R. v. R.V.

R. v. R.V.
Collection
Supreme Court Judgments
Date
2021-03-12
Neutral citation
2021 SCC 10
Report
[2021] 1 SCR 131
Case number
38854
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131
Appeal Heard: November 13, 2020 Judgment Rendered: March 12, 2021 Docket: 38854
Between:
Her Majesty The Queen
Appellant
and
R.V.
Respondent
- and -
Attorney General of Alberta and Criminal Lawyers’ Association of Ontario
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 80)
Moldaver J. (Wagner C.J. and Abella, Karakatsanis, Côté, Rowe and Martin JJ. concurring)
Reasons Dissenting in Part: (paras. 81 to 103)
Brown J. (Kasirer J. concurring)
r. v. r.v.
Her Majesty The Queen Appellant
v.
R.V. Respondent
and
Attorney General of Alberta and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. R.V.
2021 SCC 10
File No.: 38854.
2020: November 13; 2021: March 12.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Appeals — Unreasonable verdict — Inconsistent verdicts — Charge to jury — Accused convicted by jury of sexual interference and invitation to sexual touching while acquitted of sexual assault — All three offences arising from same conduct involving one complainant — Appeal by accused against verdicts of guilt and cross‑appeal by Crown against verdict of acquittal — Whether legal error in jury instructions can reconcile apparently inconsistent verdicts — Appropriate remedy — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(4) , (8) .
V was charged with historical sexual offences against a single complainant and tried before a judge and jury. The jury convicted him of sexual interference and invitation to sexual touching. The same jury acquitted him of sexual assault based on the same evidence. V appealed his convictions, asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable. The Crown cross‑appealed V’s acquittal, maintaining that the charge to the jury was so unnecessarily confusing that it amounted to an error in law and that the apparent inconsistency in the verdicts could be explained by the erroneous jury instructions, such that the guilty verdicts could not be considered unreasonable.
A majority of the Court of Appeal held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with the acquittal on the sexual assault charge. The majority quashed V’s convictions and substituted verdicts of acquittal, and upheld the acquittal on the sexual assault charge. The minority found legal error in the jury instructions and would have ordered a new trial on all three charges.
Held (Brown and Kasirer JJ. dissenting in part): The appeal should be allowed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.: The trial judge misdirected the jury on the charge of sexual assault. This legal error was material to the acquittal, did not impact on the convictions, and reconciles the apparent inconsistency in the verdicts. As the verdicts are not actually inconsistent, the convictions are not unreasonable on the basis of inconsistency. V’s convictions should therefore be restored. The acquittal on the charge of sexual assault should be set aside and in the circumstances of this case, a stay of proceedings should be entered on that charge.
In an appeal alleging inconsistent verdicts rendered by a jury, the ultimate inquiry for appellate courts is whether the verdicts are actually inconsistent and therefore unreasonable. The Crown can seek to reconcile apparently inconsistent verdicts on the basis that they were the result of a legal error in the jury instructions. Where the Crown attempts to reconcile apparently inconsistent verdicts on the basis of a legal error, it must satisfy the appellate court to a high degree of certainty that there was a legal error in the jury instructions and that the error: (1) had a material bearing on the acquittal; (2) was immaterial to the conviction; and (3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. If these elements are satisfied, the verdicts are not actually inconsistent. In assessing whether the Crown has satisfied its burden, the appellate court must not engage in improper speculation about what the jury did and did not do. It must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts.
If the appellate court cannot conclude with a high degree of certainty that the legal error did not taint the conviction, setting aside the acquittal will require a retrial on all charges. When the court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand.
In some circumstances, the appropriate remedy may be to enter a stay of proceedings on the charge for which the accused was acquitted in application of a court of appeal’s residual power under s. 686(8) of the Criminal Code . For an appellate court to issue a stay of proceedings under s. 686(8), three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires.
In this case, the trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken 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 legal error led the jury to return a verdict of acquittal on the sexual assault charge. It did not affect the convictions and the trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct. Further, the legal error reconciles the apparent inconsistency by explaining how the jury could have rendered its verdicts without finding V both guilty and not guilty of the same conduct. The jury found V guilty of sexual touching, hence the convictions, and not guilty of applying force beyond touching to the complainant in circumstances of a sexual nature, hence the acquittal. Those two findings are not inconsistent and V’s convictions should be restored. As for the acquittal on the sexual assault charge, it must be set aside. The circumstances of this case justify the Court entering a stay of proceeding on that charge rather than ordering a retrial.
