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APPEALS - Grounds - Unreasonable verdict - Powers of appellate court - Stay of proceedings - Substitution of verdict

Friday, March 12, 2021 @ 1:17 PM  


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Appeal by the Crown from a decision of the Ontario Court of Appeal that quashed the respondent RV’s convictions for sexual interference and invitation to sexual touching, entered verdicts of acquittal and upheld RV’s acquittal for sexual assault. RV was charged with historical sexual offences against a single complainant. The complainant testified to multiple incidents of sexual abuse committed by RV when she was between 7 and 13 years old. A jury convicted RV of sexual interference and invitation to sexual touching but acquitted him of sexual assault based on the same evidence. RV appealed his convictions. The Crown cross-appealed the acquittal. The Court of Appeal found there was no legal error in the jury instructions and that the convictions were unreasonable as they were inconsistent with the acquittal on the sexual assault charge.

HELD: Appeal allowed. The Crown could 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 reconciled the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct. If the elements were satisfied, the verdicts were not actually inconsistent. In the within proceeding, the trial judge misdirected the jury on the sexual assault charge 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. The error was material to the acquittal. The jury mistakenly believed that sexual assault, but not the other two charges, required force beyond mere touching. Speculation or conjecture of the jury’s reasoning was not involved as the erroneous instructions explained how the jury came to their verdict on the sexual assault charge. The legal error did not impact on the convictions but rather reconciled the apparent inconsistency in the verdicts. The verdicts were not actually inconsistent and the convictions were not unreasonable on the basis of inconsistency. RV’s convictions were restored. The acquittal on the sexual assault charge was set aside. A stay of proceedings was entered on the sexual assault charge rather than ordering a retrial. Dissenting reasons were provided.

R. v. R.V., [2021] S.C.J. No. 10, Supreme Court of Canada, , R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., March 12, 2021, Digest No. TLD-March82021011-SCC