Convicted for “invitation for sexual touching” and acquitted from “sexual assault”; Supreme Court of Canada guides Appellate Courts on inconsistent jury verdicts

Canada SC

Supreme Court of Canada: The Bench comprising of Wagner C.J., and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., addressed an interesting regarding confusing jury verdict.  The Bench provided guidance to Appellate Courts and explained the way forward in cases of the inconsistent jury verdict.

 Background

 One, V was charged with historical sexual offences against a single complainant and convicted for sexual interference and invitation to sexual touching. However, the same jury acquitted him of sexual assault based on the same evidence. The convictions were appealed asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable.

The Crown cross‑appealed V’s acquittal maintaining that the charge was so unnecessarily confusing that it amounted to an error in law. A majority of the Court of Appeal held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with the acquittal on the sexual assault charge. Thus, the majority quashed V’s convictions and substituted verdicts of acquittal, and upheld the acquittal on the sexual assault charge. However, the minority found legal error in the jury instructions and would have ordered a new trial on all three charges.

Analysis by the Court

 The top Court opined that though the Trial judge misdirected the jury on the charge of sexual assault, the same was material only to the acquittal, and did not impact on the convictions. The Bench explained, where the Crown attempts to reconcile apparently inconsistent verdicts on the basis of a legal error, it must satisfy the appellate court to a high degree of certainty that there was a legal error in the jury instructions and that the error:

(1) had a material bearing on the acquittal;

(2) was immaterial to the conviction; and

(3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.

If these elements were satisfied, the verdicts would not actually be inconsistent. If the Appellate Court could not conclude with a high degree of certainty that the legal error did not taint the conviction, setting aside the acquittal will require a retrial on all charges.

“When the court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand.”

In some circumstances, the appropriate remedy may be to enter a stay of proceedings on the charge for which the accused was acquitted in application of a court of appeal’s residual power under s. 686(8) of the Criminal Code. The Bench explained,

For an appellate court to issue a stay of proceedings under s. 686(8), three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires.

“The Trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken impression that the element of “force” required for sexual assault was different than the element of “touching” required for sexual interference and invitation to sexual touching.”

This legal error led the jury to return a verdict of acquittal on the sexual assault charge. Since it did not affect the convictions, the Trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct. The jury found V guilty of sexual touching, hence the convictions, and not guilty of applying force beyond touching to the complainant in circumstances of a sexual nature, hence the acquittal. In particular, the failure to instruct the jury in clear terms that the “force” required to establish sexual assault was one and the same as the “touching” required to establish the other two offences constituted non‑direction amounting to misdirection.

Further, considering that the legal error was isolated to the acquittal as the Trial judge’s instructions on sexual interference and invitation to sexual touching were legally correct; the Bench held that the verdicts were not actually inconsistent and the convictions were not unreasonable on that basis. Accordingly, R.V.’s appeal from his convictions was dismissed. However, regarding the charge of sexual assault, the Court ordered a stay of the proceeding opining that ordering a retrial would needlessly risk abuse of process application and would bring no benefit to the administration of justice.

Taking those factors together, the Bench stated, justice requires a stay rather than sending the charge back for retrial. The Crown’s appeal was allowed, R.V.’s convictions were restored. The acquittal on R.V.’s charge of sexual assault was set aside and the proceeding on that charge was stayed, and the matter was remitted to the Court of Appeal for R.V.’s sentence appeal. [R. v. R.V., 2021 SCC 10, decided on 12-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

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