[Editor's note: This post is a bit longer than usual, as the case has a number of interesting features.]
In his January 14, 2015 decision in R. v. Catton, Justice Doherty, on behalf of a unanimous Ontario Court of Appeal, found a conviction on one count in a multi-count indictment to be irreconcilably inconsistent with an acquittal on another count in the same indictment. In addition to explaining when convictions will be quashed for this reason, he gave comprehensive guidance to future appellate courts confronting this situation, noting that:
- while usually an order of a new trial will be the appropriate remedy when a conviction is quashed for being irreconcilably inconsistent with an acquittal, an acquittal should be entered if the accused would have an "issue estoppel" defence in a new trial; and
- when a jury's reasoning leads to irreconcilably inconsistent verdicts, other convictions on the same indictment may have to be quashed due to overall concerns with the jury's reasoning.
The Facts
The case emerged from a trial of co-accuseds (the appellants), Mr. DeForest and Ms. Catton. Their attempt to turn left at a stop light resulted in a car accident in which one person was mildly injured and another was severely injured and later died. The Crown maintained at trial that Mr. DeForest was the driver, even though he did not have a licence and Ms. Catton owned the car.
The trial proceeded on a six count indictment. Mr. DeForest was convicted of dangerous driving causing death (count one) but acquitted of dangerous driving causing bodily harm (count two). Both Mr. DeForest and Ms. Catton were convicted of obstructing police by falsely identifying Ms. Catton as the driver of the vehicle (counts five and six). Ms. Catton was convicted as an accessory after the fact to Mr. DeForest's dangerous driving (count four) due to her allegedly lying to the police identifying herself as the driver.
Irreconcilably Inconsistent Verdicts
Justice Doherty found the conviction on count one to be irreconcilable with the acquittal on count two. He noted:
[21] Inconsistent verdicts are a subspecies of unreasonable verdicts. If a trier of fact returns a conviction on one count (or against one accused), and an acquittal on another count (or against a co-accused), the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: [Citations and pinpoints omitted]
[22] As explained in Pittiman, because juries give no reasons for their verdicts, it can be difficult to attack jury verdicts as inconsistent. Verdicts that may at first impression appear inconsistent can often be explained by distinctions in the essential elements of the different offences or in the quality of the evidence relevant to the different offences. [Citations and pinpoints omitted]
[23] I find no basis upon which the conviction on count one and the acquittal on count two can be reconciled. To convict on count one, the jury had to be satisfied beyond a reasonable doubt that Mr. DeForest was the driver and that his driving was dangerous within the meaning of the Criminal Code. The same two issues had to be determined in favour of the Crown before the jury could convict for either dangerous driving causing bodily harm or dangerous driving on count two. The evidence on which those two issues had to be determined was exactly the same on the two counts. The jury's conviction on count one indicates that the jury was satisfied beyond a reasonable doubt that Mr. DeForest was the driver and that his driving met the test for dangerous driving. The jury's acquittal on count two indicates that the jury had a reasonable doubt on either or both of the same two issues that it had decided against Mr. DeForest in convicting him on count one.
Appropriate Remedies
Justice Doherty then considered what the appropriate remedy was in this circumstance. He held acquittals should be entered on certain counts, and a new trial should be ordered on the others. He wrote:
[25] When an appeal court determines that a conviction is unreasonable because it is inconsistent with an acquittal returned by the same trier of fact, the appeal court may order a new trial or enter an acquittal: Criminal Code, s. 686(2). Pittiman instructs that in most cases the appeal court will order a new trial. In some circumstances, however, an acquittal is the appropriate order: see R. v. J.F.. Like the court in J.F., I think an acquittal is the appropriate order in this circumstance. The appellant stands acquitted on count two. That acquittal was not appealed. Nor do I suggest that the Crown had any grounds upon which to appeal that acquittal. If this court ordered a new trial on count one, it would invite a repetition of the very inconsistency that led to the quashing of the conviction on count one on this appeal. [Citations and pinpoints omitted.]
[...]
[27] As outlined above, the jury could have acquitted Mr. DeForest outright on count two if it had a doubt as to his identity as the driver, the nature of the driving, or both. Any of those three explanations would, if this court were to order a new trial on count one, give rise to a successful estoppel claim on behalf of Mr. DeForest at a new trial on the allegation of dangerous driving causing death (count one). An order directing a new trial on that count would be pointless. I would enter an acquittal on count one.
IV. Can Mr. DeForest's conviction for obstruct police (count six) stand?
[29] [...] the irreconcilable inconsistency between the conviction on count one and the acquittal on count two, raises serious doubts about all of the convictions. The inconsistent verdicts on counts one and two suggest either a serious misunderstanding of the trial judge's instructions, or a misguided compromise among the jurors as to the appropriate verdicts: McShannock, at p. 56. In either case the inconsistent verdicts undermine the reliability of all the convictions.
[...]
[31] [...] However, unlike count one, a new trial on the obstruct police charge would not run aground on the doctrine of issue estoppel. [...] A new trial on that charge is the appropriate order.
V. Can Ms. Catton's convictions stand?
[...]
[33] There is no reason to distinguish between Ms. Catton's conviction on the obstruct police charge and Mr. DeForest's conviction on the identical allegation. Just as with Mr. DeForest, I would quash Ms. Catton's conviction on the obstruct police charge and order a new trial.
[34] Ms. Catton's conviction on the charge of being an accessory after the fact to Mr. DeForest's dangerous driving must also be quashed. The trial judge instructed the jury that it could convict Ms. Catton as an accessory after the fact only if satisfied beyond a reasonable doubt that Mr. DeForest had committed the crime of dangerous driving. The jury's conviction of Ms. Catton as an accessory after the fact is therefore inconsistent with its acquittal of Mr. DeForest on the dangerous driving causing bodily harm charge in count two. That inconsistency is not cured by Mr. DeForest's conviction on count one, the charge of dangerous driving causing death. [...]
[37] Even though Ms. Catton's retrial on the accessory after the fact charge would not run afoul of issue estoppel principles and her conviction would not necessarily be inconsistent with Mr. DeForest's acquittals on the dangerous driving charges, a retrial does not seem appropriate. Were there a retrial, Ms. Catton's jury would be asked to find beyond a reasonable doubt that Mr. DeForest was guilty of dangerous driving based on the same evidence that resulted in his acquittals at the initial trial. That result seems unsatisfactory even if legally defensible.
[38] When an appeal court decides to quash a conviction it has discretion to order a new trial or direct an acquittal under s. 686(2): R. v. Levy [citations and pinpoints omitted]. I would exercise that discretion in favour of entering an acquittal on the accessory charge for two reasons. First, an acquittal would avoid the risk of the anomalous result described above. Second, the essence of the accessory after the fact charge, like the obstruct police charge, is that Ms. Catton lied to the police to mislead them in their investigation. Ms. Catton, if guilty of that misconduct, can be called to account by her prosecution and conviction on the obstruct police charge. As I would order a new trial on the obstruct police charge, a retrial on the accessory after the fact charge would, to a large extent, be redundant. [...]
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