R v Catton: Concerning Irreconcilably Inconsistent Verdicts
In R v Catton, 2015 ONCA 13 [Catton], the Court of Appeal for Ontario had to determine whether several verdicts returned by a jury were fundamentally inconsistent with one another. In a brief and incisive decision, a unanimous Court of Appeal quashed all five of the verdicts on appeal, ordering that two undergo a new trial and entering acquittals on the remaining three. Within this short judgment, the Court of Appeal also considered the applicability of issue estoppel in a criminal context and wisely avoided an instance of narrow legalism.
Facts and Judicial History
The facts of Catton are straightforward. The appellants, Ashley Catton and Shawn DeForest, were involving in a three-vehicle accident in Angus, Ontario. Greg Reaume, the driver of the third vehicle, a motorcycle, suffered minor injuries. Mr. Reaume’s passenger, Audra Armstrong, was thrown from the motorcycle, suffered serious injuries, and died in hospital seven days later.
The appellants maintained that Ms. Catton was the driver of the vehicle. The position of the Crown was that the driver was Mr. DeForest, who, at the time, did not have a driver’s license.
The appellants’ trial proceeded on six counts. Before deliberations began, the trial judge provided the jury with a verdict sheet upon which to track their findings on each of the several counts. The trial judge instructed that following deliberations, the foreperson was to return the completed sheet for inspection before the announcement of the verdicts in open court. The sheet, though completed, was not returned to the judge for inspection before the return of verdicts. The jury returned the following verdicts orally in open court (para 4):
Count 1: Mr. DeForest was convicted of dangerous driving causing Ms. Armstrong’s death.
Count 2: Mr. DeForest was acquitted of dangerous driving causing bodily harm to Mr. Reaume.
Count 4: Ms. Catton was convicted as an accessory after the fact to Mr. DeForest’s dangerous driving.
Counts 5 and 6: Mr. DeForest and Ms. Catton were convicted by obstructing policy by falsely identifying Ms. Catton as the driver of the vehicle.
Subsequent examination of the verdict sheet showed that the jury had marked a conviction for the included offence of dangerous driving in Count 2, not an acquittal for dangerous driving causing bodily harm (para 17).
This discrepancy between the verdict sheet and the verdicts returned in open court was, however, not the main issue raised by the appellant’s counsel. Rather, and perhaps more pressing, was the appellant’s submission that the returned conviction on Count 1 and the returned acquittal on Count 2 were “irreconcilably inconsistent,” rendering Count 1 unreasonable as provided by the relevant provisions of the Criminal Code, RSC 1985, c C-46 [the Code].
A further submission of the appellants considered by the Court of Appeal was that this irreconcilable inconsistency undermined the “legitimacy and reliability” of the convictions on the other charges. The Court of Appeal accepted both of these submissions, quashing all convictions, entering acquittals for three counts, and sending the remaining two counts back for a new trial. I outline the issues and reasons of the Court of Appeal below.
Issues at the Court of Appeal
The Court of Appeal dealt with two issues, as suggested by the appellant’s submissions set out just above:
- Whether the jury’s returned verdicts on Count 1 and Count 2 were irreconcilably inconsistent, such that Count 1 was “unreasonable” as understood by section 686(1)(a)(i) of the Code?
- If Count 1 is found unreasonable, should the other convictions stand?
The Reasons of the Court of Appeal
Were the Verdicts on Count 1 and Count 2 Irreconcilably Inconsistent, Making a Conviction on Count 1 “Unreasonable”?
The argument for the inconsistency of the two verdicts lies in the essential elements of the relevant offences. A conviction on Count 1, dangerous driving causing death, required the jury to find, beyond a reasonable doubt, that: (i) Mr. DeForest was the driver of the vehicle, (ii) the nature of his driving was dangerous to the public as provided in section 249 of the Code, and (iii) his driving was a contributing cause of the accident that caused Ms. Armstrong’s death (para 8). The jury’s returned verdict of a conviction meant that all three elements were proven to their satisfaction.
Elements (i) and (ii) of Count 1 also form two of the necessary elements of the offence in Count 2, dangerous driving causing bodily harm. The returned acquittal on Count 2 entails the conclusion that the jury had a reasonable doubt about one or both of those two issues. Since the two Counts arose out of the same factual set of events and body of relevant evidence, it was not possible for the jury to consistently return a verdict of guilt on the first count and an acquittal on the second.