Per Brown and Kasirer JJ. (dissenting in part): There is agreement with the majority that the verdicts in this case are inconsistent. There is also agreement 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. However, the only available remedy in response to the Crown appeal in the present case is the order of a new trial. To avoid putting V in jeopardy for something for which he was convicted, a new trial on all three charges is necessary.
In specifying, in s. 686(4) (b)(i) of the Criminal Code , a new trial as the sole remedy where the Crown successfully appeals from a verdict of acquittal by a jury, Parliament did not care about the degrees of certainty at the reviewing court; rather, what Parliament thought significant is that the absence of reasons for judgment by a jury means a reviewing court can never be certain what was in the minds of the jury. Retracing a jury’s reasoning, irrespective of the reviewing court’s degree of certainty, is a type of review that: (1) Parliament has precluded; (2) the Court has never sanctioned; and (3) is, as a practical matter, impossible.
The majority’s finding in the present case that the legal error reconciles the apparent inconsistency is manifestly at odds with the reasoning of the Court in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, which could not be any clearer: the existence of a legal error does not reconcile inconsistent verdicts. The majority’s framework is an invitation to routine speculation into the reasoning process of the jury. It will invite confirmation bias, and does not discourage the Crown from over‑charging or drafting confusing indictments; if anything, it does the opposite, by eliminating any consequences.
Appellate courts operate within certain statutory constraints when deciding a Crown appeal from an acquittal by a jury and, following s. 686(4) of the Criminal Code , may either dismiss the appeal, or allow the appeal, set aside the verdict, and order a new trial. While s. 686(8) empowers an appellate court to make an additional order under s. 686(4), the majority is making an alternative order by entering a stay of proceedings. Issuing an order that is tantamount to a finding of not guilty is totally inconsistent with the majority’s underlying judgment that affirms V’s guilt of the very same criminal conduct. The majority’s difficulty in ordering a new trial on the sexual assault charge is that they also wish to restore V’s convictions, which are plainly inconsistent with the acquittal. Avoiding this difficulty is precisely why the appropriate disposition in these circumstances is a new trial on all charges.
Cases Cited
By Moldaver J.
Considered: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; referred to: R. v. S.L., 2013 ONCA 176, 303 O.A.C. 103; R. v. K.D.M., 2017 ONCA 510; R. v. Tyler, 2015 ONCA 599; R. v. Tremblay, 2016 ABCA 30, 612 A.R. 147; R. v. L.B.C., 2019 ABCA 505, 383 C.C.C. (3d) 331; R. v. J.D.C., 2018 NSCA 5; R. v. McShannock (1980), 55 C.C.C. (2d) 53; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Barton, 2017 ABCA 216, 55 Alta. L.R. (6th) 1, aff’d 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Haughton (1992), 11 O.R. (3d) 621, aff’d [1994] 3 S.C.R. 516; R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Power, [1994] 1 S.C.R. 601; R. v. Provo, [1989] 2 S.C.R. 3; Terlecki v. The Queen, [1985] 2 S.C.R. 483; R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Puskas, [1998] 1 S.C.R. 1207; Kienapple v. The Queen, [1975] 1 S.C.R. 729.
By Brown J. (dissenting in part)
R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Thomas, [1998] 3 S.C.R. 535; R. v. Hebert, [1996] 2 S.C.R. 272; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11( h ) .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 151 , 152 , 265(1) , (2) , 271 , 649 , 675 , 676 , 686 , 695(1) .
Authors Cited
Watt, David. Watt’s Manual of Criminal Jury Instructions, 2nd ed. Toronto: Carswell, 2015.
APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J.O. and Rouleau, Pardu, Miller and Trotter JJ.A.), 2019 ONCA 664, 147 O.R. (3d) 657, 379 C.C.C. (3d) 219, [2019] O.J. No. 4355 (QL), 2019 CarswellOnt 13561 (WL Can.), quashing the convictions on the charges of sexual interference and invitation to sexual touching and entering verdicts of acquittal, and upholding the acquittal on the charge of sexual assault. Appeal allowed, Brown and Kasirer JJ. dissenting in part.
