R. v. R.V., 2019 ONCA 664

INCONSISTENT VERDICTS ANALYSIS - JURY INSTRUCTIONS - ISSUE ESTOPPEL

The Appellant was convicted of sexual interference and invitation to sexual touching. The Appellant argues that these convictions are inconsistent with his acquittal on a sexual charge (premised on the same evidence). 

Background 

Evidence at Trial

The complainant is the Appellant’s partner’s daughter. The complainant was the only witness at trial; she alleged the sexual abuse lasted a period of roughly 8 years. Roughly 10 years after the abuse ended, the complainant disclosed the abuse to the police. The Appellant was subsequently charged with sexual assault, sexual interference and invitation to sexual touching. 

The trial judge gave standard jury instructions for each count. The trial judge outlined the essential elements of assault. Pursuant to the ONCA’s decision in R v SL, 2013 ONCA 176, the trial judge informed the jury that the “force” element in an assault can include “even a gentle touch”.

For the sexual interference and invitation to sexual touching counts, the trial judge explained that “touching involves intentional physical touching, whether direct or indirect, of any part of the complainant’s body and force is not required”. 

The decision tree given to the jury showed simple assault as an available verdict for the sexual assault charge. The verdict sheet, however, did not identify such an available verdict.

An hour into deliberations, the jury sent a question to the trial judge highlighting the inconsistency between the decision tree and verdict sheet. The verdict sheet was amended to include a verdict of not guilty of sexual assault but guilty of simple assault (to match the decision tree). The jury was informed of the updated verdict sheet, but did not receive an instruction as to how the Appellant could be convicted of simple assault based on the evidence they heard.

The jury convicted the Appellant of sexual touching and invitation to sexual touching, and returned a verdict of not guilty of sexual assault.

Appellant’s Position

The Appellant argues that a reasonable jury, properly instructed (as was the case in this case), could not have acquitted the Appellant of sexual assault while simultaneously convicting him on the other two counts. In other words, the verdicts are patently inconsistent. Directing a retrial on the two convictions in the face of an acquittal of sexual assault would give rise to issue estoppel. The Appellant relies on R v JF, 2008 SCC 60.

Crown’s Position

The Crown submits that the excerpts the Appellant relies on in R v JF, 2008 SCC 60, were obiter, and that they are inconsistent with R v Pittiman, [1964] SCR 212. The Crown asserts that that the “inconsistent verdicts” are simply the result of the jury’s confusion which was compounded by the verdict sheet mishap. The Crown submits that it does not have to appeal against an acquittal to defeat an inconsistent verdict argument.

Issues on Appeal

1. What is the binding authority re: inconsistent verdicts?

Inconsistent Verdicts: An Overview

A guilty verdict that is inconsistent with a not guilty verdict, for the same act, committed against the same person, in the same circumstances, casts doubt on the not guilty verdict’s declaration of legal innocence. Juries are presumed to act reasonable and follow the trial judge’s instructions (See R v Beaudry, 2007 SCC 5). A jury that returns an inconsistent verdict rebuts this presumption and infers that the jury acted unreasonably and in a way that violated the trial judge’s instructions (i.e. they misunderstood the evidence, misunderstood the jury instructions, etc). A truly inconsistent verdict warrants appellate intervention as the legitimacy of jury trials would be undermined if such verdicts were untouched.

An appellate court’s jurisdiction to set aside an inconsistent verdict is pursuant to section 686(1)(a)(i) as an inconsistent verdict is a subset of unreasonable verdicts (See R v Catton). The Crown’s right to appeal is very limited: they are only entitled to appeal an acquittal on a question of law alone. See R v Riesberry, 2014 ONCA 744, for an overview of the right to appeal provisions under the Criminal Code.

“A not guilty verdict is the equivalent of a declaration of legal innocence for the purposes of subsequent criminal proceedings” (See R v Grdic, 1982 CanLII 363 BCCA).

This principle means that the Crown is estopped from leading any evidence that is inconsistent with a finding of not guilty in a previous criminal proceeding.

Jurisprudence on Inconsistent Verdicts: Where do we Stand Now

After providing a thorough review of McShannock, Pittiman and JF, the majority ultimately rejects the Crown’s submission that JF is inconsistent with Pittiman. 

