Scope of the Doctrine of Issue Estoppel in the Criminal Context

R. v. Punko, 2012 SCC 39 was just released.  The case deals with the doctrine of issue estoppel in criminal law.  The Court writes:

[7]                              In Mahalingan, this Court had to decide whether the doctrine of issue estoppel should be retained as part of Canadian criminal law. A majority of the Court favoured retaining it in the criminal law, but in a narrow form. Not all issues raised in a previous trial can be the subject of issue estoppel. Rather, the Crown is precluded from relitigating only those issues that were decided in favour of the accused at the earlier trial (paras. 22, 31 and 33). Moreover, the resolution of an issue in favour of the accused must be “a necessary inference from the trial judge’s findings or from the fact of the acquittal” (para. 52).

[8]                              In applying the doctrine of issue estoppel where the prior proceeding was before a jury, “[t]he question is whether a finding in favour of the accused is logically necessary to the verdict of acquittal” (Mahalingan, at para. 53 (emphasis added)), not whether the general circumstances of the case tend to indicate that the jury resolved the issue in favour of the accused. Thus, factors such as questions asked by the jury, the timing of the jury’s verdict or findings made by the sentencing judge are not directly relevant to whether the jury resolved an issue in favour of the accused. They can be used only to reinforce a conclusion reached through reasoning based on logical necessity. Where, in light of the record and the parties’ allegations, there is more than one logical explanation for the jury’s verdict, and if one of these explanations does not depend on the jury’s resolving the relevant issue in favour of the accused, the verdict cannot successfully be relied on in support of issue estoppel.  An approach that encourages judges to inquire into the jurors’ mental deliberations and reasoning processes should be rejected. 

[9]                              I therefore agree with the Court of Appeal that Leask J. erred in law in drawing inferences on a balance of probabilities — a question of burden of proof — rather than considering whether a finding regarding the criminal nature of the organization was logically necessary to the acquittal — a question of logic and law.

[10]                          Mr. Potts submits that the doctrine of issue estoppel can be applied on the basis of findings of fact made by a sentencing judge under s. 724 of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”). That section provides as follows:

724.          (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

 

(2) Where the court is composed of a judge and jury, the court

 

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

 

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

 

. . .

In support of his submission, Mr. Potts refers to a passage from Mahalingan in which the Court held that “an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits” (para. 39). In the context of a multi-issue jury trial, I cannot accept that the findings of fact made by the sentencing judge are determinative for the purposes of issue estoppel.

[11]                          Where a fact is necessary for the purpose of determining the appropriate sentence but is not express or implied in the jury’s verdict, the sentencing judge must make his or her own finding (s. 724(2)(b) Cr. C.). However, such a finding does not constitute a judicial determination on the merits of the case; rather, it constitutes a judicial determination only for the purpose of sentencing. The merits of the case in a jury trial pertain to the issues the jurors can take into consideration in reaching a verdict. It is the role of the jury, not the sentencing judge, to make judicial determinations on the merits. The jurors must arrive at a unanimous result on the basis of the evidence.  In doing so, it is their prerogative to make their own determinations on the merits. Issue estoppel will apply only where unanimity of the jury on an issue can be discerned through reasoning based on logical necessity.

[12]                          A sentencing judge must also accept as proven facts that are implicit in the jury’s verdict of guilty (s. 724(2)(a) Cr. C.). These are not determinations of the sentencing judge, but simply his elucidation of the facts the jury must have relied on to convict the accused. The sentencing judge has no duty to elucidate or make findings with respect to a jury’s verdict of acquittal. Any observation the sentencing judge makes in that regard may indicate his or her own views, but it is not a determination that binds a judge sitting on a subsequent motion based on issue estoppel. In every case, the judge in the subsequent proceeding must determine whether the sentencing judge’s elucidation of the jury’s verdict meets the standard of logical necessity. Findings made by a sentencing judge regarding a jury’s determinations in a multi-issue trial cannot be used to circumvent the standard of logical necessity established in Mahalingan, but only to confirm a conclusion reached by applying that standard.