SUPREME COURT OF CANADA
Appeal Heard: November 13, 2020 Judgment Rendered: March 12, 2021 Docket: 38854
Between:
Her Majesty The Queen
Appellant
and
R.V.
Respondent
- and -
Attorney General of Alberta and Criminal Lawyers' Association of Ontario
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 80)
Moldaver J. (Wagner C.J. and Abella, Karakatsanis, Côté, Rowe and Martin JJ. concurring)
Reasons Dissenting in Part: (paras. 81 to 103)
Brown J. (Kasirer J. concurring)
r. v. r.v.
Her Majesty The Queen Appellant
v.
R.V. Respondent
and
Attorney General of Alberta and
Criminal Lawyers' Association of Ontario Interveners
Indexed as: R. v. R.V.
2021 SCC 10
File No.: 38854.
2020: November 13; 2021: March 12.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Criminal law — Appeals — Unreasonable verdict — Inconsistent verdicts — Charge to jury — Accused convicted by jury of sexual interference and invitation to sexual touching while acquitted of sexual assault — All three offences arising from same conduct involving one complainant — Appeal by accused against verdicts of guilt and cross‑appeal by Crown against verdict of acquittal — Whether legal error in jury instructions can reconcile apparently inconsistent verdicts — Appropriate remedy — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(4) , (8) .
V was charged with historical sexual offences against a single complainant and tried before a judge and jury. The jury convicted him of sexual interference and invitation to sexual touching. The same jury acquitted him of sexual assault based on the same evidence. V appealed his convictions, asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable. The Crown cross‑appealed V's acquittal, maintaining that the charge to the jury was so unnecessarily confusing that it amounted to an error in law and that the apparent inconsistency in the verdicts could be explained by the erroneous jury instructions, such that the guilty verdicts could not be considered unreasonable.
A majority of the Court of Appeal held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with the acquittal on the sexual assault charge. The majority quashed V's convictions and substituted verdicts of acquittal, and upheld the acquittal on the sexual assault charge. The minority found legal error in the jury instructions and would have ordered a new trial on all three charges.
Held (Brown and Kasirer JJ. dissenting in part): The appeal should be allowed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.: The trial judge misdirected the jury on the charge of sexual assault. This legal error was material to the acquittal, did not impact on the convictions, and reconciles the apparent inconsistency in the verdicts. As the verdicts are not actually inconsistent, the convictions are not unreasonable on the basis of inconsistency. V's convictions should therefore be restored. The acquittal on the charge of sexual assault should be set aside and in the circumstances of this case, a stay of proceedings should be entered on that charge.
In an appeal alleging inconsistent verdicts rendered by a jury, the ultimate inquiry for appellate courts is whether the verdicts are actually inconsistent and therefore unreasonable. The Crown can seek to reconcile apparently inconsistent verdicts on the basis that they were the result of a legal error in the jury instructions. Where the Crown attempts to reconcile apparently inconsistent verdicts on the basis of a legal error, it must satisfy the appellate court to a high degree of certainty that there was a legal error in the jury instructions and that the error: (1) had a material bearing on the acquittal; (2) was immaterial to the conviction; and (3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. If these elements are satisfied, the verdicts are not actually inconsistent. In assessing whether the Crown has satisfied its burden, the appellate court must not engage in improper speculation about what the jury did and did not do. It must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts.
If the appellate court cannot conclude with a high degree of certainty that the legal error did not taint the conviction, setting aside the acquittal will require a retrial on all charges. When the court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand.
In some circumstances, the appropriate remedy may be to enter a stay of proceedings on the charge for which the accused was acquitted in application of a court of appeal's residual power under s. 686(8) of the Criminal Code . For an appellate court to issue a stay of proceedings under s. 686(8) , three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4) , (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires.
In this case, the trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken impression that the element of "force" required for sexual assault was different than the element of "touching" required for sexual interference and invitation to sexual touching. This legal error led the jury to return a verdict of acquittal on the sexual assault charge. It did not affect the convictions and the trial judge's instructions on sexual interference and invitation to sexual touching were legally correct. Further, the legal error reconciles the apparent inconsistency by explaining how the jury could have rendered its verdicts without finding V both guilty and not guilty of the same conduct. The jury found V guilty of sexual touching, hence the convictions, and not guilty of applying force beyond touching to the complainant in circumstances of a sexual nature, hence the acquittal. Those two findings are not inconsistent and V's convictions should be restored. As for the acquittal on the sexual assault charge, it must be set aside. The circumstances of this case justify the Court entering a stay of proceeding on that charge rather than ordering a retrial.
Per Brown and Kasirer JJ. (dissenting in part): There is agreement with the majority that the verdicts in this case are inconsistent. There is also agreement that the jury was misdirected, and that the misdirection amounted to legal error that might reasonably be thought to have had a material bearing on the acquittal. However, the only available remedy in response to the Crown appeal in the present case is the order of a new trial. To avoid putting V in jeopardy for something for which he was convicted, a new trial on all three charges is necessary.
In specifying, in s. 686(4) (b)(i) of the Criminal Code , a new trial as the sole remedy where the Crown successfully appeals from a verdict of acquittal by a jury, Parliament did not care about the degrees of certainty at the reviewing court; rather, what Parliament thought significant is that the absence of reasons for judgment by a jury means a reviewing court can never be certain what was in the minds of the jury. Retracing a jury's reasoning, irrespective of the reviewing court's degree of certainty, is a type of review that: (1) Parliament has precluded; (2) the Court has never sanctioned; and (3) is, as a practical matter, impossible.
The majority's finding in the present case that the legal error reconciles the apparent inconsistency is manifestly at odds with the reasoning of the Court in R. v. J.F. , 2008 SCC 60 , [2008] 3 S.C.R. 215, which could not be any clearer: the existence of a legal error does not reconcile inconsistent verdicts. The majority's framework is an invitation to routine speculation into the reasoning process of the jury. It will invite confirmation bias, and does not discourage the Crown from over‑charging or drafting confusing indictments; if anything, it does the opposite, by eliminating any consequences.
