Supreme Court sets out framework to analyze cases where accused person alleges inconsistent verdicts

SCC restores two charges in inconsistent jury verdict, stays proceedings

Supreme Court sets out framework to analyze cases where accused person alleges inconsistent verdicts

An error in instructions to a jury in a sexual crimes case did not affect convictions, but rather it reconciled the apparent inconsistency in the verdicts, the Supreme Court of Canada has ruled in a decision that will provide guidance to appellate courts on inconsistent jury verdicts.

In a 7/2 decision in R. v. R.V., the majority of the Supreme Court found that the trial judge had misdirected the jury on the charge of sexual assault against R.V., which was a legal error.

““If verdicts are reconciled to reveal a theory on which the jury could have returned the verdicts without acting unreasonably, the verdicts are consistent and appellate intervention is not warranted,” wrote Justice Michael Moldaver in his reasons for the majority.

R.V., an Ontario man, had been charged with sexual assault, sexual interference, and invitation to sexual touching in regards to historic offences against the daughter of a former partner, between 1995 and 2003. All three offences carried the same sentence.

Following the trial and the judge’s charge to them, the jurors were left with the impression that the element of “force” required for sexual assault was different than the element of “touching” required for sexual interference and invitation to sexual touching. This resulted, the majority of the Supreme Court found, in the jury finding R.V. guilty of the offences of sexual interference and invitation to sexual touching, but not guilty of sexual assault.

Inconsistent verdicts generally occur where an accused can be said to have been found both guilty and not guilty by the jury of the same conduct and based on the same evidence. Where there are inconsistencies between verdicts and the matter is appealed, an appellate court must determine if an inconsistency can be explained, resolved or reconciled by faulty jury instruction. If the inconsistent verdicts can be resolved or explained by this, in general, the conviction of the accused can stand.

In this case, R.V. appealed the two convictions and the Crown cross-appealed the acquittal on the charge of sexual assault, arguing that the inconsistency in the verdicts was explained by confusing jury instructions. A majority of a panel of five judges at the Court of Appeal for Ontario allowed R.V.’s appeal, quashed the two guilty verdicts and directed that verdicts of acquittal be entered because the alleged confusing instruction to the jury on sexual assault could not reconcile the verdicts. The Crown’s cross-appeal on the sexual assault acquittal was also dismissed.

Two dissenting judges would have allowed R.V.’s appeal and the Crown’s cross-appeal and ordered a new trial on the three charges, finding there was an error of law in the jury instructions, and that where both the conviction and acquittal are appealed and the inconsistent verdicts are properly explained by a confusing charge that confused the jury, a new trial is the appropriate disposition.

In Friday’s judgment the Supreme Court ruled that "the Crown can seek to reconcile apparently inconsistent verdicts by showing, to a high degree of certainty, that the acquittal was the product of a legal error in the jury instructions, that the legal error did not impact the conviction, and that the error reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct,” Justice Moldaver wrote for the majority.

“If the Crown discharges its burden, appellate intervention on the conviction is not warranted because the verdicts are not actually inconsistent and thus not unreasonable on the basis of inconsistency.”

Where the Crown attempts to rebut an apparent inconsistency on the basis of a legal error, the burden shifts from the accused to the Crown to show the above three criteria are met, Justice Moldaver wrote, and “[t]hat burden is heavy.”

Here, the majority found, the verdicts were not inconsistent given that the jury followed the instructions of the trial judge, whose “error [in instruction] was material to the acquittal.” In other words, if the trial judge had not erred in her instructions the jury would have found R.V. guilty of sexual assault as well, as they had found him guilty of sexual interference and invitation to sexual touching.

Finding that there was an error in the trial judge’s instructions to the jury, the court restored the convictions for sexual interference and invitation to sexual touching, and stayed the proceedings on the sexual assault charge.

Ordering a retrial on the sexual assault charge would risk an abuse of process application, the majority found, as the Crown had already represented before the Court of Appeal that it would not seek to retry R.V. on the sexual assault charge in the event of a retrial order. Nor would a retrial bring any benefit, as R.V. had been sentenced to two years less a day on the charges of sexual interference and invitation to sexual touching, and would not serve a longer sentence if convicted of sexual assault as well.

In reasons that dissented in part, Justice Russell Brown, with Justice Nicholas Kasirer concurring, agreed that the appeal should be allowed, that the verdicts in the case were inconsistent, that the jury was misdirected, and that the misdirection amounted to legal error that might reasonably be thought to have had a material bearing on the acquittal.

For the minority, though, the best and most appropriate remedy was a retrial of R.V. on all three charges. The majority’s framework, it found, rested on trying to decide what was in the minds of the jurors in delivering their verdicts, and whether the error did or did not taint the convictions.

“But retracing a jury’s reasoning, irrespective of the ‘degree of certainty’, is a type of review that: (1) Parliament has precluded; (2) this Court has never sanctioned; and (3) is, as a practical matter, impossible,” Justice Brown wrote. “On that last point ⸺ practical impossibility ⸺ my colleagues’ framework requires a reviewing court to be able to ‘exclude all other reasonable explanations for how the jury rendered its verdicts’.”

Eric Neubauer was co-counsel for the Criminal Lawyers' Association of Ontario on the appeal to the Supreme Court.

“The CLA stands guard against any challenge to the idea that a jury’s verdict of ‘not guilty’ is anything other than a proclamation of innocence and fears that this case will invite appeal courts to speculate into the reasoning process of the jury, which is something the Criminal Code specifically precludes,” Neubauer said in an email to Canadian Lawyer.

“This decision undoubtedly erodes the value of an acquittal in future cases.”

A spokesman for the Ministry of the Attorney General of Ontario said the Ministry would review the decision and had no further comment.

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