Christopher Webb and Hatim Kheir, for the appellant.
Philip Campbell and Neill Fitzmaurice, for the respondent.
Joanne Dartana, Q.C., for the intervener the Attorney General of Alberta.
Michael Dineen, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ. was delivered by
Moldaver J. —
I. Overview
[1] A jury renders inconsistent verdicts when it finds an accused both guilty and not guilty of the same conduct. The respondent, R.V., alleges that happened here. R.V. was charged with historical sexual offences against a single complainant. He was tried before a judge and jury. The jury convicted him of sexual interference under s. 151 of the Criminal Code , R.S.C. 1985, c. C‑46 , and invitation to sexual touching under s. 152. The same jury acquitted him of sexual assault under s. 271 based on the same evidence.
[2] R.V. appealed his convictions to the Court of Appeal for Ontario, asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable. The Crown cross‑appealed R.V.’s acquittal, maintaining that the charge to the jury was so unnecessarily confusing that it amounted to an error in law. The Crown argued that despite what it characterized as conflicting authorities from both the Supreme Court of Canada and the Court of Appeal for Ontario concerning the impact of erroneous jury instructions on the inconsistent verdicts inquiry, the apparent inconsistency in the verdicts rendered by the jury in the present case could be explained by the erroneous jury instructions, such that the guilty verdicts could not be considered unreasonable.
[3] Writing for the majority, Strathy C.J.O. disagreed with the Crown that there are conflicting Supreme Court of Canada authorities on inconsistent verdicts. The majority agreed, however, that it was necessary to clarify the Court of Appeal’s own jurisprudence on the role of jury instructions in inconsistent verdict cases. In so doing, the majority overturned its prior decisions in R. v. S.L., 2013 ONCA 176, 303 O.A.C. 103; R. v. K.D.M., 2017 ONCA 510; and R. v. Tyler, 2015 ONCA 599 — and, by implication, disagreed with the approach taken in other provinces (see, e.g., R. v. Tremblay, 2016 ABCA 30, 612 A.R. 147; R. v. L.B.C., 2019 ABCA 505, 383 C.C.C. (3d) 331; R. v. J.D.C., 2018 NSCA 5). In the result, the majority held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with R.V.’s acquittal on the sexual assault charge. The majority quashed R.V.’s convictions and substituted verdicts of acquittal. Justice Rouleau dissented on whether the jury instructions amounted to an error of law and on the appropriate remedy. The Crown now appeals to this Court. It asks that R.V.’s convictions be restored and that his acquittal be set aside.
[4] This case provides us with an opportunity to clarify the approach to be followed when verdicts are alleged to be inconsistent. While the basic principles underlying inconsistent verdicts have been established by this Court, we have yet to explicitly consider the impact of legally erroneous jury instructions on the inconsistent verdicts inquiry. In doing so here, I seek to achieve a just balance between judicial integrity and fairness to the accused, while respecting the role of juries in our justice system.
[5] As I will explain, 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. 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.
[6] For the reasons that follow, in the present case, I am respectfully of the view that the trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken 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. In particular, the failure to instruct the jury in clear terms that the “force” required to establish sexual assault was one and the same as the “touching” required to establish the other two offences constituted non‑direction amounting to misdirection. The effect of this error on the apparently inconsistent verdicts is significant. A review of the charge to the jury as a whole enables me to conclude, with a high degree of certainty, that the error was material to the acquittal. Equally, I am satisfied that the error did not impact on the convictions; rather, it reconciles the apparent inconsistency in the verdicts. Accordingly, the verdicts are not actually inconsistent and the convictions are not unreasonable on the basis of inconsistency.
[7] In the result, I would allow the appeal and restore the convictions. I would also set aside the acquittal and, as I will explain, enter a stay of proceedings on the charge of sexual assault.
II. Background and Proceedings Below
[8] R.V. was charged with historical sexual offences against the complainant, who was the daughter of R.V.’s partner at the time of the alleged offences. The charges, spanning 1995 to 2003, included sexual assault, sexual interference and invitation to sexual touching.
