Unreasonable verdict of a jury

R. v. W.H., 2013 SCC 22 is an important case making clear that review for unreasonable verdict is very limited.  In effect the only time a decision will be set aside as unreasonable is if “judicial fact-finding precludes the conclusion reached by the jury”.  The Court holds:

 [25]                          A person convicted of an indictable offence has broad avenues of appeal.  There is a right of appeal on any question of law alone and an appeal by leave of the court on questions of fact or mixed law and fact or on “any ground of appeal . . . that appears to the court of appeal to be a sufficient ground of appeal”: Criminal Code, R.S.C. 1985, c. C-46, s. 675(1)(a). However, as broad as the access to appellate review is, a court of appeal may only overturn a conviction on three grounds: that the verdict is unreasonable or cannot be supported by the evidence, that there was an error of law at trial or that there was a miscarriage of justice: s. 686(1)(a) of the Code.  This appeal concerns only the first of these grounds (s. 686(1)(a)(i)).

[26]                          A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could not reasonably have rendered: 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 para. 36.  While the same test was traditionally applied to verdicts by both juries and trial judges, the more recent jurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in the case of verdicts reached by trial judges: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190;  R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3. This development recognizes a practical distinction between reasonableness review of a trial judge’s verdict and of a jury verdict: judges, unlike juries, give reasons for their findings which the appellate court may review and consider as part of its reasonableness analysis.  However, this expanded reasonableness review of verdicts entered by trial judges does not apply to reasonableness review of a jury verdict.

[27]                          Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries. On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.

[28]                          On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.  Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39 (emphasis added). Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, 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:  Biniaris, at para. 40.

[29]                          While it is not possible to catalogue exhaustively the sorts of cases in which accumulated judicial experience may suggest that a jury’s verdict is unreasonable, a number of examples may be offered.  Circumstances in which a special caution to the jury is necessary about a certain witness or a certain type of evidence are reflective of accumulated judicial experience and may well factor into an appellate court’s review for reasonableness.  Some examples include the evidence of jailhouse informants and accomplices, and eyewitness identification evidence.  Other circumstances that generally do not require, as a matter of law, any particular warning to the jury may nonetheless, in light of accumulated judicial experience, contribute to a conclusion of an unreasonable verdict, for example the risks of accepting bizarre allegations of a sexual nature and the risk of prejudice in relation to psychiatric defences:  Biniaris, at para. 41. What all of these examples have in common is that accumulated judicial experience has demonstrated that they constitute an explicit and precise circumstance that creates a risk of an unjust conviction.

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 [34]                          Perhaps the most useful articulations of the test for present purposes are those found in Biniaris and Burke.  In the former case, Arbour J. put it this way: “. . . the unreasonableness . . . of the verdict would be apparent to the legally trained reviewer when, in all the circumstances of a given case, judicial fact-finding precludes the conclusion reached by the jury”: para. 39 (emphasis added). In the latter, Sopinka J. concluded that a verdict based on credibility assessment is unreasonable if “the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence”: para. 7 (emphasis added). While appellate review for unreasonableness of guilty verdicts is a powerful safeguard against wrongful convictions, it is also one that must be exercised with great deference to the fact-finding role of the jury.  Trial by jury must not become trial by appellate court on the written record.