Appellate courts operate within certain statutory constraints when deciding a Crown appeal from an acquittal by a jury and, following s. 686(4) of the Criminal Code , may either dismiss the appeal, or allow the appeal, set aside the verdict, and order a new trial. While s. 686(8) empowers an appellate court to make an additional order under s. 686(4) , the majority is making an alternative order by entering a stay of proceedings. Issuing an order that is tantamount to a finding of not guilty is totally inconsistent with the majority's underlying judgment that affirms V's guilt of the very same criminal conduct. The majority's difficulty in ordering a new trial on the sexual assault charge is that they also wish to restore V's convictions, which are plainly inconsistent with the acquittal. Avoiding this difficulty is precisely why the appropriate disposition in these circumstances is a new trial on all charges.
Cases Cited
By Moldaver J.
Considered: R. v. Pittiman , 2006 SCC 9 , [2006] 1 S.C.R. 381; R. v. J.F. , 2008 SCC 60 , [2008] 3 S.C.R. 215; referred to: R. v. S.L. , 2013 ONCA 176 , 303 O.A.C. 103; R. v. K.D.M. , 2017 ONCA 510 ; R. v. Tyler , 2015 ONCA 599 ; R. v. Tremblay , 2016 ABCA 30 , 612 A.R. 147; R. v. L.B.C. , 2019 ABCA 505 , 383 C.C.C. (3d) 331; R. v. J.D.C. , 2018 NSCA 5 ; R. v. McShannock (1980) , 55 C.C.C. (2d) 53 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 ; R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609; R. v. Khela , 2009 SCC 4 , [2009] 1 S.C.R. 104; R. v. Illes , 2008 SCC 57 , [2008] 3 S.C.R. 134; Palmer v. The Queen , [1980] 1 S.C.R. 759; R. v. Hay , 2013 SCC 61 , [2013] 3 S.C.R. 694; R. v. Plein , 2018 ONCA 748 , 365 C.C.C. (3d) 437; R. v. Chase , [1987] 2 S.C.R. 293; R. v. Ewanchuk , [1999] 1 S.C.R. 330; R. v. Barton , 2017 ABCA 216 , 55 Alta. L.R. (6th) 1, aff'd 2019 SCC 33 , [2019] 2 S.C.R. 579; R. v. Cuerrier , [1998] 2 S.C.R. 371; R. v. J.A. , 2011 SCC 28 , [2011] 2 S.C.R. 440; R. v. Mack , 2014 SCC 58 , [2014] 3 S.C.R. 3; R. v. Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760; R. v. Jacquard , [1997] 1 S.C.R. 314; R. v. Haughton (1992) , 11 O.R. (3d) 621, aff'd , [1994] 3 S.C.R. 516; R. v. Thomas , [1998] 3 S.C.R. 535; R. v. Hinse , [1995] 4 S.C.R. 597; R. v. Power , [1994] 1 S.C.R. 601; R. v. Provo , [1989] 2 S.C.R. 3; Terlecki v. The Queen , [1985] 2 S.C.R. 483; R. v. Warsing , [1998] 3 S.C.R. 579; R. v. Bellusci , 2012 SCC 44 , [2012] 2 S.C.R. 509; R. v. Smith , 2004 SCC 14 , [2004] 1 S.C.R. 385; R. v. Jewitt , [1985] 2 S.C.R. 128; R. v. Kalanj , [1989] 1 S.C.R. 1594; R. v. Puskas , [1998] 1 S.C.R. 1207; Kienapple v. The Queen , [1975] 1 S.C.R. 729.
By Brown J. (dissenting in part)
R. v. J.F. , 2008 SCC 60 , [2008] 3 S.C.R. 215; R. v. Pan , 2001 SCC 42 , [2001] 2 S.C.R. 344; R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609; R. v. Morin , [1988] 2 S.C.R. 345; R. v. Pittiman , 2006 SCC 9 , [2006] 1 S.C.R. 381; R. v. Plein , 2018 ONCA 748 , 365 C.C.C. (3d) 437; R. v. Bellusci , 2012 SCC 44 , [2012] 2 S.C.R. 509; R. v. Hinse , [1995] 4 S.C.R. 597; R. v. Thomas , [1998] 3 S.C.R. 535 ; R. v. Hebert , [1996] 2 S.C.R. 272; R. v. Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11( h ).
Criminal Code , R.S.C. 1985, c. C‑46, ss. 151, 152 , 265(1) , (2) , 271 , 649 , 675 , 676 , 686 , 695(1) .
Authors Cited
Watt, David. Watt's Manual of Criminal Jury Instructions , 2nd ed. Toronto: Carswell, 2015.
APPEAL from a judgment of the Ontario Court of Appeal (Strathy C.J.O. and Rouleau, Pardu, Miller and Trotter JJ.A.), 2019 ONCA 664 , 147 O.R. (3d) 657, 379 C.C.C. (3d) 219, [2019] O.J. No. 4355 (QL), 2019 CarswellOnt 13561 (WL Can.), quashing the convictions on the charges of sexual interference and invitation to sexual touching and entering verdicts of acquittal, and upholding the acquittal on the charge of sexual assault. Appeal allowed, Brown and Kasirer JJ. dissenting in part.
Christopher Webb and Hatim Kheir , for the appellant.
Philip Campbell and Neill Fitzmaurice , for the respondent.
Joanne Dartana , Q.C. , for the intervener the Attorney General of Alberta.
Michael Dineen , for the intervener the Criminal Lawyers' Association of Ontario.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ. was delivered by
Moldaver J. —
I. Overview
[ 1 ] A jury renders inconsistent verdicts when it finds an accused both guilty and not guilty of the same conduct. The respondent, R.V., alleges that happened here. R.V. was charged with historical sexual offences against a single complainant. He was tried before a judge and jury. The jury convicted him of sexual interference under s. 151 of the Criminal Code , R.S.C. 1985, c. C‑46, and invitation to sexual touching under s. 152 . The same jury acquitted him of sexual assault under s. 271 based on the same evidence.
[ 2 ] R.V. appealed his convictions to the Court of Appeal for Ontario, asserting that they were inconsistent with his sexual assault acquittal and therefore unreasonable. The Crown cross‑appealed R.V.'s acquittal, maintaining that the charge to the jury was so unnecessarily confusing that it amounted to an error in law. The Crown argued that despite what it characterized as conflicting authorities from both the Supreme Court of Canada and the Court of Appeal for Ontario concerning the impact of erroneous jury instructions on the inconsistent verdicts inquiry, the apparent inconsistency in the verdicts rendered by the jury in the present case could be explained by the erroneous jury instructions, such that the guilty verdicts could not be considered unreasonable.