A. Ontario Superior Court of Justice (Vallee J., Sitting With a Jury)
[9] R.V.’s trial lasted two days. The complainant was the only witness. She testified to multiple incidents of sexual abuse committed by R.V. when she was between the ages of 7 and 13. According to her evidence, R.V.:
• Grabbed her hand and moved it to touch his penis;
• Touched her breast over her clothing;
• Touched her vagina over her clothing;
• Held her hand and used it to masturbate himself;
• Laid underneath her while he was unclothed and she was clothed, simulating intercourse and ejaculating on his stomach;
• Laid underneath her while he was clothed and she was unclothed, simulating intercourse; and
• Touched her head and pushed it down towards his penis.
[10] The Crown presented no other evidence at trial. The defence maintained that the complainant’s evidence was inconsistent and therefore not sufficiently credible to support a finding of guilt beyond a reasonable doubt. The defence also asserted that she was motivated to fabricate her evidence.
[11] At the end of the trial, the trial judge instructed the jury on each of the offences separately, in the words provided by the pattern instructions in Watt’s Manual of Criminal Jury Instructions (2nd ed. 2015). The same evidence went to all three charges.
[12] On the sexual assault charge, the trial judge instructed the jury that R.V. could be found guilty if they were satisfied that the Crown proved beyond a reasonable doubt that R.V. intentionally applied force to the complainant and that the force took place in circumstances of a sexual nature (A.R., at p. 161). Because the complainant was under the age of 16 at the time of the alleged incidents, consent was not an issue. If the jury was not satisfied that the force occurred in circumstances of a sexual nature, the trial judge instructed them that the result would be to find R.V. not guilty of sexual assault, but guilty of assault (ibid.).
[13] Turning to the sexual interference charge, the trial judge instructed the jury that R.V. could be found guilty if the jury was satisfied that the complainant was under 16 years old at the time, that R.V. touched the complainant and that the touching was for a sexual purpose (pp. 162‑63).
[14] On the invitation to sexual touching charge, the trial judge instructed that R.V. could be found guilty if the jury was satisfied that the complainant was under 16 years old at the time, that R.V. invited the complainant to touch his body, and that the touching that R.V. invited was for a sexual purpose (p. 166).
[15] The jury was not given a written copy of the instructions to bring to the jury room. Instead, the trial judge provided the jury with a verdict sheet, which listed the following verdicts that the jury could reach:
Count No. 1 — Not guilty of sexual assault; guilty
Count No. 2 — Not guilty of sexual interference; guilty
Count No. 3 — Not guilty of invitation to sexual touching; guilty [p. 174]
[16] The trial judge also provided the jury with a decision tree for each charge. The decision tree for sexual assault listed “Not Guilty of Sexual Assault but Guilty of Assault” as an available verdict (p. 223).
[17] After approximately one hour of deliberation, the jury sent the following question to the trial judge regarding the available sexual assault verdicts:
On the decision tree for count one, sexual assault versus the verdict sheet. There are only two choices to make on the verdict sheet, whereas the decision tree provides for three verdicts. Number one, guilty of sexual assault. Number two, not guilty of sexual assault but guilty of assault. Number three, not guilty. What do we do? Juror Number Five. [p. 184]
[18] To resolve the discrepancy between the verdict sheet and the decision tree for sexual assault, the trial judge provided the jury with a new verdict sheet containing the following amendment:
Count No. 1
Not guilty of sexual assault
Not guilty of sexual assault but guilty of assault
Guilty of sexual assault [Emphasis added; p. 236.]
[19] The jury returned verdicts of guilty on the charges of sexual interference and invitation to sexual touching, and not guilty on the charge of sexual assault.
B. Court of Appeal for Ontario (2019 ONCA 664, 147 O.R. (3d) 657) (Strathy C.J.O., Rouleau, Pardu, Miller and Trotter JJ.A.)
[20] The Court of Appeal unanimously agreed that R.V.’s convictions were inconsistent with the acquittal and could not stand. The court, however, divided on the appropriate disposition of the Crown’s cross‑appeal and the remedy for R.V.’s appeal from his convictions.
