Her Majesty the Queen v. R.V.

[Indexed as: R. v. V. (R.)]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., Rouleau, Pardu, D.M. Miller and Trotter JJ.A.

August 26, 2019

147 O.R. (3d) 657 | 2019 ONCA 664

Case Summary

Criminal law — Verdicts — Inconsistent verdicts — Accused convicted of sexual interference and invitation to sexual touching and acquitted of sexually assaulting same complainant — Same facts underlying all three charges — Convictions inconsistent with acquittal and therefore unreasonable — Crown's position that inconsistency resulted from trial judge's confusing instructions being speculative — Crown's appeal from acquittal dismissed as trial judge's instructions contained no error of law — Accused's appeal from convictions allowed — Retrial not ordered on those charges as that would invite jury to return verdict inconsistent with acquittal and would give rise to claim of issue estoppel — Acquittals entered on counts of sexual interference and invitation to sexual touching.

The accused was charged with sexual interference, invitation to sexual touching and sexual assault, all in relation to his partner's daughter. The same facts underlay all three charges. The jury found the accused guilty of sexual interference and invitation to sexual touching and not guilty of sexual assault. The accused appealed the convictions on the ground that the verdicts were inconsistent and therefore unreasonable. The Crown argued that the facial inconsistency in the verdicts was explained by confusing jury instructions which led the jury to believe that the "force" required for sexual assault was different than the "touching" required for the other two offences. The Crown took the position that it did not have to appeal against the acquittal in order to resist an inconsistent verdict argument, because the appellate court would necessarily review the proceedings below. However, it was granted an extension of time to cross-appeal the acquittal. A five-judge panel was convened to hear the appeal, because the Crown submitted that the decision of the Supreme Court of Canada in R. v. F. (J.) in relation to the role of the trial judge's jury instructions in an inconsistent verdict analysis was irreconcilable with that court's decision in R. v. Pittiman.

Held, the appeal should be allowed; the cross-appeal should be dismissed.

Per Strathy J.A. (Pardu and Trotter JJ.A. concurring): The Supreme Court of Canada's statements in J.F. provide authoritative guidance to appellate courts, are consistent with Pittiman and should be followed. If the Crown wants to respond to an inconsistent verdict argument by asserting that the acquittal was the result of a legal error in the instructions for that offence, it must appeal the acquittal. If the Crown fails to appeal the acquittal, and cannot otherwise reconcile the verdicts, they remain inconsistent because the inconsistency cannot be cured simply by asserting error of law in the acquittal. The inconsistent verdict analysis is partially objective -- it asks whether, assuming it was properly instructed, a reasonable jury could have rendered the verdicts based on the evidence before it.

On the evidence presented to the jury in this case, if the accused was guilty of either sexual interference or invitation to sexual touching, he was necessarily guilty of sexual assault. No properly instructed jury could reasonably have reached a different conclusion. The trial judge correctly instructed the jury that the "force" required for sexual assault includes any physical contact with another person, even a gentle touch. The Crown's argument that the instructions may have confused the jury was purely speculative. Moreover, improper instructions do not make improper verdicts proper. The allegedly "confusing" instruction on sexual assault could not reconcile the verdicts. The convictions had to be set aside. The Crown's appeal from the acquittal could not succeed, as the trial judge gave a legally correct instruction, and her sexual assault instruction was not so unnecessarily confusing that it constituted an error of law. Since the acquittal had to stand, ordering a retrial on either of the other two counts would invite the jury to return a verdict inconsistent with the acquittal and would give rise to a claim of issue estoppel. Acquittals were entered on the counts of sexual interference and invitation to sexual touching.

Per Rouleau J.A. (dissenting) (D.M. Miller J.A. concurring): Both the accused's appeal and the Crown's cross-appeal should be allowed, and a new trial should be ordered on all three charges. To succeed on the cross-appeal, the Crown had to show that there was an error of law in the jury instructions. There were factors in this case which, viewed in combination, met the stringent test established in the jurisprudence to raise a confusing jury charge to the level of an error of law. Viewed in context, the charge would not have conveyed to the jury that mere touching could constitute the force necessary to prove the offence of sexual assault. That confusion in the charge was by far the most likely explanation for the inconsistent verdicts.

Authorities Cited

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 152, 215(1)(c), 220, 236, 265(1)(a), 267(a), 268, 675(1)(a), 676(1)(a), 686(1)(a), (i), (ii), (2), (4)

Other cases referred to

R. v. F. (J.), [2008] 3 S.C.R. 215, 2008 SCC 60, apld

R. v. Al-Kassem, [2015] O.J. No. 2330, 2015 ONCA 320; R. v. Catton, [2015] O.J. No. 184, 2015 ONCA 13; R. v. Grdic, [1985] 1 S.C.R. 810; R. v. Koury, [1964] S.C.R. 212; R. v. L. (S.), [2013] O.J. No. 1311, 2013 ONCA 176; R. v. M. (K.D.), [2017] O.J. No. 3185, 2017 ONCA 510; R. v. Mahalingan, [2008] 3 S.C.R. 316, 2008 SCC 63; R. v. McShannock, [1980] O.J. No. 1289; R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9; R. v. Plein, [2018] O.J. No. 4688, 2018 ONCA 748; R. v. Prokofiew, [2012] 2 S.C.R. 639, 2012 SCC 49; R. v. Seufert, [2015] A.J. No. 971, 2015 ABCA 285; R. v. Tyler, [2015] O.J. No. 4653, 2015 ONCA 599; R. v. Walia, [2018] O.J. No. 1046, 2018 ONCA 197, consd

APPEAL by the accused from the convictions entered on September 18, 2015 and the sentence imposed on January 29, 2016 by Vallee J. of the Superior Court of Justice, sitting with a jury, for sexual interference and invitation to sexual touching; Cross-Appeal by the Crown from acquittal for sexual assault.

Philip Campbell and Catriona Verner, for appellant.

Christopher Webb, for respondent.

The judgment of the court was delivered by

Strathy C.J.O. (Pardu and Trotter JJ.A. concurring): —

I. Introduction

[1] The appellant appeals against his convictions for sexual interference and invitation to sexual touching. He asserts these convictions are inconsistent with his acquittal on a charge of sexual assault based on the very same evidence, that his convictions are therefore unreasonable and that, in the absence of a successful Crown appeal of the acquittal, his convictions must be quashed and acquittals entered in their stead. He also seeks leave to appeal his sentence of imprisonment for two years less a day and two years' probation.

[2] The Crown responds that the facial inconsistency in the verdicts is explained by confusing jury instructions, which led the jury to believe that the "force" required for sexual assault was different than the "touching" required for sexual interference and invitation to sexual touching. The Crown seeks an extension of time to cross-appeal the acquittal of sexual assault and the appellant consents to that extension.

[3] A five-judge panel was convened to hear this appeal, because the Crown submits there are conflicting authorities in the Supreme Court of Canada and in this court concerning the role of the trial judge's instructions to the jury in the inconsistent verdict analysis. It says that the Supreme Court's decision in R. v. F. (J.), relied upon by the appellant, is irreconcilable with that court's decision in R. v. Pittiman. It also submits that decisions of this court are also in conflict, citing, among other cases, R. v. L. (S.), which applies Pittiman, and R. v. Walia, which applies F. (J.). The Crown submits that Pittiman remains the leading Supreme Court judgment on inconsistent verdicts, and conflicting statements in F. (J.) are obiter dicta and should not be followed.

[4] For the reasons that follow, I do not agree. The Supreme Court's statements in F. (J.) provide authoritative guidance to appellate courts, are consistent with Pittiman and should be followed. Accordingly, I would allow the appellant's appeal, quash the guilty verdicts and direct verdicts of acquittal to be entered in their stead. I would grant the Crown an extension of time to cross-appeal the acquittal, but would dismiss that cross-appeal.

II. Background

(1) The evidence at trial

[5] The appellant was charged with sexual assault, sexual interference and invitation to sexual touching of his partner's daughter, T.S. The charges were not particularized with details of the acts allegedly committed or with specific dates of the alleged offences. Each of the three counts on the indictment simply recited that "between the 1st day of January, in the year 1995, and the 10th day of November, in the year 2003" the appellant committed the particular offence.

[6] The appellant was tried by a court composed of a judge and jury. The complainant was the only witness. She testified that the abuse began when she was approximately seven years old and ended when she was approximately 13. She described the appellant doing the following:

• grabbing her hand and moving it to touch his penis;
• touching her breast over her clothing;
• touching her vagina over her clothing;
• holding her hand and using it to masturbate himself;
• lying underneath her while he was unclothed and she was clothed, simulating intercourse and ejaculating on his stomach;
• lying underneath her while he was clothed and she was unclothed, simulating intercourse; and
• touching her head and pushing it down towards his penis.

[7] The complainant testified that the abuse ended after she threatened to report it. In 2014, when she was 24 years old, she disclosed the alleged abuse to police and the appellant was charged.

(2) The jury instructions

[8] The trial judge gave the jury standard instructions on each of the three counts, generally following the specimen instructions in David Watt's Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015).

[9] After reciting the formal count of sexual assault, the trial judge instructed the jury that,

For you to find [R.V.] guilty of sexual assault, Crown counsel must prove both of these essential elements beyond a reasonable doubt: i. That [R.V.] intentionally applied force to [T.S.]; ii. That the force that [R.V.] intentionally applied took place in circumstances of a sexual nature.

[10] The trial judge explained that "consent is not an essential element of the offence", because the complainant's evidence was that the "sexual touching" occurred when she was between seven and 13 years old.

[11] The trial judge then examined the elements of the offence and noted:

The force applied may be violent, or even gentle. Force includes any physical contact with another person, even a gentle touch. To be an assault, however, [R.V.] must apply the force intentionally. An accidental touching is not an intentional application of force.

(Emphasis added)

[12] The words "even a gentle touch" were incorporated into the second edition of Watt's specimen jury instructions for sexual assault following the decision of this court in L. (S.).

[13] The trial judge then explained the meaning of "intentionally", telling the jury to consider "all of the circumstances surrounding the application of force".

[14] After reviewing the complainant's evidence, the trial judge told the jury:

If you are not satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [T.S.], you must find him not guilty. Your deliberations would be over.

[15] She then turned to the second element of sexual assault, whether force was intentionally applied in circumstances of a sexual nature. She explained that a sexual assault is "any intentional application of force, any intentional physical contact with another person, even an intentional but gentle touching, which occurs in circumstances of a sexual nature so that the sexual integrity of [T.S.] is violated": see s. 265(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46; and R. v. Chase, [1987] 2 S.C.R. 293, [1987] S.C.J. No. 57, at p. 302 S.C.R.

