R v RV: SCC to Provide Guidance on Inconsistent Jury Verdicts
R v RV, 2019 ONCA 664 [RV], a recent appellate decision, discusses the complicated question of how courts should respond when a jury delivers inconsistent verdicts. The Crown, dissatisfied with the Ontario Court of Appeal (“ONCA”)’s decision acquitting the accused on the basis of the inconsistent verdicts, has appealed to the Supreme Court of Canada (“SCC”). This appeal will provide an opportunity for Canada’s highest court to address the complexities involved in rectifying inconsistent jury verdicts, and clarify potentially conflicting jurisprudence on the topic.
Background: Inconsistent Jury Verdicts
Juries are often an essential part of criminal trials. They are relied upon to interpret the law as told to them by the judge in order to determine whether an accused person is guilty of the offence in question.
Sometimes, however, juries give inconsistent verdicts—for example, “simultaneously convict[ing] and acquit[ting] an accused for the same act, committed against the same person, in the same circumstances” (RV, para 38). Inconsistent jury verdicts are considered unreasonable, and typically indicate either that the jury misunderstood the evidence or the trial judge’s instructions, that the jury rendered inconsistent verdicts as a compromise between jurors, or that the jury chose to nullify (RV, paras 40–42).
When inconsistent jury verdicts result in an accused being found guilty, the accused person is able to appeal their conviction. As the ONCA explained, “[u]nreasonable guilty verdicts”—including those produced by inconsistent jury verdicts—“warrant appellate intervention because the public’s confidence in the legitimacy of jury trials would be undermined if the justice system tolerated unreasonable convictions by juries” (RV, para 43). This right of appeal is established in s. 686(1)(a) of the Criminal Code [Code], which “provides that a convicted person may have his or her conviction set aside…on the basis that the verdict is unreasonable” (RV, para 44).
The Crown has a much more limited right of appeal than accused persons. In general, according to s. 676(1)(a) of the Code, the Crown “may only appeal from an acquittal ‘on any grounds of appeal that involves a question of law alone’” (RV, para 47). On appeal, the court can only substitute a conviction for an acquittal where, in a trial by judge and jury, the accused “should have been found guilty but for the error in law” (RV, para 47; Code s. 686(4)).
Inconsistent Jury Verdicts in RV
In RV, the Crown brought charges against RV for sexual interference, invitation to sexual touching, and sexual assault, all relating to his conduct with his partner’s underage daughter, TS (RV, para 5). At the trial, the judge provided information to the jury about each of these charges. For the sexual assault charge, the judge instructed the jury that to find RV guilty, the Crown needed to prove beyond a reasonable doubt that RV intentionally applied force to TS in sexual circumstances, noting that the force in question could be as gentle as a touch (RV, paras 9, 11). For the sexual interference charge, she explained that the Crown needed to prove that TS was under 16 at the time, that he touched her, and that the touching was for a sexual purpose (RV, para 19). For the sexual touching charge, the judge explained the Crown must prove that TS was under 16, that he invited her to touch his body, and that touching was for a sexual purpose (RV, para 20).
After deliberating, the jury returned a not guilty verdict for the sexual assault charge, but guilty verdicts for the charges of invitation to sexual touching and sexual interference (RV, para 27). These jury verdicts are logically inconsistent, because if the elements of the offences of sexual interference and sexual touching had been proven beyond a reasonable doubt, the elements of sexual assault must also have been proven. As Justice Strathy explained, “[o]n the evidence presented to this jury, if the appellant was guilty of either sexual interference or invitation to sexual touching, he was necessarily guilty of sexual assault” (RV, para 131). Consequently, RV appealed his convictions, and the Crown cross-appealed, in order to be able to respond to the inconsistent jury verdict allegations.
ONCA Majority Decision
In assessing the inconsistent jury verdicts in this case, Justice Strathy found that there was a “patent inconsistency between the appellant’s convictions on the sexual interference and invitation to sexual touching counts on the one hand, and his acquittal on the sexual assault count on the other” (RV, para 133).
Addressing the Crown’s appeal, Justice Strathy held that the Crown could not “demonstrate an error of law in the instruction on sexual assault, the only basis on which it would be entitled to have the acquittal set aside under s. 686(4),” because the jury charge was not “so unnecessarily confusing that it constituted an error of law” (RV, para 137, quoting R v Hebert,  2 SCR 272 at para 8). Further, the Crown “reviewed the final draft of the charge during the pre-charge conference,” and raised no objections at that time (RV, para 138). Consequently, Justice Strathy held that there was no legal error made in the jury instructions, so the acquittal must stand. Since the acquittal must stand, he argued that ordering a retrial on the other counts would produce another opportunity for inconsistent verdicts, so the only appropriate resolution was to substitute RV’s convictions with acquittals (RV, para 141).
