



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Catton, 2015 ONCA 13

DATE: 20150114

DOCKET: C54265 and C55351

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashley Catton and Shawn DeForest

Appellants

Timothy E. Breen, for the appellants

Sean Doyle, for the respondent

Heard: November 25, 2014

On appeal from the convictions entered on February 17,
    2011 and the sentences imposed on November 18, 2011 by Justice A Mullins of the
    Superior Court of Justice, sitting with a jury.

Doherty
    J.A.:


I.

Overview

[1]

The appellants were in a vehicle driving southbound on Mill Street in
    Angus, Ontario. They attempted to turn left at a stop light. The light was
    green. As the appellants vehicle crossed into the northbound lanes it struck a
    northbound vehicle driven by Jerry Barnes. Mr. Barnes was proceeding on the
    green light through the intersection. Mr. Barnes vehicle was then struck from
    behind by a northbound motorcycle. The driver of the motorcycle, Greg Reaume
    suffered minor injuries. His passenger, Audra Armstrong was thrown from the
    motorcycle and suffered serious injuries. She died in the hospital seven days
    later.

[2]

At the time of the accident the appellants were boyfriend and
    girlfriend. Ms. Catton was 19 and Mr. DeForest was 20. Ms. Catton owned the
    vehicle involved in the accident. Mr. DeForest did not have a drivers licence.

[3]

It was the Crowns position that Mr. DeForest was driving the vehicle at
    the time of the accident. It was the appellants position that Ms. Catton was
    the driver.  Ms. Catton testified. Mr. DeForest did not testify.

[4]

The trial proceeded on a six count indictment. Five of those charges are
    relevant to his appeal. Mr. DeForest was convicted of dangerous driving causing
    Ms. Armstrongs death (count one) but acquitted of dangerous driving causing
    bodily harm to Mr. Reaume (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. DeForests dangerous driving (count four). This charge
    also arose out of Ms. Cattons alleged lies to the police identifying herself
    as the driver.

[5]

Mr. DeForest received 15 months on the dangerous driving causing death
    conviction, and 3 months consecutive on the obstruction of police conviction.
    He was given 15 days credit for presentence custody resulting in an effective jail
    sentence of 17 ½ months. The trial judge also imposed a five-year driving
    prohibition, 12 months probation, and required Mr. DeForest to provide a DNA
    sample pursuant to s. 487.051(3) of the
Criminal Code
.

[6]

Ms. Catton received a 90-day conditional sentence to be followed by six
    months probation.  She was given credit for four days pre-trial custody yielding
    an effective conditional sentence of 86 days. Both appellants appeal conviction
    and sentence.

[7]

Mr. Breen, on behalf of the appellants, advanced several grounds of
    appeal. I need consider only his submission that the conviction on count one
    (dangerous driving causing death) and the acquittal on count two (dangerous
    driving causing bodily harm) are irreconcilably inconsistent thereby rendering
    the conviction on count one unreasonable within the meaning of s. 686(1)(a)(i)
    of the
Criminal Code
. For the reasons that follow, I agree with this
    submission. I also agree with Mr. Breens submission that the irreconcilable
    inconsistency between the verdicts on counts one and two undermines the
    legitimacy and reliability of the convictions on the other charges.  In my view,
    all of the convictions must be quashed. I would enter an acquittal on count one
    (dangerous driving causing death), an acquittal on count four (accessory after
    the fact), and order a new trial on the obstruct police charges (counts five
    and six).

II.

The Verdicts on the Dangerous Driving Charges (Counts 1 and 2)

[8]

On count one, the charge of dangerous driving causing the death of Ms.
    Armstrong, the Crown had to prove beyond a reasonable doubt first that Mr. DeForest
    was operating the motor vehicle; second that he was doing so in a manner that
    was dangerous to the public as described in s. 249 of the
Criminal Code
;
    and finally that his operation of the motor vehicle was a contributing cause of
    the accident that admittedly caused Ms. Armstrongs death. The identity of the
    driver and the nature of the driving were both very much at issue at trial.