[21] After canvassing the inconsistent verdicts jurisprudence, the majority (Strathy C.J.O. and Pardu and Trotter JJ.A.) held that if R.V. was found guilty of sexual interference and invitation to sexual touching, he was necessarily guilty of sexual assault: the touching required for the two convictions satisfied the legal definition of force for sexual assault. Having identified this inconsistency, the majority stated that the remaining issues were: (1) whether the allegedly confusing instruction on sexual assault could explain the inconsistency; (2) whether the Crown’s cross‑appeal could resolve the inconsistency; and if not, (3) whether a new trial could be ordered in the face of the acquittal.
[22] As to the first issue, the majority found that the allegedly confusing instruction on sexual assault could not reconcile the verdicts because the cause of the inconsistent verdicts was a matter of pure speculation. Indeed, the concern about improper speculation led the majority to conclude that confusing instructions, even those amounting to a legal error, can never reconcile inconsistent verdicts as a matter of law.
[23] Regarding the second issue, the majority found that the Crown’s cross‑appeal could not succeed because the trial judge gave legally correct instructions. The trial judge expressly told the jury twice that any physical contact, even a gentle touch, could amount to the “force” necessary for sexual assault. She also linked “force” with “touching” in various places in her instructions. Since the Crown could not demonstrate an error of law, the majority held that the acquittal had to stand.
[24] Given that the acquittal had to stand, the majority found that ordering a new trial on the convictions would invite the jury to return verdicts inconsistent with the acquittal, which would give rise to a claim of issue estoppel. Accordingly, they set aside the convictions and directed verdicts of acquittal to be entered on the sexual interference and invitation to sexual touching charges.
[25] In dissent, the minority (Rouleau and Miller JJ.A.) agreed to allow R.V.’s appeal on the claim of inconsistent verdicts but would have also allowed the Crown’s cross‑appeal on the basis of legally erroneous jury instructions. Specifically, in considering the entire context, it was reasonable to conclude that the jury would not have understood that mere “touching” constituted the “force” necessary to make out the offence of sexual assault. Given the structure of the charge to the jury, which consisted of an explanation of one count after another in isolation, the jury needed to be told how the three offences related to each other. The trial judge’s failure to provide this clarification amounted to an error of law that caused the jury to acquit R.V. on the sexual assault charge.
[26] As to the appropriate remedy, the minority stated that where both the conviction and the acquittal are appealed, and the inconsistency in the verdicts is explained by an error of law in the jury instructions, the appropriate remedy is to order a new trial on all the charges.
III. Issues
[27] I would restate the main issues in this appeal as follows:
(1) Can a legal error in jury instructions reconcile apparently inconsistent verdicts?
(2) What is the appropriate disposition of an inconsistent verdicts appeal where there is an error of law in the jury instructions?
(3) Were the verdicts rendered by the jury in R.V.’s case inconsistent?
IV. Analysis
A. Inconsistent Verdicts
[28] The Criminal Code does not expressly identify inconsistent verdicts as a ground for setting aside a conviction. For an appellate court to interfere with a conviction on the ground that it is inconsistent with an acquittal, the court must find that the guilty verdict is unreasonable (R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6, citing Criminal Code , s. 686(1) (a)(i)). The accused bears the burden of establishing that a verdict is unreasonable (Pittiman, at para. 6).
[29] In an appeal involving inconsistent verdicts, the applicable test to determine whether a verdict of a jury is unreasonable is: “Are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?” (Pittiman, at para. 10). Put another way, a conviction is unreasonable and must be set aside where the verdicts cannot be reconciled on any rational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts it did based on the evidence (R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56; Pittiman, at paras. 6‑7).
[30] When verdicts cannot be reconciled and a jury that was properly instructed returns a conviction that is not supportable on the evidence presented at trial, the only available inference is that the jury acted unreasonably in arriving at the conviction (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 39). The jury may have reached a compromised verdict, misunderstood the evidence, or nullified by choosing to not apply the law — any of those paths to inconsistent verdicts reflects unreasonableness. In such cases, the conviction itself is unreasonable and appellate intervention is warranted.
