TORONTO – Prosecuting a person for different offences arising out of the same facts and circumstances is a blueprint for unreasonable verdicts, Ontario‘s top court says.
The comments by the Court of Appeal come in a case in which a jury acquitted a man of sexually assaulting a girl but, at the same time, inexplicably convicted him of sexual interference and inviting sexual touching.
“This court has repeatedly stressed that trials – all trials, whether judge alone or judge and jury – should be made less complicated, not more complicated,” Chief Justice George Strathy wrote for the majority. “Proceeding with duplicative counts complicates and prolongs the trial, and is a recipe for jury confusion and inconsistent verdicts.”
The man, identified as R.V., was charged with sexual assault, which involves sexual contact without consent. He was also charged with sexual interference, which involves sexual contact with someone under age 16, and invitation to sexual touching, which involves inviting or inciting someone under 16 to touch a person’s body for sexual purposes.
The offences, which allegedly occurred between 1995 and 2003, involved his partner’s daughter, T.S., who was aged between 7 and 13 at the time. Among other things, T.S. alleged he had touched her private parts, used her hand for his self-gratification, and had her lie naked on him for simulated intercourse.
Despite the similarity of the three charges, the Crown pursued them all in court.
The jury acquitted R.V. of sexual assault, but found him guilty of the interference and invitation counts. Essentially, jurors both convicted and acquitted him of the same acts against the same person in the same circumstances.
“If the jury was satisfied beyond a reasonable doubt that sexual touching occurred, the accused should be convicted of both sexual assault and sexual interference,” Strathy said.
R.V. appealed the convictions on the basis that the guilty and not-guilty verdicts could not reasonably stand together. The Crown cross-appealed the sexual-assault acquittal.
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In its lengthy analysis, the majority of the five-judge Appeal Court panel found no legal error in the charge to the jury as the prosecution had claimed and therefore no reason to overturn the acquittal on the sexual assault charge.
As a result, the court said it could not order a new trial on the sexual interference and invitation counts because doing so would invite a jury to potentially return an inconsistent verdict.
Ultimately, the Appeal Court said, proceeding with the sexual assault and sexual interference charges was at the root of the problem. Case law, the court said, mandates one of those counts would have been stayed following a successful prosecution of both, essentially to avoid punishing someone twice for the same offence.
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“Why was it necessary to proceed with both counts, when a stay of one was inevitable on conviction of both?” Strathy wrote. “Where, as here, it is clear that one of the counts will necessarily be stayed in the event of a conviction of both, the Crown should consider, either before trial or before the jury is charged, whether to pursue both counts.”
In a dissenting opinion, justices Paul Rouleau and Bradley Miller said they would have ordered a new trial on all three charges on the basis that the judge’s charge to the jury was flawed.
“The acquittal was likely the result of confusion by the jury,” Rouleau wrote. “In such circumstances, ordering the appellant to undergo a new trial on all charges cannot be viewed as being unfair to him.”
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