The ONCA decision concluded with rebukes directed at the Crown and the trial judge for unduly complicating the case. To the Crown, Justice Strathy questioned their decision to proceed with multiple counts, which “complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts” (RV, para 146). Specifically, he noted that if the jury had convicted the accused of both sexual assault and sexual interference, “one of those counts would have been stayed based on Kienapple v R” ( 1 SCR 729) which prohibits multiple convictions from arising from the same act. He thus asked the Crown: “Why was it necessary to proceed with both counts, when a stay of one was inevitable on conviction of both?” (RV, para 146).
To the trial judge, he emphasized the responsibility to “simplify jury instructions” (RV, para 148). In this case, he noted that the use of the word “force” in describing sexual assault to the jury may have been confusing, since “there was no issue of ‘force’ in the layperson’s sense having been applied, and since the jury was told that ‘[f]orce is not required’ for sexual interference or invitation to sexual touching” (RV, para 149). He postulated that perhaps the trial judge should have used the word “touching” instead, to be consistent with the instructions on the other charges, or should have “instructed the jury that if it acquired the appellant of either sexual assault or sexual interference, it necessarily had to acquit him of both counts” (RV, para 149).
Justice Rouleau disagreed with the ONCA majority, and instead would have accepted both appeals, and ordered a new trial on the charges of sexual assault, sexual interference, and invitation to sexual touching (RV, para 154). Unlike the majority, he concluded that the inconsistent jury verdicts were the result of the confusing charge to the jury (RV, para 175), explaining that “[i]t would not be the common understanding of a juror that merely touching someone is the same as using force on someone” (RV, para 165). He held that “[w]here both the conviction and the acquittal are appealed and the inconsistent verdicts are properly explained by a confusing charge that in fact confused the jury, a new trial is the appropriate disposition” (RV, para 177).
Appeal to the SCC
Because the ONCA decision was split, the Crown brought an appeal as of right to the SCC. However, they also brought an application for leave to appeal, asking the SCC to consider “additional issues of public importance which may not arise in a narrowly defined appeal as of right” because the ONCA majority and dissent were in agreement on those specific issues (Factum of the Appellant [“Crown’s Factum”], para 28). Their leave application was granted by the SCC last week. Specifically, the Crown is asking the SCC to consider whether appellate courts should consider the actual jury instructions given at trial when deciding whether jury verdicts are unreasonable on the basis of inconsistency, or whether, as both the ONCA majority and dissent held, “an inconsistent verdict analysis proceeds on the hypothetical basis that the jury was properly instructed” unless the Crown raises the issue of jury misdirection through a cross-appeal (Crown’s Factum, para 29).
Finally, the Crown is also asking the SCC to consider what the appropriate response should be if the Crown’s cross-appeal of an acquittal in such a case was successful. The ONCA dissent held that there should have been a new trial on all charges, but the Crown argued that this would be “counter-intuitive and contrary to the interests of justice” since the “purported inconsistency” had already been solved through their cross-appeal (Crown’s Factum, para 117). Instead, the Crown submitted that the conviction appeal should just be dismissed in these cases (Crown’s Factum, para 118). The SCC’s response on this point will be interesting. While the Crown is correct that the substance of the inconsistency is solved through providing a sufficient rationale for the inconsistent verdicts, in a situation like RV, simply dismissing the conviction appeal would preserve inconsistent results, with the accused being simultaneously convicted and acquitted of offences requiring the same act and fault elements, based on the same facts.
The appeal to the SCC also provides an opportunity for Canada’s highest court to consider what the Crown asserted on appeal are “conflicting authorities in the Supreme Court of Canada and [at the Ontario Court of Appeal] concerning the role of the trial judge’s instructions to the jury in the inconsistent verdict analysis” (RV, para 3). The Crown pointed to statements in R v Pittiman, 2006 SCC 9, indicating that potentially inconsistent verdicts should be considered in light of the jury instructions given by the trial judge, which would seem to suggest that if the inconsistent verdicts were reasonable based on the judge’s explanation to the jury, they would not warrant appellate intervention (Factum, para 40). They contrasted this with statements from R v JF, 2008 SCC 60 [JF], holding that verdicts are inconsistent only if “no properly instructed jury could reasonably have returned them both” (JF, para 23). The Crown attempted to argue on initial appeal that the relevant statements in JF were obiter, so should not be considered authoritative, but the ONCA majority rejected this argument (RV, para 98). The appeal before the SCC will allow the SCC to clarify its own jurisprudence to ensure that it is internally consistent and properly applied in the lower courts.
Thus, in this appeal, the SCC will be able to provide guidance on how courts should approach appeals arising from inconsistent jury verdicts, and will be able to clarify the existing jurisprudence on the subject. Given the central role of juries in our criminal justice system, the RV appeal provides an important opportunity to ensure that all of Canada’s courts are approaching the problem of inconsistent jury verdicts in the same way when they arise.