[31] The ultimate inquiry for appellate courts then is whether the verdicts are actually inconsistent. Apparently inconsistent verdicts can be reconciled on the basis that the offences themselves are “temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses” (Pittiman, at para. 8). 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.
[32] In my view, there are also cases, such as the one at hand, where the Crown can reconcile apparently inconsistent verdicts on the basis that they were the result of a legal error in the jury instructions. For such cases, I propose the following approach.
(1) Analytical Framework
[33] 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. That burden is heavy. The Crown must satisfy the court to a high degree of certainty that there was a legal error in the jury instructions and that the error:
(1) had a material bearing on the acquittal;
(2) was immaterial to the conviction; and
(3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.
[34] If the court can find that these elements are satisfied with a high degree of certainty, the verdicts are not actually inconsistent. Instead, the legal error caused the jury to convict the accused either on different evidence or a different element than it believed was necessary for the charge on which it acquitted the accused. Any apparent inconsistency in the verdicts is thus reconciled, as the jury did not find the accused both guilty and not guilty of the same conduct. It follows that the jury did not act unreasonably in rendering their verdicts.
[35] In assessing whether the Crown has satisfied its burden, the court must not engage in improper speculation about what the jury did and did not do. The appellate court must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts. If it can, any concern about speculation falls away.
[36] This approach respects the ordinary deference afforded to the presumed reasonableness of the jury by asking “whether the [apparently inconsistent verdicts] are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge” (Pittiman, at para. 7). Where the conviction is supported by the evidence, as is always required, and the verdicts are not actually inconsistent, the jury’s entering of a conviction against the accused is not unreasonable and the conviction appeal should be dismissed. A jury does not act improperly by relying on a trial judge’s legal error. Put another way, the appellate court simply concludes that the jury acted reasonably based on the evidence and instructions before it. The conviction is thus reasonable and appellate intervention is not warranted.
[37] I pause here to note that my colleague, Brown J., disagrees with the reconciliation framework I have proposed on the basis that our jurisprudence and the appeals scheme enacted in s. 686(4) of the Criminal Code preclude an appellate court from inquiring into the jury’s reasons for arriving at a verdict (Brown J.’s reasons, at paras. 82‑85). Yet that is not what s. 686(4) says, nor is it what Parliament intended. Indeed, our jurisprudence shows that although appellate courts cannot engage in improper speculation, they regularly consider the impact of jury instructions on a jury’s verdict. For instance, reviewing a Crown appeal from a jury’s verdict of acquittal on the basis of a legal error at trial requires considering whether the error likely affected the verdict (R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14‑17); reviewing a jury’s verdict of guilty in light of legally erroneous jury instructions can require assessing whether the error was harmless in that it could not reasonably be expected to have changed the jury’s verdict (Criminal Code , s. 686(1) (b)(iii); see, e.g., R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 59‑60; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at paras. 21‑23); and fresh evidence applications ask whether the fresh evidence could reasonably be expected to have affected the jury’s verdict (Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; see also R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 70‑75). Each of these commonplace appellate matters requires a reviewing court to consider what the jury may have been thinking and whether they might reasonably have changed their minds if the trial had unfolded differently. Indeed, my colleague is content to engage in that consideration himself as he concludes that the misdirection in the present case “might reasonably be thought to have had a material bearing on the acquittal” (para. 103). The framework I have proposed calls for nothing more.
[38] Further, and with respect to my colleague, what I have said is meant to supplement — not change — the law as set out in Pittiman; nor is it intended to change the law in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, which restated the principles in Pittiman as follows: “. . . verdicts are deemed inconsistent — and therefore unreasonable as a matter of law — if no properly instructed jury could reasonably have returned them both . . .” (para. 23). In the instant case, the Court of Appeal interpreted this formulation to mean that appellate courts reviewing verdicts for inconsistency should not look at jury instructions in assessing reasonableness. With respect, Pittiman and J.F. should not be read in this manner. In J.F., this Court was not establishing a rule of law that jury instructions must be presumed correct. In fact, it could not have been doing so: the question of whether the verdicts are supportable on any theory of the evidence necessarily involves considering which elements the jury was instructed on (Pittiman, at para. 7). As explained, such considerations are routine. If Pittiman and J.F. required departing from this principle, the Court would have said so explicitly. It did not.
