



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.V., 2019 ONCA 664

DATE: 20190826

DOCKET: C61866

Strathy C.J.O., Rouleau, Pardu, Miller and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.V.

Appellant

Philip Campbell and Catriona Verner, for the appellant

Christopher Webb, for the respondent

Heard: March 4, 2019

On appeal from the convictions entered on September 18,
    2015 and the sentence imposed on January 29, 2016 by Justice Mary E. Vallee of
    the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:


I.

INTRODUCTION

[1]

The appellant appeals against his convictions for sexual interference
    and invitation to sexual touching. He asserts these convictions are
    inconsistent with his acquittal on a charge of sexual assault based on the very
    same evidence, that his convictions are therefore unreasonable and that, in the
    absence of a successful Crown appeal of the acquittal, his convictions must be
    quashed and acquittals entered in their stead. He also seeks leave to appeal
    his sentence of imprisonment for two years less a day and two years probation.

[2]

The Crown responds that the facial
    inconsistency in the verdicts is explained by confusing jury instructions,
which led the jury to believe that the force required for sexual assault was
    different than the touching required for sexual interference and invitation
    to sexual touching.
The Crown seeks an extension
    of time to cross-appeal the acquittal of sexual assault and the appellant
    consents to that extension.

[3]

A five-judge panel was convened to hear this appeal, because the Crown
    submits there are conflicting authorities in the Supreme Court of Canada and in
    this court concerning the role of the trial judges instructions to the jury in
    the inconsistent verdict analysis. It says that the Supreme Courts decision in
R. v. J.F
., 2008 SCC 60, [2008] 3 S.C.R. 215, relied upon by the
    appellant, is irreconcilable with that courts decision in
R. v. Pittiman
,
    2006 SCC 9, [2006] 1 S.C.R. 381. It also submits that decisions of this court
    are also in conflict, citing, among other cases,
R. v. S.L.
, 2013 ONCA
    176, 300 C.C.C. (3d) 100, leave to appeal to S.C.C. refused, [2013] S.C.C.A.
    No. 218, which applies
Pittiman
, and
R. v. Walia
, 2018 ONCA
    197, which applies
J.F
. The Crown submits that
Pittiman
remains the leading Supreme Court judgment on inconsistent verdicts, and conflicting
    statements in
J.F.
are
obiter dicta
and should not be
    followed.

[4]

For the reasons that follow, I do not agree. The Supreme Courts statements
    in
J.F.
provide authoritative guidance to appellate courts, are
    consistent with
Pittiman
and should be followed. Accordingly, I would
    allow the appellants appeal, quash the guilty verdicts and direct verdicts of
    acquittal to be entered in their stead. I would grant the Crown an extension of
    time to cross-appeal the acquittal, but would dismiss that cross-appeal.


II.

BACKGROUND

(1)

The evidence at trial

[5]

The appellant was charged with sexual assault, sexual interference and
    invitation to sexual touching of his partners daughter, T.S. The charges were
    not particularized with details of the acts allegedly committed or with specific
    dates of the alleged offences. Each of the three counts on the indictment
    simply recited that between the 1
st
day of January, in the year 1995,
    and the 10
th
day of November, in the year 2003 the appellant committed
    the particular offence.

[6]

The appellant was tried by a court composed of a judge and jury. The
    complainant was the only witness. She testified that the abuse began when she
    was approximately 7 years old and ended when she was approximately 13. She
    described the appellant doing the following:

·

grabbing
    her hand and moving it to touch his penis;

·

touching
    her breast over her clothing;

·

touching
    her vagina over her clothing;

·

holding
    her hand and using it to masturbate himself;

·

lying
    underneath her while he was unclothed and she was clothed, simulating
    intercourse and ejaculating on his stomach;

·

lying
    underneath her while he was clothed and she was unclothed, simulating
    intercourse; and

·

touching
    her head and pushing it down towards his penis.

[7]

The complainant testified that the abuse ended after she threatened to
    report it. In 2014, when she was 24 years old, she disclosed the alleged abuse
    to police and the appellant was charged.

(2)

The jury instructions

[8]

The trial judge gave the jury standard instructions on each of the three
    counts, generally following the specimen instructions in David Watts
Watts
    Manual of Criminal Jury Instructions
, 2nd ed. (Toronto: Carswell, 2015).

[9]

After reciting the formal count of sexual assault, the trial judge
    instructed the jury that:

For you to find [R.V.] guilty of sexual assault, Crown counsel
    must prove both of these essential elements beyond a reasonable doubt: i. That [R.V.]
    intentionally applied force to [T.S.]; ii. That the force that [R.V.]
    intentionally applied took place in circumstances of a sexual nature.

[10]

The trial judge
    explained that consent is not an essential element of the offence, because the
    complainants evidence was that the sexual touching occurred when she was
    between 7 and 13 years old.

[11]

The trial judge
    then examined the elements of the offence and noted:

The force applied may be violent, or even gentle. Force
    includes any physical contact with another person,
even a gentle touch
. To be an assault, however, [R.V.]
    must apply the force intentionally. An accidental touching is not an
    intentional application of force. [Emphasis added.]

[12]

The words even
    a gentle touch were incorporated into the second edition of
Watts
specimen
    jury instructions for sexual assault following the decision of this court in
S.L.

[13]

The trial judge
    then explained the meaning of intentionally, telling the jury to consider
    all of the circumstances surrounding the application of force.

[14]

After reviewing
    the complainants evidence, the trial judge told the jury:

If you are not satisfied beyond a reasonable doubt that [R.V.]
    intentionally applied force to [T.S.], you must find him not guilty. Your
    deliberations would be over.

[15]

She then turned
    to the second element of sexual assault, whether force was intentionally applied
    in circumstances of a sexual nature. She explained that a sexual assault is
    any intentional application of force, any intentional physical contact with
    another person, even an intentional but gentle touching, which occurs in
    circumstances of a sexual nature so that the sexual integrity of [T.S.] is
    violated: see s. 265(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46;
    and
R. v. Chase
, [1987] 2 S.C.R. 293, at p. 302.

[16]

After explaining
    how to determine whether the force was applied in circumstances of a sexual
    nature, the trial judge reviewed the complainants evidence concerning the
    incidents, which she described as the complainants hand touching the appellants
    penis, the appellants hand touching her breast area and her vagina, the
    complainants pelvis touching the appellants pelvis, and the appellants
    hand touching the complainants head and pushing it down to his penis.

[17]

The trial judge then
    instructed the jury that:

If you are not satisfied beyond a reasonable doubt that [R.V.]
    intentionally applied force to [T.S.] in circumstances of a sexual nature, you
    must find [R.V.] not guilty of sexual assault,
but guilty
    of assault
.

If you are satisfied beyond a reasonable doubt that [R.V.]
    intentionally applied force to [T.S.] in circumstances of a sexual nature, you
    must find [R.V.] guilty of sexual assault. [Emphasis added.]

[18]

The instruction
    that the jury could convict the appellant of simple assault, to which counsel
    made no objection, gave rise to a question from the jury, discussed below.

[19]

The trial judge
    then turned to the instructions for the other two offences, first sexual
    interference
[1]
and then invitation to sexual touching
[2]
.
    Again, she described the elements of the offences and broke them down into
    specific questions. In the case of sexual interference, she explained that the
    Crown was required to prove beyond a reasonable doubt: (i) the complainant was
    under 16 years old at the time; (ii) the appellant touched the complainant; and
    (iii) the touching was for a sexual purpose. She explained that touching
    involves intentional physical touching, whether direct or indirect, of any part
    of the complainants body and that [f]orce is not required for sexual
    touching. She did not review the evidence on this count because it was the same
    as the evidence on the sexual assault count.

[20]

The trial judge
    then reviewed the essential elements of invitation to sexual touching: (i) the
    complainant was under 16 years old at the time; (ii) the appellant invited the
    complainant to touch his body; and (iii) the touching he invited was for a
    sexual purpose. Again, she instructed the jury on the meaning of touching, including
    that [f]orce is not required. She then identified the complainants evidence
    pertaining to this count, including that the appellant had: pushed her hand
    down to his penis; grabbed her wrist and put her hand on his penis to
    masturbate him; pulled her on top of him to ride him; and pushed her head down
    to his penis. Each of these acts was also referred to in the trial judges
    instructions on sexual assault.

[21]

The jury was not
    provided with a written copy of the instructions to take into the jury room while
    it deliberated.

(3)

Verdict sheet and decision tree

[22]

The trial judge
    gave the jury a decision tree for each of the three charges. The decision tree
    for sexual assault showed guilty of simple assault as an available verdict.

[23]

The trial judge
    also gave the jury a verdict sheet. The verdict sheet set out the three counts
    and the possible verdicts. The trial judge identified the possible verdicts as
    either not guilty or guilty on each of the three counts. The verdict sheet
    identified these possibilities. It did not identify guilty of simple assault as
    an available verdict for the sexual assault count.

(4)

The jury question, the trial judges response and the verdict

[24]

A little more
    than an hour after retiring to deliberate, the jury sent a question to the trial
    judge. They pointed out the inconsistency between the decision tree for sexual
    assault and the verdict sheet. Although the decision tree provided for the
    three possible verdicts on which they had been instructed (guilty of sexual
    assault, not guilty of sexual assault but guilty of simple assault, and not
    guilty), the verdict sheet only provided for guilty or not guilty of sexual
    assault. The jury asked: What do we do?

[25]

The trial judge
    discussed the question with counsel, who observed that it was a very odd
    question, because there was no way on the evidence that the jury could reach a
    verdict of simple assault. The trial judge pointed out that her instructions
    had included simple assault as a possible verdict. After a somewhat confused
    discussion, which focused on how the verdict sheet might be amended, the trial
    judge, with the agreement of counsel, revised the verdict sheet to make it
    conform to the decision tree  it gave the jury three options: (i) not guilty
    of sexual assault; (ii) not guilty of sexual assault but guilty of simple assault;
    and (iii) guilty of sexual assault.

[26]

Before the jury
    retired for the day, the trial judge simply informed them that the verdict
    sheet had been amended as a result of their question. She told them: there are
    now three verdicts available to you under count number one. The jury received
    no instruction as to how the appellant could be convicted of simple assault,
    based on the evidence they had heard.

[27]

The following
    morning, the jury returned verdicts of not guilty of sexual assault and guilty of
    the other two counts.


III.

SUBMISSIONS

[28]

The appellant
    submits that a reasonable jury, properly instructed, could not have acquitted
    him of sexual assault while at the same time convicting him of sexual
    interference and invitation to sexual touching. This jury was properly
    instructed. The inconsistent verdicts indicate that the jury was either
    confused or made some kind of unjustifiable compromise: see
R. v.
    McShannock
(1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56. The jurys
    verdicts are patently inconsistent, cannot stand together and his convictions
    must be quashed.

[29]

The appellant
    explains that the inconsistency is more than an inconvenient conflict, which
    can be glossed over by speculation about what the jury must have been thinking.
    Leaving the guilty verdicts standing in the face of an acquittal for the same
    offence, committed in the same way, against the same complainant, is
    inconsistent with the principle that a not guilty verdict is a declaration of
    innocence:
Grdic v. The Queen
, [1985] 1 S.C.R. 810, at p. 825. On the
    facts of this case, directing a retrial on sexual interference and invitation
    to sexual touching, in the face of the acquittal of sexual assault, would
    inevitably raise a defence of
autrefois acquit
or issue estoppel. The
    appellant relies on what he describes as authoritative
obiter
 in the
    Supreme Courts decision in
J.F.
, which was applied by this court in
Walia
.