[9]

The defence maintained that Ms. Catton was driving the vehicle at the
    time of the accident and that the evidence showed only a momentary lapse of
    judgment, not dangerous driving as described in the
Criminal Code
. I
    will not detail the evidence relevant to either the identity of the driver, or
    the nature of the driving. It was reasonably open to the jury, depending on its
    assessment of the evidence, to find for or against the Crown or defence on either
    or both issues.

[10]

The
    trial judge told the jury that it had two possible verdicts on count one. The
    jury could find Mr. DeForest guilty of dangerous driving causing death or not guilty.
     Although a conviction on the included offence of dangerous driving may
    technically have been available on count one, the defence did not argue that even
    if Mr. DeForest was the driver and was driving in a criminally dangerous
    manner, the jury could have a reasonable doubt as to whether his driving was a contributing
    cause in Ms. Armstrongs death.

[11]

On
    count two, the charge of dangerous driving causing bodily harm, the trial judge
    instructed the jury that there were three possible verdicts. The jury could
    convict of dangerous driving causing bodily harm, convict on the included
    offence of dangerous driving, or acquit Mr. DeForest outright.  The included
    offence of dangerous driving was in play on count two because the relatively
    minor nature of Mr. Reaumes injuries may not have been viewed by the jury as
    constituting bodily harm.

[12]

Toward
    the end of her instructions, the trial judge provided the jury with a verdict
    sheet outlining the possible verdicts on each of the six counts.  She told the
    jury that after it had reached its verdicts, the foreperson should place a
    check mark in the box opposite the appropriate verdict on each count.  She went
    on to instruct the jury that after it arrived at the verdicts, the jury would
    return to the courtroom and the foreperson would give the verdict sheet to the
    registrar who would then give it to the trial judge for examination.  The trial
    judge told the jury that she would return the verdict sheet to the foreperson
    and the foreperson would announce the verdicts in open court.  The trial judge
    also explained to the jurors that they would be asked if they agreed with the
    verdicts as read by the foreperson.

[13]

The
    jury began deliberating in the late afternoon.  Late the next afternoon the
    jury returned to the courtroom with its verdicts.  The following exchange
    occurred:

REGISTRAR:        Please indicate the verdict on each accused
    and on each count as I call it. On count  please stand. On count one dangerous
    driving causing death, how do you find Shawn DeForest, guilty or not guilty?

FOREPERSON:     Guilty.

REGISTRAR:        On count two dangerous driving causing bodily
    harm, how do find Shawn DeForest, guilty or not guilty?

FOREPERSON:     Not guilty.

[14]

The
    registrar took the verdicts on the four remaining counts, after which the
    registrar said:

Members of the jury, harken to your verdict as the court has
    recorded it, you say the accused at the bar, Shawn DeForest is guilty on count
    one, not guilty on count two,  so say you all.

JURY:         Yes.

[15]

There
    is no indication in the trial transcript that the foreperson gave the verdict
    sheet to the registrar or that the trial judge examined the verdict sheet
    before taking the verdicts from the foreperson.  The endorsement on the
    indictment tracks the verdicts announced by the foreperson indicating a finding
    of guilty on count one and not guilty on count two.

[16]

In
    the sentencing proceedings that followed over several months, counsel and the
    trial judge proceeded on the basis that the jury had convicted on count one and
    acquitted outright on count two.  No one adverted to any apparent inconsistency
    between the verdicts on counts 1 and 2.

[17]

The
    trial exhibit list in the original papers sent from the trial court to this
    court, indicates that a verdict sheet was marked as exhibit B.  There is no
    reference in the trial transcript to a verdict sheet being marked as an
    exhibit.  The verdict sheet contained in the trial file corresponds with the
    verdicts returned in open court by this jury except for the verdict on count
    two. The verdict sheet indicates that the jury convicted on the included
    offence finding Mr. DeForest not guilty of dangerous driving causing bodily
    harm, but guilty of dangerous driving. The verdict sheet is not signed or
    dated.  The trial judge did not tell the foreperson to sign or date the verdict
    sheet in her instructions.

