COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Catton, 2015 ONCA 13

DATE: 20150114

DOCKET: C54265 and C55351

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Catton and Shawn DeForest

Appellants

Timothy E. Breen, for the appellants

Sean Doyle, for the respondent

Heard: November 25, 2014

On appeal from the convictions entered on February 17, 2011 and the sentences imposed on November 18, 2011 by Justice A. Mullins of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I. Overview

[1] The appellants were in a vehicle driving southbound on Mill Street in Angus, Ontario. They attempted to turn left at a stop light. The light was green. As the appellants’ vehicle crossed into the northbound lanes it struck a northbound vehicle driven by Jerry Barnes. Mr. Barnes was proceeding on the green light through the intersection. Mr. Barnes’ vehicle was then struck from behind by a northbound motorcycle. The driver of the motorcycle, Greg Reaume suffered minor injuries. His passenger, Audra Armstrong was thrown from the motorcycle and suffered serious injuries. She died in the hospital seven days later.

[2] At the time of the accident the appellants were boyfriend and girlfriend. Ms. Catton was 19 and Mr. DeForest was 20. Ms. Catton owned the vehicle involved in the accident. Mr. DeForest did not have a driver’s licence.

[3] It was the Crown’s position that Mr. DeForest was driving the vehicle at the time of the accident. It was the appellants’ position that Ms. Catton was the driver. Ms. Catton testified. Mr. DeForest did not testify.

[4] The trial proceeded on a six count indictment. Five of those charges are relevant to his appeal. Mr. DeForest was convicted of dangerous driving causing Ms. Armstrong’s death (count one) but acquitted of dangerous driving causing bodily harm to Mr. Reaume (count two). Both Mr. DeForest and Ms. Catton were convicted of obstructing police by falsely identifying Ms. Catton as the driver of the vehicle (counts five and six). Ms. Catton was convicted as an accessory after the fact to Mr. DeForest’s dangerous driving (count four). This charge also arose out of Ms. Catton’s alleged lies to the police identifying herself as the driver.

[5] Mr. DeForest received 15 months on the dangerous driving causing death conviction, and 3 months consecutive on the obstruction of police conviction. He was given 15 days credit for presentence custody resulting in an effective jail sentence of 17 ½ months. The trial judge also imposed a five-year driving prohibition, 12 months’ probation, and required Mr. DeForest to provide a DNA sample pursuant to s. 487.051(3) of the Criminal Code.

[6] Ms. Catton received a 90-day conditional sentence to be followed by six months’ probation. She was given credit for four days pre-trial custody yielding an effective conditional sentence of 86 days. Both appellants appeal conviction and sentence.

[7] Mr. Breen, on behalf of the appellants, advanced several grounds of appeal. I need consider only his submission that the conviction on count one (dangerous driving causing death) and the acquittal on count two (dangerous driving causing bodily harm) are irreconcilably inconsistent thereby rendering the conviction on count one unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code. For the reasons that follow, I agree with this submission. I also agree with Mr. Breen’s submission that the irreconcilable inconsistency between the verdicts on counts one and two undermines the legitimacy and reliability of the convictions on the other charges. In my view, all of the convictions must be quashed. I would enter an acquittal on count one (dangerous driving causing death), an acquittal on count four (accessory after the fact), and order a new trial on the obstruct police charges (counts five and six).

II. The Verdicts on the Dangerous Driving Charges (Counts 1 and 2)

[8] On count one, the charge of dangerous driving causing the death of Ms. Armstrong, the Crown had to prove beyond a reasonable doubt first that Mr. DeForest was operating the motor vehicle; second that he was doing so in a manner that was dangerous to the public as described in s. 249 of the Criminal Code; and finally that his operation of the motor vehicle was a contributing cause of the accident that admittedly caused Ms. Armstrong’s death. The identity of the driver and the nature of the driving were both very much at issue at trial.

[9] The defence maintained that Ms. Catton was driving the vehicle at the time of the accident and that the evidence showed only a momentary lapse of judgment, not dangerous driving as described in the Criminal Code. I will not detail the evidence relevant to either the identity of the driver, or the nature of the driving. It was reasonably open to the jury, depending on its assessment of the evidence, to find for or against the Crown or defence on either or both issues.