[30]

As I have noted,
    the Crowns submission is that the facially inconsistent verdicts can be
    explained by the trial judges instructions which, it claims, probably confused
    the jury, leaving them with the impression that the force required for sexual
    assault is different from the touching required for sexual interference. The
    Crown submits that the jurys confusion was likely compounded by the trial
    judges legal error in leaving simple assault as an available verdict, which reinforced
    their understanding that sexual assault required the use of force in the laypersons
    sense.

[31]

The Crown
    submits that the Supreme Courts pronouncements in
J.F.
were
obiter
    dicta
. In any event, it says those statements are inconsistent with the
    Supreme Courts decisions in
Pittiman
and
Koury v. The Queen
,
    [1964] S.C.R. 212, and should not be followed. In particular, it says that
Koury
stands for the proposition that the Crown does not have to appeal against an
    acquittal to resist an inconsistent verdict argument, because the appellate
    court will necessarily review the proceedings below.


IV.

ISSUES

[32]

I would describe
    the issues as follows:

(1)

Is
J.F.
binding authority or is it
obiter dicta
and inconsistent with previous decisions of the Supreme Court, including
Pittiman
and
Koury
?

(2)

What is the authority, if any, of previous decisions of this
    court that have not followed
J.F.
?

(3)

What is the appropriate disposition of this appeal in light of
    the determination of the foregoing?


V.

ANALYSIS

[33]

I will begin
    with a discussion of the jurisprudential rationale for appeals based on
    inconsistency of verdicts.

[34]

Next, I will
    explain the limitations on rights to appeal verdicts, the courts statutory jurisdiction
    to set aside verdicts, and the significance of a not guilty verdict.

[35]

I will then
    examine the authorities in both the Supreme Court and in this court and other
    provincial appellate courts.

[36]

Finally, I will
    explain how these authorities apply to this case and the appropriate
    disposition of this appeal. I will also determine whether
J.F.
is
    binding on this court and the status of authorities that have not explicitly
    followed it.

(1)

Inconsistent verdicts

[37]

When a jury
    delivers inconsistent verdicts  for example, simultaneously convicts and
    acquits an accused for the same act, committed against the same person, in the
    same circumstances  the legitimacy of its verdicts is called into question.

[38]

There are two
    reasons. First, where verdicts are genuinely inconsistent as described above, it
    appears the jury has simultaneously declared that the accused did and did not
    commit the same criminal act.
Grdic
tells us that for the purposes of
    subsequent criminal proceedings, a not guilty verdict is equivalent to a
    declaration of legal innocence. But a guilty verdict that is inconsistent with a
    not guilty verdict casts doubt on that declaration. Such a contradictory result
    is manifestly improper and contrary to accepted standards of what is fair and
    right:
R. v. Sweetman
, [1939] O.R. 131 (C.A.), at p. 138; see also
R.
    v. Peda
, [1969] 1 O.R. 90 (C.A.), at p. 105 (per Laskin J.A., dissenting).

[39]

Second, a jury
    that renders genuinely inconsistent verdicts as described above, necessarily
    acts unreasonably. This is because, as the jurisprudence shows, there are only a
    few ways in which a jury can reach genuinely inconsistent verdicts in the case
    of a single accused charged with multiple offences, and all of them entail a
    violation of the courts instructions: Eric L. Muller, The Hobgoblin of
    Little Minds - Our Foolish Law of Inconsistent Verdicts (1998) 111 Harv. L.
    Rev. 771, at pp. 777-778, 781-786.

[40]

One possibility is
    that the jury rendered inconsistent verdicts because they misunderstood the
    evidence or the trial judges instructions. The possibility of confusion
    regarding the evidence is well-recognized: see e.g.,
McShannock
, at p.
    56. This court has also recognized that inconsistent verdicts can result from
    the jury misunderstanding its instructions:
R. v. Catton
, 2015 ONCA
    13, 319 C.C.C. (3d) 99, at para. 29; see also
R. v. Brady
, 2017 NSCA
    41, 349 C.C.C. (3d) 216, at paras. 42, 48.

[41]

A second
    possibility is that the jury rendered inconsistent verdicts as a compromise. A
    jury returns a compromise verdict when, after reaching a deadlock (finding
    itself unable to achieve unanimity for either not guilty or guilty on each of
    the counts before it), it splits the difference and obtains unanimous support
    for some negotiated mix of not guilty and guilty verdicts, contrary to its
    instructions that the verdict on each count must be the unanimous opinion of
    the whole jury and that an accused may only be convicted if his guilt is proven
    beyond a reasonable doubt. The possibility of unjustifiable compromise is
    well-recognized:
McShannock
, at p. 56; and
Catton
, at para.
    29.

[42]

A third possibility
    is nullification  the rare situation where a jury knowingly chooses not to
    apply the law and acquits an accused regardless of the strength of the evidence
    against him:
R. v. Latimer
, 2001 SCC 1, [2001] 1 S.C.R. 3, at paras.
    57-70;
R. v. Morgentaler
, [1988] 1 S.C.R. 30, at pp. 78-79. Nullification
    may produce inconsistent verdicts where, for example, the jury convicts on one or
    multiple counts in an indictment, but refuses to convict on another count
    because it believes an additional conviction would be excessive. A jury that
    exercises its power to nullify violates the trial judges instructions that it
    must return a verdict of guilty if it is satisfied that all the elements of
    an offence have been proven beyond a reasonable doubt.

[43]

The jury is
    presumed to act reasonably and follow the trial judges instructions:
R. v.
    Corbett
, [1988] 1 S.C.R. 670, at pp. 692-693, 695;
R. v. Beaudry
,
    2007 SCC 5, [2007] 1 S.C.R. 190, at para. 92 (per Fish J., dissenting);
R.
    v. Pannu
, 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 61, 98, leave to
    appeal to S.C.C. refused, [2015] S.C.C.A. No. 478 and [2015] S.C.C.A. No. 498;
    and
R. v. Barton
, 2019 SCC 33, at para. 177. A jury that renders
    genuinely inconsistent verdicts, and thereby fails to follow its instructions,
    acts unreasonably. Guilty verdicts produced by juries acting unreasonably are
    themselves unreasonable. Unreasonable guilty verdicts warrant appellate
    intervention because the publics confidence in the legitimacy of jury trials
    would be undermined if the justice system tolerated unreasonable convictions by
    juries.

(2)

Rights of appeal of inconsistent verdicts

[44]

Different appeal
    rights are accorded to a convicted person and the Crown. A person convicted by
    indictment may appeal against his or her conviction: (i) on any ground of
    appeal that involves a question of law alone; (ii) on any ground of appeal that
    involves a question of fact or a question of mixed law and fact, with leave;
    and (iii) on any other ground, with leave:
Criminal Code
, s.
    675(1)(a). Section 686(1)(a) of the
Criminal Code
provides that a
    convicted person may have his or her conviction set aside: (i) on the basis
    that the verdict is unreasonable or cannot be supported by the evidence; (ii)
    on the basis of an error of law; or (iii) on the basis that there was a
    miscarriage of justice. Where an appellate court allows an appeal under s.
    686(1)(a), the court must quash the conviction and either direct a judgment or
    verdict of acquittal to be entered, or order a new trial: s. 686(2).

[45]

In
Pittiman
,
    Charron J. explained that an appellate courts jurisdiction to set aside a guilty
    verdict on the ground of inconsistency is under s. 686(1)(a)(i): unreasonable
    verdict. She stated, at para. 6:

A court of appeals power to set aside a verdict of guilt on
    the ground that it is inconsistent is found under s. 686(1)(a)(i) of the
Criminal
    Code
which provides that the court may allow the appeal where it is of
    the opinion that ...
the verdict should
    be set aside on the ground that it is unreasonable

or cannot be supported by the evidence (emphasis added).
    This Court has the power to make the same order under s. 695(1). Hence, before
    an appellate court may interfere with a verdict on the ground that it is
    inconsistent, the court must find that the verdict is
unreasonable
.
    The appellant bears the onus to show that no reasonable jury whose members had
    applied their minds to the evidence could have arrived at that conclusion:
R.
    v. McLaughlin
(1974), 15 C.C.C. (2d) 562 (Ont. C.A.). [Underline and
    italics in original.]

[46]

In
Catton
,
    discussed below, Doherty J.A. explained that inconsistent verdicts are a subspecies
    of unreasonable verdicts: para. 21. He continued (at para. 21):

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.

[47]

The Crowns
    right of appeal is much more limited. The Crown may only appeal from an
    acquittal on any ground of appeal that involves a question of law alone:
Criminal
    Code
, s. 676(1)(a); see also
R. v. A.B.A.
, 2019 ONCA 124, at
    para. 4. The court may dismiss the appeal or allow the appeal, set aside the
    verdict and either order a new trial or, except where the verdict is that of a
    court composed of a judge and jury, enter a verdict of guilty with respect to
    the offence of which, in its opinion, the accused should have been found guilty
    but for the error in law:
Criminal Code
, s. 686(4).

[48]

The statutory
    provisions were explained in
R. v. Riesberry
, 2014 ONCA 744, 122 O.R.
    (3d) 594, at para. 36, affd 2015 SCC 65, [2015] 3 S.C.R. 1167:

To obtain an order setting aside an acquittal and directing a
    new trial, the Crown must demonstrate that the trial judge committed an error
    of law, and that the outcome of the trial might reasonably have been different
    if the error of law had not occurred (
R. v. Graveline
, 2006 SCC 16 at
    paras. 14-16).

[49]

As I will
    explain, judicial aversion to inconsistent verdicts, and the limitations on the
    Crowns right of appeal from not guilty verdicts, are at the centre of the
    Supreme Courts reasons in
J.F.
So, too, is the law with respect to
    the significance of a not guilty verdict.

(3)

The significance of a not guilty verdict

[50]

A not guilty
    verdict is the equivalent of a declaration of legal innocence for the purposes
    of subsequent criminal proceedings. This principle was authoritatively stated
    in
Grdic
, at p. 825:

There are not different kinds of acquittals and, on that point,
    I share the view that as a matter of fundamental policy in the administration
    of the criminal law it must be accepted by the Crown in a subsequent criminal
    proceeding that an acquittal is the equivalent to a finding of innocence  To
    reach behind the acquittal, to qualify it, is in effect to introduce the
    verdict of not proven, which is not, has never been, and should not be part
    of our law.

[51]

In
R. v. Arp
,
    [1998] 3 S.C.R. 339, the Supreme Court confirmed that [t]he principle
    enunciated in
Grdic
is fundamental to our system of justice: para. 78.
    This court has repeatedly endorsed that principle: see e.g.,
R. v. G.
    (K.R.)
(1991), 5 O.R. (3d) 406 (C.A.), at p. 409;
R. v. Verney
(1993), 87 C.C.C. (3d) 363 (Ont. C.A.), at pp. 371, 373-374;
R. v. Akins
(2002), 59 O.R. (3d) 546 (C.A.), at paras. 16-17;
R. v. Mahalingan
(2006), 80 O.R. (3d) 35 (C.A.), at paras. 52-53, affd 2008 SCC 63, [2008] 3
    S.C.R. 316; and
R. v. Omar
, 2018 ONCA 599, at para. 16, leave to
    appeal to S.C.C. refused, [2018] S.C.C.A. No. 398.