[16] After explaining how to determine whether the force was applied in circumstances of a sexual nature, the trial judge reviewed the complainant's evidence concerning the incidents, which she described as the complainant's hand "touching" the appellant's penis, the appellant's hand "touching" her breast area and her vagina, the complainant's pelvis "touching" the appellant's pelvis, and the appellant's hand "touching" the complainant's head and pushing it down to his penis.

[17] The trial judge then instructed the jury that:

If you are not satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [T.S.] in circumstances of a sexual nature, you must find [R.V.] not guilty of sexual assault, but guilty of assault.

If you are satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [T.S.] in circumstances of a sexual nature, you must find [R.V.] guilty of sexual assault.

(Emphasis added)

[18] The instruction that the jury could convict the appellant of simple assault, to which counsel made no objection, gave rise to a question from the jury, discussed below.

[19] The trial judge then turned to the instructions for the other two offences, first sexual interference and then invitation to sexual touching. Again, she described the elements of the offences and broke them down into specific questions. In the case of sexual interference, she explained that the Crown was required to prove beyond a reasonable doubt: (i) the complainant was under 16 years old at the time; (ii) the appellant touched the complainant; and (iii) the touching was for a sexual purpose. She explained that "touching" involves intentional physical touching, whether direct or indirect, of any part of the complainant's body and that "[f]orce is not required" for sexual touching. She did not review the evidence on this count because it was the same as the evidence on the sexual assault count.

[20] The trial judge then reviewed the essential elements of invitation to sexual touching: (i) the complainant was under 16 years old at the time; (ii) the appellant invited the complainant to touch his body; and (iii) the touching he invited was for a sexual purpose. Again, she instructed the jury on the meaning of "touching", including that "[f]orce is not required". She then identified the complainant's evidence pertaining to this count, including that the appellant had: pushed her hand down to his penis; grabbed her wrist and put her hand on his penis to masturbate him; pulled her on top of him to ride him; and pushed her head down to his penis. Each of these acts was also referred to in the trial judge's instructions on sexual assault.

[21] The jury was not provided with a written copy of the instructions to take into the jury room while it deliberated.

(3) Verdict sheet and decision tree

[22] The trial judge gave the jury a decision tree for each of the three charges. The decision tree for sexual assault showed guilty of simple assault as an available verdict.

[23] The trial judge also gave the jury a verdict sheet. The verdict sheet set out the three counts and the possible verdicts. The trial judge identified the possible verdicts as either not guilty or guilty on each of the three counts. The verdict sheet identified these possibilities. It did not identify guilty of simple assault as an available verdict for the sexual assault count.

(4) The jury question, the trial judge's response and the verdict

[24] A little more than an hour after retiring to deliberate, the jury sent a question to the trial judge. They pointed out the inconsistency between the decision tree for sexual assault and the verdict sheet. Although the decision tree provided for the three possible verdicts on which they had been instructed (guilty of sexual assault, not guilty of sexual assault but guilty of simple assault, and not guilty), the verdict sheet only provided for guilty or not guilty of sexual assault. The jury asked: "What do we do?"

[25] The trial judge discussed the question with counsel, who observed that it was "a very odd question", because there was no way on the evidence that the jury could reach a verdict of simple assault. The trial judge pointed out that her instructions had included simple assault as a possible verdict. After a somewhat confused discussion, which focused on how the verdict sheet might be amended, the trial judge, with the agreement of counsel, revised the verdict sheet to make it conform to the decision tree -- it gave the jury three options: (i) not guilty of sexual assault; (ii) not guilty of sexual assault but guilty of simple assault; and (iii) guilty of sexual assault.

[26] Before the jury retired for the day, the trial judge simply informed them that the verdict sheet had been amended as a result of their question. She told them: "there are now three verdicts available to you under count number one". The jury received no instruction as to how the appellant could be convicted of simple assault, based on the evidence they had heard.

[27] The following morning, the jury returned verdicts of not guilty of sexual assault and guilty of the other two counts.

III. Submissions

[28] The appellant submits that a reasonable jury, properly instructed, could not have acquitted him of sexual assault while at the same time convicting him of sexual interference and invitation to sexual touching. This jury was properly instructed. The inconsistent verdicts indicate that the jury was either confused or made some kind of unjustifiable compromise: see R. v. McShannock, [1980] O.J. No. 1289, 55 C.C.C. (2d) 53 (C.A.), at p. 56 C.C.C. The jury's verdicts are patently inconsistent, cannot stand together and his convictions must be quashed.

[29] The appellant explains that the inconsistency is more than an inconvenient conflict, which can be glossed over by speculation about what the jury must have been thinking. Leaving the guilty verdicts standing in the face of an acquittal for the same offence, committed in the same way, against the same complainant, is inconsistent with the principle that a not guilty verdict is a declaration of innocence: R. v. Grdic, [1985] 1 S.C.R. 810, [1985] S.C.J. No. 41, at p. 825 S.C.R. On the facts of this case, directing a retrial on sexual interference and invitation to sexual touching, in the face of the acquittal of sexual assault, would inevitably raise a defence of autrefois acquit or issue estoppel. The appellant relies on what he describes as "authoritative obiter " in the Supreme Court's decision in F. (J.), which was applied by this court in Walia.

[30] As I have noted, the Crown's submission is that the facially inconsistent verdicts can be explained by the trial judge's instructions which, it claims, probably confused the jury, leaving them with the impression that the "force" required for sexual assault is different from the "touching" required for sexual interference. The Crown submits that the jury's confusion was likely compounded by the trial judge's legal error in leaving simple assault as an available verdict, which reinforced their understanding that sexual assault required the use of force in the layperson's sense.

[31] The Crown submits that the Supreme Court's pronouncements in F. (J.) were obiter dicta. In any event, it says those statements are inconsistent with the Supreme Court's decisions in Pittiman and R. v. Koury, [1964] S.C.R. 212, [1964] S.C.J. No. 2, and should not be followed. In particular, it says that Koury stands for the proposition that the Crown does not have to appeal against an acquittal to resist an inconsistent verdict argument, because the appellate court will necessarily review the proceedings below.

IV. Issues

[32] I would describe the issues as follows:

(1) Is F. (J.) binding authority or is it obiter dicta and inconsistent with previous decisions of the Supreme Court, including Pittiman and Koury?

(2) What is the authority, if any, of previous decisions of this court that have not followed F. (J.)?

(3) What is the appropriate disposition of this appeal in light of the determination of the foregoing?

V. Analysis

(1) Inconsistent verdicts

[37] When a jury delivers inconsistent verdicts -- for example, simultaneously convicts and acquits an accused for the same act, committed against the same person, in the same circumstances -- the legitimacy of its verdicts is called into question.

[38] There are two reasons. First, where verdicts are genuinely inconsistent as described above, it appears the jury has simultaneously declared that the accused did and did not commit the same criminal act. Grdic tells us that for the purposes of subsequent criminal proceedings, a not guilty verdict is equivalent to a declaration of legal innocence. But a guilty verdict that is inconsistent with a not guilty verdict casts doubt on that declaration. Such a contradictory result is "manifestly improper and contrary to accepted standards of what is fair and right": R. v. Sweetman, [1939] O.R. 131, [1939] O.J. No. 455 (C.A.), at p. 138 O.R.; see, also, R. v. Peda, [1969] 1 O.R. 90, [1968] O.J. No. 1278 (C.A.), at p. 105 O.R. (per Laskin J.A., dissenting).

[39] Second, a jury that renders genuinely inconsistent verdicts as described above, necessarily acts unreasonably. This is because, as the jurisprudence shows, there are only a few ways in which a jury can reach genuinely inconsistent verdicts in the case of a single accused charged with multiple offences, and "all of them entail a violation of the court's instructions": Eric L. Muller, "The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts" (1998), 111 Harv. L. Rev. 771, at pp. 777-78, 781-86.

[40] One possibility is that the jury rendered inconsistent verdicts because they misunderstood the evidence or the trial judge's instructions. The possibility of confusion regarding the evidence is well-recognized: see, e.g., McShannock, at p. 56 C.C.C. This court has also recognized that inconsistent verdicts can result from the jury misunderstanding its instructions: R. v. Catton, [2015] O.J. No. 184, 2015 ONCA 13, 319 C.C.C. (3d) 99, at para. 29; see, also, R. v. Brady, [2017] N.S.J. No. 185, 2017 NSCA 41, 349 C.C.C. (3d) 216, at paras. 42, 48.

[41] A second possibility is that the jury rendered inconsistent verdicts as a compromise. A jury returns a compromise verdict when, after reaching a deadlock (finding itself unable to achieve unanimity for either not guilty or guilty on each of the counts before it), it splits the difference and obtains unanimous support for some negotiated mix of not guilty and guilty verdicts, contrary to its instructions that the verdict on each count must be the unanimous opinion of the whole jury and that an accused may only be convicted if his guilt is proven beyond a reasonable doubt. The possibility of unjustifiable compromise is well-recognized: McShannock, at p. 56 C.C.C.; and Catton, at para. 29.

[42] A third possibility is nullification -- the rare situation where a jury knowingly chooses not to apply the law and acquits an accused regardless of the strength of the evidence against him: R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, at paras. 57-70; R. v. Morgentaler, [1988] 1 S.C.R. 30, [1998] S.C.J. No. 1, at pp. 78-79 S.C.R. Nullification may produce inconsistent verdicts where, for example, the jury convicts on one or multiple counts in an indictment, but refuses to convict on another count because it believes an additional conviction would be excessive. A jury that exercises its power to nullify violates the trial judge's instructions that it "must return a verdict of guilty" if it is satisfied that all the elements of an offence have been proven beyond a reasonable doubt.

[43] The jury is presumed to act reasonably and follow the trial judge's instructions: R. v. Corbett, [1988] 1 S.C.R. 670, [1988] S.C.J. No. 40, at pp. 692-93, 695 S.C.R.; R. v. Beaudry, [2007] 1 S.C.R. 190, [2007] S.C.J. No. 5, 2007 SCC 5, at para. 92 (per Fish J., dissenting); R. v. Pannu (2015), 127 O.R. (3d) 545, [2015] O.J. No. 5191, 2015 ONCA 677, at paras. 61, 98, leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 478 and [2015] S.C.C.A. No. 498; and R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33, at para. 177. A jury that renders genuinely inconsistent verdicts, and thereby fails to follow its instructions, acts unreasonably. Guilty verdicts produced by juries acting unreasonably are themselves unreasonable. Unreasonable guilty 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.

