R v Wilis: “A Close Call” and Appellate Review of Unreasonable Jury Verdicts
Six days after hearing the appeal of R v Wilis, 2014 ONCA 178 [Wilis, ONCA], Justice Rothstein delivered the one paragraph decision of the Supreme Court of Canada in R v Wilis, 2014 SCC 73 [Wilis, SCC]. Reproduced in full, it reads:
The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A.
As the Supreme Court’s decision leaves no room for analysis, this post will rehearse and comment on the reasons of both the majority and dissent at the Court of Appeal. On reflection, the Court of Appeal’s decision provides both a neat summary of the jurisprudence around appellate court review of the reasonableness of a jury’s verdict, while also demonstrating the complexity of the review task itself.
Facts and the Evidence at Trial
One February evening, Mr. and Mrs. Sacchetti of Woodbridge Ontario were the victims of a violent home invasion perpetrated by two masked men. The first robber pulled Mr. Sacchetti outside and proceeded to brutally beat him with a stick-like weapon. During the struggle, Mr. Sacchetti pulled a white bandana from the robber’s face. The second robber confronted Ms. Sacchetti in the kitchen, forced her to the floor, pointed what appeared to be a gun at her neck, and proceeded to take a small amount of cash from a drawer. The two robbers then fled through a nearby ravine.
The appellant was later arrested and charged with several offences. At trial, the key issue was identity, as neither victim could identify the assailants. The Crown produced three key pieces of evidence: the white bandana Mr. Sacchetti pulled from the first robber’s face, a second blue bandana found in the nearby ravine, and a metal baton seized from the accused’s bedroom closet two months after the robbery.
The DNA Evidence
A Crown expert that examined both bandanas made the following findings, as summarized in R v Wilis, ONCA at paragraphs 14-18:
- The white bandana contained DNA from at least three persons, including the appellant
- The blue bandana contained DNA from at least two persons, including the appellant
- The expert could not determine when the DNA was placed on the bandanas, nor how long it may have been on the bandanas
- The expert could not determine how the DNA came to be placed on them; DNA could have been placed on the bandanas through direct or indirect contact
- The person or persons wearing the bandanas during the robbery may not have left his or her DNA on the bandanas
Mr. Sacchetti described the weapon used by the first robber as having a wooden handle about eight inches long and a flexible silver coloured metal end about twelve inches long, “like a whip.” He compared the weapon to the batons police officers carry on their hips (Wilis, ONCA at paras 19-20).
The weapon seized from the appellant’s home was a black metal baton that extends when swung and, once extended, becomes rigid (para 22). Mr. Sacchetti, upon inspection of the seized baton, noted several differences between it and the one he recalled being used in the beating (para 25).
The jury convicted the appellant of two counts of robbery with a firearm, one count of unlawful confinement, one count of disguise with intent to commit an indictable offence, and two counts of possession of a weapon for the purpose of committing an indictable offence.
Wilis at the Court of Appeal
Wilis appealed all of his convictions on the ground that the evidence presented could not reasonably support a finding that he was one of the perpetrators, triggering appellate review under section 686(1)(a)(i) of the Criminal Code, RSC 1985, c C-46 [“the Code“]. The section reads:
686(i) On the hearing of an appeal against a conviction … the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.
So, the issue before the Court of Appeal was whether the jury’s guilty verdict should be set aside because it could not be supported by the evidence at trial.
Review Under section 686(1)(a)(i)
In R v WH,  2 SCR 180, the Supreme Court held that appellate review under this section of the Code functions to protect against jury error in cases where the trial is free of legal error, but where the evidence cannot satisfy the conviction of the accused. In R v Biniaris,  1 SCR 381 [Biniaris], Justice Arbour, for a unanimous court, stressed that this type of review does not usurp the role of the jury. Rather, the function of the appellate court is to apply the “lens of judicial experience” to check the cogency of the evidence in light of the court’s unique awareness of the risks of wrongful convictions associated with certain kinds of cases and evidence (Biniaris, para 40).
Section 686(1)(a)(i) requires the appellate court to test the jury’s verdict against a reasonableness standard. As explained by Doherty JA of the Court of Appeal, that standard asks “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” In asking this question, the appellate court must independently weigh the totality of the evidence, with the limited purpose of determining whether the verdict is beyond the reasonableness limit (Wilis, ONCA, paras 28, 31).