[52]

The principle
    expressed in
Grdic
has important consequences, which were explained by
    the Supreme Court in
Mahalingan
. The majority confirmed the application
    of issue estoppel in criminal proceedings  namely, that the Crown is estopped
    from leading evidence that is inconsistent with findings made in a previous
    trial, whether those findings were expressly made in the accuseds favour, or
    resolved on the basis of reasonable doubt: see para. 26.

[53]

Chief Justice McLachlin,
    who authored the majority reasons, explained that issue estoppel serves the
    interests of justice in several ways. First, as a matter of fairness to accused
    persons, it prevents re-litigation of issues of law or fact decided in favour
    of the accused (para. 39):

In my view, it is clear that fairness to the accused requires
    that an accused should not be called upon to answer allegations of law or fact
    already resolved in his or her favour by a judicial determination on the
    merits. This is the most compelling rationale for retaining issue estoppel in
    criminal law, as it goes to the core tenets of our criminal justice system. The
    state has the right to charge an accused and to prove the facts at a trial of
    the charge. If a judge or jury conclusively decides a fact in favour of the
    accused, including via a finding of a reasonable doubt on an issue, then the
    accused should not be required in a subsequent proceeding to answer the same
    allegation. To require, in effect, a second defence of the issue would be to
    violate the fundamental function of
res judicata
.

[54]

Second, issue
    estoppel preserves the integrity of the criminal process: para. 45. Finally, it
    preserves the institutional values of judicial finality and economy, which are
    essential to public confidence in the judicial system: para. 46.

[55]

Some of these
    principles were also expressed by Fish J., in
J.F.
, discussed below, which
    was decided two weeks earlier.

(4)

Inconsistent verdict jurisprudence

(a)

McShannock
,
Pittiman
and
J.F.

[56]

I begin this
    analysis with the leading decision in this court,
McShannock
, relied
    on by both parties. I will then consider the decisions of the Supreme Court in
Pittiman
and
J.F.

[57]

In
McShannock
,
    the appellant was charged with unlawful confinement and indecent assault of a
    hitchhiker. The complainant testified that she had been able to escape after
    the assault by jumping out of the appellants car. The appellant claimed that
    he had paid the complainant for sex and when she demanded more money he pushed
    her out of the car. When it became apparent that the jury was having difficulty
    reaching a decision, the trial judge instructed them that it was open to them
    to find the appellant guilty of simple assault because he had allegedly pushed
    her out of the car. This was clearly not the assault referred to in the
    indictment. The jury found the appellant guilty of unlawful confinement and not
    guilty of indecent assault, but guilty of simple assault.

[58]

Justice Martin,
    who delivered the judgment of this court, accepted the appellants submission
    that the underlying facts of the allegations of indecent assault and unlawful
    confinement were so inextricably bound together that the two verdicts could not
    be reconciled on any rational basis. He described the nature of the courts
    inquiry on an inconsistent verdict appeal, at pp. 55-56:

Where an indictment contains more than one count and the jury
    convicts on one count and acquits on another count an inconsistency in the
    verdicts does not of necessity require the conviction to be set aside. The onus
    is on the appellant to show that the verdicts are so at odds that no reasonable
    jury who understood the evidence could have properly arrived at that verdict.
    We think that onus on the peculiar facts of this case has been discharged.
Where on any realistic view of the evidence,
    the verdicts cannot be reconciled on any rational or logical basis the
    illogicality of the verdict tends to indicate that the jury must have been
    confused as to the evidence or must have reached some sort of unjustifiable
    compromise
. We would, on the ground that the verdict is
    unreasonable alone, allow the appeal, set aside the verdict, and direct an
    acquittal to be entered. [Emphasis added.]

[59]

Thus described,
    the test is partially objective: the verdicts must be so at odds that no
    reasonable jury could have returned them on the evidence.

[60]

McShannock
was approved by the Supreme Court in
Pittiman
. The appellant was
    jointly charged, together with two co-accused, of sexually assaulting a 14-year-old
    girl. The appellant was convicted but his co-accused were acquitted.
He appealed his conviction on the ground that it was
    inconsistent with the acquittals of his two co-accused and therefore
    unreasonable. The Supreme Court dismissed the appeal, affirming the reasoning
    of this court that the greater strength of the Crowns case against the
    appellant provided a rational basis for the jurys verdicts.

[61]

Justice Charron,
    who gave the decision of the court, observed as follows, at para. 7:

The onus of establishing that a verdict is unreasonable on the
    basis of inconsistency with other verdicts is a difficult one to meet because
    the jury, as the sole judge of the facts, has a very wide latitude in its
    assessment of the evidence. The jury is entitled to accept or reject some, all
    or none of any witnesss testimony. Indeed, individual members of the jury need
    not take the same view of the evidence so long as the ultimate verdict is
    unanimous. Similarly, the jury is not bound by the theories advanced by either
    the Crown or the defence.
The question is whether the
    verdicts are supportable on any theory of the evidence consistent with the
    legal instructions given by the trial judge
. [Emphasis added.]

[62]

As I will
    explain, I do not read the emphasized words as suggesting that inconsistent
    verdicts can be reconciled, in the absence of a Crown appeal against the
    acquittal, on the basis that the trial judges instructions, while otherwise legally
    correct, may have confused the jury. Indeed, these words were immediately
    followed by a reference to the statement of Martin J.A. in
McShannock
at p. 56, quoted above, that focuses the inquiry on the evidence. Three
    paragraphs later, at para. 10, Charron J. observed: The test remains the same
    in each case: Are the verdicts irreconcilable such that no reasonable jury,
properly instructed
, could possibly have rendered them
    on the evidence (emphasis added).

[63]

Justice Charron
    added, at para. 8, that in a case like this, of a single accused charged with
    multiple offences:

[D]ifferent verdicts may be reconcilable on the basis that the
    offences are temporally distinct, or are qualitatively different, or dependent
    on the credibility of different complainants or witnesses. The strength of the
    evidence relating to each count may not be the same, leaving the jury with a
    reasonable doubt on one count but not on the other. On the other hand, when the
    evidence on one count is so wound up with the evidence on the other that it is
    not logically separable, inconsistent verdicts may be held to be unreasonable:
    e.g., see
R. v. Tillekaratna
(1998), 124 C.C.C. (3d) 549 (Ont. C.A.).

[64]

The verdicts in
Pittiman
could be explained and reconciled because the evidence against the appellant,
    who played a dominant role in the events, was stronger than it was against the
    co-accused.

[65]

Justice Charron
    took issue with the conclusion in the dissenting reasons of Borins J.A. in this
    court that because the verdicts were inconsistent, the appellant should be acquitted.
    She observed, at para. 14, that where the verdict is found to be unreasonable
    on the basis of inconsistency of verdicts, but the evidence against the
    appellant supported the conviction, the appropriate remedy will
usually
be a new trial (emphasis added).

[66]

Relying on,
    among other things, this statement by Charron J., the Crown submits that the
    Supreme Courts decision in
J.F.
is inconsistent with
Pittiman
.
    I turn now to
J.F.

[67]

In
J.F.
,
    Fish J., writing for the majority, began his reasons with an observation that
    could apply equally to the case before us (para. 1):

The respondent in this case was acquitted and convicted by the
    same jury at the same trial of the same offence committed in the same way
    against the same victim.

[68]

The respondent
    had been convicted of manslaughter by criminal negligence in relation to the
    death of his wifes foster child. He was acquitted of a charge of manslaughter
    by failing to provide the necessaries of life. This court found the verdicts
    inconsistent and incapable of being reconciled. It overturned the conviction
    and ordered a new trial on the charge of manslaughter by criminal negligence.
    The Crown appealed on the issue of inconsistent verdicts and the accused
    cross-appealed the order for a new trial, arguing that an acquittal should have
    been entered. The Supreme Court, Deschamps J. dissenting, dismissed the Crowns
    appeal and allowed the respondents cross-appeal, entering an acquittal on the
    charge of manslaughter by criminal negligence.

[69]

It was beyond
    dispute that the
actus reus
and the fault element were essentially
    common to both counts, as was the theory of the Crown. As Fish J. put it, the
    jury acquitted the respondent of one count of manslaughter by omission and
    convicted him on another count alleging the same omission and with similar fault
    requirements: para. 4. If anything, the fault requirement for the count on
    which the respondent was convicted was more serious than the count on which he
    was acquitted. There was no reasonable basis on which the jury could have
    acquitted him on one count and convicted him on the other.

[70]

The Crown
    attempted to explain the apparently inconsistent verdicts in two ways. First,
    on the basis of what it referred to as operative statutory distinctions
    between the predicate offences, criminal negligence and failure to provide the
    necessaries of life: para. 18.

[71]

Justice Fish
    rejected this submission, which had not been raised at trial, as abstract:
    paras. 5, 20, 27-35. He found that on the facts of the case, if there was a
    difference between the two offences, it could not have affected the outcome.

[72]

Second, the
    Crown argued that the conviction could be reconciled with the acquittal on the
    basis of a legal error in the trial judges instructions on the failure to
    provide count  an instruction to which the trial Crown made no objection. The
    Crown asserted that the trial judge instructed the jury to apply a test of
    likelihood of harm, rather than risk of harm, which the Crown acknowledged
    was the proper test on both counts: para. 22.

[73]

Justice Fish
    rejected this proposition, concluding that the trial judge had not misdirected
    the jury: paras. 21, 24-25. While the relationship between risk, endangers
    and is likely to could have been more felicitously explained, the jury was
    not likely to have been misled by the instruction: para. 24. He further noted that
    the Crown had not appealed the acquittal and that it had acquiesced in the
    instruction it sought to impugn. He explained, at para. 21:

[R]eading the judges charge as a whole, I am not persuaded
    that he misdirected the jury with respect to the count on which the respondent
    was acquitted. In any event, as a matter of legal process and the legitimacy of
    verdicts, I would decline to uphold the respondents conviction on the ground
    that it can be reconciled with his acquittal on another count of the same
    indictment
on the basis of a legal error at trial
.
    [Emphasis in original.]

[74]

In language that
    has become central to this appeal, Fish J. observed, at para. 23:

As I have already made plain, I would not allow the appeal on
    the basis of what the Crown characterizes as an erroneous instruction in law.
    On an allegation by the Crown that the trial judge erred in this regard, the
    appropriate recourse would have been for the Crown to appeal the acquittal and
    not for this Court to uphold the conviction on another count. This is
    particularly true where, as mentioned earlier, Crown counsel expressly
    acquiesced in the instruction now said to be erroneous.
Finally,
    verdicts are deemed inconsistent  and therefore unreasonable as a matter of
    law  if no
properly
    instructed
jury could reasonably have
    returned them both
:
R. v. Pittiman
, [2006] 1 S.C.R. 381, 2006
    SCC 9.
Improper instructions do not make improper
    verdicts proper. Nor do they make inconsistent verdicts consistent
. [Underline
    added.]

[75]

Later in his
    reasons, Fish J. explained why it was necessary for the Crown to appeal the
    acquittal, at paras. 40-41:

Here, the respondent was found not to have committed
    manslaughter by failing to provide the necessaries of life. His conviction of
    manslaughter by criminal negligence could only be supported on a new trial upon
    a finding, contrary to the jurys conclusion in this case, that the respondent
    did in fact fail in his duty to protect his child, the necessar[y] of life
    that was the factual foundation and the gravamen of both counts.

