Deferring to the Jury in R v Waterman
Content Warning: This article includes depictions of sexual violence that may evoke strong emotions.
Unique to criminal procedure in the common law system is the option to have a case tried before a jury. When an appellate court is tasked with reviewing a decision made by a jury, they must act with caution not to act as a “’13th juror’ or simply give effect to vague unease or lurking doubt based on its own review of the written record” (R v W.H., 2013 SCC 22, para 27 [W.H.]). Reviewing a judgment while giving weight to the advantages of the jury without infusing the judge’s own reasoning is no easy feat, especially in cases where the evidence presented does not suggest a straight-forward verdict.
R v Waterman, 2021 SCC 5 [Waterman II], was one such case. Waterman was indicted for sexual offences committed against the complainant forty years prior, who was a minor at the time. Although the complainant’s testimony was fraught with inconsistencies, the jury found Waterman guilty of the charges laid against him in 2018. This decision was overturned by the Newfoundland and Labrador Court of Appeal (“NLCA”) soon after, due to the blatant inconsistencies present in the complainant’s testimony.
This past January, however, the Supreme Court of Canada (“SCC”) allowed the appeal and reinstated the original conviction and sentence. Giving the judgment from the bench on behalf of the majority, Justice Moldaver affirmed that in circumstances such as this, “the lens of judicial experience causes us to yield to the wisdom of the jurors who had the advantage of hearing the complainant testify” (Waterman II, para 2). The majority’s decision to refrain from second-guessing the jury’s determination is notable as it upholds a distinctive facet of the Canadian judicial process: deference to and respect for the jury’s capacity to provide a reasonable verdict.
After seeing a video of the Watermans’ son in 2015, the complainant was flooded with memories of the events that occurred between him and Waterman during his teenage years. Notably, he recalled that from 1975 to 1981, Waterman, who was in his early twenties at the time, had sexually assaulted him on five separate occasions (R v Waterman, 2020 NLCA 18 [Waterman I], para 30).
Following the return of his memory, the complainant gave a statement to the police in London, Ontario. In his recollection of the events, the complainant alleged that Waterman made unwanted sexual advances and forced him to endure heinous sexual acts on various occasions (Waterman I, para 17). The complainant also stated that the first incident took place in the car and described that the car had bench seats (Waterman I, para 33). Waterman was indicted in November 2016 for indecent assault and gross indecency against a male complainant contrary to sections 156 and 157 of the Criminal Code, RSC 1985, c C-46, which were offences in force at the time the incidents took place.
At the preliminary inquiry in October 2017 and the following trial, the complainant’s testimony and cross-examination revealed several inconsistencies in his recounting of the incidents. The complainant admitted that although Waterman had made unwanted sexual advances, he had not committed any of the heinous sexual acts previously mentioned, but only threatened to do so (Waterman I, para 33). The complainant also corrected that the first incident had occurred on a motorcycle ride rather than in the car, and according to the testimony given by Waterman’s wife, she and Waterman did not have a car with bench seats until 1985 (Waterman I, para 33). Altogether, there were nine inconsistencies in the complainant’s evidence, varying in severity.
The complainant testified that the events he had told the police were “triggered by nightmares or [were] part of a dream,” and following the police testimony, “he got counselling to try to put it together” (Waterman I, para 17). Having heard all the evidence, including the numerous contradictions in the complainant’s testimony, the jury nonetheless found Waterman guilty of indecent assault and gross indecency against a male complainant.
Appellate Review of Jury Decision
The issue on appellate review was whether the verdict of the jury was unreasonable and unsupported by evidence “because the Crown failed to adduce the evidence necessary to prove the offences beyond a reasonable doubt” (Waterman I, para 8). To address this issue, the court must undertake a two-step test. They must first assess whether they are left “with some suspicion or doubt respecting the evidence put before the jury.” (Waterman I, para 41) If so, the court must then proceed with the analysis and ask whether, “in the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury” (R v Biniaris, 2000 SC 15, paras 38-39).
After applying the test, the majority held that the verdict of the jury was unreasonable and unsupported by evidence, but for two different reasons. Both Justice Welsh and Justice White found that the inconsistencies in the complainant’s evidence raised suspicion beyond a “vague unease or lurking doubt.” However, they disagreed at the second step of the test, leading to two concurring judgments making up the majority decision. Justice Welsh found that the jury did not have the evidence necessary to enable it to reasonably resolve the doubt created by the inconsistencies, since there was no expert evidence given addressing the impacts of counselling and the memory recovered through the process (Waterman I, para 23). As such, the Justice concluded that it would be unclear whether the jury would have reached the guilty verdict if they were equipped with the expert evidence (Waterman I, para 26).