(2) Rights of appeal of inconsistent verdicts

[44] Different appeal rights are accorded to a convicted person and the Crown. A person convicted by indictment may appeal against his or her conviction (i) on any ground of appeal that involves a question of law alone; (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave; and (iii) on any other ground, with leave: Criminal Code, s. 675(1)(a). Section 686(1)(a) of the Criminal Code provides that a convicted person may have his or her conviction set aside (i) on the basis that the verdict is unreasonable or cannot be supported by the evidence; (ii) on the basis of an error of law; or (iii) on the basis that there was a miscarriage of justice. Where an appellate court allows an appeal under s. 686(1)(a), the court must quash the conviction and either direct a judgment or verdict of acquittal to be entered, or order a new trial: s. 686(2).

[45] In Pittiman, Charron J. explained that an appellate court's jurisdiction to set aside a guilty verdict on the ground of inconsistency is under s. 686(1)(a)(i): unreasonable verdict. She stated, at para. 6:

A court of appeal's power to set aside a verdict of guilt on the ground that it is inconsistent is found under s. 686(1)(a)(i) of the Criminal Code which provides 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" (emphasis added). This Court has the power to make the same order under s. 695(1). Hence, before an appellate court may interfere with a verdict on the ground that it is inconsistent, the court must find that the verdict is unreasonable. The appellant bears the onus to show that no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion: R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.).

(Underline and italics in original)

[46] In Catton, discussed below, Doherty J.A. explained that inconsistent verdicts are a "subspecies of unreasonable verdicts": para. 21. He continued (at para. 21):

If a trier of fact returns a conviction on one count (or against one accused), and an acquittal on another count (or against a co-accused), the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56; Pittiman, at paras. 7-8.

[47] The Crown's right of appeal is much more limited. The Crown may only appeal from an acquittal on "any ground of appeal that involves a question of law alone": Criminal Code, s. 676(1)(a); see, also, R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 4. The court may dismiss the appeal or allow the appeal, set aside the verdict and either order a new trial or, "except where the verdict is that of a court composed of a judge and jury", enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law: Criminal Code, s. 686(4).

[48] The statutory provisions were explained in R. v. Riesberry (2014), 122 O.R. (3d) 594, [2014] O.J. No. 5094, 2014 ONCA 744, at para. 36, affd [2015] 3 S.C.R. 1167, [2015] S.C.J. No. 103, 2015 SCC 65:

To obtain an order setting aside an acquittal and directing a new trial, the Crown must demonstrate that the trial judge committed an error of law, and that the outcome of the trial might reasonably have been different if the error of law had not occurred (R. v. Graveline, 2006 SCC 16 at paras. 14-16).

[49] As I will explain, judicial aversion to inconsistent verdicts, and the limitations on the Crown's right of appeal from not guilty verdicts, are at the centre of the Supreme Court's reasons in F. (J.). So, too, is the law with respect to the significance of a not guilty verdict.

(3) The significance of a not guilty verdict

[50] A not guilty verdict is the equivalent of a declaration of legal innocence for the purposes of subsequent criminal proceedings. This principle was authoritatively stated in Grdic, at p. 825 S.C.R.:

There are not different kinds of acquittals and, on that point, I share the view that "as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence" . . . To reach behind the acquittal, to qualify it, is in effect to introduce the verdict of "not proven", which is not, has never been, and should not be part of our law.

[51] In R. v. Arp, [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, the Supreme Court confirmed that "[t]he principle enunciated in Grdic is fundamental to our system of justice": para. 78. This court has repeatedly endorsed that principle: see, e.g., R. v. G. (K.R.) (1991), 5 O.R. (3d) 406, [1991] O.J. No. 1858 (C.A.), at p. 409 O.R.; R. v. Verney, [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.), at pp. 371, 373-74 C.C.C.; R. v. Akins (2002), 59 O.R. (3d) 546, [2002] O.J. No. 1885 (C.A.), at paras. 16-17; R. v. Mahalingan (2006), 80 O.R. (3d) 35, [2006] O.J. No. 1619 (C.A.), at paras. 52-53, affd [2008] 3 S.C.R. 316, [2008] S.C.J. No. 64, 2008 SCC 63; and R. v. Omar, [2018] O.J. No. 3528, 2018 ONCA 599, at para. 16, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 398.

[52] The principle expressed in Grdic has important consequences, which were explained by the Supreme Court in Mahalingan. The majority confirmed the application of issue estoppel in criminal proceedings -- namely, that the Crown is estopped from leading evidence that is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused's favour, or resolved on the basis of reasonable doubt: see para. 26.

[53] Chief Justice McLachlin, who authored the majority reasons, explained that issue estoppel serves the interests of justice in several ways. First, as a matter of fairness to accused persons, it prevents relitigation of issues of law or fact decided in favour of the accused (para. 39):

In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata.

[54] Second, issue estoppel preserves the integrity of the criminal process: para. 45. Finally, it preserves the institutional values of judicial finality and economy, which are essential to public confidence in the judicial system: para. 46.

[55] Some of these principles were also expressed by Fish J., in F. (J.), discussed below, which was decided two weeks earlier.

(4) Inconsistent verdict jurisprudence

(a) McShannock, Pittiman and F. (J.)

[56] I begin this analysis with the leading decision in this court, McShannock, relied on by both parties. I will then consider the decisions of the Supreme Court in Pittiman and F. (J.).

[57] In McShannock, the appellant was charged with unlawful confinement and indecent assault of a hitchhiker. The complainant testified that she had been able to escape after the assault by jumping out of the appellant's car. The appellant claimed that he had paid the complainant for sex and when she demanded more money he pushed her out of the car. When it became apparent that the jury was having difficulty reaching a decision, the trial judge instructed them that it was open to them to find the appellant guilty of simple assault because he had allegedly pushed her out of the car. This was clearly not the assault referred to in the indictment. The jury found the appellant guilty of unlawful confinement and not guilty of indecent assault, but guilty of simple assault.

[58] Justice Martin, who delivered the judgment of this court, accepted the appellant's submission that the underlying facts of the allegations of indecent assault and unlawful confinement were so inextricably bound together that the two verdicts could not be reconciled on any rational basis. He described the nature of the court's inquiry on an inconsistent verdict appeal, at pp. 55-56 C.C.C.:

Where an indictment contains more than one count and the jury convicts on one count and acquits on another count an inconsistency in the verdicts does not of necessity require the conviction to be set aside. The onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict. We think that onus on the peculiar facts of this case has been discharged. Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise. We would, on the ground that the verdict is unreasonable alone, allow the appeal, set aside the verdict, and direct an acquittal to be entered.

(Emphasis added)

[59] Thus described, the test is partially objective: the verdicts must be "so at odds" that no reasonable jury could have returned them on the evidence.

[60] McShannock was approved by the Supreme Court in Pittiman. The appellant was jointly charged, together with two co-accused, of sexually assaulting a 14-year-old girl. The appellant was convicted but his co-accused were acquitted. He appealed his conviction on the ground that it was inconsistent with the acquittals of his two co-accused and therefore unreasonable. The Supreme Court dismissed the appeal, affirming the reasoning of this court that the greater strength of the Crown's case against the appellant provided a rational basis for the jury's verdicts.

[61] Justice Charron, who gave the decision of the court, observed as follows, at para. 7:

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very 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. Indeed, individual members of the jury need not take the same view of the evidence so long as the ultimate verdict is unanimous. Similarly, the jury is not bound by the theories advanced by either the Crown or the defence. The question is whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge.

(Emphasis added)

[62] As I will explain, I do not read the emphasized words as suggesting that inconsistent verdicts can be reconciled, in the absence of a Crown appeal against the acquittal, on the basis that the trial judge's instructions, while otherwise legally correct, may have confused the jury. Indeed, these words were immediately followed by a reference to the statement of Martin J.A. in McShannock at p. 56 C.C.C., quoted above, that focuses the inquiry on the evidence. Three paragraphs later, at para. 10, Charron J. observed: "The test remains the same in each case: Are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence" (emphasis added)?

[63] Justice Charron added, at para. 8, that in a case like this, of a single accused charged with multiple offences:

[D]ifferent verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses. The strength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on the other. On the other hand, when the evidence on one count is so wound up with the evidence on the other that it is not logically separable, inconsistent verdicts may be held to be unreasonable: e.g., see R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549 (Ont. C.A.).

[64] The verdicts in Pittiman could be explained and reconciled because the evidence against the appellant, who played a dominant role in the events, was stronger than it was against the co-accused.

[65] Justice Charron took issue with the conclusion in the dissenting reasons of Borins J.A. in this court that because the verdicts were inconsistent, the appellant should be acquitted. She observed, at para. 14, that "where the verdict is found to be unreasonable on the basis of inconsistency of verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will usually be a new trial" (emphasis added).

[66] Relying on, among other things, this statement by Charron J., the Crown submits that the Supreme Court's decision in F. (J.) is inconsistent with Pittiman. I turn now to F. (J.).

[67] In F. (J.), Fish J., writing for the majority, began his reasons with an observation that could apply equally to the case before us (para. 1):

The respondent in this case was acquitted and convicted by the same jury at the same trial of the same offence committed in the same way against the same victim.

[68] The respondent had been convicted of manslaughter by criminal negligence in relation to the death of his wife's foster child. He was acquitted of a charge of manslaughter by failing to provide the necessaries of life. This court found the verdicts inconsistent and incapable of being reconciled. It overturned the conviction and ordered a new trial on the charge of manslaughter by criminal negligence. The Crown appealed on the issue of inconsistent verdicts and the accused cross-appealed the order for a new trial, arguing that an acquittal should have been entered. The Supreme Court, Deschamps J. dissenting, dismissed the Crown's appeal and allowed the respondent's cross-appeal, entering an acquittal on the charge of manslaughter by criminal negligence.

[69] It was beyond dispute that the actus reus and the fault element were essentially common to both counts, as was the theory of the Crown. As Fish J. put it, the jury acquitted the respondent of one count of manslaughter by omission and convicted him on another count alleging the same omission and with similar fault requirements: para. 4. If anything, the fault requirement for the count on which the respondent was convicted was more serious than the count on which he was acquitted. There was no reasonable basis on which the jury could have acquitted him on one count and convicted him on the other.

[70] The Crown attempted to explain the apparently inconsistent verdicts in two ways. First, on the basis of what it referred to as "operative statutory distinctions" between the predicate offences, criminal negligence and failure to provide the necessaries of life: para. 18.

[71] Justice Fish rejected this submission, which had not been raised at trial, as abstract: paras. 5, 20, 27-35. He found that on the facts of the case, if there was a difference between the two offences, it could not have affected the outcome.

[72] Second, the Crown argued that the conviction could be reconciled with the acquittal on the basis of a legal error in the trial judge's instructions on the "failure to provide" count -- an instruction to which the trial Crown made no objection. The Crown asserted that the trial judge instructed the jury to apply a test of "likelihood of harm", rather than "risk of harm", which the Crown acknowledged was the proper test on both counts: para. 22.