The respondents acquittal was not
    appealed. To order a new trial in these circumstances would deprive the
    respondent of the benefit of that acquittal, now final, and expose him on the
    new trial to a finding that he did in fact commit the offence of which he was
    acquitted, definitively, by the jury in this case
. [Emphasis added.]

[76]

To summarize, Fish
    J. made four points at paras. 21, 23 and 41 of his reasons:

·

if
    the Crown wants to respond to an inconsistent verdict argument by asserting
    that the acquittal was the result of a legal error in the instructions for that
    offence, it must appeal the acquittal;

·

if
    the Crown fails to appeal the acquittal, and cannot otherwise reconcile the
    verdicts, they remain inconsistent because the inconsistency cannot be cured
    simply by asserting error of law in the acquittal;

·

the
    inconsistent verdict analysis is partially objective  it asks whether,
    assuming it was properly instructed, a reasonable jury could have rendered the
    verdicts based on the evidence before it; and

·

the
    preeminent policy considerations underlying the inconsistent verdict analysis
    are legal process and the legitimacy of verdicts.

[77]

The partially
    objective nature of the inconsistent verdict analysis, as described by Fish J.,
    is consistent with the general test for unreasonable verdicts articulated by
    the Supreme Court. In
Corbett v. R.
, [1975] 2 S.C.R. 275, at p. 282,
    the court said the question is whether the verdict is one that a properly
    instructed jury acting judicially, could reasonably have rendered: see also
R.
    v. Yebes
, [1987] 2 S.C.R. 168, at p. 185;
R. v. Biniaris
, 2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 42; and
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. The court does not ask whether
    the jury was properly instructed in fact. Rather, the question is whether a
    hypothetical, properly instructed jury could reasonably have returned the
    verdict(s) it did. The same is true of the test for inconsistent verdicts,
    which are, after all, a subspecies of unreasonable verdict.

[78]

I will discuss
    the policy considerations identified by Fish J. in more detail below.

(b)

The jurisprudential status of
J.F.

[79]

The Crown makes
    two principal submissions challenging the jurisprudential status of
J.F.
First, it says that
J.F.
is inconsistent with the decisions of the
    Supreme Court in
Pittiman
and in
Koury
. Second, it says the
    pronouncements of Fish J. are
obiter dicta
and should not be followed.

[80]

I do not agree.

[81]

In my view,
J.F.
is consistent with
Pittiman
. It would be surprising if it were not,
    given that
Pittiman
was decided only two years earlier and was authored
    by Charron J., who participated in the majority judgment in
J.F.
Moreover,
Pittiman
was specifically referenced by Fish J. at para. 23 of his
    reasons, and Fish J. stated, at para. 14: Nothing in these reasons is meant to
    modify in any way  the rule against inconsistent verdicts.

[82]

The Crown
    submits that
Koury
stands for the proposition that the Crown need not
    appeal the inconsistent acquittal in order to resist the appellants conviction
    appeal because the appellate court will necessarily review the record of the
    proceedings below, including the evidence and the trial judges instructions to
    the jury. It submits that if the record demonstrates the conviction is sound,
    the appropriate remedy is to uphold the conviction, even in the face of the
    inconsistency, absent a miscarriage of justice. The Crown harkens to the
    observation of Charron J. in
Pittiman
that the appropriate remedy will
    usually be a new trial.

[83]

Koury
was a case in which the court could explain apparently inconsistent verdicts by
    examining the record, including the evidence and the arguments of counsel. This
    explained why the appellant could be acquitted of conspiracy to commit fraud
    while being convicted of fraud  because the jury could have accepted his
    evidence that he had withdrawn from any association with his co-accused before
    they hatched their plan: pp. 216, 220. On the evidence, his acquittal on the
    conspiracy count was not at odds with his fraud conviction.

[84]

Similarly, in
Pittiman
,
    the court was able to examine the evidence to demonstrate that the jury could
    have acquitted the co-accused because the evidence against them was not as
    strong as it was against the appellant; this notwithstanding that the
    complainant had testified that all the accused had participated in the attacks.
    As Doherty J.A. explained in
Catton
, and as I will discuss below,
    while
Pittiman
contemplates that a new trial will be ordered in
most
cases, it cannot be ordered where doing so would
    invite a repetition of the very inconsistency that led to the quashing of the
    conviction found to be inconsistent with the acquittal:
Catton
, at
    para. 25.

[85]

The examination
    of the record mandated by
Pittiman
and
Koury
requires the
    court to consider not only the evidence and the positions of counsel, but also
    the legal ingredients of the offences in question and the trial judges
    instructions to the jury. The purpose of that examination is to determine
    whether the facially inconsistent verdicts could be the result of differences
    in the elements of the offences, differences in the evidence on the various
    counts, differences in the evidence as against co-accused, or differences in
    the way in which the case was argued. If, at the end of that examination, the
    verdicts remain violently at odds, then the conviction will be quashed. But
    the onus is on the appellant to show that no reasonable jury whose members had
    applied their minds to the evidence could have arrived at that conclusion:
Pittiman
,
    at para. 6.

[86]

If, on the other
    hand, the examination indicates that factual issues were necessarily resolved
    by the jurys verdict of acquittal, whether on the basis of reasonable doubt or
    on the evidence, those findings would give rise to a claim of issue estoppel at
    a subsequent trial and ordering a new trial would be pointless: see
Catton
,
    at para. 27. In both
Pittiman
and
Koury
, the verdicts were
    not violently at odds.

[87]

I do not read
    anything in the reasons of Charron J. in
Pittiman
as suggesting that,
    in the absence of a Crown appeal against the acquittal, inconsistent verdicts
    can be reconciled by incorrect jury instructions giving rise to an acquittal.
    Nor do I read
Koury
as undermining
J.F.

[88]

I turn now to
    the Crowns submission that paras. 21, 23 and 41 of
J.F.
were
obiter
    dicta
, because Fish J. had already concluded that the trial judges
    instructions were correct.

[89]

In
R. v.
    Prokofiew
, 2010 ONCA 423, 100 O.R. (3d) 401, affd 2012 SCC 49, [2012] 2
    S.C.R. 639, Doherty J.A. suggested that appellate courts should be cautious
    about characterizing the Supreme Courts
obiter dicta
as non-binding
    and declining to follow it. He said that courts should begin with the premise
    that all
obiter dicta
from the Supreme Court should be followed and
    to move away from that premise only where a reading of the relevant judgment
    provides a cogent reason for not applying that
obiter
: para. 21.
Obiter
that is integral to the result or the analysis is binding.
Obiter
that
    is incidental or collateral to the analysis is not binding, although it will
    remain persuasive: para. 20.
Obiter
that is clearly intended for
    guidance should be accepted as authoritative: para. 18, quoting
R. v. Henry
,
    2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57.

[90]

One reason not
    to follow
obiter
would be its inconsistency with previous Supreme
    Court decisions. That was the route adopted by Doherty J.A. in
Prokofiew
,
    a route to which the Supreme Court did not take objection on the appeal.

[91]

In my view,
    while the observations of Fish J. were not integral to the result in
J.F.
,
    they were plainly intended as guidance to appellate courts. They have solid
    jurisprudential foundations and are grounded in principle.

[92]

To repeat, Fish
    J. wrote at para. 21 of
J.F.
:

[A]s a matter of legal process and the legitimacy of verdicts,
    I would decline to uphold the respondents conviction on the ground that it can
    be reconciled with his acquittal on another count of the same indictment
on the basis of a legal error at trial
. [Emphasis in
    original.]

[93]

Justice Fishs
    reference to legal process and the legitimacy of verdicts must be understood
    as a whole and in context. In
J.F.
, they were related. The reference
    to legal process was, I believe, related to the rights of appeal described
    above. As I have explained, when a person convicted by indictment appeals on the
    basis of inconsistency, the court has the power to set aside the guilty verdict
    because it is unreasonable under s. 686(1)(a)(i), not because of an error of
    law. In contrast, if the appeal is brought on the basis of misdirection, the
    courts power to set aside the guilty verdict is provided by s. 686(1)(a)(ii):
    error of law. This is because misdirection constitutes an error of law:
R.
    v. Elkins
(1995), 26 O.R. (3d) 161 (C.A.), at p. 170, leave to appeal to
    S.C.C. refused, [1996] S.C.C.A. No. 62;
R. v. Figueroa
, 2008 ONCA 106,
    232 C.C.C. (3d) 51, at para. 51;
R. v. Bouchard
, 2013 ONCA 791, 305
    C.C.C. (3d) 240, at paras. 4, 71, affd 2014 SCC 64, [2014] 3 S.C.R. 283; and
Barton
,
    at para. 54. Error of law and unreasonable verdict are separate grounds for
    allowing an appeal. Therefore, misdirection (an error of law) is not a basis
    for finding a verdict to be unreasonable.

[94]

In contrast, the
    Crown may only appeal an acquittal on the basis of error of law. The Crown has
    no right to appeal an acquittal on the basis that it is unreasonable:
Biniaris
,
    at paras. 30-33; and
R. v. Barros
, 2011 SCC 51, [2011] 3 S.C.R. 368,
    at para. 52.

[95]

Since the appeal
    against conviction in
J.F.
was brought on the basis that the conviction
    was unreasonable, the question of whether the jury had been misdirected (i.e.,
    whether the trial judge erred in law) was not at issue. That issue had to be
    raised either by the appellant as a separate ground of appeal, or by the Crown
    by way of an appeal against the acquittal. Because the Crown did not appeal the
    acquittal in
J.F.
, its attempt to raise the issue of misdirection was
    procedurally improper. This is what I believe Fish J. was referring to when he
    used the phrase legal process.

[96]

The procedural
    impropriety of the Crowns argument also raised the policy concern of the
    legitimacy of verdicts. As noted above, a not guilty verdict is equivalent to
    a declaration of legal innocence for the purposes of subsequent criminal
    proceedings. The only way to properly challenge such a declaration is through a
    formal Crown appeal. Otherwise, the acquittal, and its meaning, are final. The
    Crown was attempting to undermine the legitimacy of the not guilty verdict by
    an improper collateral attack, without going through the proper process to do
    so. If the Crowns argument had succeeded, the acquittal would have been left
    in place, but its meaning would have been undermined. If jury verdicts are to
    be respected and viewed as legitimate, their meaning must be clear.

[97]

This explains
    the reluctance of this court in prior decisions to order a new trial where
    verdicts are genuinely inconsistent and the Crown has not appealed against the
    acquittal: see e.g.,
R. v. Wong
(2006), 209 C.C.C. (3d) 520 (Ont.
    C.A.), at paras. 17-21;
Catton
, at paras. 25-27;
R. v. Al-Kassem
,
    2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6; and
Walia
, at paras.
    17-18. See also
R. v. Tyhy
, 2008 MBQB 126, 229 Man. R. (2d) 64, at
    paras. 2-10, 44; and
Brady
, at paras. 50-56. Ordering a new trial
    would simply invite a repetition of the very inconsistency that led to the
    quashing of the conviction on appeal. While
Pittiman
states that where
    a conviction is quashed on the basis of inconsistency of verdicts, and the
    evidence supported the conviction, the appropriate remedy will usually be a new
    trial, this can only be ordered in appropriate case[s] where a claim of issue
    estoppel will not act as a bar to the new trial:
J.F.
, at paras. 39-41.