The test for inconsistent verdicts, as outlined by Fish J in R v JF (see paras 21, 23 and 41 of JF) can be summarized as follows:

• The test for inconsistent verdicts is partially objective. It asks whether, assuming it was properly instructed, a reasonable jury could have rendered the verdicts based on the evidence before it;

• If the Crown wants to respond to an inconsistent verdict argument by asserting that the acquittal was the result of a legal error in the instructions for that offence, it must appeal the acquittal;

• If the Crown fails to appeal the acquittal, and cannot otherwise reconcilie the verdicts, they remain inconsistent because the inconsistency cannot be cured simply by asserting error of law in the acquittal;

Pittiman requires the court to examine: the evidence, positions of counsel at trial, the essential elements of the offences in question and the trial judge’s jury instruction. At para 85, Strathy CJO highlights that “the purpose of that examination is to determine whether the facially inconsistent verdicts could the result of differences in the elements of the offences, differences in the evidence, differences in the evidence against a co-accused, or differences in the way in which the case was argued”. The onus is on the appellant to establish that a reasonable jury could arrive at such a verdict. Ultimately, if the verdicts remain “violently at odds” the conviction will be quashed. Pittiman does not suggest that in the absence of a Crown appeal against the acquittal, inconsistent verdicts can be reconciled by incorrect jury instructions.

A verdict of not guilty is a declaration of legal innocence. Procedurally, the Crown is required to formally appeal this verdict if it wishes to challenge such a declaration. Ordering a new trial in the face of inconsistent verdicts, where the Crown has not appealed against the acquittal undermines the legitimacy of jury verdicts.

Obiter Dicta: Binding or Persuasive?

Obiter in Supreme Court decisions are intended for guidance, and should be accepted as authoritative. Appellate courts should be wary of declining to follow SCC obiter dicta, but may do so when it is inconsistent with previous SCC decisions (See Prokofiew, 2010 ONCA 423).

While Fish J’s comments in JF were obiter, they were clearly intended as guidance to appellate courts as they were consistent with SCC jurisprudence concerned with inconsistent verdicts and issue estoppel (including Pittiman). As a result, despite being obiter, Fish J’s comments in JF are authoritative and ought to be followed.

The ONCA finds that inconsistent verdict cases with judge-alone trials (such as R v Plein, 2018 ONCA 748), raise different considerations than inconsistent verdict cases with juries. 

2. What is the appropriate disposition of this appeal in light of this authority?

No properly instructed jury could reasonably have convicted the Appellant of sexual interference or invitation to sexual touching but acquitted him of sexual assault. If the jury had a reasonable doubt as to whether there was physical contact between the Appellant and the complainant so as to acquit him of sexual assault, this reasonable doubt would also require an acquittal on the other two counts.

Can this inconsistency be explained by the correct but confusing jury instruction, or by an appeal of the acquittal? If not, can a new trial be ordered despite the standing acquittal?

The jury instruction cannot reconcile these verdicts. Similarly, a Crown appeal of the acquittal would be unsuccessful as the jury instruction was legally correct. The Crown made no objections during the pre-charge conference or during the charge. As a result, the acquittal must stand. Ordering a retrial on the two convictions would give rise to a claim of issue estoppel. Thus, a directed acquittal must be entered on both counts.

In his concluding remarks, Strathy CJO reminds the court of its role in making all trials less complicated as proceedings with duplicative counts are ripe for jury confusion and inconsistent verdicts.

STRATHY CJO, writing for the majority (3-2), allows the Appeal, quashes the guilty verdicts, and directs verdicts of acquittal be entered. While he would allow the extension of time for the Crown’s cross-appeal, he would dismiss the cross-appeal.

ROULEAU JA, writing for the dissent, agrees with the majority’s finding that the convictions cannot stand. He disagrees, however, with the disposition of the Crown’s cross-appeal. He found that the jury charge was sufficiently confusing as the trial judge did not explain how the three offences related to one another. Additionally, the trial judge failed to provide the jury with a copy of the charge. Rouleau finds that together, the failure to take these steps, amounted to an error of law. As a result, he would have set aside the convictions and the acquittal, and order a new trial on all counts.