Meanwhile, Justice White held that judicial fact-finding reveals that the complainant’s evidence was not considered in its totality, but rather in a “piecemeal” analysis, and was not compared to the evidence of Waterman and his wife (Waterman I, para 64, 69). Furthermore, the justice stated that “[t]he complainant acknowledged that his memories were “like a puzzle” and he did not explain how this puzzle was pieced together during counselling,” suggesting that the process of counselling ought to have been probed further to dispel any reasonable doubt (Waterman I, para 68).
The sole dissenting justice, Justice Butler, stated that the verdict was reasonable since the inconsistencies surrounding the complainant’s testimony did not go to “the core evidence which established the elements of the offences” (Waterman I, para 95). The inconsistencies in the testimony were not about whether the complainant was forced to hold Waterman’s penis as a child, which was the basis of the jury’s verdict (Waterman I, para 82). For that reason, Justice Butler stated the test failed at the first step.
Justice Butler continued in her analysis by stating that even if the test had proceeded, it still should not have failed for the reasons stated by her colleagues. She pointed out that the inconsistencies identified by Justice White were “minor and immaterial to the offences charged” and there were also inconsistencies in the testimonies provided by Waterman and his wife (Waterman I, para 90). She also added that Justice Welsh’s assertion that expert evidence ought to have been introduced was “dangerous,” as the complainant had already clarified that the more serious inconsistencies surrounding his sexual assault claim were resolved after receiving counselling (Waterman I, para 91). According to Justice Butler, the jury had considered the evidence as a whole and there was no need to challenge their verdict.
The SCC Ruling and What it Means
The SCC rendered its decision from the bench, and the majority sided with the dissenting justice’s reasoning in finding that the jury’s verdict ought to be upheld. Justice Moldaver reiterated that the complainant provided an explanation for his inconsistencies and that it was ultimately for the jury to take this information and decide for themselves if the reasonable doubt was “neutralized.” (Waterman II, para 2) They also dismissed the appellate court’s reasoning that more evidence needed to be introduced to review what had taken place during the complainant’s counselling sessions. Interestingly, Justices Brown and Rowe dissented for the reasons cited by Justice White, finding that expert evidence ought to have been introduced to help interpret the complainant’s testimony.
The wide discretion afforded to the jury in Waterman is unsurprising, considering that since R v Francois,  2 SCR 827, the Court has expanded the freedom that juries have in interpreting evidence, stating that “the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways”(p. 837). The Court in W.H. echoed this sentiment, acknowledging the need to be “deferential to the collective good judgment and common sense of the jury” (para 32). The trust that courts are now affording juries is contrary to the jury-control theory of evidence law, which had purported that prejudicial evidence may mislead juries who in the past were believed to be poor fact-finders (Lisa Dufraimont, “Evidence Law and the Jury: A Reassessment” (2008) 53:2 McGill Law Journal). Thus, it seems as though the courts are steering clear of the paternalistic attitudes held towards juries, instead empowering them as reliable fact-finders from the community.
Though on the one hand, the increased restraint practiced by appellate reviews of jury decision-making is a positive development when it is evident that a jury acted rationally, which was the case in Waterman, the same cannot be said in cases when the jury does not engage in the thorough fact-finding required of them. The nature of jury decision-making is that a verdict is made as a collective; when the make-up of a jury is homogenous and is not representative of all the members of the public, it is unclear whether the jury is acting in “groupthink” or reasonably weighing all the evidence presented to them.
A chilling example of the repercussions a homogenous jury could have in decision-making was observed when an all-white jury acquitted Gerald Stanley—a white Saskatchewan farmer—after the killing of Colten Boushie, a Cree youth, in R v Stanley, 2018 SKQB 27. The racial makeup of the jury in Stanley called into question whether they had properly reviewed the evidence without prejudice and whether they were indeed acting reasonably.
In cases such as Stanley, constraining the ability for appellate courts to conduct a review of jury decisions could undermine the administration of justice and may have unintended consequences in the long-run. That said, recent amendments to s. 640 of the Criminal Code banning peremptory challenges—a process which had allowed lawyers to reject a potential juror without giving any explanation—could result in juries becoming more impartial and reasonable, and preclude any further egregious decisions from being made.
R v Waterman not only furthers the SCC’s trend of deference towards juries, but it also acts as a case study to weigh the positive and negative implications constraint on appellate reviews might have in the jurisprudence. Notwithstanding its limitations, juries are an essential component of the Canadian criminal justice system and a way to enhance public participation in criminal procedure. Therefore, to trust that the jury could reasonably consider inconsistent evidence is to recognize that laypeople are as capable to advance the interests of the public and the administration of justice as judges, which could ultimately promote a more accessible justice system.
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