[98]

For these
    reasons, it is my view that Fish J.s observations in
J.F.
were
    intended as guidance to appellate courts. The appellant points out that Fish
    J.s use of italics in para. 21 suggests that he was making a point for appellate
    courts to follow. Justice Fishs observations are also consistent with the
    Supreme Courts jurisprudence, including
Pittiman
, on the subject of inconsistent
    verdicts, and with
Mahalingan
and
R. v. Punko
, 2012 SCC 39,
    [2012] 2 S.C.R. 396, on the subject of issue estoppel. Finally, his
    observations are grounded in principles of fairness of the criminal trial
    process and respect for verdicts. In short, I agree with the appellant that
    Fish J.s observations should be treated as authoritative
obiter
 and
    ought to be followed.

[99]

I turn now to an
    examination of the post-
J.F.
jurisprudence in this court and others.

(c)

Cases subsequent to
J.F.

[100]

It is fair to
    say that
J.F.
has received inconsistent treatment in this court and in
    other provincial appellate courts. Some cases have expressly followed it, some
    have distinguished it, and still others have not mentioned it, while citing
Pittiman
.
    I will review the different strands of authority, beginning with the cases that
    have expressly applied
J.F.

[101]

Catton
is a good example of the consequence of finding inconsistent verdicts, even
    though the inconsistency might have been capable of explanation. There, one of
    the appellants was convicted of dangerous driving causing death but acquitted
    of dangerous driving causing bodily harm, in connection with a collision with a
    motorcycle in which the driver of the motorcycle suffered minor injuries and
    the passenger suffered very serious injuries to which she ultimately succumbed.
    The evidence on the two counts was the same and there was no basis on which the
    conviction on the one count and the acquittal on the other could be reconciled.
    There was some reason to question the acquittal, because the court record
    contained a verdict sheet, unsigned and undated, indicating that the jury had
    convicted the appellant of the included offence of dangerous driving on the dangerous
    driving causing bodily harm count. The court observed that this would remove
    any inconsistency between the verdicts, because the jury could have had
    reasonable doubt about whether the motorcycle drivers minor injuries amounted
    to bodily harm.

[102]

Justice Doherty
    observed that one could say that the jury probably intended to deliver the
    verdicts recorded on the verdict sheet, but the verdict delivered in open court
    was an unqualified finding of not guilty on the second count and the appeal had
    to be considered on that basis: paras. 19-20. On that basis, the verdicts were
    irreconcilable and the conviction had to be quashed.

[103]

Justice Doherty
    then considered the consequences of the finding of inconsistency. Following
J.F.
,
    and based on the principles of issue estoppel set out in
Mahalingan
and
Punko
, he concluded that a new trial could not be ordered and that
    an acquittal was required. He explained his reasoning, at paras. 25-26:

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
.

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 [Citing
Mahalingan
and
Punko
]
    [Underline added.]

[104]

In
Al-Kassem
,
    the appellant was convicted of criminal negligence causing death but acquitted
    of dangerous driving causing death, both charges arising from the same conduct.
    On appeal, this court found the verdicts were necessarily inconsistent and
    allowed the appeal against conviction: para. 1. There was no logical basis on
    which the jury could find that the elements of criminal negligence (marked and
    substantial departure) were present, but that the marked departure element
    of dangerous driving was not: para. 4. This court declined to order a new
    trial, citing
Catton
and
J.F.
, at para. 6 of the reasons:

By acquitting the appellant of dangerous driving causing death,
    the jury was not satisfied to the necessary standard that the appellants
    driving constituted a marked departure from the norm expected of a reasonable
    driver, and he is entitled to the benefit of the jury acquittal on that count.
    The Crown has not appealed from that acquittal, nor is there any suggestion
    that there would be any basis for such an appeal. To order a new trial on the
    criminal negligence count would necessarily invite another inconsistent verdict.
    For this reason, as in
R. v. Catton
and
R. v. J.F.
[2008] 3
    S.C.R. 215, an acquittal on the criminal negligence count is the appropriate
    remedy.

[105]

In
Walia
,
    the appellant had hit another woman in the face with a glass, wounding her. She
    was charged with assault with a weapon (the glass), contrary to s. 267(a) of
    the
Criminal Code
and with aggravated assault by wounding, contrary to
    s. 268. She was found not guilty of assault with a weapon, but guilty of
    aggravated assault. She argued that the verdicts were inconsistent, rendering
    the conviction unreasonable. The court acknowledged that on the evidence at
    trial, a properly instructed jury could not have rendered both verdicts: para.
    12. The court rejected the Crowns submission that the verdicts were
    reconcilable due to an instruction that was favourable to the appellant,
    noting at para. 15: There is no benefit to speculating about how the jury came
    to its inconsistent verdicts, whether by way of unprincipled compromise or in
    response to the flawed instructions. Referring to the observation of Fish J. in
J.F.
at para. 23, that [i]mproper instructions do not make improper verdicts
    proper, the court allowed the appeal and declined to order a new trial, the Crown
    not having appealed the acquittal on the assault with a weapon charge: paras.
    16-17.

[106]

The decision of
    the Court of Appeal of Alberta in
R. v. Seufert
, 2015 ABCA 285, 609
    A.R. 9, provides an illustration of the application of
J.F.
and
Punko
in the context of an appeal from convictions of sexual interference and
    invitation to sexual touching in the face of an acquittal of sexual assault 
    an acquittal not appealed by the Crown. The trial judge gave a confusing answer
    to a question from the jury, which asked whether a finding of guilt on one
    count required the same verdict on all. Notwithstanding that the trial judge
    and counsel had agreed that the counts of sexual assault and sexual interference
    were the same delict, the trial judge failed to explain that to the jury.

[107]

The Crown
    conceded that the elements of sexual interference had been decided in the
    appellants favour by the acquittal of sexual assault. Since the Crown had not
    appealed the acquittal, a new trial could not be ordered, having regard to the
    principles of issue estoppel set out in
Punko
. Accordingly, the
    majority set aside the conviction of sexual interference and entered an
    acquittal in its stead. In the face of the Crowns concession that the trial
    judges errors had an impact on the jurys reasoning, the Court of Appeal set
    aside the conviction on the third count, invitation to sexual touching, but
    ordered a new trial. Although the factual distinctions between the counts are
    not fully explained in the reasons, it appears that the evidence in relation to
    this count may have been distinct from the other two counts. That is, there was
    evidence of acts of invitation to sexual touching that did not amount to sexual
    assault or sexual interference. Justice OFerrall, in dissent, would not have
    set aside the guilty verdicts because, in his view, while inconsistent with the
    acquittal, they were not unreasonable.

[108]

The other strand
    in the jurisprudence includes cases that have either mentioned
J.F.
without
    following it, or have followed
Pittiman
without any reference to
J.F.

[109]

The discussion
    begins with the decision of this court in
S.L.
, a case that falls into
    the former category and bears some similarity to this case. The appellant was
    charged with sexual assault, sexual interference and invitation to sexual
    touching of a child, age 15. The sexual interference charge was particularized
    as touching the complainant with his penis. The invitation to sexual touching
    was particularized as inviting the complainant to touch his penis. The
    complainant asserted she fellated the appellant at his request and that he had
    intercourse with her. Forensic testing found the appellants DNA on the inside crotch
    of the complainants pants.

[110]

The appellant
    was convicted of sexual interference but acquitted of the other two counts. The
    appellant asserted that the conviction was inconsistent with his acquittal of
    offences that had the same elements, given the complainants age, and that it
    was, therefore, unreasonable. The Crown did not appeal the acquittals.

[111]

The trial
    judges instructions to the jury were similar to the instructions in this case,
    but arguably not as explicit on the definition of force. With respect to the
    meaning of force in the sexual assault context, the trial judge said: The
    force applied may be violent, or even gentle. To be an assault, however, [S.L.]
    must apply the force intentionally. An accidental touching is not an
    intentional application of force: para. 39. With respect to sexual
    interference, she instructed the jury that [f]orce is not required: para. 37.

[112]

The Crown argued
    that the verdicts could be reconciled because the jury was told to consider
    each count separately and because the jury was told that sexual assault
    required the application of force, but that sexual interference simply
    required intentional touching and not the use of force.

[113]

This court
    accepted the Crowns submissions and dismissed the appeal. The sexual
    interference conviction and the acquittal of invitation to sexual touching
    could be reconciled on the basis that the jury did not accept all of the complainants
    evidence  it could have been satisfied that sexual activity had occurred, but
    had reasonable doubt about whether the appellant had asked the complainant to
    fellate him: para. 34.

[114]

The sexual
    interference conviction could be reconciled with the acquittal of sexual
    assault because the jury was told that sexual interference required an
    intentional touching but no use of force. In contrast, the jury was told
    numerous times that sexual assault required the application of force: para.
    36. These different instructions on whether touching or the application of
    force was required enabled the court to reconcile the seemingly inconsistent
    verdicts.

[115]

The court noted
    that counsel in the court below had not objected to the trial judges
    instructions and it was not argued in this court that the instructions were incorrect
    in law: para. 41. Although the jury instructions were 
proper

    and 
legally correct
, they were not as complete
    as they could have been: paras 41, 43 (emphasis added). The court elaborated,
    at para. 43:

The jury was given correct instructions on sexual interference
    juxtaposed with correct instructions on sexual assault. Placing the components
    of these two offences side by side created a contrast between the formers
    touch requirement and the latters force requirement. More complete
    instructions could have explained the relationship between touch and force 
    that force includes any touching. But the trial judge did not clearly tell the
    jury that the force component of sexual assault was satisfied if the appellant
    intentionally touched the complainant. [Citation omitted.]

[116]

These
    instructions made it reasonable to infer that the jury thought the application
    of force was required to convict on sexual assault but not required on sexual
    interference: para. 45. The verdicts were, therefore, not inconsistent. The
    verdict was a fair result, not an inexplicable one, and was supported not only
    by the complainants evidence, but by the presence of the appellants DNA in the
    inner crotch of the complainants pants.

[117]

While reference
    was made to
J.F.
early in the reasons, the court did not discuss the
    implications of that decision or the fact that the Crown had not appealed the
    acquittal.

[118]

In
R. v.
    Tyler
, 2015 ONCA 599, this court followed a similar approach. The
    appellant was acquitted of sexual assault and convicted of two counts of
    invitation to sexual touching. He argued that the verdicts were inconsistent
    and the convictions should be set aside. It was common ground that if the
    complainant had done the acts that formed the basis of the invitations, the
    appellants participation in those acts would have amounted to sexual assault:
    para. 5. Referring to
Pittiman
and to this courts decision in
S.L.
,
    but without reference to
J.F.
, the court dismissed the appeal. It
    observed that there was no necessary logical inconsistency between the
    convictions and the acquittal, because the jury could have concluded that the
    invitations occurred, but the sexual contact did not. However, the court
    concluded that this explanation was unlikely: para. 9. Instead, the court
    explained that it was more likely that the jury did not understand that the
    appellants participation in physical contact of a sexual nature with the
    complainant would amount to an assault, even if it resulted from the
    complainant complying with his invitation: para. 10. While the trial judges
    legal instructions were 
correct, so far as they went
,
    a more complete instruction might have expanded the instances of conduct potentially
    forming the basis of a sexual assault conviction: paras. 11-12 (emphasis added).
    The error, if any, in the sexual assault acquittal did not undermine the
    convictions for invitation to sexual touching, which were supported by the
    evidence. There was no reason to believe that the verdict was the result of an
    unjustifiable compromise: para. 13.

