R. v. Pittiman, 2006 SCC 9, [2006] 1 SCR 381

                                                 SUPREME COURT OF CANADA

Between:

Roopnarine Pittiman

Appellant

and

Her Majesty the Queen

Respondent

Coram: Bastarache, Binnie, Deschamps, Abella and Charron JJ.

______________________________

R. v. Pittiman, [2006] 1 S.C.R. 381, 2006 SCC 9

Roopnarine Pittiman                                                                                        Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Pittiman

Neutral citation:  2006 SCC 9.

File No.:  31070.

2006:  February 10; 2006:  March 23.

Present:  Bastarache, Binnie, Deschamps, Abella and Charron JJ.

on appeal from the court of appeal for ontario

Criminal law — Appeals — Unreasonable verdict — Multiple accused charged with same offence — Jury convicting one accused but acquitting two co‑accused — Whether jury’s verdict finding accused guilty unreasonable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).

The accused was jointly charged with two co‑accused of sexually assaulting a 14‑year‑old complainant.  Following a trial by judge and jury, the accused was convicted and the co‑accused were acquitted.  The accused appealed his conviction on the basis that the verdicts were inconsistent and, consequently, that the jury’s verdict finding him guilty was unreasonable.  The majority of the Court of Appeal held that the greater strength of the case against the accused provides a rational basis on which the jury could come to the conclusion that he should be found guilty and the co‑accused not guilty.  The accused’s conviction was therefore affirmed.

Held:  The appeal should be dismissed.

Before an appellate court may interfere with a verdict on the basis that it is inconsistent with other verdicts, the court must find that the impugned verdict is unreasonable.  The onus of establishing that a verdict is unreasonable on the basis of inconsistency is a difficult one for an accused to meet.  In each case, the question is whether the verdicts are irreconcilable such that no reasonable jury, properly instructed, could possibly have rendered them on the evidence.  In this case, there is a rational basis for reconciling the different verdicts.  The Crown’s case against the accused was stronger than its cases against his co‑accused:  while the complainant’s evidence about the involvement of the co‑accused was vague or uncertain in several respects and was inconsistent with her initial statement to the police, she clearly described the accused as playing a dominant role in the incident and her evidence about his involvement was much more detailed and consistent.  There were also two pieces of evidence which directly implicated the accused and not the others.  Where, as here, the evidence against an accused is significantly stronger, there is no unfairness resulting from the fact that the case against him was proven beyond a reasonable doubt, but that the cases against his co‑accused were not so made out. [6‑7] [10‑11] [13]

Cases Cited

Approved:  R. v. McShannock (1980), 55 C.C.C. (2d) 53; disapproved:  R. v. Wile (1990), 58 C.C.C. (3d) 85; referred to:  R. v. McLaughlin (1974), 15 C.C.C. (2d) 562; R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549; R. v. Bergeron (1998), 132 C.C.C. (3d) 45; R. v. Harvey (2001), 160 C.C.C. (3d) 52.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 686(1) (a)(i), (2) , 691(1) (a), 695(1) .

APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Borins and Armstrong JJ.A.) (2005), 198 C.C.C. (3d) 308, 199 O.A.C. 113, [2005] O.J. No. 2672 (QL), affirming the accused’s conviction.  Appeal dismissed.

James Lockyer, for the appellant.

Leslie Paine, for the respondent.

The judgment of the Court was delivered by

Charron J. —

1.      Introduction

1                                   The appellant Roopnarine Pittiman was jointly charged with two co‑accused of sexually assaulting a 14-year-old complainant.  Following a trial by judge and jury, the appellant was convicted of the offence and the co-accused were acquitted.  Among other grounds, the appellant appealed his conviction on the basis that the verdicts were inconsistent and, consequently, that the jury’s verdict finding him guilty was unreasonable.  The majority of the Court of Appeal for Ontario held that the greater strength of the case against the appellant provides a rational basis on which the jury could come to the conclusion that he should be found guilty and the co‑accused not guilty.  His appeal was therefore dismissed and his conviction affirmed ((2005), 198 C.C.C. (3d) 308).  Borins J.A., writing in dissent, would have set the conviction aside and entered an acquittal on the basis that the verdict of guilt was so at odds with the jury’s verdicts of acquittal in respect of the co-accused that no reasonable jury who understood the evidence could have properly arrived at that verdict.  The appellant comes to this Court as of right under s. 691(1) (a) of the Criminal Code, R.S.C. 1985, c. C-46 , on the sole question of whether the jury’s verdict finding him guilty of sexual assault was unreasonable.  I agree with the conclusion reached by the majority of the Court of Appeal and, consequently, would dismiss the appeal. 