The Reasons of Doherty JA (Benotto JA Concurring)
Recall that the central issue at trial was the identity of the perpetrators, and that the Crown had produced three pieces of circumstantial evidence for the conclusion of guilt. After independently weighing the totality of the evidence, Doherty JA found that the guilty verdict was a verdict that a properly instructed jury, acting judicially, could have rendered. As such, he found that the verdict survived the reasonableness analysis and dismissed Mr. Wilis’ appeal (Wilis, ONCA, para 44). His reasoning ran as follows:
First, he accepted that the DNA evidence went some way towards identifying the appellant as one of the perpetrators. However, he held that the jury could not have reasonably concluded the appellant’s involvement without additional evidence supporting that conclusion. In the theory of the Crown, this additional evidence was the police baton seized from the appellant’s home. The appellant, for his part, argued that Mr. Sacchetti’s description of the differences between the seized baton and the one used in the beating compelled the conclusion that this seized baton was not the same baton used in the robbery, and therefore, that the Crown’s case consisted of nothing but the DNA evidence.
After some deliberation, Doherty noted that a jury could have reasonably accepted that a baton “similar in appearance” to the rigid and black baton found at the appellant’s residence was used in the home invasion (Wilis, ONCA, para 41). He held that a reasonable jury could have seen Mr. Sacchetti’s description of the assailant’s weapon as whip-like and silver, stemming from the manner in which the assailant swung the weapon and the lighting conditions at the time (para 40).
Although describing it as a “close call,” Doherty JA held that he was satisfied that the DNA evidence, “combined with the evidence permitting the inference that some two months after the robbery the appellant had a police baton like the police baton used in the robbery, is sufficient to render the jury’s finding that the Crown had proved that the appellant was one of the perpetrators a reasonable one.” (Wilis, ONCA, para 44). As noted above, the majority of the Supreme Court agreed with the reasons of Doherty JA.
The Dissenting Reasons of Pepall JA
In contrast, Pepall JA found that the verdict found by the jury was beyond the limit of reasonableness, as it was not one that a properly instructed jury, acting judicially, could reasonably have rendered (Wilis, ONCA, para 65). She agreed with her colleagues’ assessment of the DNA evidence, but parted ways with the majority concerning the probative value of the baton in light of Mr. Sacchetti’s testimony. Ultimately, in her view, the relative weakness of the evidence surrounding the baton, coupled with inconclusive DNA evidence, made the conclusion of guilt unreasonable (para 85).
She made four points about the seized baton. First, neither the victim nor anyone else identified the apartment baton as the weapon used during the crime. Second, Mr. Sacchetti’s testimony identified how the seized baton was dissimilar to the baton used during the robbery — in particular that it had two features not found on the seized baton: a wooden handle and a swivelling metal top. Third, there was no additional evidence connecting the baton found in the apartment to the crime itself. Finally, the probative value of the apartment baton was reduced by the fact that although batons are not common possessions, they are also “not complete rarities” (Wilis, ONCA, paras 71-74).
Pepall JA then reproduced several sections of the trial transcript containing Mr. Sacchetti’s testimony. In each of these sections, Mr. Sacchetti marks the differences between his recollection of the baton used in the invasion and the apartment baton put before him (Wilis, ONCA at paras 76-84). Further, Pepall JA notes that the record indicates that the lighting in the area of the assault was good: Mr. Sacchetti said “it was fully bright,” and an investigating officer who immediately attended the scene described the exterior of the house as “very well lit” (para 84).
In sum, Pepall JA was of the view that a properly instructed jury, acting judicially, could not have reasonably rendered a guilty verdict in this case. She held that the Crown’s evidence amounted to the combination of “inconclusive DNA evidence coupled with a baton that was identified as being dissimilar to that found in the closet of the appellant… and that bore no identifiable connection to the crime scene” (para 85).
These reasons were adopted by Justices Cromwell and Karakatsanis of the Supreme Court.
Comment and Conclusion
This case does not represent a disagreement in the Court of Appeal on a matter of law. Rather, Justices Doherty and Pepall disagreed on how the settled law — the jurisprudence around section 686(1)(a)(i) of the Code — applied to the evidence adduced at trial. This, in itself, is not terribly striking. What is striking, however, is what that settled law is really asking the court to do when reviewing the reasonableness of a jury’s verdict. In essence, it asks a court to cast its eye over the totality of the evidence and then engage in the simultaneous reconstruction and evaluation of the jury’s reasoning process. A court must determine the content and strength of each inference arising out of a piece of evidence, connect these potential inferences, and then evaluate whether the resulting inferential chain is of sufficient integrity to be “reasonable.”
Put in these terms, it is easy to see why two judges, when presented with the same evidentiary matrix and verdict, may come to different conclusions about whether a conviction was unreasonable. At any point in their task of evidentiary reconstruction and inferential evaluation, a judge may fail to consider a potential inference, or discount the validity or strength of any inference based on other evidence. The possible points of divergence seem innumerable. This complexity is further complicated by competing conceptions of whether a particular conclusion, once derived, is itself “reasonable.” Review under section 686(1)(a)(i) is not an enviable task.