[18]

The
    verdicts on counts one and two as recorded in the verdict sheet remove any inconsistency
    between the verdicts on those counts.  The conviction on the included offence
    of dangerous driving in count two is explained by a reasonable doubt as to
    whether Mr. Reaumes injuries amounted to bodily harm.

[19]

It
    is certainly possible that the jury intended to return the verdict on count two
    indicated on the verdict sheet. Indeed one could reasonably go so far as to say
    that the jury probably intended to return the verdicts as recorded on the
    verdict sheet.  That is not however what happened.  The verdict as returned in
    open court was an unqualified finding of not guilty on count two.

[20]

A
    trial court has a limited power to inquire into and correct a verdict when
    there is reason to doubt that the verdict returned by the jury is the verdict
    intended by the jury: see
R. v. Burke
, [2002] 2 S.C.R. at para. 23.
    Crown counsel on appeal accepts, correctly in my view, that the narrow
    authority described in
Burke
is of no assistance on this appeal. No
    inquiry into the verdicts was conducted at trial. Nor could any inquiry be
    conducted in this court several years after the verdicts were returned and the
    jury discharged.  The verdicts must be taken as announced by the jury in open
    court  guilty of dangerous driving causing death on count one and not guilty
    on count two.

[21]

Inconsistent
    verdicts are a subspecies of unreasonable verdicts:
R. v. Pittiman
, [2006]
    1 S.C.R. 381 at para. 6. 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:
R.
    v. McShannock
(1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56;
Pittiman
,
    at paras. 7-8.

[22]

As
    explained in
Pittiman
at paras. 7-8, 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.

[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 jurys 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 jurys
    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.

[24]

Nothing
    in the different causation elements of the offences charged in count one and
    count two, or in the evidence relevant to the counts, affords any explanation
    for the different verdicts.  The appellant has demonstrated that no jury could
    reasonably convict on count one and acquit outright on count two.  The
    conviction on count one must be quashed.

III.

The Appropriate Order on Count One

[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
at para. 14 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.
, [2008] 3 S.C.R. 215 at paras.
    38-42. 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.

[26]

The
    recent jurisprudence in the Supreme Court of Canada explaining the application
    of
issue estoppel
in criminal proceedings demonstrates that an
    acquittal is the appropriate order in this case: see
R. v. Mahalingan
,
    2008 SCC 63, [2008] 3 S.C.R. 316;
R. v. Punko
, 2012 SCC 39,
[2012] 2 S.C.R. 396. Those
    cases hold that if a factual issue is decided in favour of an accused at a
    previous trial, the Crown is precluded from leading evidence at a subsequent trial
    to prove the contrary. The Chief Justice in
Mahalingan
at para. 23 put
    it this way:

It is thus not every factual issue in the trial resulting in an
    acquittal which results in an estoppel at a subsequent trial, but only those
    issues which were expressly resolved or, given how the case was argued, had to
    be resolved for there to be an acquittal. If a particular issue was decided in
    favour of the accused at a previous trial, even if the issue was decided on the
    basis of reasonable doubt,
issue estoppel
applies.

[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. DeForests conviction for obstruct police (count six) stand?

[28]

In
    returning a conviction on the obstruct police charge (count six) the jury must
    have been satisfied beyond a reasonable doubt that Mr. DeForest was the driver
    of the car and that he lied to the police with the requisite intent when he
    identified Ms. Catton as the driver.  Those findings are not necessarily
    inconsistent with the acquittal on count two (dangerous driving causing bodily
    harm).  That acquittal may have been based on a reasonable doubt as to the
    nature of the driving. Mr. DeForests conviction for obstruct police cannot be
    quashed on the basis that it is inconsistent with his acquittal on count two
    and therefore unreasonable.

