Her Majesty the Queen v. R.V.

(Ontario) (Criminal) (As of Right / By Leave)

(Publication ban in case) (Publication ban on party)


Criminal law - Appeals, Unreasonable verdict - Criminal law - Appeals - Verdict - Unreasonable verdict - Inconsistent verdict - Instructions to jury - Accused convicted by jury of sexual interference and invitation to sexual touching but acquitted of sexual assault - Offences arising on same evidence - Accused appealing convictions - Crown cross-appealing acquittal - Whether the majority of the Court of Appeal erred in law in finding there was no error of law in the jury instructions that had a material bearing on the acquittal on the charge of sexual assault, in dismissing the Crown’s cross-appeal against the acquittal, and in quashing the convictions for sexual interference and invitation to sexual touching and directing verdicts of acquittal on both counts - Whether a court of appeal should consider the actual instructions received by the jury in the context of a defence appeal before concluding verdicts are unreasonable due to inconsistency and granting relief - Whether a crown appeal is necessary before the issue of misdirection may be considered by an appellate court - What is the correct disposition of inconsistent verdict appeals where jury misdirection reconciles the verdicts?.


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At trial, the respondent, R.V., was convicted of sexual interference and invitation to sexual touching but acquitted on a charge of sexual assault based on the very same evidence. The respondent appealed the two convictions. The appellant Crown then cross-appealed the acquittal contending that the inconsistency in the verdicts was explained by confusing jury instructions, which led the jury to believe the force required for sexual assault was different than the touching required for sexual interference and invitation to sexual touching. A majority of a panel of five judges at the Court of Appeal allowed R.V.’s appeal, quashed the two guilty verdicts and directed that verdicts of acquittal be entered because the alleged confusing instruction to the jury on sexual assault could not reconcile the verdicts and they therefore had to be set aside. The majority also dismissed the Crown’s cross-appeal on the acquittal. In dissent, Rouleau J.A. (with Miller J.A. concurring), would have allowed R.V.’s appeal and the Crown’s cross-appeal and ordered a new trial on the three charges. The dissent found there was an error of law in the jury instructions and explained that where both the conviction and 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.