[10] The trial judge told the jury that it had two possible verdicts on count one. The jury could find Mr. DeForest guilty of dangerous driving causing death or not guilty. Although a conviction on the included offence of dangerous driving may technically have been available on count one, the defence did not argue that even if Mr. DeForest was the driver and was driving in a criminally dangerous manner, the jury could have a reasonable doubt as to whether his driving was a contributing cause in Ms. Armstrong’s death.

[11] On count two, the charge of dangerous driving causing bodily harm, the trial judge instructed the jury that there were three possible verdicts. The jury could convict of dangerous driving causing bodily harm, convict on the included offence of dangerous driving, or acquit Mr. DeForest outright. The included offence of dangerous driving was in play on count two because the relatively minor nature of Mr. Reaume’s injuries may not have been viewed by the jury as constituting bodily harm.

[12] Toward the end of her instructions, the trial judge provided the jury with a verdict sheet outlining the possible verdicts on each of the six counts. She told the jury that after it had reached its verdicts, the foreperson should place a check mark in the box opposite the appropriate verdict on each count. She went on to instruct the jury that after it arrived at the verdicts, the jury would return to the courtroom and the foreperson would give the verdict sheet to the registrar who would then give it to the trial judge for examination. The trial judge told the jury that she would return the verdict sheet to the foreperson and the foreperson would announce the verdicts in open court. The trial judge also explained to the jurors that they would be asked if they agreed with the verdicts as read by the foreperson.

[13] The jury began deliberating in the late afternoon. Late the next afternoon the jury returned to the courtroom with its verdicts. The following exchange occurred:

REGISTRAR: Please indicate the verdict on each accused and on each count as I call it. On count – please stand. On count one dangerous driving causing death, how do you find Shawn DeForest, guilty or not guilty?

FOREPERSON: Guilty.

REGISTRAR: On count two dangerous driving causing bodily harm, how do find Shawn DeForest, guilty or not guilty?

FOREPERSON: Not guilty.

[14] The registrar took the verdicts on the four remaining counts, after which the registrar said:

Members of the jury, harken to your verdict as the court has recorded it, you say the accused at the bar, Shawn DeForest is guilty on count one, not guilty on count two, … so say you all.

JURY: Yes.

[15] There is no indication in the trial transcript that the foreperson gave the verdict sheet to the registrar or that the trial judge examined the verdict sheet before taking the verdicts from the foreperson. The endorsement on the indictment tracks the verdicts announced by the foreperson indicating a finding of guilty on count one and not guilty on count two.

[16] In the sentencing proceedings that followed over several months, counsel and the trial judge proceeded on the basis that the jury had convicted on count one and acquitted outright on count two. No one adverted to any apparent inconsistency between the verdicts on counts 1 and 2.

[17] The trial exhibit list in the original papers sent from the trial court to this court, indicates that a verdict sheet was marked as exhibit B. There is no reference in the trial transcript to a verdict sheet being marked as an exhibit. The verdict sheet contained in the trial file corresponds with the verdicts returned in open court by this jury except for the verdict on count two. The verdict sheet indicates that the jury convicted on the included offence finding Mr. DeForest not guilty of dangerous driving causing bodily harm, but guilty of dangerous driving. The verdict sheet is not signed or dated. The trial judge did not tell the foreperson to sign or date the verdict sheet in her instructions.

[18] The verdicts on counts one and two as recorded in the verdict sheet remove any inconsistency between the verdicts on those counts. The conviction on the included offence of dangerous driving in count two is explained by a reasonable doubt as to whether Mr. Reaume’s injuries amounted to bodily harm.

[19] It is certainly possible that the jury intended to return the verdict on count two indicated on the verdict sheet. Indeed one could reasonably go so far as to say that the jury probably intended to return the verdicts as recorded on the verdict sheet. That is not however what happened. The verdict as returned in open court was an unqualified finding of not guilty on count two.

[20] A trial court has a limited power to inquire into and correct a verdict when there is reason to doubt that the verdict returned by the jury is the verdict intended by the jury: see R. v. Burke, [2002] 2 S.C.R. at para. 23. Crown counsel on appeal accepts, correctly in my view, that the narrow authority described in Burke is of no assistance on this appeal. No inquiry into the verdicts was conducted at trial. Nor could any inquiry be conducted in this court several years after the verdicts were returned and the jury discharged. The verdicts must be taken as announced by the jury in open court – guilty of dangerous driving causing death on count one and not guilty on count two.

