proceeding.” See also R. v. Mahalingan, 2008 SCC 63, at paras. 26, 56 and Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427 at paras. 33-35.

[2] Demeter v. Pacific Life Insurance Co., [1983] O.J. No. 3148  at paras. 48, 57 (H.C.J.), affirmed [1984] O.J. No. 3363 (C.A.). See also Franco v. White, [2001] O.J. No. 847 (C.A.); Mohammed v. York Fire and Casualty Insurance Co.,  [2006] O.J. No. 547 (C.A.), leave to appeal refused [2006] S.C.C.A. No. 269 (S.C.C.); Caci v. MacArthur, 2008 ONCA 750, leave to appeal refused, [2009] S.C.C.A. No. 2 (S.C.C.). See also Donald Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis Canada, 2015) at 537: A tribunal must accept a conviction after a trial as prima facie evidence of the crime having been committed.

[3] If there is a dispute as to the admissibility of the conviction as proof of facts, there are a number of ways it could be resolved. For example, the defendant may move to have the issue decided before trial, or it could arise on a plaintiff’s motion for summary judgment. If such a dispute arises, the most efficient and practical way to resolve it may be for the parties to move for a declaration.

[4] Toronto (City) v.C.U.P.E.  Local 79, [2003] S.C.J. No. 64 (S.C.C.) at paras. 42-53.

[5] For e.g. see Becamon v. Wawanesa Mutual Insurance Company, 2009 ONCA 113,  where the court did not rely on a guilty plea to Highway Traffic Act offences because those proceedings were minor, whereas the civil proceeding the accused was facing was worth thousands of dollars.

[6] Persaud v. State Farm Fire, [1998] I.L.R. I-3582 (Ont. Gen. Div.).

[7] Ottenbrite v. State Farm and Casualty Co., [2001] I.L.R. I-4003 (Ont. S.C.J.).

[8] Mohammed v. York Fire and Casualty Insurance Co., [2006] O.J. No. 547 (C.A.) at paras. 24-27, leave to appeal refused [2006] S.C.C.A. No. 269 (S.C.C.).

[9] R. v. Corbett, [1988] S.C.J. No. 40, at paras. 6, 51 (S.C.C.).

[10] David Paciocco and Lee Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011) at 451.

[11] Hutton v. Way, [1997] O.J. No. 4755 at para. 5 (C.A.).

[12] See Street v. Guelph (City), [1964] O.J. No. 231 at para. 7 (H.C.J.).

[13] See for example, the obiter dicta of the Court of Appeal in Deep v. Wood, [1983] O.J. No. 23 (C.A.) [Deep] at para. 8, casting doubt on Street v. Guelph (City): “I do not wish to be taken as adopting the passage as a correct statement of the law. The statement may be too broad in that certain provincial offences may reflect upon the dishonesty or lack of truthfulness of a witness while certain crimes under the Criminal Code may not have that effect.”

[14] Donald Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis Canada, 2015) at 543. See also Cromarty v. Monteith (1957), 8 D.L.R. 2d 112 at 114 (B.C.S.C.).

[15] R. v. Judge, 2013 ONSC 6803 at para. 350.

[16] R. v. W.B.C., [2000] O.J. No. 397 at para. 60 (C.A.).

[17] Donald Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis Canada, 2015) at 374. See also R. v. de Havilland Canada Ltd. (1991), 15 W.C.B. (2d) 75 (Prov. Ct.) at 15 and R. v. Jenner (1996), 33 W.C.B. (2d) 293 (Prov. Ct.) at 8-19.

 

[18] See the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”) at s.12:

12 (1) A witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contraventions Act, but including such an offence where the conviction was entered after a trial on an indictment.

Proof of previous convictions

(1.1) If the witness either denies the fact or refuses to answer, the opposite party may prove the conviction.

 

[19] R. v. Stevely, 2001 SKQB 63 at paras. 35-36.

[20] Ibid at para. 34 [emphasis added].

[21] Ibid at paras. 35-36 [emphasis added]:

The proceedings under The Police Act, 1990 do not bear any of the characteristics of a conviction; rather, it is a disciplinary matter which is regulatory and corrective, intended to maintain discipline, integrity and standards within the police force and, designed for the protection of the public in accordance with the policy contained in the statute. It is not conduct prohibited by law punishable by true penal consequences. The discipline proceedings are not “convictions for offences” as contemplated under s. 12 under the Canada Evidence Act.

As the discipline proceedings do not, in my opinion, fall within the legislated exception under s. 12 of the Canada Evidence Act, the Crown shall not be entitled to cross-examine the accused with respect to the previous discipline proceedings.

 

[22] Alan Bryant, Sidney Lederman, Michelle Fuerst, Sopinka, Lederman & Bryant – The Law of Evidence in Canada, 4th ed.., (Markham: LexisNexis, 2014) at 1403.

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