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A pedestrian walks past the Supreme Court of Canada in Ottawa on Nov. 26, 2020.

Sean Kilpatrick/The Canadian Press

The Supreme Court of Canada has established a new way to reconcile seemingly clashing jury verdicts in a criminal trial, leading a defence-lawyers group to say the court has eroded the value of an acquittal.

Until now, inconsistent jury verdicts – findings of guilty and not guilty on similar charges – led to the overturning of the conviction, and either a new trial or an outright acquittal.

But, in a 7-2 ruling in a sex-abuse case, the court established a new framework in which the seemingly inconsistent can be seen as consistent, and simply the product of a judge’s confusing instructions. If the confusion produced an acquittal on one or more of the charges, but the appeal court believes it did not influence a conviction on another, appellate courts can uphold the conviction.

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The case, known as R.V., involved a man accused of sexually abusing his partner’s daughter when she was between 7 and 13. A jury convicted him in 2015 of sexual interference and sexual touching, but acquitted him of sexual assault for the same acts. (The complainant was the only witness; she was an adult when she testified.)

R.V. appealed, saying his convictions were unreasonable because he could not be guilty and not guilty at the same time. The prosecution cross-appealed the acquittal, saying the trial judge’s instructions confused the jury. The Ontario Court of Appeal sided with R.V. It threw out the convictions in 2019 because of the inconsistency, and said the instructions had been clear. Three of the appeal judges said there should be no new trial; two would have ordered another trial.

The Supreme Court majority took a different approach.

It said that the jury findings should be seen as consistent, because Superior Court Justice Mary Vallee had not made clear that the amount of force needed to convict R.V. of sexual assault was the same as that required to establish sexual touching and sexual interference; a gentle touch was enough. (Justice Vallee had said this, the appeal court pointed out, but the Supreme Court was unanimous that she was not clear enough.)

Because the verdicts were actually consistent, they were therefore reasonable, the majority said, and the convictions should be restored. It put an end to the sexual-assault charge, saying the Crown had said it would not proceed.

The ruling means R.V. may appeal his sentence of two years less a day to the Ontario Court of Appeal.

In creating a new framework for reconciling seemingly inconsistent verdicts, the court said the prosecution must show an appeal court, to a “high degree of certainty,” that a jury would not have acquitted but for the confusing instructions; and that the confusion didn’t matter to the convictions.

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“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,” Justice Michael Moldaver wrote. “Equally, I am satisfied that the error did not impact on the convictions; rather, it reconciles the apparent inconsistency in the verdicts.”

The Criminal Lawyers’ Association (CLA), a largely Ontario group that intervened before the Supreme Court, slammed the ruling.

“This decision undoubtedly erodes the value of an acquittal in future cases,” Eric Neubauer, who represented the CLA at the Supreme Court, said in an e-mail to The Globe and Mail.

“The CLA stands guard against any challenge to the idea that a jury’s verdict of ‘not guilty’ is anything other than a proclamation of innocence, and fear that this case will invite appeal courts to speculate into the reasoning process of the jury, which is something the Criminal Code specifically precludes.”

He added that the appropriate result where a jury’s verdicts are truly inconsistent is for the convictions to fall. “But this is not the end. As identified by the dissent, in many cases the remedy will be a new trial.”

Justice Russell Brown, supported by Justice Nicholas Kasirer, accused the majority of breaking with its own precedents while denying it was doing so. He also said Parliament has made clear in the Criminal Code that an appellate court can never know what went on in the minds of a jury.

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“Retracing a jury’s reasoning, irrespective of the ‘degree of certainty,’ is a type of review that: (1) Parliament has precluded; (2) this court has never sanctioned; and (3) is, as a practical matter, impossible.” Justice Brown added, speaking of appellate judges: “The best they can do is guess.”

The dissenters said they would have ordered a new trial on all three charges.

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