Courts Left to Decide Inconsistent Jury Verdicts - CHW

On March 12, 2021, the Supreme Court of Canada (“the Court”) delivered a judgement that established a defined framework regarding the appropriate steps that should be taken by appellate courts in the event that the verdicts for charges are inconsistent. In light of this recent clarification, I will provide an overview of the court proceedings for this case and further discuss aspects of this decision that could be deemed problematic.

In R v RV (“RV”), the accused, RV, was charged with sexual assault, sexual interference, and invitation to sexual touching with his ex-partner’s daughter who was between the ages of 7 and 13 at the time. During the trial, the jury found RV guilty of sexual interference and invitation of sexual touching, but was acquitted of sexual assault. The defence filed an appeal because it found that there was a substantial inconsistency posed by this verdict since RV was found to be guilty and not guilty for the same conduct. At the Ontario Court of Appeal (“the ONCA”), the majority held that there were inconsistencies between the two verdicts because RV should have been acquitted or convicted of all three charges. As a result, RV was acquitted of all three charges and the Crown cross-appealed. At the Supreme Court of Canada (“the Court”), the majority developed a framework that clarified the approach appellate courts can take when assessing jury verdicts that are seemingly inconsistent and restored the guilty verdicts for sexual interference and invitation to sexual touching while setting aside the not guilty verdict for sexual assault.

Court of Appeal Decision

The majority of the ONCA had decided that, although the trial judge’s instructions were confusing, they were legally correct and “not so necessarily confusing that it constituted an error of law”. As a result, RV was acquitted of his sexual interference and invitation to sexual touching convictions. The ONCA determined that the “jury could only reasonably have acquitted the appellant of sexual assault if it had reasonable doubt that there was physical contact, even ‘gentle touching’ of the complainant”. The Crown had not objected to the instruction to the jury in the initial trial and was therefore unable to demonstrate there was an error of law in the instruction for the sexual assault charge. Thus, the ONCA in RV had determined that no legal error had occurred and that RV had to be acquitted for the sexual interference and invitation to sexual touching charges.

A consistent but erroneous trial decision

At the Court, the majority agreed that there was an error at the trial court and that the jury was misdirected on the question of whether force had been applied such that it would constitute sexual assault. The majority came to the conclusion that the jury was under a mistaken impression that force applied to an individual during a sexual assault was different than touching in the context of sexual interference and invitation to sexual touching. The trial judge’s misdirection likely arose from the definition that was provided for touching which emphasized that “[f]orce [was] not required but accidental touching is not enough”. This led to a distinction between the terms “force” and “touching”, which were deemed by both the Court and ONCA to be interchangeable terms in this particular set of facts.

The failure to create a distinction between the terms was exacerbated when the trial judge added the option of convicting RV of a simple assault that was not of a sexual nature. The trial judge had failed to give distinct directions to clarify the meaning of each term, resulting in a verdict which, on its face, was inconsistent. This misdirection of the jury led to a verdict that was consistent with the jury’s understanding of what each charge meant but was legally erroneous, resulting in guilty verdicts for sexual interference and invitation to sexual touching, but not guilty for sexual assault.

Framework for resolving inconsistent jury verdicts

The framework proposed by the Court’s majority in this decision is as follows:

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.

If each part of this proposed framework is satisfied with a high degree of certainty, a court will find that the verdicts are not actually inconsistent and would conclude that the jury had simply reached their conclusion on something different than intended.

The majority of the Court had determined that all three elements of the proposed framework were satisfied with a high degree of certainty because the legal error had significantly impacted the not-guilty verdict of sexual assault but not the guilty verdicts for sexual interference and invitation to sexual touching. Lastly, because of the legal error that arose when the judge implied that “force” and “touching” constituted two independent forms of conduct, the majority of the Court determined that the jury did not find RV guilty of the same conduct.

An inconsistent decision of convenience

Although I generally agree with the Court’s final verdict in RV, which restored the convictions that were acquitted by the ONCA, I find myself at odds with the framework proposed. Based on the Court’s analysis in this particular set of facts, I would agree that RV was in fact, guilty of the charges; I have no qualms about that aspect. However, the reality is that there is one charge less than what likely would have been decided on had the instructions been correct. RV should have been convicted of sexual interference, invitation to sexual touching, and sexual assault. As such, I agree with the Court’s dissenting opinion, written by Justice Brown, that a new trial should be ordered for all three charges.

The Court cannot just convict RV of sexual assault based on their speculation of whether or not there was a legal error. In R v Graveline, it was said “that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law”. However, the inability of convicting an accused individual does not necessarily justify ordering a stay of proceedings for that charge as a measure to uphold other convictions. As Justice Brown had mentioned in his partly dissenting opinion, there is no way to ascertain what was occurring in the minds of the jury at the time of the trial, and it certainly is not the role of the courts to attempt interpreting this due to the vast considerations jury have when making their decisions. In R v JF, the Court had concluded that it is not for the courts to “reconcile verdicts retrospectively on the basis of abstract differences between the underlying offences”. The Court also strayed from its decision in R v Pittman, which held “where the verdict is found to be unreasonable on the basis of inconsistent verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will usually be a new trial”.

In my view, the framework seems like a shortcut in our legal system so there will be a lesser potential for ordering new trials. I agree with the notion put forth by the Court’s majority in RV that duplicative trials can impose a burden on the legal system and those involved by increasing the length of trials and introducing complexities, but I do not believe that it is appropriate to attempt interpreting what was in the minds of the jury. Although there is a potential for more confusion to be introduced when a new trial is ordered, it is important to note that the ONCA and the Court have already identified where the errors of law had occurred and even came up with solutions for how these errors could have been avoided. For example, the ONCA and the Court agreed that the terms touching and force could be used interchangeably in this context.

A failure to order a re-trial

Overall, the proposition of this framework provides too much discretion to appellate courts in interpreting decisions that were made by the jury. Even with the proposition of this new framework, the ONCA in RV would likely have had the same conclusion because it did not find an error of law. The reality is that there could have been other reasons for this inconsistent ruling from the jury, but the court has moved on to speculate how the jury came to its verdict. As such, a new trial should have been ordered for all three charges.