[73] Justice Fish rejected this proposition, concluding that the trial judge had not misdirected the jury: paras. 21, 24-25. While the relationship between "risk", "endangers" and "is likely to" could have been "more felicitously explained", the jury was not likely to have been misled by the instruction: para. 24. He further noted that the Crown had not appealed the acquittal and that it had acquiesced in the instruction it sought to impugn. He explained, at para. 21:

[R]eading the judge's charge as a whole, I am not persuaded that he misdirected the jury with respect to the count on which the respondent was acquitted. In any event, as a matter of legal process and the legitimacy of verdicts, I would decline to uphold the respondent's conviction on the ground that it can be reconciled with his acquittal on another count of the same indictment on the basis of a legal error at trial.

(Emphasis in original)

[74] In language that has become central to this appeal, Fish J. observed, at para. 23:

As I have already made plain, I would not allow the appeal on the basis of what the Crown characterizes as an erroneous instruction in law. On an allegation by the Crown that the trial judge erred in this regard, the appropriate recourse would have been for the Crown to appeal the acquittal and not for this Court to uphold the conviction on another count. This is particularly true where, as mentioned earlier, Crown counsel expressly acquiesced in the instruction now said to be erroneous. Finally, verdicts are deemed inconsistent -- and therefore unreasonable as a matter of law -- if no properly instructed jury could reasonably have returned them both: R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9. Improper instructions do not make improper verdicts proper. Nor do they make inconsistent verdicts consistent.

(Underline added)

[75] Later in his reasons, Fish J. explained why it was necessary for the Crown to appeal the acquittal, at paras. 40-41:

Here, the respondent was found not to have committed manslaughter by failing to provide the necessaries of life. His conviction of manslaughter by criminal negligence could only be supported on a new trial upon a finding, contrary to the jury's conclusion in this case, that the respondent did in fact fail in his duty to protect his child, the "necessar[y] of life" that was the factual foundation and the gravamen of both counts.

The respondent's acquittal was not appealed. To order a new trial in these circumstances would deprive the respondent of the benefit of that acquittal, now final, and expose him on the new trial to a finding that he did in fact commit the offence of which he was acquitted, definitively, by the jury in this case.

(Emphasis added)

[76] To summarize, Fish J. made four points at paras. 21, 23 and 41 of his reasons:

• if the Crown wants to respond to an inconsistent verdict argument by asserting that the acquittal was the result of a legal error in the instructions for that offence, it must appeal the acquittal;

• if the Crown fails to appeal the acquittal, and cannot otherwise reconcile the verdicts, they remain inconsistent because the inconsistency cannot be cured simply by asserting error of law in the acquittal;

• the inconsistent verdict analysis is partially objective -- it asks whether, assuming it was properly instructed, a reasonable jury could have rendered the verdicts based on the evidence before it; and

• the preeminent policy considerations underlying the inconsistent verdict analysis are "legal process" and "the legitimacy of verdicts".

[77] The partially objective nature of the inconsistent verdict analysis, as described by Fish J., is consistent with the general test for unreasonable verdicts articulated by the Supreme Court. In R. v. Corbett, [1975] 2 S.C.R. 275, [1973] S.C.J. No. 157, at p. 282 S.C.R., the court said the question is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered": see, also, R. v. Yebes, [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, at p. 185 S.C.R.; R. v. Biniaris, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 2000 SCC 15, at paras. 36, 42; and R. v. Villaroman, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33, 2016 SCC 33, at para. 55. The court does not ask whether the jury was properly instructed in fact. Rather, the question is whether a hypothetical, properly instructed jury could reasonably have returned the verdict(s) it did. The same is true of the test for inconsistent verdicts, which are, after all, a subspecies of unreasonable verdict.

[78] I will discuss the policy considerations identified by Fish J. in more detail below.

(b) The jurisprudential status of F. (J.)

[79] The Crown makes two principal submissions challenging the jurisprudential status of F. (J.). First, it says that F. (J.) is inconsistent with the decisions of the Supreme Court in Pittiman and in Koury. Second, it says the pronouncements of Fish J. are obiter dicta and should not be followed.

[80] I do not agree.

[81] In my view, F. (J.) is consistent with Pittiman. It would be surprising if it were not, given that Pittiman was decided only two years earlier and was authored by Charron J., who participated in the majority judgment in F. (J.). Moreover, Pittiman was specifically referenced by Fish J. at para. 23 of his reasons, and Fish J. stated, at para. 14: "Nothing in these reasons is meant to modify in any way . . . the rule against inconsistent verdicts."

[82] The Crown submits that Koury stands for the proposition that the Crown need not appeal the inconsistent acquittal in order to resist the appellant's conviction appeal because the appellate court will necessarily review the record of the proceedings below, including the evidence and the trial judge's instructions to the jury. It submits that if the record demonstrates the conviction is sound, the appropriate remedy is to uphold the conviction, even in the face of the inconsistency, absent a miscarriage of justice. The Crown harkens to the observation of Charron J. in Pittiman that the appropriate remedy will "usually" be a new trial.

[83] Koury was a case in which the court could explain apparently inconsistent verdicts by examining the record, including the evidence and the arguments of counsel. This explained why the appellant could be acquitted of conspiracy to commit fraud while being convicted of fraud -- because the jury could have accepted his evidence that he had withdrawn from any association with his co-accused before they hatched their plan: pp. 216, 220 S.C.R. On the evidence, his acquittal on the conspiracy count was not at odds with his fraud conviction.

[84] Similarly, in Pittiman, the court was able to examine the evidence to demonstrate that the jury could have acquitted the co-accused because the evidence against them was not as strong as it was against the appellant; this notwithstanding that the complainant had testified that all the accused had participated in the attacks. As Doherty J.A. explained in Catton, and as I will discuss below, while Pittiman contemplates that a new trial will be ordered in most cases, it cannot be ordered where doing so would "invite a repetition of the very inconsistency that led to the quashing of the conviction" found to be inconsistent with the acquittal: Catton, at para. 25.

[85] The examination of the record mandated by Pittiman and Koury requires the court to consider not only the evidence and the positions of counsel, but also the legal ingredients of the offences in question and the trial judge's instructions to the jury. The purpose of that examination is to determine whether the facially inconsistent verdicts could be the result of differences in the elements of the offences, differences in the evidence on the various counts, differences in the evidence as against co-accused, or differences in the way in which the case was argued. If, at the end of that examination, the verdicts remain "violently at odds", then the conviction will be quashed. But the onus is on the appellant to show that "no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion": Pittiman, at para. 6.

[86] If, on the other hand, the examination indicates that factual issues were necessarily resolved by the jury's verdict of acquittal, whether on the basis of reasonable doubt or on the evidence, those findings would give rise to a claim of issue estoppel at a subsequent trial and ordering a new trial would be pointless: see Catton, at para. 27. In both Pittiman and Koury, the verdicts were not violently at odds.

[87] I do not read anything in the reasons of Charron J. in Pittiman as suggesting that, in the absence of a Crown appeal against the acquittal, inconsistent verdicts can be reconciled by incorrect jury instructions giving rise to an acquittal. Nor do I read Koury as undermining F. (J.).

[88] I turn now to the Crown's submission that paras. 21, 23 and 41 of F. (J.) were obiter dicta, because Fish J. had already concluded that the trial judge's instructions were correct.

[89] In R. v. Prokofiew (2010), 100 O.R. (3d) 401, [2010] O.J. No. 2498, 2010 ONCA 423, affd [2012] 2 S.C.R. 639, [2012] S.C.J. No. 49, 2012 SCC 49, Doherty J.A. suggested that appellate courts should be cautious about characterizing the Supreme Court's obiter dicta as non-binding and declining to follow it. He said that courts should begin with the premise that all obiter dicta from the Supreme Court should be followed "and to move away from that premise only where a reading of the relevant judgment provides a cogent reason for not applying that obiter": para. 21. Obiter that is integral to the result or the analysis is binding. Obiter that is incidental or collateral to the analysis is not binding, although it will remain persuasive: para. 20. Obiter that is clearly intended for guidance should be accepted as authoritative: para. 18, quoting R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, at para. 57.

[90] One reason not to follow obiter would be its inconsistency with previous Supreme Court decisions. That was the route adopted by Doherty J.A. in Prokofiew, a route to which the Supreme Court did not take objection on the appeal.

[91] In my view, while the observations of Fish J. were not integral to the result in F. (J.), they were plainly intended as guidance to appellate courts. They have solid jurisprudential foundations and are grounded in principle.

[92] To repeat, Fish J. wrote at para. 21 of F. (J.):

[A]s a matter of legal process and the legitimacy of verdicts, I would decline to uphold the respondent's conviction on the ground that it can be reconciled with his acquittal on another count of the same indictment on the basis of a legal error at trial.

(Emphasis in original)

[93] Justice Fish's reference to "legal process and the legitimacy of verdicts" must be understood as a whole and in context. In F. (J.), they were related. The reference to "legal process" was, I believe, related to the rights of appeal described above. As I have explained, when a person convicted by indictment appeals on the basis of inconsistency, the court has the power to set aside the guilty verdict because it is "unreasonable" under s. 686(1)(a)(i), not because of an error of law. In contrast, if the appeal is brought on the basis of misdirection, the court's power to set aside the guilty verdict is provided by s. 686(1)(a)(ii): error of law. This is because misdirection constitutes an error of law: R. v. Elkins (1995), 26 O.R. (3d) 161, [1995] O.J. No. 3228 (C.A.), at p. 170 O.R., leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 62; R. v. Figueroa, [2008] O.J. No. 517, 2008 ONCA 106, 232 C.C.C. (3d) 51, at para. 51; R. v. Bouchard, [2013] O.J. No. 5987, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 4, 71, affd [2014] 3 S.C.R. 283, [2014] S.C.J. No. 64, 2014 SCC 64; and Barton, at para. 54. Error of law and unreasonable verdict are separate grounds for allowing an appeal. Therefore, misdirection (an error of law) is not a basis for finding a verdict to be unreasonable.

[94] In contrast, the Crown may only appeal an acquittal on the basis of error of law. The Crown has no right to appeal an acquittal on the basis that it is unreasonable: Biniaris, at paras. 30-33; and R. v. Barros, [2011] 3 S.C.R. 368, [2011] S.C.J. No. 51, 2011 SCC 51, at para. 52.

[95] Since the appeal against conviction in F. (J.) was brought on the basis that the conviction was unreasonable, the question of whether the jury had been misdirected (i.e., whether the trial judge erred in law) was not at issue. That issue had to be raised either by the appellant as a separate ground of appeal, or by the Crown by way of an appeal against the acquittal. Because the Crown did not appeal the acquittal in F. (J.), its attempt to raise the issue of misdirection was procedurally improper. This is what I believe Fish J. was referring to when he used the phrase "legal process".