[21] Inconsistent verdicts are a subspecies of unreasonable verdicts: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381 at para. 6. 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), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56; Pittiman, at paras. 7-8.

[22] As explained in Pittiman at paras. 7-8, because juries give no reasons for their verdicts, it can be difficult to attack jury verdicts as inconsistent. Verdicts that may at first impression appear inconsistent can often be explained by distinctions in the essential elements of the different offences or in the quality of the evidence relevant to the different offences.

[23] I find no basis upon which the conviction on count one and the acquittal on count two can be reconciled. To convict on count one, the jury had to be satisfied beyond a reasonable doubt that Mr. DeForest was the driver and that his driving was dangerous within the meaning of the Criminal Code. The same two issues had to be determined in favour of the Crown before the jury could convict for either dangerous driving causing bodily harm or dangerous driving on count two. The evidence on which those two issues had to be determined was exactly the same on the two counts. The jury’s conviction on count one indicates that the jury was satisfied beyond a reasonable doubt that Mr. DeForest was the driver and that his driving met the test for dangerous driving. The jury’s acquittal on count two indicates that the jury had a reasonable doubt on either or both of the same two issues that it had decided against Mr. DeForest in convicting him on count one.

[24] Nothing in the different causation elements of the offences charged in count one and count two, or in the evidence relevant to the counts, affords any explanation for the different verdicts. The appellant has demonstrated that no jury could reasonably convict on count one and acquit outright on count two. The conviction on count one must be quashed.

III. The Appropriate Order on Count One

[25] 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.

[26] 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: see R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316; R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396. Those cases hold that if a factual issue is decided in favour of an accused at a previous trial, the Crown is precluded from leading evidence at a subsequent trial to prove the contrary. The Chief Justice in Mahalingan at para. 23 put it this way:

It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies.

[27] As outlined above, the jury could have acquitted Mr. DeForest outright on count two if it had a doubt as to his identity as the driver, the nature of the driving, or both. Any of those three explanations would, if this court were to order a new trial on count one, give rise to a successful estoppel claim on behalf of Mr. DeForest at a new trial on the allegation of dangerous driving causing death (count one). An order directing a new trial on that count would be pointless. I would enter an acquittal on count one.

IV. Can Mr. DeForest’s conviction for obstruct police (count six) stand?

[28] In returning a conviction on the obstruct police charge (count six) the jury must have been satisfied beyond a reasonable doubt that Mr. DeForest was the driver of the car and that he lied to the police with the requisite intent when he identified Ms. Catton as the driver. Those findings are not necessarily inconsistent with the acquittal on count two (dangerous driving causing bodily harm). That acquittal may have been based on a reasonable doubt as to the nature of the driving. Mr. DeForest’s conviction for obstruct police cannot be quashed on the basis that it is inconsistent with his acquittal on count two and therefore unreasonable.

[29] However, the irreconcilable inconsistency between the conviction on count one and the acquittal on count two, raises serious doubts about all of the convictions. The inconsistent verdicts on counts one and two suggest either a serious misunderstanding of the trial judge’s instructions, or a misguided compromise among the jurors as to the appropriate verdicts: McShannock, at p. 56. In either case the inconsistent verdicts undermine the reliability of all the convictions.

[30] In so holding I disregard because I think I must as a matter of law, the distinct possibility that the real problem lies in the jury’s miscommunication of its intended verdict on count two. This court cannot go behind the verdict announced by the jury. To consider the possibility that the jury intended to deliver a different verdict on count two when assessing whether the verdict on the obstruct police charge can stand would be contrary to the principles respecting jury verdicts set down in Burke. I would quash Mr. DeForest’s conviction on the charge of obstructing police (count six).

[31] However, unlike count one, a new trial on the obstruct police charge would not run aground on the doctrine of issue estoppel. It cannot be said that acquittals of Mr. DeForest on the dangerous driving charges decided a factual issue in his favour that would be essential to the Crown’s proof of the charge of obstruct police. A reasonable jury could, for the reasons set out above (para. 28), convict Mr. DeForest on the obstruct police charge even in the face of his acquittals on the charges of dangerous driving causing death and dangerous driving causing bodily harm. A new trial on that charge is the appropriate order.

