Inconsistent Verdicts:  Things that Make You Go Hmm


The legal test applicable when a reviewing court is faced with an allegation of inconsistent jury verdicts is “whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge”:

                R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7.

Where the accused is tried on a multi-count indictment, “the verdicts will be supportable if the trial judge’s instructions were proper legal instructions that could have led the jury to accept a theory of the evidence producing these verdicts”:

R. v. L(S), 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5; R. v. Tyler, 2015 ONCA 599, [2015] O.J. No. 4653, at para. 8.

OK, hold on.  Here’s where things get a little tricky.

Verdicts that are inconsistent are unreasonable:  they cannot be supported on a realistic view of the evidence.  As a species of unreasonable verdict, an inconsistent verdict may be set aside by an appeal court under s. 686(1) (a)(i) of the Criminal Code.  

However, an unjustified verdict does not necessarily make it unreasonable.  For instance, every assault requires the application of force.   Juries sometimes understand from this that assault (including a sexual assault) requires the application of physical, especially violent, strength.  Not so.  Touching is itself a form of force.  

In sexual offence cases where the complainant is under 16, it is very common for the police to charge the accused with both sexual assault and sexual interference.  A jury’s misapprehension as to what constitutes force sometimes results in its rendering a verdict of not-guilty of sexual assault but guilty of sexual interference (which requires touching for a sexual purpose).  

Though the not-guilty verdict is unjustified, it does not necessarily create a set of inconsistent verdicts, presumably because the failure of the jury to appreciate that the accused’s conduct created an additional and separate basis for his conviction does not make the two verdicts irreconcilable on the evidence.

See for instance R. v. K.D.M., 2017 ONCA 510 ;

see also R. v. Tremblay, 2016 ABCA 30 (CanLII).

 Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more