Unreasonable Verdict Appeals Rarely Succeed But Here Is A Case Where One Did...

R. v. Dodd, 2015 ONCA 286:

[55]       The authority for a court of appeal to determine whether a jury reached an unreasonable verdict is found in s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

686. (1) On the hearing of an appeal against a conviction ... the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,...

[56]       The test for an appellate court to determine whether the verdict of a jury is unreasonable or cannot be supported by the evidence has been explained by the Supreme Court of Canada.  In R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186, McIntyre J. wrote for the court:

The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

[57]       The Supreme Court in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, further explained that the “test” imports both an objective and a subjective assessment. The reviewing court first looks at the sufficiency of the evidence objectively to determine if it is capable of supporting the verdict.  The subjective element requires the reviewing court to examine the weight of the evidence rather than its bare sufficiency.   When a jury verdict which does not involve errors in the charge is perceived as unreasonable, it was held in Biniaris that the only rationale inference is that the jury “was not acting judicially”. Arbour J. explained this at para 39:

This conclusion does not imply an impeachment of the integrity of the jury.  It may be that the jury reached its verdict pursuant to an analytical flaw similar to the errors occasionally incurred in the analysis of trial judges and revealed in their reasons for judgment. Such error would of course not be apparent on the face of the verdict by a jury. But the unreasonableness itself 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. 

[58]       It is thus through the “lens of judicial experience” that there is an additional safeguard against unwarranted convictions: Biniaris, at para. 40.

[59]       Individual items of evidence are not, in general, required to be proven beyond a reasonable doubt.  In R. v. Uhrig, 2012 ONCA 470, at para. 13, this court summarized the approach to be taken to the standard of proof in a case such as this one:

When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.), at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: R. v. Côté (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.