V. Can Ms. Catton’s convictions stand?

[32] Ms. Catton was convicted of obstruct police (count five) and being an accessory after the fact to Mr. DeForest’s dangerous driving (count four). Both charges were predicated on the allegation that Ms. Catton falsely identified herself to the police as the driver of the vehicle at the time of the accident.

[33] There is no reason to distinguish between Ms. Catton’s conviction on the obstruct police charge and Mr. DeForest’s conviction on the identical allegation. Just as with Mr. DeForest, I would quash Ms. Catton’s conviction on the obstruct police charge and order a new trial.

[34] Ms. Catton’s conviction on the charge of being an accessory after the fact to Mr. DeForest’s dangerous driving must also be quashed. The trial judge instructed the jury that it could convict Ms. Catton as an accessory after the fact only if satisfied beyond a reasonable doubt that Mr. DeForest had committed the crime of dangerous driving. The jury’s conviction of Ms. Catton as an accessory after the fact is therefore inconsistent with its acquittal of Mr. DeForest on the dangerous driving causing bodily harm charge in count two. That inconsistency is not cured by Mr. DeForest’s conviction on count one, the charge of dangerous driving causing death. The fact that Ms. Catton’s conviction as an accessory after the fact is consistent with the conviction on count one does not make it any less inconsistent with the acquittal on count two.

[35] The question of whether this court should enter an acquittal on the accessory after the fact charge or direct a new trial raises a surprisingly complicated problem. Ms. Catton was not charged in counts one and two. Mr. DeForest’s acquittal on those two counts cannot be said to have resolved any issue in favour of Ms. Catton. Were the court to order a new trial on the accessory after the fact charge, Ms. Catton could not raise issue estoppel relying on Mr. DeForest’s acquittals on the dangerous driving charges at the first trial: Mahalingan, at paras. 49, 56-58.

[36] Nor does Mr. DeForest’s acquittals on the dangerous driving charges necessarily bar Ms. Catton’s subsequent prosecution and conviction as an accessory after the fact to Mr. DeForest’s dangerous driving: Criminal Code 23.1; R. v. S. (F.J.), 1997 NSCA 87, aff., 1998 CanLII 842 (SCC), [1998] 1 S.C.R. 88.

[37] Even though Ms. Catton’s retrial on the accessory after the fact charge would not run afoul of issue estoppel principles and her conviction would not necessarily be inconsistent with Mr. DeForest’s acquittals on the dangerous driving charges, a retrial does not seem appropriate. Were there a retrial, Ms. Catton’s jury would be asked to find beyond a reasonable doubt that Mr. DeForest was guilty of dangerous driving based on the same evidence that resulted in his acquittals at the initial trial. That result seems unsatisfactory even if legally defensible.

[38] When an appeal court decides to quash a conviction it has discretion to order a new trial or direct an acquittal under s. 686(2): R. v. Levy (1991), 1991 CanLII 2726 (ON CA), 62 C.C.C. (3d) 97 (Ont. C.A.) at 104. I would exercise that discretion in favour of entering an acquittal on the accessory charge for two reasons. First, an acquittal would avoid the risk of the anomalous result described above. Second, the essence of the accessory after the fact charge, like the obstruct police charge, is that Ms. Catton lied to the police to mislead them in their investigation. Ms. Catton, if guilty of that misconduct, can be called to account by her prosecution and conviction on the obstruct police charge. As I would order a new trial on the obstruct police charge, a retrial on the accessory after the fact charge would, to a large extent, be redundant.

VI Conclusion

[39] I would allow the appeals. I would quash all of the convictions. I would acquit Mr. DeForest on count one (dangerous driving causing death) and I would acquit Ms. Catton on count four (being an accessory after the fact to dangerous driving). I would order a new trial for Mr. DeForest and Ms. Catton on the obstruct police charges (counts five and six).

Released: “DD” “JAN 14 2015”

“Doherty J.A.”

“I agree K. Feldman J.A.”

“I agree Gloria Epstein J.A.”