[29]

However,
    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 judges 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.

[30]

In
    so holding I disregard because I think I must as a matter of law, the distinct possibility
    that the real problem lies in the jurys miscommunication of its intended verdict
    on count two.  This court cannot go behind the verdict announced by the jury. To
    consider the possibility that the jury intended to deliver a different verdict
    on count two when assessing whether the verdict on the obstruct police charge
    can stand would be contrary to the principles respecting jury verdicts set down
    in
Burke
.  I would quash Mr. DeForests conviction on the charge of
    obstructing police (count six).

[31]

However,
    unlike count one, a new trial on the obstruct police charge would not run
    aground on the doctrine of
issue estoppel
. It cannot be said that acquittals
    of Mr. DeForest on the dangerous driving charges decided a factual issue in his
    favour that would be essential to the Crowns proof of the charge of obstruct
    police.  A reasonable jury could, for the reasons set out above (para. 28),
    convict Mr. DeForest on the obstruct police charge even in the face of his
    acquittals on the charges of dangerous driving causing death and dangerous
    driving causing bodily harm.  A new trial on that charge is the appropriate
    order.

V.

Can Ms. Cattons convictions stand?

[32]

Ms.
    Catton was convicted of obstruct police (count five) and being an accessory
    after the fact to Mr. DeForests dangerous driving (count four).  Both charges
    were predicated on the allegation that Ms. Catton falsely identified herself to
    the police as the driver of the vehicle at the time of the accident.

[33]

There
    is no reason to distinguish between Ms. Cattons conviction on the obstruct
    police charge and Mr. DeForests conviction on the identical allegation. Just
    as with Mr. DeForest, I would quash Ms. Cattons conviction on the obstruct
    police charge and order a new trial.

[34]

Ms.
    Cattons conviction on the charge of being an accessory after the fact to Mr. DeForests
    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 jurys 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. DeForests conviction on count one, the charge of dangerous
    driving causing death.  The fact that Ms. Cattons conviction as an accessory after
    the fact is consistent with the conviction on count one does not make it any
    less inconsistent with the acquittal on count two.

[35]

The
    question of whether this court should enter an acquittal on the accessory after
    the fact charge or direct a new trial raises a surprisingly complicated
    problem.  Ms. Catton was not charged in counts one and two.  Mr. DeForests
    acquittal on those two counts cannot be said to have resolved any issue in
    favour of Ms. Catton.  Were the court to order a new trial on the accessory
    after the fact charge, Ms. Catton could not raise
issue estoppel
relying on Mr. DeForests acquittals on the dangerous driving charges at the
    first trial:
Mahalingan
, at paras. 49, 56-58.

[36]

Nor
    does Mr. DeForests acquittals on the dangerous driving charges necessarily bar
    Ms. Cattons subsequent prosecution and conviction as an accessory after the fact
    to Mr. DeForests dangerous driving:
Criminal Code
23.1;
R. v. S.
    (F.J.)
,
1997 NSCA 87,
    aff., [1998] 1 S.C.R. 88.

[37]

Even
    though Ms. Cattons 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. DeForests acquittals on the dangerous
    driving charges, a retrial does not seem appropriate. Were there a retrial, Ms.
    Cattons 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
(1991), 62
    C.C.C. (3d) 97 (Ont. C.A.) at 104.  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.

VI   Conclusion

[39]

I
    would allow the appeals.  I would quash all of the convictions.  I would acquit
    Mr. DeForest on count one (dangerous driving causing death) and I would acquit
    Ms. Catton on count four (being an accessory after the fact to dangerous
    driving).  I would order a new trial for Mr. DeForest and Ms. Catton on the
    obstruct police charges (counts five and six).

Released: DD  JAN 14 2015

Doherty J.A.

I agree K. Feldman J.A.

I agree Gloria
    Epstein J.A.