[119]

R. v. K.D.M.
,
    2017 ONCA 510, is yet another case in which an appellant was acquitted of
    sexual assault, but convicted of sexual interference and invitation to sexual
    touching, notwithstanding legally correct instructions. Again, without
    reference to
J.F.
, this court followed an approach similar to
S.L.
and the decision of the Court of Appeal of Alberta in
R. v. Tremblay
,
    2016 ABCA 30, 612 A.R. 147, leave to appeal to S.C.C. refused, [2016] S.C.C.A.
    No. 200.

[120]

The charges
    related to two different types of sexual acts allegedly involving the appellant
    and the complainant. These were referred to, respectively, as ups and rubs:
    paras. 5-6. The sexual interference charge was particularized as the rubs:
    para. 22. The invitation to sexual touching charge was particularized as the
    appellant requesting the ups: paras. 31-32. However, the sexual assault
    charge was not particularized, and appears to have encompassed both the ups
    and the rubs: paras. 18-19. Given the particularization of the charges, the
    complainants evidence and the elements of the offences, if the appellant was
    guilty of sexual interference he was necessarily guilty of sexual assault.

[121]

Accordingly, the
    appellant argued the verdicts were inconsistent. The Crown again argued that
    the verdicts could be reconciled, given the way the jury was instructed. This
    court agreed with the Crown and dismissed the conviction appeal. In the
    instructions on sexual assault, the trial judge emphasized the force
    requirement throughout, and merely explained that [t]he force applied may be
    violent, or even gentle: para. 19. In contrast, the trial judge said that
    [f]orce is not required for sexual interference: para. 23. This court
    concluded, at para. 25: the reasonable inference from these instructions as a
    whole is that the jury understood that force was necessary to convict on sexual
    assault but not required to convict on sexual interference. The court found
    that, although the instruction was 
legally correct
,
    it did not adequately explain the force requirement: para. 28 (emphasis added).
    The inconsistent verdicts could be explained by the likelihood that the jury
    was confused.

[122]

As I have
    emphasized above, in each of
S.L.
,
Tyler
and
K.D.M.
,
    this court found that the instructions on sexual assault were legally correct,
    but not as complete as they should have been. In each case, there was no Crown
    appeal of the sexual assault acquittal.

[123]

Other provincial
    appellate courts have reconciled apparently inconsistent jury verdicts on the
    basis that legally correct instructions on the force component of sexual
    assault might have confused the jury and have upheld sexual interference
    convictions while leaving acquittals of sexual assault standing: see e.g.,
Tremblay
,
    at paras. 24-25; and
R. v. J.D.C.
, 2018 NSCA 5, at paras. 26, 52-53.

[124]

This courts
    decision in
R. v. Plein
, 2018 ONCA 748, 365 C.C.C. (3d) 437, raises
    different considerations because it was an appeal from an allegedly
    inconsistent verdict in a judge-alone trial. The appellant was charged with
    failing to provide the necessaries of life (s. 215(1)(c)), criminal negligence
    causing death (s. 220), and unlawful act manslaughter (s. 236) in connection
    with the deaths of his mother and sister, who were under his care. He was found
    guilty of all three charges in the case of his mothers death, and in relation
    to his sisters death, he was found not guilty of manslaughter but guilty of
    the other two offences. He argued that the criminal negligence conviction in
    relation to his sisters death was inconsistent with his acquittal of manslaughter.
    The Crown conceded that the verdicts were inconsistent, but argued that the
    criminal negligence conviction should be upheld since the acquittal of manslaughter
    arose from a clear legal error and the criminal negligence conviction was
    reasonable and supported by the record.

[125]

This court
    agreed, finding that the manslaughter acquittal arose from a manifest legal
    error: para. 23. Justice Paciocco, speaking for the court, stated at para. 23:
    In my view, the law does not require an otherwise unassailable conviction to
    be set aside in a judge alone trial because an inconsistent, demonstrably
    unsound acquittal has been entered on a functionally identical charge in the
    same proceedings.

[126]

Justice Paciocco
    found that the charges of criminal negligence and unlawful act manslaughter
    were based on the same unlawful omission: para. 28. And the elements of the two
    offences, while articulated differently, were materially the same: para. 28. Close
    examination of the trial judges reasons for judgment and the court record
    provided no rational or logical basis that could reconcile the verdicts: para.
    31.

[127]

But Paciocco
    J.A. held that while the verdicts could not be logically or rationally
    reconciled, the inconsistency could be explained by the reasons for judgment.
    The trial judge misunderstood and misapplied the law relating to manslaughter.
    He erred by assessing the
mens rea
for manslaughter subjectively rather
    than objectively and by importing a requirement of foreseeability of death,
    rather than foreseeability of the risk of bodily harm: paras. 32-37.

[128]

Distinguishing
    the case from
J.F.
, Paciocco J.A. observed, at para. 47:

To be sure, things would have been cleaner in this case had the
    acquittal been appealed and set aside. As things stand, if we uphold the
    criminal negligence causing death conviction there will be facially
    inconsistent verdicts recorded in Mr. Pleins case. In my view, however, the
    Crown does not have to appeal and set aside the acquittal in order to resist
    Mr. Pleins challenge to the reasonableness of his criminal negligence
    conviction. When an accused person asks to have an inconsistent conviction set
    aside, the reasons for that inconsistency are put in issue. As I see it, where,
    on an examination of those reasons, the acquittal shows itself to be defective,
    an appeal court must take the fact the acquittal is wrongful into account in
    deciding whether to grant the relief the appellant requests.

[129]

He concluded, at
    para. 51:

Ultimately, it is not illogical or contrary to the interests of
    justice to uphold a demonstrably valid criminal negligence causing death
    conviction where there is a final but demonstrably wrongful acquittal
    registered after the same trial on a manslaughter charge that alleges the same
    essential offence. It would, however, be illogical, contrary to the interests
    of justice, and contrary to the appeal powers conferred by s. 686(1)(a)(i) to
    strike down that reasonable conviction because the trial judge happened to
    enter a wrongful manslaughter acquittal that was grounded on factual findings
    that are not inconsistent with the criminal negligence causing death conviction
    that Mr. Plein seeks to attack.

[130]

I turn now to the
    case before us.

(5)

Application to this case

[131]

On the evidence
    presented to this jury, if the appellant was guilty of either sexual
    interference or invitation to sexual touching, he was necessarily guilty of
    sexual assault. No properly instructed jury could reasonably have reached a
    different conclusion. This was demonstrated by the trial judges review of the
    evidence and is illustrated by the following extract from the Crowns closing
    address:

He sexually assaulted her between the ages of 6 and 7 to 12 or
    13 and in that he committed the offence of sexual assault, sexual interference.
    He had her touch him in a sexual manner and that he committed the offence of
    invitation to sexual touching.

[132]

On any realistic
    view of the evidence, in light of the submissions of counsel and the trial judges
    instructions, a properly instructed jury could only reasonably have acquitted
    the appellant of sexual assault if it had reasonable doubt that there was
    physical contact, even gentle touching of the complainant. However, that
    reasonable doubt would also require acquittal of sexual interference and, based
    on the evidence and submissions, of invitation to sexual touching.

[133]

There is a
    patent inconsistency between the appellants convictions on the sexual
    interference and invitation to sexual touching counts on the one hand, and his
    acquittal on the sexual assault count on the other. The only questions are
    whether the allegedly confusing but otherwise legally correct jury
    instruction on sexual assault can explain the inconsistency, whether the
    Crowns proposed appeal of the acquittal can resolve the inconsistency and, if
    not, whether a new trial can be ordered in the face of the acquittal.

[134]

In my view, the
    cause of the inconsistent verdicts in this case is a matter of pure speculation
    in light of the evidence, the positions of trial counsel and the trial judges
    instructions. As this court said in
Walia
, [t]here is no benefit to
    speculating about how the jury came to its inconsistent verdicts, whether by
    way of unprincipled compromise or in response to the flawed instructions:
    para. 15. Moreover, in the words of Fish J. in
J.F.
, [i]mproper
    instructions do not make improper verdicts proper: para. 23. The allegedly confusing
    instruction on sexual assault cannot reconcile the verdicts and, therefore, the
    convictions must be set aside.

[135]

What, then, of
    the effect of the Crown appeal in this case? In my respectful view, an appeal
    of the acquittal of sexual assault cannot succeed. The trial judge gave a legally
    correct instruction. The jury was expressly told, twice, that any physical
    contact, even a gentle touch, could amount to the force necessary for sexual
    assault.

[136]

Moreover, in her
    instruction on sexual assault, the trial judge repeatedly linked force with
    touching, as the following excerpts demonstrate:

·

Force
includes any physical contact with
    another person, even a gentle touch
;

·

A sexual assault is any intentional application of force,
any intentional physical contact with another person, even an
    intentional but gentle touching
, which occurs in circumstances of a
    sexual nature so that the sexual integrity of [T.S.] is violated;

·

An
intentional touching
takes place
    in circumstances of a sexual nature, if you are satisfied beyond a reasonable
    doubt that the sexual context of the
touching
would
    be apparent to any reasonable person who saw it happen;

·

To decide whether the force was intentionally applied, including
    whether
any intentional physical contact
occurred
    in circumstances of a sexual nature, you should examine all the circumstances
    surrounding what [R.V.] is alleged to have done.

·

[R.V.]s purpose in
applying force or
    touching
may also help you decide whether it was of a sexual nature;
    and

·

[T.S.] testified that the incidents involved the following: her
    hand
touching
[R.V.]s penis, his hand
touching
her breast area, his hand
touching
her vagina while she was wearing clothes, her
    pelvis
touching
his (once when she was clothed and
    he was not and once when he was clothed and she was not), and his hand
touching
her head and pushing it down to his penis.
    [Emphasis added.]

[137]

In my view, the
    sexual assault instruction was not so unnecessarily confusing that it
    constituted an error of law:
R. v. Hebert
, [1996] 2 S.C.R. 272, at
    para. 8; and
R. v. Pintar
(1996), 30 O.R. (3d) 483 (C.A.), at p. 497.

[138]

Moreover, the
    Crown reviewed the final draft of the charge during the pre-charge conference,
    and made no objection to the instruction now said to be erroneous. As Doherty
    J.A. wrote in
Bouchard
, at para. 38, [w]hen the trial judges
    instructions are consistent with the instructions worked out by counsel and the
    trial judge in the pre-charge conference, and counsel has no objections after
    the charge is delivered, it is an understatement to describe counsels silence
    as merely a failure to object; see also
J.F.
, at paras. 22-23; and
Barton
,
    at para. 150. This observation must apply with even greater force in the case
    of a Crown appeal.

[139]

The Crown, therefore,
    cannot demonstrate an error of law in the instruction on sexual assault, the
    only basis on which it would be entitled to have the acquittal set aside under
    s. 686(4). Nor can it establish that leaving simple assault as an available
    verdict tainted the acquittal.

[140]

Since the
    acquittal must stand, ordering a retrial on either of the other two counts
    would invite the jury to return a verdict inconsistent with the appellants
    acquittal and would give rise to a claim of issue estoppel. This we cannot do.

[141]

For these
    reasons, I would direct an acquittal to be entered on both counts.

