The Reconciliation of incompatible verdicts pronounced by a jury

In R v RV, the Supreme Court ruled for the first time on the issue of inconsistent verdicts following jury instructions containing a legal error.

« For an appellate court to interfere with a conviction on the ground that it is inconsistent with an acquittal, the court must find that the guilty verdict is unreasonable ^[1]. »

R v RV, 2021 SCC 10 

The Facts

RV was facing counts of incitement to sexual interference, invitation to sexual contact and sexual assault. The trial judge told the jury that in order to find RV guilty of sexual assault, they had to be satisfied beyond a reasonable doubt that RV had used force against the complainant in circumstances of a sexual nature. As for the charges of sexual interference and invitation to sexual contact, the judge indicated that one had to be convinced that RV had touched and invited the complainant to touch him in sexual circumstances. Based on the same evidence, the jury found RV not guilty of sexual assault, but guilty of sexual interference and invitation to sexual contact.

RV appealed the convictions on the grounds that they were inconsistent with his acquittal of sexual assault and therefore unreasonable. The Crown cross-appealed, alleging that the instructions given to the jury were wrong and constituted an error of law. According to the Crown, the apparent inconsistency of the verdicts could be explained by the erroneous directions. The conviction was therefore not unreasonable.

The Ontario Court of Appeal ruled in favor of the accused. It held that the instructions given to the jury did not contain an error of law. It further held that the guilty verdicts for sexual interference and invitation to sexual contact were unreasonable as they were inconsistent with the acquittal for the sexual assault. In light of this, the Court of Appeal quashed the convictions and substituted acquittal verdicts. It also confirmed the acquittal for the sexual assault.

The Judgment

The Supreme Court restored the guilty verdicts on the charges of sexual interference and invitation to sexual contact, and dismissed the acquittal for the sexual assault. Indeed, the Supreme Court ruled that there was an error of law in the instructions given to the jury, and that this had an impact on the verdict of acquittal for the sexual assault, but not on the guilty verdicts.

The Supreme Court reiterated that the presence of inconsistent verdicts is not a valid reason for setting aside a conviction or an acquittal. The criterion is the unreasonability of these verdicts. The question, then, is whether they are so irreconcilable that a reasonable jury, properly instructed, could not have pronounced them.

The Crown may seek to reconcile apparently inconsistent verdicts by proving that they are not, since they resulted from instructions given to the jury flawed by an error of law. In these cases, the Crown will have to prove that there was an error of law, and that this 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. » (para 33).

In this case, the Court said that the trial judge had misled the jury by failing to explain that the element of “force” required for the sexual assault was the same as the element of “touch” for sexual interference and invitation to sexual contact. The jury acquitted RV of sexual assault as they were not convinced beyond a reasonable doubt that RV had used force. Based on the same evidence, he concluded that RV had sexual interference with the complainant, leading them to convict him of sexual interference and invitation to sexual touching. In this sense, the error of law was limited to acquittal, and allows for the reconciliation of apparently inconsistent verdicts.

Ultimately, the majority recognized that normally, in cases where the Crown has cross-appealed and reconciled the inconsistent verdicts by limiting the error of law to acquittal, the standard procedure would be to remand the verdict of acquittal for a new trial. However, under subsection 686 (8) of the Criminal Code, appeal courts have residual powers to “make any order that justice requires”, including the order of proceedings. Putting aside RV’s acquittal reinstates his presumption of innocence. Convinced that ordering a new trial would unnecessarily risk the filing of an abuse of process petition and that this would bring no advantage in the administration of justice, the majority ordered a stay of proceedings.