- Lewis Waring
Conflicting Verdicts Due to Jury Instructions? - Anonymous
Inconsistent verdicts generally happen when a jury finds a person guilty and not guilty of the same conduct on the same evidence. If this happens it is up to appellate courts to determine if the discrepancy can be explained, reconciled or resolved by faulty jury instruction. But what happens when judges can’t decide what the solution is? This blog will look at the case of R v R.V. (“R.V.”), decided by the Supreme Court of Canada (“the Court”) in March 2021. I will briefly outline the case before discussing proposed solutions to and complications inherent in this problem.
Many offences with similar foundation lead to jury instruction confusion
In R.V., the facts were relatively short. R.V. was charged with historical sexual offences against a minor and tried before a judge and jury. The judge instructed the jury on each offence separately, but the same evidence was given to all three charges. The jury convicted R.V. of sexual interference and invitation to sexual touching yet acquitted him of sexual assault based on the same evidence.
R.V. appealed his convictions on the basis that they were inconsistent and 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 and that the inconsistency in the verdict was explained by these confusing jury instructions. At the Court of Appeal, the judgment was split when the majority found that there was no legal error in the jury instructions and that the convictions were unreasonable because they were inconsistent with the acquittal. The minority, in contrast, found that there was legal error and they would have ordered a new trial.
The issues before the Court in R.V. were therefore, firstly, whether a legal error in jury instructions can reconcile apparently inconsistent verdicts? Secondly, what is the appropriate disposition of an inconsistent verdict appeal where there is an error of law in the jury instructions? Finally, were the verdicts rendered by the jury in R.V. inconsistent? In this case, the majority found that the trial judge did err in its instructions to the jury and this led to the acquittal on the sexual assault charge. This finding reconciled the apparent inconsistencies with the verdicts and the Court determined that R.V.’s convictions should be restored, the sexual assault acquittal should be set aside, and the Court should enter a stay of proceeding on that charge rather than ordering a new trial. The dissent of Brown and Kasirer JJ agreed that the verdicts were inconsistent and that the jury was misdirected but differed on the remedy available and the analytical process.
The majority and minority’s analytical frameworks
The majority clarified what an appellate court should do when inquiring as to whether the verdicts in a case are inconsistent. Moldaver J stated that
“[w]here 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.”
In assessing these three factors, the majority found that appellate courts should retrace the reasoning of the jury so as to be satisfied to a high degree of certainty that the error in legal instructions did not taint the conviction. If the legal error does not taint the conviction then setting aside an acquittal will result in the retrial on all of the charges, if there is only a legal error on the acquittal then that is the only charge sent back for a new trial.
The majority enacted this framework because they viewed that cases exist, like the one before them, where the Crown can reconcile “apparently inconsistent verdicts on the basis that they were the result of a legal error in the jury instructions.” Justice Moldaver wrote that this approach preserves deference to the jury because it is only examining legal instructions given and still assumes that a jury is acting reasonably. This is where the majority and minority in R.V. significantly diverged because, while the minority found that the Criminal Code and relevant jurisprudence preclude a court from looking into the jury’s reasoning, the majority insisted that their framework does not go that far, merely “supplement[ing] - not chang[ing]” the jurisprudence.
The dissent, in contrast, found that section 686(4)(b)(i) of the Criminal Code required that a new trial be the sole remedy where the Crown successfully appeals from a verdict of acquittal by a jury. Brown J stated that, as a court can never be certain what was in the minds of a jury, Parliament enacted this statute. Going against this provision’s remedial limitations invites review that: “(1) Parliament has precluded; (2) the Court has never sanctioned; and (3) is as a practical matter, impossible.” Therefore the only remedy available is a new trial when the verdicts are found to be inconsistent because of the jurisprudence and the legislation demands it.
A critique of both positions
More specifically, what Brown J seemed to have an issue with in R.V. was that the majority could restore R.V.’s “convictions on the basis that the verdicts are not inconsistent in the minds of the jury.” On this point I differ from both the majority and the minority. I believe that the majority does have to speculate as to what the jury deliberated on and look into their reasoning to analyze whether the legal error impacted their reasoning. This intrusion is incidental and does not have to be the speculation or telekinesis that the minority seems to purport it to be. Whether this incidental speculation is against jurisprudence or is even valid is for a far more learned mind than mine. I would merely suggest that I don’t believe the majority is right here because I cannot see how they parse out their distinctions.
Perhaps (and this is my own speculation based on the case in front of me) there is a balancing act here between respecting the jury's deliberations as well as the burden on the justice system. If new trials are the sole remedy under section 686(4)(b)(i) of the Criminal Code then the burden on the justice system is increased. Additionally, as the majority in R.V. points out in their conclusion, one remedy could be for the Crown not to bring so many duplicate charges. The bringing of duplicate charges itself is the root cause of confusion in instructing juries. Anecdotally, I can attest that, after eight months of studying, some of the finer distinctions between charges and their requirements still elude me.
My final issue with the approach by the majority in R.V. comes to me from Canadian Lawyer Magazine. In that publication, an article by Eric Neubauer, co-counsel for the Criminal Lawyers' Association of Ontario on R.V’.’s appeal to the Court, said that, “[t]he 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[…]This decision undoubtedly erodes the value of an acquittal in future cases.” While the majority does set out some ways to set aside acquittals, as they do in this case, there are valid worries about the justice system setting aside not-guilty verdicts by juries. Even if there are no reversals of not-guilty verdicts by courts, the mere message that courts can look at the jury's deliberations and decide that their decision was invalid - even if it was for a serious legal error - can send the wrong message about the independence of juries.
In conclusion, R.V. shows that the issue of inconsistent jury verdicts remain unresolved. In a case where many learned legal minds disagreed avidly about how to address this issue and left questions outstanding, I think that this is not the last time we will see this issue debated in the courts.