[96] The procedural impropriety of the Crown's argument also raised the policy concern of "the legitimacy of verdicts". As noted above, a not guilty verdict is equivalent to a declaration of legal innocence for the purposes of subsequent criminal proceedings. The only way to properly challenge such a declaration is through a formal Crown appeal. Otherwise, the acquittal, and its meaning, are final. The Crown was attempting to undermine the legitimacy of the not guilty verdict by an improper collateral attack, without going through the proper process to do so. If the Crown's argument had succeeded, the acquittal would have been left in place, but its meaning would have been undermined. If jury verdicts are to be respected and viewed as legitimate, their meaning must be clear.

[97] This explains the reluctance of this court in prior decisions to order a new trial where verdicts are genuinely inconsistent and the Crown has not appealed against the acquittal: see, e.g., R. v. Wong, [2006] O.J. No. 2209, 209 C.C.C. (3d) 520 (C.A.), at paras. 17-21; Catton, at paras. 25-27; R. v. Al-Kassem, [2015] O.J. No. 2330, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6; and Walia, at paras. 17-18. See, also, R. v. Tyhy, [2008] M.J. No. 180, 2008 MBQB 126, 229 Man. R. (2d) 64, at paras. 2-10, 44; and Brady, at paras. 50-56. Ordering a new trial would simply invite a repetition of the very inconsistency that led to the quashing of the conviction on appeal. While Pittiman states that where a conviction is quashed on the basis of inconsistency of verdicts, and the evidence supported the conviction, the appropriate remedy will usually be a new trial, this can only be ordered in "appropriate case[s]" where a claim of issue estoppel will not act as a bar to the new trial: F. (J.), at paras. 39-41.

[98] For these reasons, it is my view that Fish J.'s observations in F. (J.) were intended as guidance to appellate courts. The appellant points out that Fish J.'s use of italics in para. 21 suggests that he was making a point for appellate courts to follow. Justice Fish's observations are also consistent with the Supreme Court's jurisprudence, including Pittiman, on the subject of inconsistent verdicts, and with Mahalingan and R. v. Punko, [2012] 2 S.C.R. 396, [2012] S.C.J. No. 39, 2012 SCC 39, on the subject of issue estoppel. Finally, his observations are grounded in principles of fairness of the criminal trial process and respect for verdicts. In short, I agree with the appellant that Fish J.'s observations should be treated as "authoritative obiter" and ought to be followed.

[99] I turn now to an examination of the post-F. (J.) jurisprudence in this court and others.

(c) Cases subsequent to F. (J.)

[100] It is fair to say that F. (J.) has received inconsistent treatment in this court and in other provincial appellate courts. Some cases have expressly followed it, some have distinguished it, and still others have not mentioned it, while citing Pittiman. I will review the different strands of authority, beginning with the cases that have expressly applied F. (J.).

[101] Catton is a good example of the consequence of finding inconsistent verdicts, even though the inconsistency might have been capable of explanation. There, one of the appellants was convicted of dangerous driving causing death but acquitted of dangerous driving causing bodily harm, in connection with a collision with a motorcycle in which the driver of the motorcycle suffered minor injuries and the passenger suffered very serious injuries to which she ultimately succumbed. The evidence on the two counts was the same and there was no basis on which the conviction on the one count and the acquittal on the other could be reconciled. There was some reason to question the acquittal, because the court record contained a verdict sheet, unsigned and undated, indicating that the jury had convicted the appellant of the included offence of dangerous driving on the dangerous driving causing bodily harm count. The court observed that this would remove any inconsistency between the verdicts, because the jury could have had reasonable doubt about whether the motorcycle driver's minor injuries amounted to bodily harm.

[102] Justice Doherty observed that one could say that the jury "probably" intended to deliver the verdicts recorded on the verdict sheet, but the verdict delivered in open court was an unqualified finding of not guilty on the second count and the appeal had to be considered on that basis: paras. 19-20. On that basis, the verdicts were irreconcilable and the conviction had to be quashed.

[103] Justice Doherty then considered the consequences of the finding of inconsistency. Following F. (J.), and based on the principles of issue estoppel set out in Mahalingan and Punko, he concluded that a new trial could not be ordered and that an acquittal was required. He explained his reasoning, at paras. 25-26:

When an appeal court determines that a conviction is unreasonable because it is inconsistent with an acquittal returned by the same trier of fact, the appeal court may order a new trial or enter an acquittal: Criminal Code, s. 686(2). Pittiman at para. 14 instructs that in most cases the appeal court will order a new trial. In some circumstances, however, an acquittal is the appropriate order: see R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215 at paras. 38-42. Like the court in J.F., I think an acquittal is the appropriate order in this circumstance. The appellant stands acquitted on count two. That acquittal was not appealed. Nor do I suggest that the Crown had any grounds upon which to appeal that acquittal. If this court ordered a new trial on count one, it would invite a repetition of the very inconsistency that led to the quashing of the conviction on count one on this appeal.

The recent jurisprudence in the Supreme Court of Canada explaining the application of issue estoppel in criminal proceedings demonstrates that an acquittal is the appropriate order in this case . . . [Citing Mahalingan and Punko].

(Underline added)

[104] In Al-Kassem, the appellant was convicted of criminal negligence causing death but acquitted of dangerous driving causing death, both charges arising from the same conduct. On appeal, this court found the verdicts were "necessarily inconsistent" and allowed the appeal against conviction: para. 1. There was no logical basis on which the jury could find that the elements of criminal negligence ("marked and substantial departure") were present, but that the "marked departure" element of dangerous driving was not: para. 4. This court declined to order a new trial, citing Catton and F. (J.), at para. 6 of the reasons:

By acquitting the appellant of dangerous driving causing death, the jury was not satisfied to the necessary standard that the appellant's driving constituted a marked departure from the norm expected of a reasonable driver, and he is entitled to the benefit of the jury acquittal on that count. The Crown has not appealed from that acquittal, nor is there any suggestion that there would be any basis for such an appeal. To order a new trial on the criminal negligence count would necessarily invite another inconsistent verdict. For this reason, as in R. v. Catton and R. v. J.F. 2008 SCC 60, [2008] 3 S.C.R. 215, an acquittal on the criminal negligence count is the appropriate remedy.

[105] In Walia, the appellant had hit another woman in the face with a glass, wounding her. She was charged with assault with a weapon (the glass), contrary to s. 267(a) of the Criminal Code and with aggravated assault by wounding, contrary to s. 268. She was found not guilty of assault with a weapon, but guilty of aggravated assault. She argued that the verdicts were inconsistent, rendering the conviction unreasonable. The court acknowledged that on the evidence at trial, a properly instructed jury could not have rendered both verdicts: para. 12. The court rejected the Crown's submission that the verdicts were reconcilable due to an instruction that was "favourable" to the appellant, noting at para. 15: "There is no benefit to speculating about how the jury came to its inconsistent verdicts, whether by way of unprincipled compromise or in response to the flawed instructions." Referring to the observation of Fish J. in F. (J.), at para. 23, that "[i]mproper instructions do not make improper verdicts proper", the court allowed the appeal and declined to order a new trial, the Crown not having appealed the acquittal on the assault with a weapon charge: paras. 16-17.

[106] The decision of the Court of Appeal of Alberta in R. v. Seufert, [2015] A.J. No. 971, 2015 ABCA 285, 609 A.R. 9, provides an illustration of the application of F. (J.) and Punko in the context of an appeal from convictions of sexual interference and invitation to sexual touching in the face of an acquittal of sexual assault -- an acquittal not appealed by the Crown. The trial judge gave a confusing answer to a question from the jury, which asked whether a finding of guilt on one count required the same verdict on all. Notwithstanding that the trial judge and counsel had agreed that the counts of sexual assault and sexual interference were the same delict, the trial judge failed to explain that to the jury.

[107] The Crown conceded that the elements of sexual interference had been decided in the appellant's favour by the acquittal of sexual assault. Since the Crown had not appealed the acquittal, a new trial could not be ordered, having regard to the principles of issue estoppel set out in Punko. Accordingly, the majority set aside the conviction of sexual interference and entered an acquittal in its stead. In the face of the Crown's concession that the trial judge's errors had an impact on the jury's reasoning, the Court of Appeal set aside the conviction on the third count, invitation to sexual touching, but ordered a new trial. Although the factual distinctions between the counts are not fully explained in the reasons, it appears that the evidence in relation to this count may have been distinct from the other two counts. That is, there was evidence of acts of invitation to sexual touching that did not amount to sexual assault or sexual interference. Justice O'Ferrall, in dissent, would not have set aside the guilty verdicts because, in his view, while inconsistent with the acquittal, they were not unreasonable.

[108] The other strand in the jurisprudence includes cases that have either mentioned F. (J.) without following it, or have followed Pittiman without any reference to F. (J.).

[109] The discussion begins with the decision of this court in L. (S.), a case that falls into the former category and bears some similarity to this case. The appellant was charged with sexual assault, sexual interference and invitation to sexual touching of a child, age 15. The sexual interference charge was particularized as touching the complainant with his penis. The invitation to sexual touching was particularized as inviting the complainant to touch his penis. The complainant asserted she fellated the appellant at his request and that he had intercourse with her. Forensic testing found the appellant's DNA on the inside crotch of the complainant's pants.

[110] The appellant was convicted of sexual interference but acquitted of the other two counts. The appellant asserted that the conviction was inconsistent with his acquittal of offences that had the same elements, given the complainant's age, and that it was, therefore, unreasonable. The Crown did not appeal the acquittals.

[111] The trial judge's instructions to the jury were similar to the instructions in this case, but arguably not as explicit on the definition of "force". With respect to the meaning of "force" in the sexual assault context, the trial judge said: "The force applied may be violent, or even gentle. To be an assault, however, [S.L.] must apply the force intentionally. An accidental touching is not an intentional application of force": para. 39. With respect to sexual interference, she instructed the jury that "[f]orce is not required": para. 37.

[112] The Crown argued that the verdicts could be reconciled because the jury was told to consider each count separately and because the jury was told that sexual assault required the application of "force", but that sexual interference simply required intentional "touching" and not the use of force.

[113] This court accepted the Crown's submissions and dismissed the appeal. The sexual interference conviction and the acquittal of invitation to sexual touching could be reconciled on the basis that the jury did not accept all of the complainant's evidence -- it could have been satisfied that sexual activity had occurred, but had reasonable doubt about whether the appellant had asked the complainant to fellate him: para. 34.