[ 3 ] Writing for the majority, Strathy C.J.O. disagreed with the Crown that there are conflicting Supreme Court of Canada authorities on inconsistent verdicts. The majority agreed, however, that it was necessary to clarify the Court of Appeal's own jurisprudence on the role of jury instructions in inconsistent verdict cases. In so doing, the majority overturned its prior decisions in R. v. S.L. , 2013 ONCA 176 , 303 O.A.C. 103; R. v. K.D.M. , 2017 ONCA 510 ; and R. v. Tyler , 2015 ONCA 599 — and, by implication, disagreed with the approach taken in other provinces (see, e.g., R. v. Tremblay , 2016 ABCA 30 , 612 A.R. 147; R. v. L.B.C. , 2019 ABCA 505 , 383 C.C.C. (3d) 331; R. v. J.D.C. , 2018 NSCA 5 ). In the result, the majority held that there was no legal error in the jury instructions and that the convictions for sexual interference and invitation to sexual touching were unreasonable, as they were inconsistent with R.V.'s acquittal on the sexual assault charge. The majority quashed R.V.'s convictions and substituted verdicts of acquittal. Justice Rouleau dissented on whether the jury instructions amounted to an error of law and on the appropriate remedy. The Crown now appeals to this Court. It asks that R.V.'s convictions be restored and that his acquittal be set aside.
[ 4 ] This case provides us with an opportunity to clarify the approach to be followed when verdicts are alleged to be inconsistent. While the basic principles underlying inconsistent verdicts have been established by this Court, we have yet to explicitly consider the impact of legally erroneous jury instructions on the inconsistent verdicts inquiry. In doing so here, I seek to achieve a just balance between judicial integrity and fairness to the accused, while respecting the role of juries in our justice system.
[ 5 ] As I will explain, the Crown can seek to reconcile apparently inconsistent verdicts by showing, to a high degree of certainty, that the acquittal was the product of a legal error in the jury instructions, that the legal error did not impact the conviction, and that the error reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. If the Crown discharges its burden, appellate intervention on the conviction is not warranted because the verdicts are not actually inconsistent and thus not unreasonable on the basis of inconsistency.
[ 6 ] For the reasons that follow, in the present case, I am respectfully of the view that the trial judge misdirected the jury on the charge of sexual assault by leaving the jury with the mistaken impression that the element of "force" required for sexual assault was different than the element of "touching" required for sexual interference and invitation to sexual touching. In particular, the failure to instruct the jury in clear terms that the "force" required to establish sexual assault was one and the same as the "touching" required to establish the other two offences constituted non‑direction amounting to misdirection. The effect of this error on the apparently inconsistent verdicts is significant. A review of the charge to the jury as a whole enables me to conclude, with a high degree of certainty, that the error was material to the acquittal. Equally, I am satisfied that the error did not impact on the convictions; rather, it reconciles the apparent inconsistency in the verdicts. Accordingly, the verdicts are not actually inconsistent and the convictions are not unreasonable on the basis of inconsistency.
[ 7 ] In the result, I would allow the appeal and restore the convictions. I would also set aside the acquittal and, as I will explain, enter a stay of proceedings on the charge of sexual assault.
II. Background and Proceedings Below
[ 8 ] R.V. was charged with historical sexual offences against the complainant, who was the daughter of R.V.'s partner at the time of the alleged offences. The charges, spanning 1995 to 2003, included sexual assault, sexual interference and invitation to sexual touching.
A. Ontario Superior Court of Justice (Vallee J., Sitting With a Jury)
[ 9 ] R.V.'s trial lasted two days. The complainant was the only witness. She testified to multiple incidents of sexual abuse committed by R.V. when she was between the ages of 7 and 13. According to her evidence, R.V.:
- Grabbed her hand and moved it to touch his penis;
- Touched her breast over her clothing;
- Touched her vagina over her clothing;
- Held her hand and used it to masturbate himself;
- Laid underneath her while he was unclothed and she was clothed, simulating intercourse and ejaculating on his stomach;
- Laid underneath her while he was clothed and she was unclothed, simulating intercourse; and
- Touched her head and pushed it down towards his penis.
[ 10 ] The Crown presented no other evidence at trial. The defence maintained that the complainant's evidence was inconsistent and therefore not sufficiently credible to support a finding of guilt beyond a reasonable doubt. The defence also asserted that she was motivated to fabricate her evidence.
[ 11 ] At the end of the trial, the trial judge instructed the jury on each of the offences separately, in the words provided by the pattern instructions in Watt's Manual of Criminal Jury Instructions (2nd ed. 2015). The same evidence went to all three charges.
[ 12 ] On the sexual assault charge, the trial judge instructed the jury that R.V. could be found guilty if they were satisfied that the Crown proved beyond a reasonable doubt that R.V. intentionally applied force to the complainant and that the force took place in circumstances of a sexual nature (A.R., at p. 161). Because the complainant was under the age of 16 at the time of the alleged incidents, consent was not an issue. If the jury was not satisfied that the force occurred in circumstances of a sexual nature, the trial judge instructed them that the result would be to find R.V. not guilty of sexual assault, but guilty of assault ( ibid. ).
[ 13 ] Turning to the sexual interference charge, the trial judge instructed the jury that R.V. could be found guilty if the jury was satisfied that the complainant was under 16 years old at the time, that R.V. touched the complainant and that the touching was for a sexual purpose (pp. 162‑63).
[ 14 ] On the invitation to sexual touching charge, the trial judge instructed that R.V. could be found guilty if the jury was satisfied that the complainant was under 16 years old at the time, that R.V. invited the complainant to touch his body, and that the touching that R.V. invited was for a sexual purpose (p. 166).
[ 15 ] The jury was not given a written copy of the instructions to bring to the jury room. Instead, the trial judge provided the jury with a verdict sheet, which listed the following verdicts that the jury could reach:
Count No. 1 — Not guilty of sexual assault; guilty
Count No. 2 — Not guilty of sexual interference; guilty
Count No. 3 — Not guilty of invitation to sexual touching; guilty [p. 174]
[ 16 ] The trial judge also provided the jury with a decision tree for each charge. The decision tree for sexual assault listed "Not Guilty of Sexual Assault but Guilty of Assault" as an available verdict (p. 223).
