Inconsistent Instructions, Unreasonable Verdicts - Masuma Fatima
The dilemma of inconsistent verdicts is aggravated by resort to inflexible rules. Most courts apply a single rule to all types of inconsistent verdicts. Inconsistent verdicts generally occur when an accused can be said to have been found 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, the conviction of the accused can stand. In R v RV (“RV”), the respondent alleged that he was charged with historical sexual offences against a single complainant and tried before a judge and jury. The jury convicted him of sexual interference under section 151 of the Criminal Code and invitation to sexual touching under section 152. The same jury acquitted him of sexual assault under section 271 based on the similar evidence.
A jury given inconsistent instructions
The complainant in RV, the appellant’s partner’s daughter, was the only witness at the trial and alleged the sexual abuse lasted for a period of roughly eight years. The complainant disclosed the abuse to the police approximately 10 years after the abuse ended. She testified to multiple incidents of sexual abuse committed by the respondent when she was between the ages of seven and 13. Besides the complainant’s testimony, the Crown presented no other evidence at trial. The defence maintained that the evidence provided by the complainant was inconsistent and insufficient to support a finding of guilt beyond a reasonable doubt. At the end of the trial, the trial judge gave standard jury instructions for each count and outlined the essential elements of assault.The trial judge instructed the jury that the accused could be found guilty if they were satisfied that the Crown proved beyond a reasonable doubt that he had intentionally applied force to the complainant and that the force was sexual in nature. As the complainant was under the age of 16 at the time of the incidents, consent was not an issue. The trial judge provided the jury with a verdict sheet and a decision tree for each charge. However, there was discrepancy between the verdict sheet and the decision tree for sexual assault. To resolve this confusion, a new verdict with amendments was provided.
On appeal, the Court of Appeal for Ontario (“ONCA”) unanimously agreed that the accused’s convictions were inconsistent with the acquittal and could not stand. The ONCA canvassed the inconsistent verdicts’ jurisprudence and the majority held that if the accused was found guilty of sexual interference and invitation to sexual touching, he was necessarily guilty of sexual assault. This inference was founded on the fact that the touching required for the two convictions satisfied the legal definition of force for sexual assault in this case. The ONCA majority found that the confusing instruction on sexual assault could not reconcile the verdicts because the cause of the inconsistent verdicts was a pure matter of speculation. Secondly, the majority found that the Crown’s cross-appeal could not succeed because the trial judge gave correct instructions, and ordering a new trial would give rise to a claim of issue estoppel. The dissent, on the other hand, stated that the appropriate remedy where both the conviction and the acquittal were appealed was to order a new trial on all charges. The dissent also found that the inconsistency in the verdicts had resulted because of an error of law in the jury instructions.
What is an unreasonable jury verdict
The applicable test to determine whether a jury verdict is unreasonable in an appeal involving inconsistent verdicts is a question of whether “the verdicts [are] irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence”. If a jury has reached a compromised verdict, misunderstood the evidence, or nullified by choosing to not apply the law, these paths reflect unreasonableness.
Where the Crown attempts to rebut an apparent inconsistency on the basis of legal error, the burden shifts from the accused to the Crown to show that the following criteria have been met:
The acquittal was the product of a legal error in the jury instructions.
the legal error did not impact the conviction; and
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 these elements are satisfied, the verdicts are not inconsistent. If there is a legal error material to the acquittal, the appellate court 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 verdict, but rather the further determination that the error did not affect the conviction.
Remedies for unreasonable jury verdicts
The appropriate remedy for a legal error depends on whether the Crown has cross-appealed the acquittal. The Supreme Court of Canada (“the Court”) applied the above analysis and framework to the facts in RV. The trial judge’s instructions on sexual assault indicate that any form of touching could amount to force. Pursuant to the ONCA’s prior decision in R v SL, the trial judge informed the jury that the “force” element in an assault can include “even a gentle touch”. 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” for sexual assault was different than the element of “touching” required for sexual interference and invitation to sexual touching. The majority of the Court found that the trial judge needed to instruct the jury on how these offences related to each other. This non-direction amounted to a legal error which was isolated to the acquittal.
In RV, the Court found that the trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct in that the jury was given proper instructions on the essential elements of those offences and on the evidence. The error in the instruction on sexual assault did not colour the instructions on the remaining offences. Therefore, the error pertained exclusively to the sexual assault charge and not to the other two charges of sexual interference or sexual invitation. The legal error reconciled the apparent inconsistency in that the jury did not find the accused both guilty and not guilty of the same conduct. The jury found the accused guilty of sexual touching and found him not guilty of applying force in circumstances of a sexual nature.
The ordinary remedy for a case in which the Crown has cross-appealed and reconciled the inconsistent verdicts by isolating an error of law to the acquittal is to let the conviction stand and send just the acquittal back for retrial. However, based on the circumstances in RV, the Court justified entering a stay of the proceeding rather than ordering a retrial. The Court justified their reasoning based on the fact that ordering a retrial on a sexual assault charge would needlessly risk an abuse of process application and would bring no benefit to the administration of justice.
The dissent in RV disagreed with the majority and considered a retrial of the accused on all three charges to be the most appropriate remedy. The dissent found the majority’s framework 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.
Recognizing the imperfect reality of jury instructions
RV is an interesting and a very important case as the Court has ruled in a decision that will provide guidance to appellate courts on inconsistent jury verdicts. This decision has introduced an intelligent approach into this neglected and confused area of law. The framework described in RV outlines a solution to the problem presented by inconsistent verdicts, but the Court emphasizes the fact that the optimal solution would be for the Crown to avoid needless duplication in the first place. I firmly agree with the majority in RV in the sense that it is incumbent upon the Crown to make a trial process less and not more burdensome. When the Crown proceeds with duplicative counts, it increases the length of the trial. By increasing trial length, duplicative counts therefore place a greater burden on trial judges and juries by increasing the complexity of jury instructions. RV indicates that drafting jury instructions is a difficult task and that trial judges deal with significant pressures to ensure the instructions are comprehensive and comprehensible in the face of limited resources and time constraints. However, the Court in RV refused to force the fruits of these errors upon the appellants and , in so doing, saved an individual from the injustice he might face because of a wrong conviction due to increased or decreased punishment.
The uncertainty of jury verdicts
We can never know for certain how a jury reached its verdict. A reviewing court can examine the verdict and the record, including the evidence but it cannot inquire into the jury’s reasoning for arriving at the verdict. Retracing a jury’s reasoning, irrespective of the “degree of certainty”, is a type of review that is as a practical matter impossible. I agree with Justice Brown, that the framework provided in this decision requires a reviewing court to be able to exclude all other reasonable explanations for how the jury rendered its verdicts, and that will never be possible. Despite that, the framework set out in this decision provides guidance on how courts should approach appeals arising from inconsistent jury verdicts and clarifies the existing jurisprudence on the subject. Also, this decision ensures that all Canadian courts will approach the problem of inconsistent jury verdicts uniformly when it arises.