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Criminal law – Evidence – Similar fact evidence – Voir dire - Admissibility - Does the Crown have the right to file an accused’s prior conviction of sexual assault to establish the evidentiary link between the accused and the prior conduct - If so, does an accused have the right to challenge the validity of his prior conviction - Do the common law doctrines of issue estoppel and abuse of process trump an accused’s constitutional right to make full answer and defence?

Jesse and J.M. were at the same house party, but they did not know each other and had little to do with one another during the evening. J.M. had passed out in a corner of the dining room when Jesse and several others left the house, leaving J.M. and an intoxicated, unconscious male in the unlocked house. Two residents of the house attempted to find Jesse on the road to give him a ride home. When they were unable to find him, they returned to the house, but found that the door was now locked. When they knocked, Jesse unlocked the door and immediately left. J.M. was found inside, still passed out, but in a different part of the dining room, and naked from the waist down. There were certain out-of-place blunt objects from the bathroom near her. The police were called, but they were unable to interview J.M. due to her state of intoxication. The following morning, J.M. excreted a wine cork from her vagina. The central question at trial was how the wine cork came to be inside her and who had put it there.

At trial, the Crown sought to introduce similar fact evidence of Jesse’s conviction in another sexual assault 12 years before. Jesse had not appealed the conviction, and it had not otherwise been brought into question. The trial judge admitted the similar fact evidence, and held that Jesse was not able to challenge the conviction on a voir dire with respect to the similar fact evidence and found that, in that context, the previous conviction was res judicata and Jesse was therefore estopped from challenging it, but that he would be able to challenge it in the trial proper. The defence brought a further voir dire in relation to Charter issues, but it was also unsuccessful. The trial judge convicted Jesse on the charge of sexual assault. In the meantime, R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, was decided. The Court of Appeal denied an appeal against conviction.