[ 17 ] After approximately one hour of deliberation, the jury sent the following question to the trial judge regarding the available sexual assault verdicts:
On the decision tree for count one, sexual assault versus the verdict sheet. There are only two choices to make on the verdict sheet, whereas the decision tree provides for three verdicts. Number one, guilty of sexual assault. Number two, not guilty of sexual assault but guilty of assault. Number three, not guilty. What do we do? Juror Number Five. [p. 184]
[ 18 ] To resolve the discrepancy between the verdict sheet and the decision tree for sexual assault, the trial judge provided the jury with a new verdict sheet containing the following amendment:
Count No. 1
Not guilty of sexual assault
Not guilty of sexual assault but guilty of assault
Guilty of sexual assault [Emphasis added; p. 236.]
[ 19 ] The jury returned verdicts of guilty on the charges of sexual interference and invitation to sexual touching, and not guilty on the charge of sexual assault.
B. Court of Appeal for Ontario ( 2019 ONCA 664 , 147 O.R. (3d) 657) (Strathy C.J.O., Rouleau, Pardu, Miller and Trotter JJ.A.)
[ 20 ] The Court of Appeal unanimously agreed that R.V.'s convictions were inconsistent with the acquittal and could not stand. The court, however, divided on the appropriate disposition of the Crown's cross‑appeal and the remedy for R.V.'s appeal from his convictions.
[ 21 ] After canvassing the inconsistent verdicts jurisprudence, the majority (Strathy C.J.O. and Pardu and Trotter JJ.A.) held that if R.V. was found guilty of sexual interference and invitation to sexual touching, he was necessarily guilty of sexual assault: the touching required for the two convictions satisfied the legal definition of force for sexual assault. Having identified this inconsistency, the majority stated that the remaining issues were: (1) whether the allegedly confusing instruction on sexual assault could explain the inconsistency; (2) whether the Crown's cross‑appeal could resolve the inconsistency; and if not, (3) whether a new trial could be ordered in the face of the acquittal.
[ 22 ] As to the first issue, the majority found that the allegedly confusing instruction on sexual assault could not reconcile the verdicts because the cause of the inconsistent verdicts was a matter of pure speculation. Indeed, the concern about improper speculation led the majority to conclude that confusing instructions, even those amounting to a legal error, can never reconcile inconsistent verdicts as a matter of law.
[ 23 ] Regarding the second issue, the majority found that the Crown's cross‑appeal could not succeed because the trial judge gave legally correct instructions. The trial judge expressly told the jury twice that any physical contact, even a gentle touch, could amount to the "force" necessary for sexual assault. She also linked "force" with "touching" in various places in her instructions. Since the Crown could not demonstrate an error of law, the majority held that the acquittal had to stand.
[ 24 ] Given that the acquittal had to stand, the majority found that ordering a new trial on the convictions would invite the jury to return verdicts inconsistent with the acquittal, which would give rise to a claim of issue estoppel. Accordingly, they set aside the convictions and directed verdicts of acquittal to be entered on the sexual interference and invitation to sexual touching charges.
[ 25 ] In dissent, the minority (Rouleau and Miller JJ.A.) agreed to allow R.V.'s appeal on the claim of inconsistent verdicts but would have also allowed the Crown's cross‑appeal on the basis of legally erroneous jury instructions. Specifically, in considering the entire context, it was reasonable to conclude that the jury would not have understood that mere "touching" constituted the "force" necessary to make out the offence of sexual assault. Given the structure of the charge to the jury, 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. The trial judge's failure to provide this clarification amounted to an error of law that caused the jury to acquit R.V. on the sexual assault charge.
[ 26 ] As to the appropriate remedy, the minority stated that where both the conviction and the acquittal are appealed, and the inconsistency in the verdicts is explained by an error of law in the jury instructions, the appropriate remedy is to order a new trial on all the charges.
III. Issues
[ 27 ] I would restate the main issues in this appeal as follows:
(1) Can a legal error in jury instructions reconcile apparently inconsistent verdicts?
(2) What is the appropriate disposition of an inconsistent verdicts appeal where there is an error of law in the jury instructions?
(3) Were the verdicts rendered by the jury in R.V.'s case inconsistent?
IV. Analysis
A. Inconsistent Verdicts
[ 28 ] The Criminal Code does not expressly identify inconsistent verdicts as a ground for setting aside a conviction. For an appellate court to interfere with a conviction on the ground that it is inconsistent with an acquittal, the court must find that the guilty verdict is unreasonable ( R. v. Pittiman , 2006 SCC 9 , [2006] 1 S.C.R. 381, at para. 6 , citing Criminal Code , s. 686(1)(a)(i)). The accused bears the burden of establishing that a verdict is unreasonable ( Pittiman , at para. 6 ).
[ 29 ] In an appeal involving inconsistent verdicts, the applicable test to determine whether a verdict of a jury is unreasonable is: "Are the verdicts irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence?" ( Pittiman , at para. 10 ). Put another way, a conviction is unreasonable and must be set aside where the verdicts cannot be reconciled on any rational or logical basis and no properly instructed jury, acting reasonably, could have rendered the verdicts it did based on the evidence ( R. v. McShannock (1980) , 55 C.C.C. (2d) 53 (Ont. C.A.) , at p. 56 ; Pittiman , at paras. 6‑7 ).
[ 30 ] The ultimate inquiry for appellate courts in an inconsistent verdicts appeal is whether the verdicts are actually inconsistent and therefore unreasonable. More specifically, the question is: can the verdicts be reconciled on any rational basis? If they can be reconciled, the verdicts are not actually inconsistent and the guilty verdict is not unreasonable on the basis of inconsistency ( Pittiman , at para. 10 ).
[ 31 ] Based on established authority, the following principles are relevant to reconciling apparently inconsistent verdicts. Appellate courts should not second-guess jury verdicts where there are plausible reasons, consistent with the evidence, for the jury to have returned them. There are many bases for reconciling apparently inconsistent verdicts: the jury may have had concerns about the evidence with respect to one charge but not another; the jury may have been lenient with respect to one charge; and so on ( R. v. J.F. , 2008 SCC 60 , [2008] 3 S.C.R. 215, at para. 21 ; Pittiman , at para. 14 ).
