General Principles

 

The power to overturn a verdict based on unreasonableness can be found in section 686(1)(a)(i) of the Criminal Code. 

 

The appellate court must determine is whether, on the whole of the evidence, the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered: R v Wolynec, 2015 ONCA 656 at paras 72-73; R v Smith, 2016 ONCA 25 at para 71; R v McCracken, 2016 ONCA 228 at para 23

The reasonableness of the verdict is a question of law: R v Ellis, 2016 ONCA 358 at para 28

In the context of a judge alone trial, “the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion”: Ellis at para 29

Where the Crown’s case depends on inferences drawn from primary facts, the question, in assessing the reasonableness of the verdict, becomes: could a trier of fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion based on the totality of the evidence: Ellis, at para 30

An unreasonable verdict may arise from unreasonable credibility findings. An appellate court must determine whether the assessments of credibility “cannot be supported on any reasonable view of the evidence”: R v KM, 2016 ONCA 347 at para 11

The Appellate court must examine the weight of the evidence, not its bare sufficiency; the court is entitled to re-examine and reweigh the evidence only to determine whether the evidence, as a whole, is reasonably capable of supporting the verdict rendered: R v Smith, 2016 ONCA 25 at para 72

 

An unreasonable verdict does not arise where the prosecution fails to prove an unessential element of the offence (e.g., the date of a sexual assault): R v AMV, 2015 ONCA 457 at paras 26-28

 

 

 

Jury Trials

 

The Test 

 

The test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

 

The test for unreasonableness imports not only an objective assessment, but also a subjective one: R v AA, 2015 ONCA 558 at paras 139-140; R v Smith, 2016 ONCA 25 at para 71

 

The question is:

  1. whether the verdicts are supportable on any theory/reasonable view of the evidence consistent with the legal instructions given by the trial judge; and

  2. whether proper judicial fact-finding, applied to the evidence as a whole, precludes the conclusion reached by the jury: ​Cite: R v BH2015 ONCA 642 at para 20; R v Tyler, 2015 ONCA 599 at para 8 [quote]; R v Pannu, 2015 ONCA 677 at para 163; R v Jones-Solomon, 2015 ONCA 654 at para 67; R v Smith, 2016 ONCA 25 at para 73; R v Dodd, 2015 ONCA 286 at paras 56-58; R v McCracken, 2016 ONCA 228 at para 24

 

The reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: R v BH2015 ONCA 642 at para 19; R v. Pannu, 2015 ONCA 677 at paras 161-162; R v Smith, 2016 ONCA 25 at para 73

 

Circumstances in which a special caution to the jury is necessary about a certain witness or certain type of evidence are reflective of accumulated judicial experience and may factor into an appellate court’s review for reasonableness: R v Jones-Solomon, 2015 ONCA 654 at para 67

 

In a case in which the accused gives evidence, an acquittal does not necessarily mean the complainant was not believed. The jury may accept or reject some, none, or all of a witness's evidence: R v BH2015 ONCA 642 at para 22

 

In a case in which the accused does not give evidence, an appellate court is entitled to take this into account in determining whether a jury verdict survives a reasonableness analysis under s. 686(1)(a): R v. Pannu, 2015 ONCA 677 at para 14

 

 

On a Multi-Count Indictment

 

On a multi-count indictment against a single accused, the "verdicts will be supportable if the trial judge’s instructions were proper legal instructions that could have led the jury to accept a theory of the evidence producing these verdicts": R v BH2015 ONCA 642 at para 20 [quote]; R v Tyler, 2015 ONCA 599 at para 8 [quote]

 

 

If there are multiple counts against a single accused, "different 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": R v BH2015 ONCA 642 at para 23 [quote]

 

 

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: R v BH2015 ONCA 642 at para 20 [quote]; R v Tyler, 2015 ONCA 599 at para 8 [quote]

 

Example of Successful Appeal 

 

R v Dodd, 2015 ONCA 286 [insufficient identification of alleged murderer]

 

 

Judge-Alone Trials

 

In a judge-alone trial, appellate intervention is necessary where the reasons of the trial judge disclose that:

  1. the judge was not alive to an applicable legal principle; or

  2. the judge entered a verdict inconsistent with the factual conclusions the judge had reached: R v AA, 2015 ONCA 558 at paras 141

 

Appellate courts have somewhat broader scope to review the verdicts of trial judges, as opposed to juries, for unreasonableness, because trial judges give reasons for their conclusions: R v Laine, 2015 ONCA 519 at para 64

 

 

Ground #1: not alive to legal principles 

 

A verdict is not necessarily unreasonable because a trial judge has erred in his or her analysis. The court must determine whether the verdict is unreasonable in light of the totality of the evidence: R v AA, 2015 ONCA 558 at paras 142

 

 

Ground #2: verdict inconsistent with factual conclusions

 

Under this expanded scope of review, an appellate court is entitled to intervene where a trial judge draws an inference or makes a finding of fact that is plainly contradicted by the evidence relied upon for that purpose or is demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: R v Wolynec, 2015 ONCA 656 at para 74; R v Smith, 2016 ONCA 25 at para 74-75

 

Whilte the appellate court may consider flaws in the reasoning process, the focus never shifts from the conclusion reached at trial. There must be a demonstrated nexus between the error in reasoning and the verdict rendered. Even if there is an error that is demonstrably incompatible with the evidence adduced at trial, the verdict is not necessarily unreasonable: R v Wolynec, 2015 ONCA 656 at para 76

 

Unreasonable verdicts of the nature marked out under this expanded review for unreasonableness are exceedingly rare: R v Wolynec, 2015 ONCA 656 at para 77

 

An appellate court must accord great deference to the trial judge’s assessment of the witnesses’ credibility. A verdict anchored in an assessment of credibility is only unreasonable if the trial court’s assessment of credibility cannot be supported on any reasonable view of the evidence: R v AA, 2015 ONCA 558 at para 143; R v Jones-Solomon, 2015 ONCA 654 at para 67; R v Sinobert, 2015 ONCA 691 at para 109: R v Benson, 2015 ONCA 827 at para 21

 

It is important to bear in mind that a trier of fact can accept some, none, or all of what a witness says: R v BW, 2016 ONCA 96 at para 5