Justice Thomas Cromwell laughs as he listens to speakers during a ceremony officially welcoming him to the Supreme Court of Canada in Ottawa Monday Feb. 16, 2009.Adrian Wyld/The Canadian Press
The Supreme Court of Canada has warned appellate judges to keep their hands off jury verdicts.
It restored a Newfoundland jury's conviction in a case where a man was accused of sexually assaulting his niece while she was between the ages of 12 and 14.
In a unanimous decision Friday, the court faulted the Newfoundland Court of Appeal for substituting its own opinion of the evidence for that of the jury and concluding that the original verdict was unreasonable.
The complainant lived next door to her aunt and uncle – the defendant –in a rural area of the province. The families had an amicable relationship and visited one another regularly.
The complainant reported to her mother, and then repeated to police, that her uncle had once told her: "All you have to do is say the word and I'll make love to you."
In subsequent interviews and during her testimony at her uncle's trial, she brought up incidents that she had not previously alluded to, including several allegations involving unwanted sexual touching.
Testifying at his trial, the defendant denied any sexual activity with the complainant. His wife and several other relatives supported his testimony and asserted that he had nothing more than an affectionate, appropriate relationship with his niece.
In overturning the guilty verdict, the Newfoundland Court of Appeal judges expressed concern about inconsistencies in the complainant's evidence.
Since juries issue a verdict without reasons, the Newfoundland judges considered the evidence as if they were hearing the case themselves. They concluded that a experienced judge would have found the defendant not guilty.
Friday's decision reaffirms the notion that a jury verdict is near-sacrosanct.
Justice Thomas Cromwell, writing for the court, said that jurors have an enormous advantage over appellate judges in that they actually see and hear the evidence.
"The reviewing court must not act as a '13th juror' or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record," Justice Cromwell said.
He said that appellate courts should not only consider whether there is sufficient evidence to sustain a verdict, but whether the verdict "conflicts with the bulk of judicial experience."
Assessing the credibility of evidence is a nuanced exercise that can go much further than simply weighing apparent inconsistencies or motives to lie, he said.
"While appellate review for unreasonableness of guilty verdicts is a powerful safeguard against wrongful convictions, it is also one that must be exercised with great deference to the fact-finding role of the jury," he said. "Trial by jury must not become trial by appellate court on the written record."