2.      Facts

2                                   On May 27, 2000, the complainant visited her aunt.  Sometime before 7:00 p.m., she went to a nearby convenience store to buy some candy.  On her way, she met the appellant, his brother Ryan Pittiman, and their friends, Beswick Goffe and Maheshwar Inderjeet.  The four men invited her into the basement of the Pittiman house.  She went willingly.  She sat in the basement on a couch with the appellant and Ryan on either side of her.  Goffe was behind her, and Inderjeet sat on another couch watching television.  Goffe began “making squiggles” on her back.  The complainant said that this did not bother her.  Ryan asked her to go into the bathroom with him, and do “a favour for a favour”, which she knew meant mutual oral sex.  She refused and said that she had to leave, but they kept asking her to stay for another “five minutes”, and pushed her on her shoulders whenever she tried to stand up.  She could not remember who was pushing her.  The appellant asked the complainant if she was ticklish and began to tickle her.  He then began touching her legs and her thighs and attempting to undo her belt.  She kept pushing his hand away.  The appellant eventually succeeded in removing her belt and put his hands into her pants, inserting his fingers inside her vagina.  The appellant was the only accused who the complainant specifically identified as having sexually assaulted her in the living room although she testified at times that “they” were touching her. 

3                                   Eventually, the appellant and Ryan led the complainant into a bedroom, pushed her on the bed and took her clothes off.  The appellant had forcible intercourse with her while Ryan held her wrists.  Ryan tried to put his penis in her mouth, but she turned her head away and pressed it into a pillow.  The appellant finished and left the room.  Ryan then did something to her but her mind has since blanked out whatever it was.  Then Goffe came in, lifted her up and had forcible intercourse with her causing her a great deal of pain.  The complainant was unclear in her testimony on Inderjeet’s participation in the events of the evening.  When it was over, they gave her clothes back and she got dressed.  She left and walked to her aunt’s house.

4                                   On her return to her aunt’s house at 10:00 p.m., the complainant told her aunt that four men had raped her.  The family called the police.  The complainant was taken to the hospital.  The appellant’s saliva was found mixed with her saliva on the inside of her bra.  The four men were arrested and charged.  Inderjeet, in the first three statements he gave to the police, denied being at the scene.  Later, Inderjeet gave a statement admitting his presence and supporting the complainant’s version of events.  After Inderjeet admitted his presence, the appellant accused Inderjeet of “ratting him out”.  The confrontation was witnessed by two of Inderjeet’s friends who provided statements and testified at trial.  Inderjeet’s charge was withdrawn after he testified against the other three at the preliminary hearing.  Inderjeet also testified for the Crown at trial.  The three accused did not testify.

5                                   It was emphasized during the cross-examination of the complainant that, although she told the police about the appellant’s conduct in detail in her initial statement, she did not mention Ryan’s attempted fellatio.  The first mention of it was at the preliminary inquiry.  In addition, although the complainant recalled the appellant finishing the assault and leaving the room, she was uncertain what Ryan did after the appellant left and testified that her mind was “blank” when she tried to think about it.  She said that she clearly remembered Goffe’s assault on her because it had caused her the most pain.  However, as with Ryan’s attempted fellatio, she had made no mention of Goffe having penetrated her in her initial statement to the police.

3.      Analysis

6                                   A court of appeal’s 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”.  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.).

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 witness’s 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.  Martin J.A. aptly described the nature of the inquiry in R. v. McShannock (1980), 55 C.C.C. (2d) 53 (Ont. C.A.), at p. 56, as follows:

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.

8                                   The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparent from the jury’s findings that the impugned verdict must necessarily be set aside as unreasonable.  The jury’s task is not to reconstruct what happened.  Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt.  Therefore, in the case of a single accused charged with multiple offences, 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.  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.).

9                                   The reasonableness of a verdict in the case of multiple accused charged with the same offence will require a consideration of much the same factors.  For example, the jury may accept the complainant’s testimony as credible in respect of one accused, but reject the complaint against another.  The overall strength of the evidence relating to each accused may not be the same, leaving the jury with a reasonable doubt on the guilt of one, but not of the other.  Of necessity, the case of multiple accused will also raise different considerations.  For example, when considering a single accused who is charged with multiple offences, there is little to be gained by asking whether the evidence is the same.  The evidence, by definition, will be different for each offence.  Conversely, whether the evidence is the same will be the primary focus when considering inconsistent verdicts as between multiple accused charged with the same offence.