[114] The sexual interference conviction could be reconciled with the acquittal of sexual assault because the jury was told that sexual interference required an intentional touching but no use of force. In contrast, "the jury was told numerous times that sexual assault required the application of force": para. 36. These different instructions on whether touching or the application of force was required enabled the court to reconcile the seemingly inconsistent verdicts.

[115] The court noted that counsel in the court below had not objected to the trial judge's instructions and it was not argued in this court that the instructions were incorrect in law: para. 41. Although the jury instructions were "proper" and "legally correct", they "were not as complete as they could have been": paras. 41, 43 (emphasis added). The court elaborated, at para. 43:

The jury was given correct instructions on sexual interference juxtaposed with correct instructions on sexual assault. Placing the components of these two offences side by side created a contrast between the former's "touch" requirement and the latter's "force" requirement. More complete instructions could have explained the relationship between touch and force -- that force includes any touching . . . But the trial judge did not clearly tell the jury that the force component of sexual assault was satisfied if the appellant intentionally touched the complainant.

(Citation omitted)

[116] These instructions made it reasonable to infer "that the jury thought the application of force was required to convict on sexual assault but not required on sexual interference": para. 45. The verdicts were, therefore, not inconsistent. The verdict was a fair result, not an inexplicable one, and was supported not only by the complainant's evidence, but by the presence of the appellant's DNA in the inner crotch of the complainant's pants.

[117] While reference was made to F. (J.) early in the reasons, the court did not discuss the implications of that decision or the fact that the Crown had not appealed the acquittal.

[118] In R. v. Tyler, [2015] O.J. No. 4653, 2015 ONCA 599, this court followed a similar approach. The appellant was acquitted of sexual assault and convicted of two counts of invitation to sexual touching. He argued that the verdicts were inconsistent and the convictions should be set aside. It was common ground that if the complainant had done the acts that formed the basis of the invitations, the appellant's participation in those acts would have amounted to sexual assault: para. 5. Referring to Pittiman and to this court's decision in L. (S.), but without reference to F. (J.), the court dismissed the appeal. It observed that there was no necessary logical inconsistency between the convictions and the acquittal, because the jury could have concluded that the invitations occurred, but the sexual contact did not. However, the court concluded that this explanation was "unlikely": para. 9. Instead, the court explained that it was "more likely" that the jury did not understand that the appellant's participation in physical contact of a sexual nature with the complainant would amount to an assault, even if it resulted from the complainant complying with his invitation: para. 10. While the trial judge's legal instructions were "correct, so far as they went", a more complete instruction might have expanded the instances of conduct potentially forming the basis of a sexual assault conviction: paras. 11-12 (emphasis added). The error, if any, in the sexual assault acquittal did not undermine the convictions for invitation to sexual touching, which were supported by the evidence. There was no reason to believe that the verdict was the result of an unjustifiable compromise: para. 13.

[119] R. v. M. (K.D.), [2017] O.J. No. 3185, 2017 ONCA 510 is yet another case in which an appellant was acquitted of sexual assault, but convicted of sexual interference and invitation to sexual touching, notwithstanding legally correct instructions. Again, without reference to F. (J.), this court followed an approach similar to L. (S.) and the decision of the Court of Appeal of Alberta in R. v. Tremblay, [2016] A.J. No. 119, 2016 ABCA 30, 612 A.R. 147, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 200.

[120] The charges related to two different types of sexual acts allegedly involving the appellant and the complainant. These were referred to, respectively, as "ups" and "rubs": paras. 5-6. The sexual interference charge was particularized as the "rubs": para. 22. The invitation to sexual touching charge was particularized as the appellant requesting the "ups": paras. 31-32. However, the sexual assault charge was not particularized, and appears to have encompassed both the "ups" and the "rubs": paras. 18-19. Given the particularization of the charges, the complainant's evidence and the elements of the offences, if the appellant was guilty of sexual interference, he was necessarily guilty of sexual assault.

[121] Accordingly, the appellant argued the verdicts were inconsistent. The Crown again argued that the verdicts could be reconciled, given the way the jury was instructed. This court agreed with the Crown and dismissed the conviction appeal. In the instructions on sexual assault, the trial judge "emphasized the 'force' requirement throughout", and merely explained that "[t]he force applied may be violent, or even gentle": para. 19. In contrast, the trial judge said that "[f]orce is not required" for sexual interference: para. 23. This court concluded, at para. 25: "the reasonable inference from these instructions as a whole is that the jury understood that force was necessary to convict on sexual assault but not required to convict on sexual interference". The court found that, although the instruction was "legally correct", it did not adequately explain the force requirement: para. 28 (emphasis added). The inconsistent verdicts could be explained by the likelihood that the jury was confused.

[122] As I have emphasized above, in each of L. (S.), Tyler and M. (K.D.), this court found that the instructions on sexual assault were legally correct, but not as complete as they should have been. In each case, there was no Crown appeal of the sexual assault acquittal.

[123] Other provincial appellate courts have reconciled apparently inconsistent jury verdicts on the basis that legally correct instructions on the "force" component of sexual assault might have confused the jury and have upheld sexual interference convictions while leaving acquittals of sexual assault standing: see, e.g., Tremblay, at paras. 24-25; and R. v. C. (J.D.), [2018] N.S.J. No. 6, 2018 NSCA 5, at paras. 26, 52-53.

[124] This court's decision in R. v. Plein, [2018] O.J. No. 4688, 2018 ONCA 748, 365 C.C.C. (3d) 437, raises different considerations because it was an appeal from an allegedly inconsistent verdict in a judge-alone trial. The appellant was charged with failing to provide the necessaries of life (s. 215(1)(c)), criminal negligence causing death (s. 220) and unlawful act manslaughter (s. 236) in connection with the deaths of his mother and sister, who were under his care. He was found guilty of all three charges in the case of his mother's death, and in relation to his sister's death, he was found not guilty of manslaughter but guilty of the other two offences. He argued that the criminal negligence conviction in relation to his sister's death was inconsistent with his acquittal of manslaughter. The Crown conceded that the verdicts were inconsistent, but argued that the criminal negligence conviction should be upheld since the acquittal of manslaughter arose from a clear legal error and the criminal negligence conviction was reasonable and supported by the record.

[125] This court agreed, finding that the manslaughter acquittal arose from a "manifest legal error": para. 23. Justice Paciocco, speaking for the court, stated at para. 23: "In my view, the law does not require an otherwise unassailable conviction to be set aside in a judge alone trial because an inconsistent, demonstrably unsound acquittal has been entered on a functionally identical charge in the same proceedings."

[126] Justice Paciocco found that the charges of criminal negligence and unlawful act manslaughter were based on the same unlawful omission: para. 28. And the elements of the two offences, while articulated differently, were materially the same: para. 28. Close examination of the trial judge's reasons for judgment and the court record provided no rational or logical basis that could reconcile the verdicts: para. 31.

[127] But Paciocco J.A. held that while the verdicts could not be logically or rationally reconciled, the inconsistency could be explained by the reasons for judgment. The trial judge misunderstood and misapplied the law relating to manslaughter. He erred by assessing the mens rea for manslaughter subjectively rather than objectively and by importing a requirement of foreseeability of death, rather than foreseeability of the risk of bodily harm: paras. 32-37.

[128] Distinguishing the case from F. (J.), Paciocco J.A. observed, at para. 47:

To be sure, things would have been cleaner in this case had the acquittal been appealed and set aside. As things stand, if we uphold the criminal negligence causing death conviction there will be facially inconsistent verdicts recorded in Mr. Plein's case. In my view, however, the Crown does not have to appeal and set aside the acquittal in order to resist Mr. Plein's challenge to the reasonableness of his criminal negligence conviction. When an accused person asks to have an inconsistent conviction set aside, the reasons for that inconsistency are put in issue. As I see it, where, on an examination of those reasons, the acquittal shows itself to be defective, an appeal court must take the fact the acquittal is wrongful into account in deciding whether to grant the relief the appellant requests.

[129] He concluded, at para. 51:

Ultimately, it is not illogical or contrary to the interests of justice to uphold a demonstrably valid criminal negligence causing death conviction where there is a final but demonstrably wrongful acquittal registered after the same trial on a manslaughter charge that alleges the same essential offence. It would, however, be illogical, contrary to the interests of justice, and contrary to the appeal powers conferred by s. 686(1)(a)(i) to strike down that reasonable conviction because the trial judge happened to enter a wrongful manslaughter acquittal that was grounded on factual findings that are not inconsistent with the criminal negligence causing death conviction that Mr. Plein seeks to attack.

[130] I turn now to the case before us.

(5) Application to this case

[131] On 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. No properly instructed jury could reasonably have reached a different conclusion. This was demonstrated by the trial judge's review of the evidence and is illustrated by the following extract from the Crown's closing address:

He sexually assaulted her between the ages of 6 and 7 to 12 or 13 and in that he committed the offence of sexual assault, sexual interference. He had her touch him in a sexual manner and that he committed the offence of invitation to sexual touching.

[132] On any realistic view of the evidence, in light of the submissions of counsel and the trial judge's instructions, a properly instructed jury could only reasonably have acquitted the appellant of sexual assault if it had reasonable doubt that there was physical contact, even "gentle touching" of the complainant. However, that reasonable doubt would also require acquittal of sexual interference and, based on the evidence and submissions, of invitation to sexual touching.

[133] There is 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. The only questions are whether the allegedly "confusing" but otherwise legally correct jury instruction on sexual assault can explain the inconsistency, whether the Crown's proposed appeal of the acquittal can resolve the inconsistency and, if not, whether a new trial can be ordered in the face of the acquittal.

[134] In my view, the cause of the inconsistent verdicts in this case is a matter of pure speculation in light of the evidence, the positions of trial counsel and the trial judge's instructions. As this court said in Walia, "[t]here is no benefit to speculating about how the jury came to its inconsistent verdicts, whether by way of unprincipled compromise or in response to the flawed instructions": para. 15. Moreover, in the words of Fish J. in F. (J.), "[i]mproper instructions do not make improper verdicts proper": para. 23. The allegedly "confusing" instruction on sexual assault cannot reconcile the verdicts and, therefore, the convictions must be set aside.

[135] What, then, of the effect of the Crown appeal in this case? In my respectful view, an appeal of the acquittal of sexual assault cannot succeed. The trial judge gave a legally correct instruction. The jury was expressly told, twice, that any physical contact, even a gentle touch, could amount to the "force" necessary for sexual assault.