(6)

Authority of previous decisions

[142]

I am unable to
    distinguish
S.L.
,
Tyler
and
K.D.M.
in any
    satisfactory way from the Supreme Courts
obiter dicta
in
J.F.
,
    which, as I have noted, have been applied in
Catton
,
Al-Kassem
and
Walia
. The convictions in the former cases were violently at
    odds with the acquittals for sexual assault and with the declarations of legal
    innocence flowing from those acquittals. Based, as they were, on legally
    correct instructions, it was speculative to conclude that the acquittals were
    the result of jury confusion and that the convictions were not.
J.F.
instructs us that, in the absence of a Crown appeal, fairness to the accused
    and public confidence in the integrity of jury verdicts require that the
    convictions be set aside and that a retrial inviting the same inconsistency is
    not an appropriate disposition.

[143]

As I have
    explained,
J.F.
provides authoritative guidance and should be
    followed. To the extent that decisions of this court have failed to do so, they
    should not be followed.

[144]

For the purposes
    of this appeal, it is unnecessary to determine whether
Plein
, and the decision
    of this court in
R. v. Horner
, 2018 ONCA 971, 370 C.C.C. (3d) 383,
    which followed
Plein
, should not be followed. Neither counsel
    substantively addressed the question of whether the same approach should apply
    to judge-alone trials. However, I would endorse the observation of Paciocco
    J.A. that in appeals based on inconsistent verdicts, the Crown should appeal an
    acquittal if it believes the acquittal is the product of an error of law.

[145]

Nevertheless, I
    agree with the Crown that it need not appeal an acquittal in all cases in order
    for an appellate court to conduct an inconsistent verdict analysis. Even if it
    does not appeal the acquittal, it remains open to the Crown to resist an
    inconsistent verdict appeal by showing that the guilty verdicts are not unreasonable;
    for example, by showing that the verdicts can be reconciled on the basis that
    the offences are temporally distinct, or are qualitatively different, or are dependent
    on different evidence or the credibility of different complainants or
    witnesses:
Pittiman
, at para. 8.


VI.

CONCLUDING OBSERVATIONS

[146]

This court has
    repeatedly stressed that trials  all trials, whether judge-alone or judge and
    jury  should be made less complicated, not more complicated. Proceeding with
    duplicative counts complicates and prolongs the trial and is a recipe for jury
    confusion and inconsistent verdicts. This is particularly so in cases of sexual
    assaults on children, as illustrated by this and other cases to which I have
    referred. Here, it was evident that 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. In that event, one of those
    counts would have been stayed based on
Kienapple v. R.
, [1975] 1
    S.C.R. 729: see for example,
R. v. Mair
(1998), 122 C.C.C. (3d) 563
    (Ont. C.A.), at para. 18; and
R. v. S.J.M.
, 2009 ONCA 244, 247 O.A.C.
    178, at paras. 8-10. Why was it necessary to proceed with both counts, when a
    stay of one was inevitable on conviction of both?

[147]

Granted, there
    may be cases where the distinction between sexual assault and sexual
    interference makes a difference, for example: where the age of the complainant
    is an issue; where the difference between the
mens rea
requirements
    for the two offences may make a difference; or where the Crown has some
    uncertainty about how the evidence will ultimately unfold. This was not such a
    case. 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. The
    trial judge should canvass this issue with counsel during both the pre-trial
    and pre-charge conferences. Ultimately, however, it is up to the Crown to
    decide whether a charge in the indictment should go to the jury for a verdict:
R.
    v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 54-58.

[148]

A related point
    is that trial judges have a responsibility to simplify jury instructions.
    Standard forms of instructions are useful guides, but as their authors note,
    they are just that. They are not one-size-fits-all:
R. v. Yumnu
, 2010
    ONCA 637, 260 C.C.C. (3d) 421, at para. 372, affd 2012 SCC 73, [2012] 3 S.C.R.
    777;
Rowe
, at para. 62; and
R. v. McDonald
, 2015 ONCA 791, at
    para. 16. The language must be tailored to the facts and issues of the
    particular case.

[149]

In this case, as
    in
S.L.
and others, the repeated use of the word force in the sexual
    assault instruction may well have been unnecessary since there was no issue of force
    in the laypersons sense having been applied, and since the jury was told that
    [f]orce is not required for sexual interference or invitation to sexual
    touching. The word touching would have been sufficient. Accordingly, if,
    after canvassing the issue with counsel, the Crown insisted on proceeding with
    both the sexual assault and sexual interference counts, the trial judge should
    have taken a hard look at whether references to force in the sexual assault
    instructions could be replaced with references to touching, so as to align the
    sexual assault instructions with the instructions on the other counts. Alternatively,
    the trial judge, after discussing with counsel, could have instructed the jury
    that if it acquitted the appellant of either sexual assault or sexual
    interference, it necessarily had to acquit him of both counts.

VII.

DISPOSITION

[150]

For these
    reasons, I would allow the appellants appeal, quash the convictions on counts
    2 and 3, and direct verdicts of acquittal to be entered on both counts. I would
    grant the Crown an extension of time to cross-appeal the acquittal, but would
    dismiss that cross-appeal.

G.R. Strathy C.J.O.

I agree. G. Pardu
    J.A.

I agree. Gary Trotter
    J.A.


Rouleau J.A. (dissenting):


I.

OVERVIEW

[151]

As my colleague
    explained, in this case, the same facts underlie each of the charges of sexual
    assault, sexual interference, and invitation to sexual touching. A finding of
    guilt on one count ought to have inevitably resulted in a finding of guilt on
    the others. However, despite having reached the unanimous conclusion, beyond a
    reasonable doubt, that the appellant had intentionally committed the acts
    necessary to find him guilty of sexual interference and invitation to sexual
    touching, the jury nonetheless acquitted him of sexual assault.

[152]

On the basis
    that the verdicts were inconsistent, my colleague concluded, and I agree, that
    the convictions for sexual interference and invitation to sexual touching
    cannot stand. I disagree, however, on the appropriate disposition of the Crown
    cross-appeal of the acquittal on the charge of sexual assault and on the
    appropriate remedy of the appeal of the convictions.

[153]

Unlike many
    reported cases involving inconsistent verdicts, we are seized in this case with
    both an appeal from the convictions and a cross-appeal of the acquittal. This
    raises important issues: first, how to address a Crown cross-appeal of the
    acquittal in a case involving inconsistent verdicts, and second, the
    appropriate disposition of the appeal should the Crown succeed on its
    cross-appeal.

[154]

For the reasons
    that follow, I would allow both the appellants appeal and the Crowns cross-appeal
    and order a new trial on the charges of sexual assault, sexual interference,
    and invitation to sexual touching.


II.

ANALYSIS

(1)

Introduction

[155]

In
R. v.
    J.F.
, 2008 SCC 60, [2008] 3 S.C.R. 215, Fish J. concluded that, where a
    jury rendered inconsistent verdicts, the convictions could not stand, even in
    the face of confusing instructions. As he explained, [i]mproper instructions
    do not make improper verdicts proper: at para. 23. Significantly, however, in
    that case, only the convictions had been appealed.

[156]

What, then, is
    the situation where, as here, the Crown has cross-appealed the acquittal? In
    this case, the Crown argues that the acquittal on sexual assault, and the
    resulting inconsistent verdicts, are the result of a confusing charge. It
    becomes appropriate and necessary to assess whether the inconsistency can, in
    fact, be explained by a confusing charge and, if so, determine the appropriate
    remedy. In a case where the Crowns cross-appeal is allowed, all of the charges
    will be sent back for a new trial, obviating the risk of inconsistent verdicts
    that exists if the acquittal is not set aside.

[157]

As I will
    explain, to succeed on its cross-appeal, the Crown must show that there was an
    error of law in the jury instructions. This requires demonstrating that, in this
    case, the jury charge was so unnecessarily confusing that it constituted an
    error of law:
R. v. Hebert
, [1996] 2 S.C.R. 272, at para. 8. The
    Crown must also establish that the error might reasonably be thought to have
    had a material bearing on the acquittal:
R. v. Youvarajah
, 2013 SCC
    41, [2013] 2 S.C.R. 720, at para. 32.

[158]

A charge may be
    found to be confusing even if the portion of the instructions setting out the
    elements of the offence from which the accused was acquitted is correct.
    Confusion can arise from a lack of clarity when the charge is read as a whole
    and viewed in context of the decision tree, verdict sheet, and any answers
    given to jury questions. In my view, a constellation of factors present in this
    case are sufficient, when viewed in combination, to meet the stringent test
    established in the jurisprudence to raise a confusing jury charge to the level
    of an error of law. This confusion in the charge is by far the most likely
    explanation for the inconsistent verdicts rendered by the jury in this case. It
    explains why an acquittal rather than a conviction was entered on the sexual
    assault charge even though the jury convicted the appellant of sexual
    interference based on the same facts.

(2)

The law

[159]

Jury charges
    provide juries with a roadmap that they must follow in reaching a decision.
    Confusion flowing from a jury charge will constitute an error of law where the
    charge, read as a whole, may very well have diverted the jury from a proper
    consideration of the issues:
Hebert
, at para. 13.

[160]

Following the
    model jury charge instructions for each of the offences in the indictment will
    not necessarily insulate the instructions from being confusing. It is the
    overall effect of the charge that matters. Overreliance on model jury
    instructions can lead to the failure to isolate the critical issues in a case
    and tailor the charge to them, which inevitably makes the instructions less
    helpful to the jury and adds unnecessarily to their length and complexity:
R.
    v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 51.

[161]

Indeed, as Watt
    J.A. noted in his book,
Helping Jurors Understand
(Toronto: Thomson
    Carswell, 2007), at p. 82:

A specimen is a sample. A specimen instruction
    is a sample instruction about its subject-matter. Specimen instructions do
not
and cannot be expected to provide legally accurate directions for every set of
    circumstances that fall within their reach. There are no one-size-fits-all jury
    instructions. At best, specimen instructions provide the basic building blocks
    for finals and other instructions. The twists and turns of individual cases
    will dictate the nature and extent of modification required to ensure legal
    accuracy. [Emphasis in original.]

[162]

Moreover, as
    explained in
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras.
    30-31:

The cardinal rule is that
it is the general sense which the words used must have
    conveyed, in all probability, to the mind of the jury that matters
, and
    not whether a particular formula was recited by the judge. The particular words
    used, or the sequence followed, is a matter within the discretion of the trial
    judge and will depend on the particular circumstances of the case.

In determining the
    general sense which the words used have likely conveyed to the jury, the
    appellate tribunal will consider the charge as a whole
. The standard that a trial judges instructions are to be held to
    is not perfection. The accused is entitled to a properly instructed jury, not a
    perfectly instructed jury. It is the overall effect of the charge that matters.
    [Emphasis added; citation omitted.]

[163]

With this brief
    overview of the law, I turn now to the jury charge in the case before us.

(3)

Was the jury charge confusing?

[164]

A challenge
    faced by the trial judge when she drafted the charge was to convey to the jury
    that the force requirement in the sexual assault charge and the touching
    requirement in the sexual interference and invitation to sexual touching counts
    were one and the same.

[165]

It would not be
    the common understanding of a juror that merely touching someone is the same as
    using force on someone. Nor would a juror necessarily expect that the very same
    conduct could make out all three differently worded offences.