[ 32 ] Until now, no case in this Court has explicitly considered whether a legal error in jury instructions can be used to reconcile apparently inconsistent verdicts. My view is that it can.
(1) Framework
[ 33 ] Where the Crown attempts to rebut an apparent inconsistency on the basis of a legal error, the burden shifts from the accused to the Crown. The Crown must satisfy the appellate court to a high degree of certainty that there was a legal error in the jury instructions and that the error:
(1) had a material bearing on the acquittal;
(2) was immaterial to the conviction; and
(3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.
[ 34 ] If the court can find that these elements are satisfied with a high degree of certainty, the verdicts are not actually inconsistent.
[ 35 ] In assessing whether the Crown has satisfied its burden, the court must not engage in improper speculation about what the jury did and did not do. It must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts. If there are other reasonable explanations for how the jury reached its verdicts, the Crown will not have satisfied its burden.
[ 36 ] This approach respects the ordinary deference afforded to the presumed reasonableness of the jury by asking "whether the verdicts are actually inconsistent as a matter of logic or principle" ( J.F. , at para. 21 (emphasis in original)), and not whether the verdicts might have been rendered for some other reason.
[ 37 ] I pause here to note that my colleague, Brown J., disagrees with the reconciliation framework I have proposed on several grounds. I will address his concerns as they arise, but it is important to note at the outset that my colleague and I agree that the verdicts in this case are inconsistent on their face, that there was legal error in the jury instructions, and that the legal error had a material bearing on the acquittal. We divide on whether the legal error reconciles the apparent inconsistency and on the remedy.
[ 38 ] Further, and with respect to my colleague, what I have said is meant to supplement — not change — the law as set out in J.F. , a point to which I shall return.
[ 39 ] J.F. was a case in which the jury instructions did not disclose a clear error permitting the appellate court to retrace the jury's reasoning with a high degree of certainty. In J.F. , this Court declined to speculate about what the jury did or did not do and how it reached its verdicts ( J.F. , at para. 21 ). Where, as here, a clear error in the jury instructions can be identified and its role in the jury's decision traced, J.F. does not preclude this Court from doing so. The reconciliation framework I have proposed addresses the apprehensions that led the Court in J.F. to caution against speculation.
[ 40 ] Further, the reconciliation framework I have proposed addresses the apprehensions that led the Court in J.F. to caution against speculation by requiring an appellate court to retrace the jury's reasoning with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts.
(2) Remedy
[ 41 ] On finding that a legal error shows that apparently inconsistent verdicts are not actually inconsistent, the appropriate remedial approach depends on whether the Crown has cross‑appealed the acquittal.
(a) Crown Cross‑Appeal
[ 42 ] In cases where the Crown has cross‑appealed, the acquittal must be set aside if the Crown succeeds in proving that a legal error had a material bearing on the acquittal ( R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609, at para. 14 ).
[ 43 ] For the most part, the Criminal Code provides the answer. Section 686(4)(b) of the Code instructs appellate courts to either dismiss the appeal, or allow the appeal, set aside the verdict, and direct a new trial ( R. v. Graveline , at para. 14 ).
[ 44 ] Where an appellate court can isolate the legal error to the acquittal, that charge should be the only one sent back for a new trial and the conviction should stand.
[ 45 ] That said, when an appellate court is satisfied that the acquittal is the product of a legal error and cannot stand, it may, in some circumstances, enter a stay of proceedings on the charge for which the accused was acquitted in application of the residual power under s. 686(8) of the Criminal Code , rather than order a new trial. For an appellate court to issue a stay of proceedings under s. 686(8) , three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4) , (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires ( R. v. Bellusci , 2012 SCC 44 , [2012] 2 S.C.R. 509, at para. 20 ).
(b) Absence of a Crown Cross‑Appeal
[ 46 ] The parties disagree about what happens when the Crown has not cross‑appealed but nonetheless asserts that a legal error in the jury instructions reconciles apparently inconsistent verdicts. I prefer not to express a definitive view on this issue, as it does not arise in this appeal.
[ 47 ] Here, as indicated, the Crown cross‑appealed R.V.'s acquittal on the sexual assault charge. Accordingly, the issue of what happens where there is no cross‑appeal need not be resolved in this case.
[ 48 ] Having regard to the bedrock principle of our adversarial system that where an accused makes an argument, the Crown must be given the opportunity to respond, and given that the issue of the necessity of a cross‑appeal was not raised in this case, I would leave it for another day.
B. Application to the Facts
[ 49 ] In the present case, R.V. appealed his sexual interference and invitation to sexual touching convictions on the basis that they are inconsistent with his acquittal on the sexual assault charge. The Crown cross‑appealed the acquittal on the sexual assault charge, arguing that the jury was misdirected and that the misdirection explains the apparent inconsistency in the verdicts.
[ 50 ] I agree that the verdicts rendered by the jury are inconsistent on their face. Given that the three charges have the same elements, a jury that found R.V. guilty of sexual interference and invitation to sexual touching should also have found him guilty of sexual assault. The question is whether the Crown has satisfied its burden to reconcile the apparent inconsistency.
(1) The Legal Error
[ 51 ] Sections 151 , 152 and 271 of the Criminal Code use different terms to describe similar acts. Sexual interference under s. 151 and invitation to sexual touching under s. 152 use the word "touch" or "touching", while sexual assault under s. 271 refers to "force". To succeed at trial, the Crown must prove that the accused applied force, which includes any form of physical contact, to the complainant.
[ 52 ] The word "force" is commonly understood to mean physical strength"violence, compulsion, or constraint exerted upon or against a person or thing" ( R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 27 , citing Black's Law Dictionary (6th ed. 1990) at p. 648). But "force" in the context of sexual assault has a specific legal meaning: it is equivalent to "touching" ( Ewanchuk , at para. 27 ; R. v. Chase , [1987] 2 S.C.R. 293, at p. 302 ). In other words, any non-consensual touching of a sexual nature constitutes sexual assault.