[136] Moreover, in her instruction on sexual assault, the trial judge repeatedly linked "force" with "touching", as the following excerpts demonstrate:

• "Force includes any physical contact with another person, even a gentle touch";

• "A sexual assault is any intentional application of force, any intentional physical contact with another person, even an intentional but gentle touching, which occurs in circumstances of a sexual nature so that the sexual integrity of [T.S.] is violated";

• "An intentional touching takes place in circumstances of a sexual nature, if you are satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen";

• "To decide whether the force was intentionally applied, including whether any intentional physical contact occurred in circumstances of a sexual nature, you should examine all the circumstances surrounding what [R.V.] is alleged to have done";

• "[R.V.]'s purpose in applying force or touching may also help you decide whether it was of a sexual nature"; and

• "[T.S.] testified that the incidents involved the following: her hand touching [R.V.]'s penis, his hand touching her breast area, his hand touching her vagina while she was wearing clothes, her pelvis touching his (once when she was clothed and he was not and once when he was clothed and she was not), and his hand touching her head and pushing it down to his penis."

(Emphasis added)

[137] In my view, the sexual assault instruction was not "so unnecessarily confusing that it constituted an error of law": R. v. Hebert, [1996] 2 S.C.R. 272, [1996] S.C.J. No. 65, at para. 8; and R. v. Pintar (1996), 30 O.R. (3d) 483, [1996] O.J. No. 3451 (C.A.), at p. 497 O.R.

[138] Moreover, the Crown reviewed the final draft of the charge during the pre-charge conference, and made no objection to the instruction now said to be erroneous. As Doherty J.A. wrote in Bouchard, at para. 38, "[w]hen the trial judge's instructions are consistent with the instructions worked out by counsel and the trial judge in the pre-charge conference, and counsel has no objections after the charge is delivered, it is an understatement to describe counsel's silence as merely 'a failure to object'"; see also F. (J.), at paras. 22-23; and Barton, at para. 150. This observation must apply with even greater force in the case of a Crown appeal.

[139] The Crown, therefore, cannot 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). Nor can it establish that leaving simple assault as an available verdict tainted the acquittal.

[140] Since the acquittal must stand, ordering a retrial on either of the other two counts would invite the jury to return a verdict inconsistent with the appellant's acquittal and would give rise to a claim of issue estoppel. This we cannot do.

[141] For these reasons, I would direct an acquittal to be entered on both counts.

(6) Authority of previous decisions

[142] I am unable to distinguish L. (S.), Tyler and M. (K.D.) in any satisfactory way from the Supreme Court's obiter dicta in F. (J.), which, as I have noted, have been applied in Catton, Al-Kassem and Walia. The convictions in the former cases were "violently at odds" with the acquittals for sexual assault and with the declarations of legal innocence flowing from those acquittals. Based, as they were, on legally correct instructions, it was speculative to conclude that the acquittals were the result of jury confusion and that the convictions were not. F. (J.) instructs us that, in the absence of a Crown appeal, fairness to the accused and public confidence in the integrity of jury verdicts require that the convictions be set aside and that a retrial inviting the same inconsistency is not an appropriate disposition.

[143] As I have explained, F. (J.) provides authoritative guidance and should be followed. To the extent that decisions of this court have failed to do so, they should not be followed.

[144] For the purposes of this appeal, it is unnecessary to determine whether Plein, and the decision of this court in R. v. Horner, [2018] O.J. No. 6917, 2018 ONCA 971, 370 C.C.C. (3d) 383, which followed Plein, should not be followed. Neither counsel substantively addressed the question of whether the same approach should apply to judge-alone trials. However, I would endorse the observation of Paciocco J.A. that in appeals based on inconsistent verdicts, the Crown should appeal an acquittal if it believes the acquittal is the product of an error of law.

[145] Nevertheless, I agree with the Crown that it need not appeal an acquittal in all cases in order for an appellate court to conduct an inconsistent verdict analysis. Even if it does not appeal the acquittal, it remains open to the Crown to resist an inconsistent verdict appeal by showing that the guilty verdicts are not unreasonable; for example, by showing that the verdicts can be reconciled on the basis that the offences are temporally distinct, or are qualitatively different, or are dependent on different evidence or the credibility of different complainants or witnesses: Pittiman, at para. 8.

VI. Concluding Observations

[146] This court has repeatedly stressed that trials -- all trials, whether judge-alone or judge and jury -- should be made less complicated, not more complicated. Proceeding with duplicative counts complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts. This is particularly so in cases of sexual assaults on children, as illustrated by this and other cases to which I have referred. Here, it was evident that if the jury was satisfied beyond a reasonable doubt that sexual touching occurred, the accused should be convicted of both sexual assault and sexual interference. In that event, one of those counts would have been stayed based on R. v. Kienapple, [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76: see, for example, R. v. Mair, [1998] O.J. No. 255, 122 C.C.C. (3d) 563 (C.A.), at para. 18; and R. v. M. (S.J.), [2009] O.J. No. 1130, 2009 ONCA 244, 247 O.A.C. 178, at paras. 8-10. Why was it necessary to proceed with both counts, when a stay of one was inevitable on conviction of both?

[147] Granted, there may be cases where the distinction between sexual assault and sexual interference makes a difference, for example: where the age of the complainant is an issue; where the difference between the mens rea requirements for the two offences may make a difference; or where the Crown has some uncertainty about how the evidence will ultimately unfold. This was not such a case. Where, as here, it is clear that one of the counts will necessarily be stayed in the event of a conviction of both, the Crown should consider, either before trial or before the jury is charged, whether to pursue both counts. The trial judge should canvass this issue with counsel during both the pre-trial and pre-charge conferences. Ultimately, however, it is up to the Crown to decide whether a charge in the indictment should go to the jury for a verdict: R. v. Rowe, [2011] O.J. No. 5382, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58.

[148] A related point is that trial judges have a responsibility to simplify jury instructions. Standard forms of instructions are useful guides, but as their authors note, they are just that. They are not one-size-fits-all: R. v. Yumnu, [2010] O.J. No. 4163, 2010 ONCA 637, 260 C.C.C. (3d) 421, at para. 372, affd [2012] 3 S.C.R. 777, [2012] S.C.J. No. 73, 2012 SCC 73; Rowe, at para. 62; and R. v. McDonald, [2015] O.J. No. 6058, 2015 ONCA 791, at para. 16. The language must be tailored to the facts and issues of the particular case.

[149] In this case, as in L. (S.) and others, the repeated use of the word "force" in the sexual assault instruction may well have been unnecessary 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. The word "touching" would have been sufficient. Accordingly, if, after canvassing the issue with counsel, the Crown insisted on proceeding with both the sexual assault and sexual interference counts, the trial judge should have taken a hard look at whether references to "force" in the sexual assault instructions could be replaced with references to "touching", so as to align the sexual assault instructions with the instructions on the other counts. Alternatively, the trial judge, after discussing with counsel, could have instructed the jury that if it acquitted the appellant of either sexual assault or sexual interference, it necessarily had to acquit him of both counts.

VII. Disposition

[150] For these reasons, I would allow the appellant's appeal, quash the convictions on counts 2 and 3, and direct verdicts of acquittal to be entered on both counts. I would grant the Crown an extension of time to cross-appeal the acquittal, but would dismiss that cross-appeal.

ROULEAU J.A. (and D.M. Miller J.A. dissenting): --

I. Overview

[151] As my colleague explained, in this case, the same facts underlie each of the charges of sexual assault, sexual interference and invitation to sexual touching. A finding of guilt on one count ought to have inevitably resulted in a finding of guilt on the others. However, despite having reached the unanimous conclusion, beyond a reasonable doubt, that the appellant had intentionally committed the acts necessary to find him guilty of sexual interference and invitation to sexual touching, the jury nonetheless acquitted him of sexual assault.

[152] On the basis that the verdicts were inconsistent, my colleague concluded, and I agree, that the convictions for sexual interference and invitation to sexual touching cannot stand. I disagree, however, on the appropriate disposition of the Crown cross-appeal of the acquittal on the charge of sexual assault and on the appropriate remedy of the appeal of the convictions.

[153] Unlike many reported cases involving inconsistent verdicts, we are seized in this case with both an appeal from the convictions and a cross-appeal of the acquittal. This raises important issues: first, how to address a Crown cross-appeal of the acquittal in a case involving inconsistent verdicts, and second, the appropriate disposition of the appeal should the Crown succeed on its cross-appeal.

[154] For the reasons that follow, I would allow both the appellant's appeal and the Crown's cross-appeal and order a new trial on the charges of sexual assault, sexual interference, and invitation to sexual touching.

II. Analysis

(1) Introduction

[155] In R. v. F. (J.), [2008] 3 S.C.R. 215, [2008] S.C.J. No. 62, 2008 SCC 60, Fish J. concluded that, where a jury rendered inconsistent verdicts, the convictions could not stand, even in the face of confusing instructions. As he explained, "[i]mproper instructions do not make improper verdicts proper": at para. 23. Significantly, however, in that case, only the convictions had been appealed.

[156] What, then, is the situation where, as here, the Crown has cross-appealed the acquittal? In this case, the Crown argues that the acquittal on sexual assault, and the resulting inconsistent verdicts, are the result of a confusing charge. It becomes appropriate and necessary to assess whether the inconsistency can, in fact, be explained by a confusing charge and, if so, determine the appropriate remedy. In a case where the Crown's cross-appeal is allowed, all of the charges will be sent back for a new trial, obviating the risk of inconsistent verdicts that exists if the acquittal is not set aside.

[157] As I will explain, to succeed on its cross-appeal, the Crown must show that there was an error of law in the jury instructions. This requires demonstrating that, in this case, the jury charge was "so unnecessarily confusing that it constituted an error of law": R. v. Hebert, [1996] 2 S.C.R. 272, [1996] S.C.J. No. 65, at para. 8. The Crown must also establish that the error might reasonably be thought to have had a material bearing on the acquittal: R. v. Youvarajah, [2013] 2 S.C.R. 720, [2013] S.C.J. No. 41, 2013 SCC 41, at para. 32.

[158] A charge may be found to be confusing even if the portion of the instructions setting out the elements of the offence from which the accused was acquitted is correct. Confusion can arise from a lack of clarity when the charge is read as a whole and viewed in context of the decision tree, verdict sheet and any answers given to jury questions. In my view, a constellation of factors present in this case are sufficient, when viewed in combination, to meet the stringent test established in the jurisprudence to raise a confusing jury charge to the level of an error of law. This confusion in the charge is by far the most likely explanation for the inconsistent verdicts rendered by the jury in this case. It explains why an acquittal rather than a conviction was entered on the sexual assault charge even though the jury convicted the appellant of sexual interference based on the same facts.

(2) The law

[159] Jury charges provide juries with a roadmap that they must follow in reaching a decision. Confusion flowing from a jury charge will constitute an error of law where the charge, read as a whole, "may very well have diverted the jury from a proper consideration" of the issues: Hebert, at para. 13.