Justice Doherty, writing for a unanimous Court of Appeal, accepted the appellant’s argument that the two verdicts were inconsistent, setting aside the conviction on count one as unreasonable under section 686(1)(a)(i) of the Code: “I find no basis upon which the conviction on count one and the acquittal on count two can be reconciled… Nothing in the different causation elements of the offences… or in the evidence relevant to the counts, affords any explanation for the different verdicts. The appellant has demonstrated that no jury could reasonably convict on count one and acquit outright on count two. The conviction on count one must be quashed” (para 24).
The Court of Appeal then had to exercise its discretion as to whether to enter an acquittal or order a new trial on the “unreasonable” Count 1 verdict, in accordance with section 686(2) of the Code. Justice Doherty found it appropriate to order an acquittal on the basis of the availability of issue estoppel. If, in a previous trial, a factual issue is decided in favour of the accused, the doctrine of estoppel operates to preclude the Crown from leading evidence at a subsequent trial to prove the contrary.
In other words, if the Court of Appeal ordered a new trial on Count 1 here, the accused could use his acquittal on Count 2 to estop the Crown from adducing evidence to either his identity or the nature of his driving, insulating him a conviction that requires proof of both elements. Thus, Justice Doherty writes “An order directing a new trial on that count [Count 1] would be pointless. I would enter an acquittal on count one” (para 27).
In Light of Count 1’s Unreasonableness, Should the Other Convictions Stand?
Justice Doherty appears to accept the appellant’s submission that the inconsistency between Counts 1 and 2 seriously undermines the legitimacy and reliability of all of the convictions, noting that the inconsistency “raises serious doubts about all of the convictions,” and suggests either a “serious misunderstanding of the trial judge’s instructions, or a misguided compromise among the jurors as to the appropriate verdicts” (para 29). As such, he proceeds with all convictions quashed. This, however, does not end the inquiry, as the Court of Appeal must make what it sees as the appropriate orders for the quashed Counts 4, 5, and 6.
Justice Doherty first considers Mr. DeForest’s Count 6 conviction for obstructing police, sending it back for a new trial, as there would be no available issue estoppel claim on this count (para 31). The Court of Appeal then considers whether Ms. Catton’s convictions can stand. On Count 5, Justice Doherty finds no reason to distinguish her conviction for obstructing police from Mr. DeForest’s Count 6 conviction, and as such, orders a new trial.
More interesting is the Court of Appeal’s discussion regarding the appropriate order regarding Ms. Catton’s conviction for accessory after the fact. Formally speaking, neither common law doctrine nor case law bars the court from ordering a new trial on her being an accessory after the fact, even though the principal, Mr. DeForest, has been acquitted of underlying offence.
Common law doctrine is no help here: Ms. Catton was not charged in Counts 1 and 2, and thus cannot rely on issue estoppel at a subsequent trial. Further, neither is the case law around the principal-accessory relationship: the Court of Appeal also notes that a principal’s acquittal does not necessarily bar an accessory’s subsequent prosecution and conviction (para 36, citing R v S(FJ), 115 CCC (3d) 450 (NSCA)). So, as it stands, it is, as Justice Doherty puts it, “legally defensible” to order a new trial on the accessory charge. However, he declines to do so for two reasons. Both are worth remarking on.
First, a new trial would create the counter-intuitive “anomalous result” of the new jury being asked to find, beyond a reasonable doubt, that Mr. DeForest was guilty of dangerous driving on the same evidence that resulting in his acquittals at the initial trial. Here, reasons of general coherence in the criminal law motivate ordering an acquittal to avoid this “anomalous result.”
Second, Justice Doherty provides an appeal to judicial temperance, or perhaps, fairness. He notes that the essences of the accessory charge and obstructing police charge (Count 5) are the same: both target the fact that Ms. Catton lied to the police to mislead them in their investigation. Since Ms. Catton faces a new trial on Count 5, Justice Doherty is of the mind that “Ms. Catton, if guilty of that misconduct, can be called to account by her prosecution and conviction on the obstruct police charge” (para 38). As such, although it is formally open to the Court to order a new trial on the accessory charge, such an order “would, to a large extent, be redundant.”
In sum, the Court of Appeal entered acquittals on Counts 1, 2, and 4, while ordering a new trial on Counts 5 and 6.
Justice Doherty’s reasons regarding the inconsistency between Counts 1 and 2, as well as the resulting orders appear, to this author, largely impeachable. Of particular note is the Court of Appeal’s treatment of Ms. Catton’s accessory charge. Although the order to acquit was cast in terms of avoiding “redundancy”, one cannot help but wonder if Justice Doherty’s response was somewhat driven by an intuition of fairness. In any case, a kind of narrow legalism that would create an anomalous result was avoided.