[166]

Jury
    instructions are intended to communicate the applicable law to the jury in a
    manner which can be understood and
remembered
:
R.
    v. Elkins
(1995), 26 O.R. (3d) 161 (C.A.), at pp. 169-70, leave to appeal
    refused, [1996] S.C.C.A. No. 62 (emphasis added). This is what appellate courts
    must keep in mind. As explained by Doherty J.A.:

Appellate courts reviewing those instructions
    must view them from the perspective of a reasonably intelligent lay person
    listening to the instructions and not from the perspective of a legally trained
    student of the criminal law, schooled to see the ambiguities and subtleties
    associated with the language of some provisions in the
Criminal Code
:
Elkins
,
    at p. 170.

[167]

Moreover, the
    word force in the sexual assault context can be easily misunderstood. Indeed,
    a jury can easily understand the word force in the colloquial sense, that is,
    as the use of physical strength or power to sexually abuse the complainant: see
R. v. Tremblay
, 2016 ABCA 30, 612 A.R. 147, at para. 15, leave to
    appeal refused, [2016] S.C.C.A. No. 200. Indeed, the everyday definition of
    force refers to violence, compulsion, or constraint exerted upon or against
    a person (
Merriam-Webster Dictionary
(online),
sub verbo
force) and to coercion backed by the use or threat of violence (
Concise
    Oxford English Dictionary
, 12th ed.,
sub verbo
force).

[168]

Viewed in
    isolation, the portion of the instructions relating to the offence of sexual
    assault is correct. The trial judge followed Watt J.A.s specimen instructions
    from
Watts Manual of Criminal Jury Instructions
, 2nd ed. (Toronto:
    Carswell, 2015), including a statement that [f]orce includes any physical
    contact, even a gentle touch. As explained in
Daley
, however, the
    mere use of the correct formulation in a portion of the charge is not all that
    matters. One must also consider the general sense that the word force likely
    conveyed to the jury, as well as the general sense that would be remembered by
    the jury in deliberations, considering the charge as a whole.

[169]

I am satisfied
    that, when viewed in context, the jury would not have understood that mere
    touching constituted the force necessary to make out the offence of sexual
    assault. I reach this conclusion based on several points, as follows:

1.

As is clear from the following chart, the trial judge used the need for
    the use of force in describing the offence of sexual assault and only the
    need for touching in her description of sexual interference and invitation to
    sexual touching.





Sexual assault

Sexual interference

Invitation to sexual touching



Elements of the offence



i. That [T.S.] was under sixteen (16) years old at the
          time;

i. That [T.S.] was under

sixteen (16) years old at the time;



i. That [R.V.] intentionally applied
force
to [T.S.];

ii. That [R.V.]
touched
[T.S.]; and

ii. That [R.V.] invited [T.S.] to
touch
his
          body; and



ii. That the
force
that [R.V.] intentionally
          applied took place in circumstances of a sexual nature.

iii. That the
touching
was for a sexual
          purpose.

iii. That the
touching
that [R.V.] invited
          was for a sexual purpose.



Summary at the end of each count

If you are satisfied beyond a reasonable doubt that [R.V.]
          intentionally applied
force
to [T.S.] in circumstances of a
          sexual nature, you must find [R.V.] guilty of sexual assault.

If you are satisfied beyond a reasonable doubt that [R.V.]
touched
[T.S.] for a sexual purpose, you must find [R.V.]
          guilty of sexual interference.

If you are satisfied beyond a reasonable doubt that the
touching
that [R.V.] invited [T.S.] to do was for a sexual purpose, you must find
          [R.V.] guilty of invitation to sexual touching.



2.

After her instructions relating to sexual assault, the trial judge gave
    instructions on sexual interference and on invitation to sexual touching. In
    her explanations of these counts, she defined touching in this context and
    stated that [f]orce is not required in order to constitute touching. This
    remark effectively contradicted her earlier comment, made in the course of her
    instructions on sexual assault, that a gentle touch could constitute force.

3.

Although the trial judge originally intended that the jury would have a
    copy of the charge in the jury room, the plan was changed just before final
    submissions and the jury did not have a copy of the instructions during its
    deliberations. The trial judges instruction that force includes a gentle touch
    was made relatively early in the charge that was read out in court. That
    qualification to the word force may well have been forgotten or lost by the
    jurors by the time the charge was completed and they retired to the jury room.

4.

In the jury room, the jury had a decision tree for each of the three
    offences. The decision tree for sexual assault referred only to the need for
    the use of force, while the decision tree for both sexual interference and
    invitation to sexual touching referred only to the need for touching.

5.

The decision tree for sexual assault provided for the possibility of a
    conviction for simple assault, if the force used was not of a sexual nature. It
    was unnecessary to provide for this possibility, as on the facts of this case,
    it was not open to the jury. It could only serve to confuse the jury and
    reinforce the perception that force was distinct from touching, since it
    could result in a conviction for assault.

6.

The jury clearly focused on the possibility of an assault. It pointed
    out, in a jury question, that the decision tree it was provided indicated that
    a conviction for assault was possible, but that this option was not available
    on the verdict sheet it was given. Rather than explain to the jury that simple
    assault was not an option on the facts of the case, and deleting it from the
    decision tree, the trial judge added it as a possible outcome on the verdict
    sheet. Simple assault was, of course, not an option in the decision trees for
    sexual interference and invitation to sexual touching. The inclusion of this
    offence in the decision tree for sexual assault further highlighted the
    difference between the use of force and touching.

[170]

My colleague
    correctly notes that the Crown did not object to the charge, and that this is a
    factor that the court must take into account. However, the Crowns failure to
    object needs to be viewed in context. Both the first and second drafts of the
    charge reviewed by the Crown informed the jury that a written copy of the
    instructions would be provided to them, and that they may refer to them in
    their deliberations. In pre-charge discussions, the Crown told the trial judge
    that this was the practice in other trials she had been a part of. There would
    be much less concern that the jury might not remember the reference early in
    the instructions that force includes a gentle touch if written instructions
    were available in the jury room. It was only just before the jury returned to
    hear final submissions that, as a compromise to accommodate a defence concern,
    it was decided that the jury would not receive a copy of the written
    instructions and the reference to the jury receiving the instructions was
    deleted. In these circumstances, the Crowns failure to raise the concern is
    understandable.

[171]

Generally, the inclusion
    of several offences in an indictment that, although differently worded,
    represent the same delict, creates a significant risk that the jury will be
    confused: see e.g.
R. v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d) 42, at
    paras. 54, 58. In light of the several concerns I have outlined, and taking
    into account the outcome of inconsistent verdicts in this case, I am satisfied
    that the jury charge was confusing and, in fact, confused the jury as to the
    meaning of force and as to whether the use of force required something other
    than touching.

[172]

Given the
    structure of the instructions, which consisted of an explanation of one count
    after another in isolation, the jury needed to be told how the three offences
    related to each other. Toward the end of the charge, the trial judge could have
    told the jury that, in reviewing the elements of the three offences, it should
    keep in mind that touching and force were one and the same. Further, where,
    as here, the trial judge chose not to provide a copy of the charge, the trial
    judge should indicate on the decision tree, the only tool the jury had access
    to in the jury room, that force and touching were, in effect, interchangeable
    terms. The failure to take either of these steps, in the circumstances of this
    case, constituted an error of law. Perhaps the simplest approach would have
    been to modify the sexual assault portion of the charge by replacing the word
    force by the word touching. As Watt J.A. explained, [t]he twists and turns
    of individual cases will dictate the nature and extent of modification
    required:
Helping Jurors Understand
, at p. 82. In this case, the
    juxtaposition of the terms force and touching would have been avoided by
    such a change, since they were meant to refer to the same actions.

[173]

Where, as here,
    the Crown elected to proceed with counts that are, in effect, duplicative, the
    trial judge might also consider advising the jury that it need not turn its
    mind to why there is more than one charge arising from the same allegations.
    The jury could be informed that it is the trial judges role to sort out issues
    of duplication after the verdict is delivered.

[174]

As I have
    previously noted, the fact that the jury returned inconsistent verdicts is a
    strong indicator that it was confused. Standing alone, however, an unexplained
    inconsistent verdict and the possibility of confusion do not provide a basis
    for a Crown appeal. The reason for the confusion must be apparent and explain
    the inconsistency.

[175]

On the facts of
    this case, the confusion and inconsistency in the verdicts flow from the
    charge. In my view, the possibility that an alternative to confusion can
    account for the inconsistent verdicts may be safely excluded on the facts of
    this case. It is highly unlikely that jury nullification was the cause of the
    inconsistent verdicts, as it would mean that the jury was unanimously of the
    view that sexual assault, as it pertains to minors, is an unjust law, but that
    it nonetheless decided to convict the appellant of sexual interference and
    invitation to sexual touching.

[176]

Moreover, the
    possibility that the jury compromised and convicted the appellant of two rather
    than three charges would necessarily be the product of confusion, as the jury
    would have failed to understand that convictions for sexual assault and sexual
    interference flowed from the same facts and were, in essence, duplicative.

(4)

Appropriate disposition

[177]

Where both the
    conviction and the acquittal are appealed and the inconsistent verdicts are
    properly explained by a confusing charge that in fact confused the jury, a new
    trial is the appropriate disposition. In my view, this is what Charron J. had
    in mind in
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381. She
    explained that where the verdict is found to be unreasonable on the basis of
    inconsistency of verdicts, but the evidence against the appellant supported the
    conviction, the appropriate remedy will usually be a new trial: at para. 14.
    This view is consistent with
J.F.
, where Fish J. stated, at para. 39,
    that [i]n an appropriate case  a new trial may well be ordered where the
    verdicts at first instance are found to be inconsistent.
J.F.
was not
    an appropriate case for a new trial because the acquittal was not appealed and
    a new trial on the convictions would necessarily deprive the appellant of the benefit
    of that acquittal. The situation is different in a case where the acquittal is
    also set aside. A new trial on all counts will not reproduce inconsistent
    verdicts if the jury is properly instructed.

[178]

This outcome is
    also consistent with the policy considerations underlying inconsistent
    verdicts. The jury was able to reach the difficult unanimous decision that the
    Crown had met its onus of proving, beyond a reasonable doubt, that the
    appellant had committed serious sexual offences. On appeal, the appellant
    cannot point to any error in the charge that could justify setting aside the
    convictions, nor can he argue that the record was insufficient to support the
    convictions. The only basis for setting aside the convictions is the acquittal
    on another charge. A fair review of the proceedings below reveals that the
    acquittal was likely the result of confusion by the jury. In such
    circumstances, ordering the appellant to undergo a new trial on all charges
    cannot be viewed as being unfair to him.


III.

CONCLUSION

[179]

As a result, I
    would set aside the convictions and the acquittal and order a new trial on all
    counts. However, I note that the Crown has indicated that it would not pursue a
    new trial on the sexual assault charge.

Released: G.S.   AUG 26  2019

Paul Rouleau J.A.

I agree. B.W. Miller
    J.A.





[1]

Criminal Code
,
s.
    151: Every person who, for a sexual purpose, touches, directly or indirectly,
    with a part of the body or with an object, any part of the body of a person
    under the age of 16 years  is guilty of an  offence



[2]

Criminal Code
,
s.
    152: Every person who, for a sexual purpose, invites, counsels or incites a
    person under the age of 16 years to touch, directly or indirectly, with a part
    of the body or with an object, the body of any person, including the body of
    the person who so invites, counsels or incites and the body of the person under
    the age of 16 years  is guilty of an  offence