[39] J.F. was a case in which the jury instructions did not disclose a clear error permitting the appellate court to retrace the jury’s reasoning with any degree of certainty. Since the Court could not determine why the jury returned the different verdicts, it declined to uphold the conviction on the basis that the legal error could reconcile the verdicts (para. 21). J.F.’s approach remains appropriate where the appellate court cannot conclude with a high degree of certainty that the legal error caused the inconsistent verdicts. If, however, a court is able to reach that conclusion, no issue of improper speculation arises. To the contrary, impugning the verdicts of the jury when the appellate court knows the error belongs to the trial judge would damage the legal process. As Paciocco J.A. explained in R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437, “it is not an appropriate outcome to deem a demonstrably reasonable conviction to be unreasonable because of an inconsistent acquittal that is grounded in a clear legal error” (para. 42). While Plein was a judge alone trial, the principle is applicable in a trial by judge and jury so long as the reviewing court is able to retrace the jury’s reasoning to the high degree of certainty required.
[40] Further, the reconciliation framework I have proposed addresses the apprehensions that led the Court in J.F. to caution, in obiter, against legitimizing a conviction based on an error of law. Nothing I have said suggests that an error of law in the instructions to the jury necessarily makes improper verdicts proper or inconsistent verdicts consistent (see J.F., at para. 23). An appellate court that has found a legal error material to the acquittal must go on to determine the impact of that error on the conviction. If the error can be isolated to the acquittal, it is not the error itself that reconciles the verdicts, but rather the further determination that the error did not affect the conviction. That conclusion is consistent with J.F.
(2) Remedy
[41] On finding that a legal error shows that apparently inconsistent verdicts are not actually inconsistent, the appropriate remedy depends on whether the Crown has cross‑appealed the acquittal. I turn to this issue now.
(a) Crown Cross‑Appeal
[42] In cases where the Crown has cross‑appealed, the acquittal must be set aside if the Crown succeeds in proving that it was based on an error of law which “might reasonably be thought . . . to have had a material bearing on the acquittal” (Graveline, at para. 14). The next question is what should follow from setting aside that acquittal.
[43] For the most part, the Criminal Code provides the answer. Section 686(4)(b) of the Code instructs appellate courts allowing an appeal from an acquittal entered by a jury to order a new trial. Generally, all interconnected charges should be returned for retrial (Pittiman, at para. 14). In line with the test I have outlined, it may well be difficult for the appellate court to isolate the error to the acquittal, and a conviction cannot stand if it arises from an error of law. Unless the appellate court can conclude with a high degree of certainty that the legal error did not taint the conviction, setting aside the acquittal on a charge interconnected with a conviction will require retrial on all charges.
[44] Where an appellate court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand. The error did not taint the conviction, so it should remain in place unless, of course, the conviction is found to be unreasonable on a ground other than inconsistency. If a retrial is sought, it should only proceed on the charge for which the accused was acquitted. However, a retrial on the acquittal charge may raise res judicata concerns, such as the plea of autrefois convict or a s. 11( h ) Canadian Charter of Rights and Freedoms application. Those claims may well be available to the accused upon a retrial, yet the possibility of such claims does not preclude an appellate court from ordering a retrial (Criminal Code , s. 686(4) ). If, prior to a retrial, an accused chooses to raise any of these issues, that is their prerogative — I certainly do not foreclose the accused from doing so. However, granting a special plea of autrefois convict or a s. 11( h ) Charter application is discretionary, something for first instance judges to determine based on the circumstances before them. As such, I decline to decide whether these claims would preclude a retrial in all circumstances.
[45] That said, when an appellate court is satisfied that the acquittal is the product of a legal error and cannot stand, the most appropriate remedy, depending on the circumstances, may be to enter a stay of proceedings rather than sending the matter back for a retrial (Criminal Code , s. 686(8) ).
(b) Absence of a Crown Cross‑Appeal
[46] The parties disagree about what happens when the Crown has not cross‑appealed but nonetheless asserts that a legal error reconciles apparently inconsistent verdicts.
[47] Here, as indicated, the Crown cross‑appealed R.V.’s acquittal on the sexual assault cha