[160] Following the model jury charge instructions for each of the offences in the indictment will not necessarily insulate the instructions from being confusing. It is the overall effect of the charge that matters. Overreliance on model jury instructions can lead to "the failure to isolate the critical issues in a case and tailor the charge to them", which "inevitably makes the instructions less helpful to the jury and adds unnecessarily to their length and complexity": R. v. Rodgerson, [2015] 2 S.C.R. 760, [2015] S.C.J. No. 38, 2015 SCC 38, at para. 51.

[161] Indeed, as Watt J.A. noted in his book, Helping Jurors Understand (Toronto: Carswell, 2007), at p. 82:

A specimen is a sample. A specimen instruction is a sample instruction about its subject-matter. Specimen instructions do not and cannot be expected to provide legally accurate directions for every set of circumstances that fall within their reach. There are no one-size-fits-all jury instructions. At best, specimen instructions provide the basic building blocks for finals and other instructions. The twists and turns of individual cases will dictate the nature and extent of modification required to ensure legal accuracy.

(Emphasis in original)

[162] Moreover, as explained in R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at paras. 30-31:

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge's instructions are to be held to is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury. It is the overall effect of the charge that matters.

(Emphasis added; citation omitted)

[163] With this brief overview of the law, I turn now to the jury charge in the case before us.

(3) Was the jury charge confusing?

[164] A challenge faced by the trial judge when she drafted the charge was to convey to the jury that the "force" requirement in the sexual assault charge and the "touching" requirement in the sexual interference and invitation to sexual touching counts were one and the same.

[165] It would not be the common understanding of a juror that merely touching someone is the same as using force on someone. Nor would a juror necessarily expect that the very same conduct could make out all three differently worded offences.

[166] Jury instructions are intended "to communicate the applicable law to the jury in a manner which can be understood and remembered": R. v. Elkins (1995), 26 O.R. (3d) 161, [1995] O.J. No. 3228 (C.A.), at pp. 169-70 O.R., leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 62 (emphasis added). This is what appellate courts must keep in mind. As explained by Doherty J.A. [at para. 26]:

Appellate courts reviewing those instructions must view them from the perspective of a reasonably intelligent lay person listening to the instructions and not from the perspective of a legally trained student of the criminal law, schooled to see the ambiguities and subtleties associated with the language of some provisions in the Criminal Code.

[167] Moreover, the word "force" in the sexual assault context can be easily misunderstood. Indeed, a jury can easily understand the word "force" in the colloquial sense, that is, as the use of physical strength or power to sexually abuse the complainant: see R. v. Tremblay, [2016] A.J. No. 119, 2016 ABCA 30, 612 A.R. 147, at para. 15, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 200. Indeed, the everyday definition of "force" refers to "violence, compulsion, or constraint exerted upon or against a person" (Merriam-Webster Dictionary (online), sub verbo "force") and to "coercion backed by the use or threat of violence" (Concise Oxford English Dictionary, 12th ed., sub verbo "force").

[168] Viewed in isolation, the portion of the instructions relating to the offence of sexual assault is correct. The trial judge followed Watt J.A.'s specimen instructions from Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), including a statement that "[f]orce includes any physical contact, even a gentle touch". As explained in Daley, however, the mere use of the correct formulation in a portion of the charge is not all that matters. One must also consider the general sense that the word "force" likely conveyed to the jury, as well as the general sense that would be remembered by the jury in deliberations, considering the charge as a whole.

[169] I am satisfied that, when viewed in context, the jury would not have understood that mere touching constituted the force necessary to make out the offence of sexual assault. I reach this conclusion based on several points, as follows:

(1) As is clear from the following chart, the trial judge used the need for the use of "force" in describing the offence of sexual assault and only the need for "touching" in her description of sexual interference and invitation to sexual touching.

(2) After her instructions relating to sexual assault, the trial judge gave instructions on sexual interference and on invitation to sexual touching. In her explanations of these counts, she defined "touching" in this context and stated that "[f]orce is not required" in order to constitute touching. This remark effectively contradicted her earlier comment, made in the course of her instructions on sexual assault, that a gentle touch could constitute force.

(3) Although the trial judge originally intended that the jury would have a copy of the charge in the jury room, the plan was changed just before final submissions and the jury did not have a copy of the instructions during its deliberations. The trial judge's instruction that force includes "a gentle touch" was made relatively early in the charge that was read out in court. That qualification to the word "force" may well have been forgotten or lost by the jurors by the time the charge was completed and they retired to the jury room.

(4) In the jury room, the jury had a decision tree for each of the three offences. The decision tree for sexual assault referred only to the need for the use of "force", while the decision tree for both sexual interference and invitation to sexual touching referred only to the need for "touching".

(5) The decision tree for sexual assault provided for the possibility of a conviction for simple assault, if the force used was not of a sexual nature. It was unnecessary to provide for this possibility, as on the facts of this case, it was not open to the jury. It could only serve to confuse the jury and reinforce the perception that "force" was distinct from "touching", since it could result in a conviction for assault.

(6) The jury clearly focused on the possibility of an assault. It pointed out, in a jury question, that the decision tree it was provided indicated that a conviction for assault was possible, but that this option was not available on the verdict sheet it was given. Rather than explain to the jury that simple assault was not an option on the facts of the case, and deleting it from the decision tree, the trial judge added it as a possible outcome on the verdict sheet. Simple assault was, of course, not an option in the decision trees for sexual interference and invitation to sexual touching. The inclusion of this offence in the decision tree for sexual assault further highlighted the difference between the use of "force" and "touching".

[170] My colleague correctly notes that the Crown did not object to the charge, and that this is a factor that the court must take into account. However, the Crown's failure to object needs to be viewed in context. Both the first and second drafts of the charge reviewed by the Crown informed the jury that a written copy of the instructions would be provided to them, and that they "may refer to them" in their deliberations. In pre-charge discussions, the Crown told the trial judge that this was the practice in other trials she had been a part of. There would be much less concern that the jury might not remember the reference early in the instructions that "force" includes "a gentle touch" if written instructions were available in the jury room. It was only just before the jury returned to hear final submissions that, as a compromise to accommodate a defence concern, it was decided that the jury would not receive a copy of the written instructions and the reference to the jury receiving the instructions was deleted. In these circumstances, the Crown's failure to raise the concern is understandable.

[171] Generally, the inclusion of several offences in an indictment that, although differently worded, represent the same delict, creates a significant risk that the jury will be confused: see, e.g., R. v. Rowe, [2011] O.J. No. 5382, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54, 58. In light of the several concerns I have outlined, and taking into account the outcome of inconsistent verdicts in this case, I am satisfied that the jury charge was confusing and, in fact, confused the jury as to the meaning of force and as to whether the use of force required something other than touching.

[172] Given the structure of the instructions, which consisted of an explanation of one count after another in isolation, the jury needed to be told how the three offences related to each other. Toward the end of the charge, the trial judge could have told the jury that, in reviewing the elements of the three offences, it should keep in mind that "touching" and "force" were one and the same. Further, where, as here, the trial judge chose not to provide a copy of the charge, the trial judge should indicate on the decision tree, the only tool the jury had access to in the jury room, that force and touching were, in effect, interchangeable terms. The failure to take either of these steps, in the circumstances of this case, constituted an error of law. Perhaps the simplest approach would have been to modify the sexual assault portion of the charge by replacing the word "force" by the word "touching". As Watt J.A. explained, "[t]he twists and turns of individual cases will dictate the nature and extent of modification required": Helping Jurors Understand, at p. 82. In this case, the juxtaposition of the terms "force" and "touching" would have been avoided by such a change, since they were meant to refer to the same actions.

[173] Where, as here, the Crown elected to proceed with counts that are, in effect, duplicative, the trial judge might also consider advising the jury that it need not turn its mind to why there is more than one charge arising from the same allegations. The jury could be informed that it is the trial judge's role to sort out issues of duplication after the verdict is delivered.

[174] As I have previously noted, the fact that the jury returned inconsistent verdicts is a strong indicator that it was confused. Standing alone, however, an unexplained inconsistent verdict and the possibility of confusion do not provide a basis for a Crown appeal. The reason for the confusion must be apparent and explain the inconsistency.

[175] On the facts of this case, the confusion and inconsistency in the verdicts flow from the charge. In my view, the possibility that an alternative to confusion can account for the inconsistent verdicts may be safely excluded on the facts of this case. It is highly unlikely that jury nullification was the cause of the inconsistent verdicts, as it would mean that the jury was unanimously of the view that sexual assault, as it pertains to minors, is an unjust law, but that it nonetheless decided to convict the appellant of sexual interference and invitation to sexual touching.

[176] Moreover, the possibility that the jury compromised and convicted the appellant of two rather than three charges would necessarily be the product of confusion, as the jury would have failed to understand that convictions for sexual assault and sexual interference flowed from the same facts and were, in essence, duplicative.

(4) Appropriate disposition

[177] Where 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. In my view, this is what Charron J. had in mind in R. v. Pittiman, [2006] 1 S.C.R. 381, [2006] S.C.J. No. 9, 2006 SCC 9. She explained that "where the verdict is found to be unreasonable on the basis of inconsistency of verdicts, but the evidence against the appellant supported the conviction, the appropriate remedy will usually be a new trial": at para. 14. This view is consistent with F. (J.), where Fish J. stated, at para. 39, that "[i]n an appropriate case . . . a new trial may well be ordered where the verdicts at first instance are found to be inconsistent". F. (J.) was not an appropriate case for a new trial because the acquittal was not appealed and a new trial on the convictions would necessarily deprive the appellant of the benefit of that acquittal. The situation is different in a case where the acquittal is also set aside. A new trial on all counts will not reproduce inconsistent verdicts if the jury is properly instructed.

[178] This outcome is also consistent with the policy considerations underlying inconsistent verdicts. The jury was able to reach the difficult unanimous decision that the Crown had met its onus of proving, beyond a reasonable doubt, that the appellant had committed serious sexual offences. On appeal, the appellant cannot point to any error in the charge that could justify setting aside the convictions, nor can he argue that the record was insufficient to support the convictions. The only basis for setting aside the convictions is the acquittal on another charge. A fair review of the proceedings below reveals that the acquittal was likely the result of confusion by the jury. In such circumstances, ordering the appellant to undergo a new trial on all charges cannot be viewed as being unfair to him.

III. Conclusion

[179] As a result, I would set aside the convictions and the acquittal and order a new trial on all counts. However, I note that the Crown has indicated that it would not pursue a new trial on the sexual assault charge.

Appeal allowed; cross-appeal dismissed.

Notes

1 Criminal Code, s. 151: "Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years . . . is guilty of an . . . offence . . .".

2 Criminal Code, s. 152: "Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years . . . is guilty of an . . . offence . . .".

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