R. v. Pittiman: Reaffirming Trial by Judge and Jury
R. v. Pittiman,  1 S.C.R. 381, broaches the related issues of inconsistent verdicts among co-accused and the legal decision-making ability of juries. The appellant, Roopnarine Pittiman, was jointly charged with two co-accused of sexually assaulting the 14-year-old complainant. Following a trial by judge and jury, Mr. Pittiman was convicted of the offence and his co-accused were acquitted. Mr. Pittiman appealed his conviction, among other grounds, on the basis that the verdicts were inconsistent and that the jury’s finding of guilt was therefore unreasonable.
The facts of the case are muddled in parts, as the complainant did not recall several events. She was assaulted while at Mr. Pittiman’s house with Mr. Pittiman and three other men present. Mr. Pittiman and the others began touching her inappropriately in the living room, however, Mr. Pittiman was the only person specifically identified by the complainant as having sexually assaulted her in this room. Eventually she was led into a bedroom, where Mr. Pittiman had forcible intercourse with her. Again, others were involved but the complainant blanked out the details of these events. She did recall that the Mr. Pittiman’s brother Ryan tried to force her to perform a sexual act, and that his friend Beswick Goffe also had forcible intercourse with her. She said that this latter assault was memorable because it caused the most physical pain, but she had made no mention of either Ryan’s or Goffe’s assaults during her initial statement to the police. These allegations were first revealed during the preliminary inquiry.
When she returned to her aunt’s house, the complainant said that four men had raped her. The police were called, and the complainant was taken to the hospital. Mr. Pittiman’s saliva was found on her bra, and the four men present during the events were arrested and charged.
After his conviction at trial, Mr. Pittiman appealed. At the Ontario Court of Appeal, the majority held that the greater strength of the case against Mr. Pittiman, in comparison to the case made against his co-accused, provided a rational basis on which the jury could come to the conclusion that Mr. Pittiman should be found guilty. Borins J.A., in dissent, would have set the conviction aside and entered an acquittal. He found that the guilty verdict was so at odds with the jury’s acquittals of the other co-accused, no reasonable jury who understood the evidence could have property arrived at that verdict.
Appealing to the Supreme Court of Canada, Mr. Pittiman asked the sole question of whether the jury’s verdict finding him guilty of sexual assault was reasonable. The SCC first considered the Criminal Code provision that allows for the setting aside of a guilty verdict, and then went on to analyze why the facts of this case did not fit these requirements. The SCC concluded by pointing out errors in the dissenting judge’s view of the facts, and ultimately agreed with the finding of the OCA.
Firstly, the SCC stated that a court of appeal’s power to set aside a verdict of guilt on the grounds that it is inconsistent is found in section 686(1)(a)(i) of the Criminal Code of Canada. This section reads that the court “may allow the appeal where it is of the opinion that … the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.” Therefore, before an appellate court can find a verdict inconsistent, it must find that the verdict is unreasonable. Citing R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.), the SCC noted that the appellant bears the onus to show that no reasonable jury could have arrived at that conclusion.
Analyzing this legislation further, the SCC explained that establishing a verdict as unreasonable on the basis of inconsistency with other verdicts is difficult, because the jury has wide latitude in its assessment of the evidence. The jury is entitled to accept or reject some, all or none of any witness’s testimony. The jury is not bound by the theories advanced by the Crown or the defence, and the jury may even have a different view of the evidence so long as the ultimate verdict is unanimous. With this in mind, the question in such inquiries is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge.
As Martin J.A. explains in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), if the verdict is illogical on a rational or logical basis, indicating that the jury was confused with regard to the evidence or that they reached an unjustifiable compromise, the appellate court would allow the appeal and direct an acquittal on the ground that the verdict is unreasonable. The SCC found that even if a narrative of the events is not readily apparent from the jury’s findings, the impugned verdict will not necessarily be set aside as unreasonable. The jury’s task is to determine whether the Crown has proven each element of the offence beyond a reasonable doubt, not to reconstruct what happened.
In performing this task, a jury may accept the complainant’s testimony as credible in respect of one accused, but reject the complaint against another. The strength of evidence relating to each accused may differ, and the jury may be left with a reasonable doubt on the guilt of one accused, but not of the other. Therefore, when faced with a claim for inconsistent verdicts in a case with multiple accused charged with the same offence, an appellate court would focus on whether the evidence is the same. The test for such a case is whether the verdicts are irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence.
After applying this test to the evidence, the SCC agreed with the majority of the OCA, finding that there was a rational basis for reconciling the different verdicts. The Crown’s case against the appellant, quite simply, was stronger than the cases against his co-accused. There were two pieces of evidence which directly implicated the appellant and not the others: the presence of the appellants DNA on the complainant’s bra and a post-offence statement to a friend that he had “ratt[ed] him out” to the police. Additionally, the complainant’s statement regarding the appellant was consistent and detailed, clearly describing him as playing a dominant role in the incident. Conversely, the complainant’s evidence about the co-accused’s involvement was vague and inconsistent with her initial statement to the police. Though Crown counsel at trial took the position that this was an “all or nothing” case, the jury was not bound to accept his theory. As well, the jury was correctly instructed by the trial judge to consider the evidence and arrive at a verdict separately in regard to each accused.
On the evidence of the case, the SCC found that the differing verdicts were reconcilable. With regard to the lone dissenter, Borins J.A., the SCC found that he erred in his assessment of the reasonableness of the verdict. He incorrectly believed that each accused touched the complainant in a sexual manner, and that her testimony was common to all of the accused. Borins’ observations do not coincide with the complainant’s statements, as her references to Goffe and Ryan were both inconsistent. Borins also mistakenly believed that the complainant was sexually assaulted in the bedroom by each accused. Finally, he saw nothing in the cross-examination of the complainant to explain the jury’s rejection of her evidence implicating the co-accused, but the complainant in fact made inconsistent statements about these men. The Supreme Court overturned each one of Borins’ false assertions with regard to the evidence.
Borins erred in law as well as fact, stating that “the focus in an inconsistent verdict case is the aberrant verdict, which in this case is the acquittal of the co-accused.” He described as unfair the fact that the jury convicted the appellant while relying on the same evidence that was considered when it acquitted the co-accused. The SCC, citing R. v. Bergeron (1998), 132 C.C.C. (3d) 45 (Que. C.A.), notes that the decisive question for an appellate court in such a case is not whether the acquittals are reasonable, but whether the convictions were not. In Pittiman, the evidence against the appellant is significantly stronger, and there is no unfairness resulting from the fact that the case was proven beyond a reasonable doubt against him, but not against the co-accused.
The SCC concluded that in this case, the different verdicts were not inconsistent with each other. They were reconciled on the basis of the strength of evidence as against each accused. The jury’s verdict finding the appellant guilty of sexual assault was not unreasonable, and the appeal was dismissed.
It is reassuring to see that the SCC is not likely to reverse jury verdicts. The SCC clearly reinforced the notion here that juries should be given much leeway in their consideration of the evidence. As long as each guilty verdict is rendered as a result of proof beyond a reasonable doubt, appellate level courts are disinclined to reverse such decisions. Whether or not the jury accepts witness testimony, Crown or defence theories, or even each other’s view of the events, the only requirement is that the verdicts are supportable on any theory of the evidence. In its assertion of the restrictiveness of the Criminal Code provision, the Pittiman case confirms that juries are valued and trusted participants in the administration of justice.