[ 53 ] Many cases demonstrate that instructions on the law of sexual assault when an accused is also charged with sexual interference and/or invitation to sexual touching must make clear to the jury that the "force" required for sexual assault is one and the same as the "touching" required for the other two offences. The failure to provide this clarification and the resulting confusion can create the false impression that sexual assault requires something beyond mere touching (see, e.g., R. v. Barton , 2017 ABCA 216 , at para. 191 ; R. v. Plein , 2018 ONCA 748 , 365 C.C.C. (3d) 437, at para. 22 ).
[ 54 ] Viewed in isolation, parts of the trial judge's instruction on sexual assault indicate that any form of touching could constitute the force necessary for sexual assault. For instance, the trial judge told the jury: "[a]ny application of force to another person — even the slightest touching — is sufficient to constitute an assault" and "[e]ven a gentle touch constitutes force for this purpose" (A.R., at pp. 153‑54). However:
When considering arguments of alleged misdirection, the appellate court must review the charge as a whole from a functional perspective. It must ask whether the jury, acting reasonably, would have understood the instructions correctly, and not focus on parts of the charge in isolation from each other. ( R. v. Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760, at para. 28 )
[ 55 ] Having regard to the jury charge as a whole and its substance, I am satisfied that the trial judge misdirected the jury on the charge of sexual assault by leaving them with the mistaken impression that "force" meant something more than "touching". I will explain.
[ 56 ] In instructing the jury on the sexual assault offence, the trial judge stated that the elements were:
i. That [R.V.] intentionally applied force to [the complainant];
ii. That the force that [R.V.] intentionally applied took place in circumstances of a sexual nature. [Emphasis added.]
(A.R., at p. 153)
[ 57 ] In her summary at the end of the sexual assault instruction, she stated:
If you are satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [the complainant] in circumstances of a sexual nature, then you must find [R.V.] guilty of sexual assault. [Emphasis added.]
[ 58 ] After her instructions relating to sexual assault, the trial judge gave instructions on sexual interference and on invitation to sexual touching. For sexual interference, the trial judge told the jury that the element of touching means: "[t]he contact may be direct, for example, touching with a hand or other body part, or indirect, for example, touching with an object. The contact may be over clothing. The contact may be brief."
The contact may be direct, for example, touching with a hand or other body part, or indirect, for example, touching with an object. The contact may be over clothing. The contact may be brief.
[ 59 ] In her explanation for invitation to sexual touching, the trial judge stated that the elements were that the complainant touched R.V.'s body for a sexual purpose. In particular, the trial judge instructed the jury:
The proposed touching must involve intentional physical contact with any part of a person's body. Force is not required for this offence, only touching. [Emphasis added.]
[ 60 ] In my respectful view, given the way the instructions were organized — an explanation of one count after another in isolation — a jury would reasonably have understood from the overall structure of the charge that "force" was different from "touching". The trial judge instructed the jury that "force is not required" for invitation to sexual touching, but never linked this statement to her instructions on sexual assault by making it clear that the "force" required for sexual assault was in fact the same as the "touching" required for the other two offences.
[ 61 ] This misdirection was compounded by the trial judge's further error in leaving simple assault as an available verdict for the jury on the sexual assault charge. The trial judge instructed:
If you are not satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [the complainant] in circumstances of a sexual nature, then you must find [R.V.] not guilty of sexual assault. But if you are satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [the complainant] but are not satisfied that the force was applied in circumstances of a sexual nature, find [R.V.] guilty of assault. [Emphasis added.]
[ 62 ] Not only did the trial judge instruct the jury on simple assault, she also included simple assault as an available verdict in the decision tree:
Not Guilty of Sexual Assault but Guilty of Assault
(A.R., at p. 223)
[ 63 ] Rather than correcting this error when the jury sent a question about the discrepancy between the decision tree and the verdict sheet, the trial judge updated the verdict sheet to be consistent with the decision tree — which was itself in error — by adding the option of "Not Guilty of Sexual Assault but Guilty of Assault" on the verdict sheet. The trial judge should have recognized that, given the age of the complainant, consent was not an issue and that simple assault was not an available verdict in the circumstances.
[ 64 ] I appreciate that the trial judge relied on pattern instructions. Trial judges understandably rely heavily on such instructions, but pattern instructions must always be adapted to the specific facts of a case.
[ 65 ] Based on all of the foregoing, I am able to conclude with a high degree of certainty that the jury did not understand that the element of "force" required for sexual assault was the same as the element of "touching" required for the other two offences.
(2) The Legal Error Was Material and Isolated to the Acquittal, and It Reconciles the Apparent Inconsistency
[ 66 ] The legal error led the jury to return a verdict of acquittal on the sexual assault charge. The jury mistakenly believed that the "force" required for sexual assault was something more than mere "touching", and consequently concluded that R.V. did not apply force to the complainant in circumstances of a sexual nature. At the same time, the jury correctly applied the instructions on sexual interference and invitation to sexual touching, finding that R.V. did touch the complainant for a sexual purpose. In this way, the legal error reconciles the inconsistency. The jury found R.V. guilty of sexual touching (hence the convictions) and not guilty of applying force beyond touching to the complainant in circumstances of a sexual nature (hence the acquittal). Those two findings are not inconsistent.
[ 67 ] Importantly, retracing the jury's reasoning in this way does not involve speculation or conjecture. The instructions provided a clear pathway for the jury to acquit R.V. of sexual assault without finding him not guilty of touching the complainant. The decision tree for sexual assault provided the jury with three possible outcomes: (1) guilty of sexual assault; (2) not guilty of sexual assault but guilty of assault; or (3) not guilty. The trial judge instructed the jury that:
If you are not satisfied beyond a reasonable doubt that [R.V.] intentionally applied force to [the complainant], you must find [R.V.] not guilty of sexual assault. [Emphasis added.]
(A.R., at p. 159)
[ 68 ] This was the only basis upon which the jury could have acquitted R.V. of sexual assault. The jury was instructed that if they were satisfied that R.V. applied force in circumstances of a sexual nature, they were to find him guilty of sexual assault. They were also instructed that if they were satisfied that force was applied but not in circumstances of a sexual nature, they were to find him guilty of assault. If neither was proven beyond a reasonable doubt, the jury was to find R.V. not guilty. There is no reasonable basis to think that the jury doubted that any touching was in circumstances of a sexual nature; R.V. was convicted of the other two offences, which also require a sexual purpose. In sum, the only reasonable explanation for the verdict of acquittal on the sexual assault charge is the jury's mistaken belief that "force" was not established. The error was isolated to the acquittal.
