R v Punko: Issue Estoppel and the Bridge between Provincial and Federal Criminal Offences
The ability of the Crown to address issues raised generally in previous cases enables the government to effectively fight organized crime. However, the accused is entitled to the application of issue estoppel where the contentious issue has already been resolved in their favour in a prior proceeding. In R v Punko, 2012 SCC 39, the Supreme Court of Canada (SCC) addresses the scope of issue estoppel in the criminal context.
The appellants, John Virgil Punko and Randall Richard Potts, were charged with offences falling within the jurisdiction of both the federal and provincial Crown. For both sets of offences, the appellants were charged with committing a portion of the offences for the benefit of, at the direction of, or in association with the Hells Angels. In 2008, the appellants were tried jointly for a range of provincial offences, including: extortion, uttering threats, counselling mischief and unlawful possession of explosive substances and firearms by Romilly J. at the Supreme Court of British Columbia. In 2009, the appellants were found guilty of several counts, but were acquitted by a jury of all counts alleging association with the Hells Angels. However, a federal prosecution for a variety of drug offences was authorized and scheduled to appear before Leask J. at the Supreme Court of British Columbia. Due to the outcome of the decision on the provincial offences, the appellants argued that the federal Crown should be estopped from relitigating offences relating to their alleged association with the Hells Angels.
Leask J. granted the appellant’s motion and held that the Crown was estopped from trying the offences that were contingent on proving that the Hells Angels was a criminal organization. In finding the Crown should be estopped, Leask J. ruled that the burden of proof is on a balance of probabilities. Leask J. inferred from the provincial case that the jury believed that the Hells Angels was not a criminal organization. This was based upon the jury’s resolution of deliberations on the offences alleging association shortly after asking Romilly J. a question about the definition of a criminal organization. However, the Court of Appeal found that Leask J. erred in his assessment of the relevance of the jury’s timing in reaching a decision on whether or not the Hells Angels was a criminal organization. The case was appealed to the SCC.
Broadly, this case addresses the scope of the doctrine of issue estoppel in the context of a multi-issue jury trial. To determine this case, the SCC assesses whether the burden of proof for issue estoppel is on a balance of probabilities or a question of logic and law. Specifically, the SCC addresses whether a decision against the Crown holding the Hells Angels is not a criminal organization in a previous trial estops the Crown from seeking a determination on the same issue in a new trial.
The appellants submit that the doctrine of issue estoppel should be applied on the basis of findings of fact made by the trial judge under s 724 (a) of the Criminal Code (RSC 1985, c C-46), which states that when sentencing a court “shall accept as proven all facts, expressed or implied that are essential to the jury’s verdict of guilty.” The appellant argue that this is further supported by R v Mahalingan, 2008 SCC 63, where 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 examination on the merits.” Significantly, the majority finds that in the context of a multi-issue jury trial, the findings of fact made by the trial judge are not determinative.
Moreover, while issue estoppel prevents the Crown from relitigating specific issues found in favour of the accused at an earlier trial, it does not apply to general issues raised at trial. The majority relies heavily on Mahalingan to establish that the application of issue estoppel is determined by logic and law. Specifically, the Court must decide whether the decision in favour of the accused at a prior trial was “logically necessary” to the acquittal. Thus, if there is another logical reason for the jury to acquit the accused, then the judge cannot infer that the issue has been resolved and the appellants cannot rely upon that for the purposes of issue estoppel.
The majoirty finds that in the initial trial the appellants’ counsel provided the jury with two defences. First, counsel argued that the Crown failed to prove that the Hells Angels was a criminal organization. Second, none of the offences were committed for the benefit of, at the direction of, or in association with the Hells Angels. It is at the second defence that the SCC finds a flaw in the appellants’ argument as acceptance of the second defence could preclude an examination of whether or not the Hells Angels constitutes a criminal organization. Practically, this means that the jury could have acquitted the appellants without considering whether the Hells Angels was a criminal organization or not. Issue estoppel should only apply when the judge can infer that the jurors necessarily determined the specific issue in question. In this case, the sentencing judge could not have inferred whether the jurors found that the Hells Angels was a criminal organization or not.
The majority also makes a broader point regarding findings of fact and the role of s 724(2)(b) of the Criminal Code. This provision states that a sentencing court is to “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.” The majority rules that findings of fact made by the sentencing judge for the purpose of sentencing under s 724(2)(b) cannot be relied upon to determine whether an issue was previously decided in favour of the accused. Moreover, findings of fact implicit in jury decisions cannot substitute for the logical necessity test in determining whether issue estoppel is warranted.
Fish J. wrote a separate concurring judgment. Despite agreeing that issue estoppel does not apply to the case at bar, Fish J. disagrees with the position that a factual finding made by a sentencing court pursuant to s 724(2)(b) of the Criminal Code could never estop the Crown.
This case is significant because the SCC clarifies the scope of issue estoppel in the criminal context. The requirement that issue estoppel only applies where an issue addressed in a prior trial and the current issue in contention are identical is fundamental to the logic of issue estoppel. The limited application of issue estoppel by the Court balances the legitimate concern of the accused against the complexity of assessing decisions made in multi-issue trials.