Canadian Law Question -

[Barrister]

It gets more tricky in civil proceedings however.

How so?

[crazy canuck]

It gets more tricky in civil proceedings however.

How so?

There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.

[Barrister]

It gets more tricky in civil proceedings however.

How so?

There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.

Wouldn't that be "most of the time"?

[crazy canuck]

It gets more tricky in civil proceedings however.

How so?

There are circumstances in which evidence or findings of fact in one proceeding can be used as evidence in another civil proceeding.

Wouldn't that be "most of the time"?

Not necessarily - the law of issue and fact estopple can get pretty complex, which is why the SCC endorsed the Abuse of Process approach in the City of Toronto case a few years back.

[Barrister]

I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.

[crazy canuck]

I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.

I didnt say that issue estoppel no longer exists. But the Court clearly said in the Civil context that Abuse of Process will likely be the better way to analyze future cases given the complexity in the existing tests of issue and fact estoppel and indeed that is exactly how many civil cases are now decided...

Also, I am not sure what "deterrent" you are talking about.

[Barrister]

I freely admit that I only follow criminal law, but the most recent SCC case on issue estoppel was R v Maholingan, which upheld th econtinued existence of issue estoppel, and rejected the argument that "abuse of process" was sufficient deterrent.

I didnt say that issue estoppel no longer exists. But the Court clearly said in the Civil context that Abuse of Process will likely be the better way to analyze future cases given the complexity in the existing tests of issue and fact estoppel and indeed that is exactly how many civil cases are now decided...

Also, I am not sure what "deterrent" you are talking about.

My attempt to summarize the Crown's argument from Maholingan (where the Crown attemtped to argue for the abolition of issue estoppel):

[42] The remedy of abuse of process may or may not provide protection against relitigation of a particular issue.  Abuse of process is a broad, somewhat vague concept, that varies with the eye of the beholder.  Traditionally, it has been reserved for obviously egregious abuses of the Crown power, and this Court has said that successful reliance upon the doctrine will be extremely rare — only in "a process tainted to such a degree that it amounts to one of the clearest of cases": Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 120.  To date, the doctrine has not been much used to protect against relitigation, and indeed there is authority for the proposition that relitigation, without more, simply does not reach the threshold required for a finding of abuse of process: Bradford & Bingley Building Society v. Seddon, [1999] 1 W.L.R. 1482 (C.A.), at pp. 1492-93.  To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes.  Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel.

http://www.canlii.org/en/ca/scc/doc/2008/2008scc63/2008scc63.html

[crazy canuck]

I see what the Court is saying - that where issue estoppel is available it is a more certain remedy than abuse of process because abuse of process is descretionary.

But that is exactly why abuse of process is a handy tool to have in ones tool box if issue estoppel is not available. From the Toronto v. Cupe case:

As Goudge J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

[Ideologue]

Can a witness refuse to testify on the grounds that he will incriminate himself?  Say he was out molesting children when he saw the accused robbing the bank?

As far as I understand this. No you can't. Whatever you say wouldn't be eligible as proof in your own trial tho.

This.  There is no equivalent to "pleading the fifth" in Canada.  If you are being compelled to testify though, your evidence can not be used against you.

I was looking up the historical background to it a little while ago.  I was surprised it was under the Commonwealth/Lord Protectorate/Cromwell/whatever the short form of the English Roundhead government is called that a right against self-incrimination was adopted.  Dancing, no, protection against torture, yes.

[crazy canuck]

Dancing, no, protection against torture, yes.

Dancing was not widely protected in the US until the 1980s release of Footloose.

[Drakken]

This is interesting to me.  So you do not have the right to remain silent on the stand but you do have the right to simply refuse to testify.  Interesting.

The prosecution cannot call the accused to the witness stand in a criminal case, only the defense can. However prosecution can counter-interrogate, to which the accused must answer the truth or be accused of perjury.

So if the accused comes to the stand it is because he or she wants to, or because it is part of the defense plan.

[Grey Fox]

A witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.

Yankees, does this exist in American legislation?

[dps]

A witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.

Yankees, does this exist in American legislation?

Short answer--it used to be the case, but the rules have been changed in some jurisdictions.

[Barrister]

A witness cannot be compelled to divulge any communication made to him or her by his or her spouse during their life together.

Yankees, does this exist in American legislation?

Pretty sure it does, but I'll let a yankee lawtalker explain further.

Why the sudden interest in who is a compellable witness?  Anything you want to discuss?

You should note that s. 4 CEA only applies to legally married persons, not common law.

[Grey Fox]

Yes. I probably shouldn't talk about it. It is nothing overly bad, nor criminal. It's Road related.

My OP had to do with that. My new question is only because I found that peculiar.