[ 69 ] Further, the legal error was isolated to the acquittal. The trial judge's instructions on sexual interference and invitation to sexual touching were legally correct, and the convictions cannot be impugned on that basis.
[ 70 ] Finally, the legal error reconciles the apparent inconsistency in that the jury did not find R.V. both guilty and not guilty of the same conduct. The jury found R.V. guilty of sexual touching (hence the convictions) and not guilty of applying force — which it understood to be something beyond mere touching — to the complainant in circumstances of a sexual nature (hence the acquittal on the sexual assault charge). Those two findings are not inconsistent.
[ 71 ] In sum, the framework I have set out is satisfied and accordingly the convictions are not actually inconsistent with the acquittal. On the basis of inconsistency alone, the convictions cannot be faulted.
[ 72 ] Since I have found that the verdicts are not actually inconsistent, the convictions are not unreasonable on that basis. R.V.'s convictions are therefore to be restored.
(3) The Applicable Remedy
[ 73 ] I turn now to the appropriate disposition for the sexual assault charge. As I explained, the ordinary remedy in cases where a Crown appeal from an acquittal is allowed is a new trial. In this case, the Crown sought, and I am prepared to grant, a stay of proceedings on the sexual assault charge in the exercise of this Court's residual power under s. 686(8) of the Criminal Code .
[ 74 ] Under s. 686(8) of the Criminal Code , a court of appeal has the power whenever it exercises "any of the powers conferred by this section" to "make any order, in addition, that justice requires". As explained in R. v. Bellusci , 2012 SCC 44 , [2012] 2 S.C.R. 509, at para. 20, for an appellate court to exercise the residual power under s. 686(8) , three requirements must be met: first, the court must have exercised one of the triggering powers conferred under s. 686(2), (4) , (6) or (7); second, the order issued must be ancillary to the triggering power; and third, the order must be one that justice requires.
[ 75 ] Here, the three requirements justify ordering a stay of proceedings on the sexual assault charge. First, the Court is exercising a triggering power under s. 686(4)(b)(i) in allowing the Crown's appeal from the jury acquittal on the sexual assault charge and setting aside the acquittal.
[ 76 ] Consistent with the second requirement, ordering a stay would be ancillary to the triggering power under s. 686(4)(b) , since a stay of proceedings would be of the same quality as a new trial, but more limited in scope: both dispositions ensure that R.V. is not finally convicted of the offence for which he was acquitted ( R. v. Warsing , [1998] 3 S.C.R. 579, at para. 53 ).
[ 77 ] Finally, justice requires a stay of this proceeding. Before the Court of Appeal, the Crown represented that it would not seek a new trial if the convictions were restored. This representation remains in place. The Crown should be held to its representation. Moreover, the conduct of another trial would impose significant hardship on a complainant who has already been through a difficult process. R.V.'s convictions are restored; those convictions will result in the sentence that justice requires. For these reasons, ordering a stay of proceedings on the sexual assault charge is, in the circumstances, the order that justice requires.
V. Conclusion
[ 78 ] It is incumbent upon the Crown as a participant in the justice system to make the trial process less burdensome, not more. Too often, as here, the Crown proceeds on multiple counts arising from the same conduct, with the result that the jury — and the accused — must contend with overlapping and potentially confusing instructions. The Crown should take care to avoid overcharging or drafting confusing indictments.
[ 79 ] Moreover, as the Court of Appeal majority observed, correctly in my view, the Crown proceeding on duplicative counts in cases like this one brings the risk of inconsistent verdicts. The courts are compelled to spend limited resources on such appeals, which further burdens an already taxed justice system. The Crown should take care to avoid such situations.
[ 80 ] The Crown's appeal is allowed, the Court of Appeal's order is set aside, and R.V.'s convictions are restored. The acquittal on the charge of sexual assault is set aside and a stay of proceedings is entered on that charge.
The reasons of Brown and Kasirer JJ. were delivered by
Brown J. (dissenting in part) —
[ 81 ] That the verdicts in this case are inconsistent is not in dispute. What divides us is what to do about it ⸺ or, more precisely, whether it matters that the jury's misdirection can explain the inconsistency. My colleagues say yes. I disagree.
[ 82 ] Specifically, my colleagues restore the respondent's convictions on the basis that the verdicts are not inconsistent, once the jury misdirection is accounted for. But this is a legal fiction: the verdicts are inconsistent, and my colleagues know it. That is why they also found that the misdirection had a material effect on the acquittal, which required setting the acquittal aside.
[ 83 ] This, however, ignores the appeals scheme of the Criminal Code and the law as it stands, which make clear that it is simply not open to this Court to retrace a jury's reasoning. As I will explain, retracing the jury's reasoning, even with a "high degree of certainty", is just speculation with a fancy name.
[ 84 ] It is plain from this scheme that Parliament's crafting of the appeals provisions in the Code was governed by a fundamental premise: that jury deliberations are secret. Juries do not give reasons for their verdicts. They never have, and our system of criminal justice has consistently treated the secrecy of jury deliberations as sacrosanct ( R. v. Pan , 2001 SCC 42 , [2001] 2 S.C.R. 344, at para. 41 ).
[ 85 ] The significance of all of this is as follows: my colleagues think they know the precise effect and extent of the misdirection on the jury's deliberations. With respect, they do not. The jury deliberated in secret. No one — literally no one — can know what the jury discussed, what evidence they considered, or why they decided as they did.
[ 86 ] My colleagues' line of reasoning also does violence to J.F. They dispute this, saying that J.F. (and, for that matter, Pittiman ) do not preclude their framework. But that is not what they have to establish; they have to show that the framework they have developed is consistent with J.F. and that J.F. permits it, and they cannot do so.
[ 87 ] But my colleagues also say ⸺ and here they do run afoul of J.F. , their protestations to the contrary notwithstanding ⸺ that the legal error reconciles the inconsistency. With respect, J.F. could not be any clearer: "the existence of a legal error does not reconcile inconsistent verdicts" ( J.F. , at para. 24 ).