10                               As a practical matter, it will often prove to be more difficult for an appellant to meet the test in the case of multiple accused charged with the same offence, not because the test is different, but because there is often a wider scope for differing verdicts in the case of multiple accused.  However, to say, as the Court of Appeal for Ontario did in  R. v. Wile (1990), 58 C.C.C. (3d) 85, and as Weiler J.A. did in her majority reasons in this case (at para. 17), that it is not possible to characterize inconsistent verdicts against co-accused as unreasonable unless the evidence against both is “identical”, overstates the practical difficulty in meeting the onus and, consequently, is inaccurate.  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?

11                               Nonetheless, I agree with the majority of the Court of Appeal’s assessment of the evidence in this case.  There is a rational basis for reconciling the different verdicts.  The Crown’s case against the appellant was stronger than against his co-accused in several respects.  As noted by Weiler J.A. (at paras. 22 and 30), there were two pieces of evidence which directly implicated the appellant and not the others — the presence of the appellant’s DNA on the inside of the complainant’s bra and his post-offence statement to Inderjeet that he had “ratt[ed] him out” to the police.  More significantly, the complainant’s evidence about the co-accused’s involvement was vague or uncertain in several areas and was inconsistent with her initial statement to the police.  By contrast, the complainant clearly described the appellant as playing a dominant role in the incident, and her evidence about his involvement was much more detailed and consistent.  While counsel for the Crown at trial took the position that this was an “all or nothing” case, the jury was not bound to accept his theory.  On this point, they were correctly instructed by the trial judge to consider the evidence and arrive at a verdict separately in regard to each accused. 

12                               With respect, it is my view that Borins J.A., in dissent, erred in his assessment of the reasonableness of the verdict.  First, he misapprehended the evidence in significant respects.  He was under the impression that “each of the [accused] sexually touched and fondled” the complainant in the living room and that her testimony “was common to all of the [accused]  and implicated them in both episodes” (para. 81).  These observations do not accord with the evidence.  The complainant  never implicated Goffe in any sexual assault in the living room and Ryan only indirectly by imprecise references to “they” when describing part of the events.  Indeed, the jury asked to review the complainant’s testimony regarding Ryan’s behaviour towards her on the couch and, after reciting the relevant evidence, the trial judge instructed the jury that it would be up to them to draw whatever inference was appropriate from the complainant’s references to “they” in her testimony about the events in the living room.  Similarly, Borins J.A. appeared to be under the impression that each accused was alleged to have had sexual intercourse with the complainant in the bedroom.  While this is accurate in respect of the appellant and Goffe, it is not with respect to Ryan.  Rather, the complainant alleged that Ryan had made an unsuccessful attempt to commit fellatio.  (The jury was not instructed that the attempted fellatio could constitute sexual assault.)  Further, Borins J.A. saw nothing in the cross‑examination of the complainant to explain the jury’s rejection of her evidence implicating the two co-accused, making no reference to the fact that the complainant had made inconsistent statements about them.

13                               Second, it is my respectful view that Borins J.A. erred in stating that “the focus in an inconsistent verdict case is the aberrant verdict, which in this case is the acquittal of the co-accused” (para. 99).  While he recognized that there was additional supporting evidence against the appellant, he was of the view that this additional evidence did not explain the acquittal of the co-accused and did not address “the fairness issue” (para. 99).  He described the latter as the unfairness resulting from the fact that the jury convicted the appellant “relying on the same evidence that it necessarily considered when it acquitted the co-accused” (para. 99).  While an  appellate court inevitably compares the basis for acquittals as well as convictions in assessing inconsistent verdicts, the decisive question is not whether the acquittals are reasonable, but whether the conviction was not:  R. v. Bergeron (1998), 132 C.C.C. (3d) 45 (Que. C.A.), per Fish J.A., as he then was. Where, as here, the evidence against the appellant is significantly stronger, there is no unfairness resulting from the fact that the case was proven beyond a reasonable doubt against him, but not against the co‑accused.

14                               I would add that, in focussing on the acquittals of the co-accused and what he described as “the fairness issue”, Borins J.A. erred further in concluding that the appellant should also be acquitted without considering whether such an order would be appropriate in the circumstances.  Section 686(2)  of the Criminal Code  provides that where a court of appeal allows an appeal from conviction, it may direct an acquittal or order a new trial.  Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal.  As noted by Doherty J.A. in R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, “[a]n acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.”  However, 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.

15                               In this case, the different verdicts are not inconsistent with each other.  They can be reconciled on the basis of the strength of the evidence as against each  accused.  Consequently, the jury’s verdict finding the appellant guilty of sexual assault is not unreasonable.

4.      Disposition

16                               For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Lockyer Campbell Posner, Toronto.

Solicitor for the respondent:  Attorney General of Ontario, Toronto.