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Apropos of nothing: When a judge in a criminal case acquits an accused, but makes a statement in his or her reasons that certain facts were “probably” true, what is the implication for a future civil case about the same events? Can those facts be relitigated?
(A civ pro thread.)
(A civ pro thread.)
On the one hand, we know that when someone is *convicted* of a criminal offence, they're usually precluded from arguing in a later civil proceeding that they should be allowed to relitigate the facts essential to the conviction, even if the parties and legal issues are different.
In most cases, that kind of thing will be considered an abuse of the civil process (Toronto v CUPE, etc). It would call into question the integrity of the conviction, and challenge the finality of the criminal proceedings, other than through proper channels, such as an appeal.
Moreover, if the result in the civil proceeding is the same, it will have been a superfluous use of judicial resources and an undue burden on parties and witnesses.
On the other hand, we also know that an *acquittal* in a criminal case does *not* make it an abuse of process for a complainant to pursue a civil claim against the accused arising from the same alleged events.
For one thing, the complainant cannot challenge the acquittal by appealing it. For another, the standard of proof in the civil proceeding – the balance of probabilities – is lower. A finding in the civil case that the events *probably* occurred would not undermine the acquittal.
But what if there’s an acquittal, and along the way the judge expresses the view that certain facts were probable – in effect, proven on the civil standard? Would it be an abuse of process for the accused to attempt to prove the contrary in a subsequent civil proceeding?
The *legal* answer is probably no. The reason? Firstly, the accused really has no other avenue to challenge the criminal court’s conclusions regarding the probability of those facts.
The accused is not in a position to appeal the acquittal order. And, as the Court of Appeal for Ontario noted in Polgrain Estate v The Toronto East General Hospital (2008 ONCA 427), there is no right simply to appeal the court’s *reasons* for the acquittal.
Secondly, in Polgrain, the Court of Appeal declined to give "full legal significance", for abuse of process purposes, to a criminal court's *reasons* for an acquittal, where the only *essential* finding is that the case was not proved beyond a reasonable doubt.
The Court felt that do so "would confuse the roles of the criminal and civil courts", and could interfere with a criminal trial judge's discretion to express their reasons for acquittal as they see fit:
Now, it's important to note the Court in Polgrain was faced with a different scenario than the above hypothetical: Polgrain involved an acquittal in which the criminal trial judge expressed the positive view that the alleged events did not in fact happen.
The precise issue in Polgrain was whether the judge's statements to that effect prevented the complainant from suing civilly on the same facts – notwithstanding the usual rule that acquittals are not a bar to civil proceedings. It was not about whether the *defendant* was bound.
Nevertheless, Polgrain has been interpreted as laying down a universal rule, regardless of who is relying on it. See for example, R.A. v. Toronto Police Services Board, 2009 HRTO 231:
In the above hypothetical, as the criminal court's conclusions on probability are not *essential* to the ultimate finding on reasonable doubt, they would therefore not likely be applied, for abuse of process purposes, in the same way as factual findings supporting a conviction.
Of course, whether it would be wise, in the face of statements by a criminal court judge that facts are probably true, to hope for a different result in a civil proceeding is another issue. Whatever the law, there are practical considerations.
Can the evidentiary record in the civil proceeding be expected to look much different? In the normal course, transcripts from the criminal trial can be used for impeachment purposes. And there's usually also the prospect of a costs award against the losing party.