[ 88 ] The novelty of the framework now developed by my colleagues is revealed in their analogy to the reasoning of Paciciocco and other academics. The analogy reveals the novelty of the framework my colleagues have developed: I am not aware of another case in which an appellate court has done what my colleagues propose here.
[ 89 ] My colleagues respond by stating that commonplace appellate matters "requir[e] a reviewing court to consider . . . the likely effect of legal errors on the jury's deliberations" (para. 38). True enough. But this is not a commonplace appellate matter — it is the determination of what jury instructions are legally correct, not an inquiry into the secret deliberations of a specific jury.
[ 90 ] My colleagues go further still to avoid being taken as having overruled J.F. on this point, insisting that nothing in J.F. forecloses their framework. But what they cannot escape is that their framework requires a court to conclude, with a "high degree of certainty", that "the jury did not find the accused both guilty and not guilty of the same conduct" (para. 33). This is precisely the type of inquiry into jury deliberations that J.F. rejected.
[ 91 ] My colleagues conclude as much here, finding that in this case "the legal error reconciles the apparent inconsistency" (para. 70). J.F. says the opposite: "the existence of a legal error does not reconcile inconsistent verdicts" (para. 24). So my colleagues have, whether they acknowledge it or not, overruled J.F. on this point.
[ 92 ] In restoring the respondent's convictions, my colleagues say that this will be a rare result. I disagree. The result will be far more common than my colleagues suggest, because the framework they have developed will encourage the Crown to over-charge, leaving it to the courts to sort out any resulting inconsistencies. Worse, the framework will consistently favour the Crown, because — as this case demonstrates — it will be far easier for the Crown to retrace the jury's reasoning in favour of a conviction than for the accused to retrace it in favour of an acquittal.
[ 93 ] I turn, then, to the question of the remedy to be given here. Where a convicted person establishes that jury verdicts are inconsistent, there are two possible outcomes: (1) the conviction is quashed, with or without a new trial; or (2) the conviction is restored if the Crown can reconcile the inconsistency. As I have explained, in my view the inconsistency cannot be reconciled. Accordingly, the conviction must be quashed. The question is whether a new trial is required.
[ 94 ] When deciding a Crown appeal from an acquittal by a jury, an appellate court may either (1) dismiss the appeal, or (2) allow the appeal, set aside the verdict, and direct a new trial ( Criminal Code , s. 686(4) ). I agree with my colleagues that those three requirements for a stay of proceedings under s. 686(8) are met here — but only if the Court also restores V's convictions, as the majority proposes. Since I would not restore V's convictions, a new trial on all three charges is necessary.
[ 95 ] My colleagues strain to avoid this reality, but it comes down to this: the law provides an answer to the very situation that confronts us here. Juries can and do return inconsistent verdicts. Parliament has decided what courts should do when that happens: order a new trial. My colleagues have decided to circumvent Parliament's answer.
[ 96 ] My colleagues rely on ss. 686(4)(b) and 686(8) to allow the Crown appeal and enter a stay. While s. 686(8) empowers an appellate court to make an additional order under s. 686(4) , the majority is making an alternative order by entering a stay of proceedings. In allowing the Crown's appeal from the acquittal under s. 686(4)(b)(i) , the only available remedy is a new trial — not a stay of proceedings, which is tantamount to a finding of not guilty.
[ 97 ] It is of course true that in R. v. Bellusci , 2012 SCC 44 , [2012] 2 S.C.R. 509, Fish J. held, in obiter , that, in rare circumstances, the residual power under s. 686(8) could be used to enter a stay of proceedings when the Crown successfully appeals from an acquittal. Even granting this, Bellusci requires that three requirements be met, which my colleagues agree are present here. In those circumstances, I accept that the majority's use of s. 686(8) to enter a stay is available — but only if the convictions are also restored, as the majority proposes.
[ 98 ] My colleagues find that those requirements are met here because a stay is tantamount to a finding of not guilty without the finality of a formal acquittal. But how can a finding tantamount to not guilty be "ancillary" to, or consistent with, the Court's conclusion that V is guilty of the very same conduct? A stay of proceedings is an extraordinary remedy, available only in the clearest of cases. The majority's use of a stay here makes a legal fiction of both the stay and the underlying guilty verdicts.
[ 99 ] In entering a stay, my colleagues rely on the assurance of the Crown that it would not proceed with a new trial on the sexual assault charge if the convictions were restored. But this is precisely the type of assurance the Court should not be relying upon to do what Parliament has commanded — order a new trial. Courts should not be in the business of enforcing Crown assurances that are inconsistent with the statutory framework.
[ 100 ] That said, I am content with my colleagues' proposal to leave the question of the necessity of a Crown appeal unresolved. The question of whether the Crown must cross‑appeal to rely on jury misdirection to reconcile inconsistent verdicts is better left for another day.
[ 101 ] Appellate courts like ours operate within certain statutory constraints when deciding a Crown appeal from an acquittal by a jury. The Criminal Code gives appellate courts two options when allowing a Crown appeal from a jury acquittal: dismiss the appeal, or allow the appeal, set aside the verdict, and order a new trial. A stay of proceedings entered on a charge for which the accused was acquitted is not one of those options, absent the exceptional circumstances addressed in Bellusci.
[ 102 ] Of course, my colleagues' difficulty in ordering a new trial on the sexual assault charge is that they also wish to restore V's convictions, which are plainly inconsistent with the acquittal. Ordering a new trial on all three charges avoids this difficulty, because it allows the trier of fact to reach consistent verdicts in an untainted proceeding.
[ 103 ] That is what is required here. I agree with my colleagues that the jury was misdirected in this case on the basis that the trial judge failed to inform the jury in clear terms that the "force" required to make out the offence of sexual assault was the same as the "touching" required for the other two offences. But where I part from my colleagues is on the remedy: the appropriate disposition is a new trial on all three charges.
Appeal allowed, Brown and Kasirer JJ. dissenting in part.
Solicitor for the appellant: Attorney General of Ontario, Toronto.
Solicitors for the respondent: Lockyer Campbell Posner, Toronto.
Solicitor for the intervener the Attorney General of Alberta: Justice and Solicitor General, Appeals, Education & Prosecution Services, Edmonton.
Solicitor for the intervener the Criminal Lawyers' Association of Ontario: Michael Dineen, Toronto.
