On January 21, 2013, the Supreme Court of Canada heard the W.H. appeal from the Newfoundland Court of Appeal on the issue of unreasonable jury verdicts where credibility is the sole issue. In W.H., the Court of Appeal quashed the conviction for sexual assault on the basis the finding of guilt by the jury was an unreasonable verdict due to the “inconsistencies and improbabilities” of the complainant’s evidence.
The case was a classic “he-said, she-said,” with error free” trial and jury instructions. In the Court of Appeal’s opinion, the jury, as trier of fact, failed “to act judicially in assessing credibility” and therefore it was incumbent on the appellate court to re-assess the evidence. The Court, after reviewing the evidence through “the lens of judicial experience,” found the verdict was unreasonable and the conviction was quashed with an acquittal entered.
The Supreme Court of Canada after hearing arguments and reading the factums, reserved their decision. Hopefully, the SCC will re-clarify the grounds for an unreasonable verdict finding by an appellate court where credibility is an issue. Hopefully too, there will be some discussion of the requirement that the review be done through the “lens of judicial experience.”
This concept of reviewing the record from a judge’s perspective is not new. Indeed, for unreasonable verdict cases, the requirement the reviewing court be satisfied that the jury was “acting judicially,” presupposes such a perspective.
However, the standard of “acting judicially,” may be too high a standard for a jury, which is composed of the accused’s peers, to attain. For one, the jury is not steeped in legal knowledge. Of course, this omission is to be overcome by the trial judge, who as arbiter of the law must instruct the jury on the law and the proper application of the law to the facts as they find them. Whether or not such an instruction is sufficient to fill the legal gaps is a better subject for a future blog. In any event, even if we accept such instructions assist the jury in “acting judicially,” in many unreasonable verdict cases, such as in the W.H. case, the instructions to the jury were “error free” and thus correct.
So, “acting judicially” is not really based on legal knowledge and instruction, but on the application of that knowledge. This is where “judicial experience” comes into play. As stated thirteen years ago by Justice Arbour in Biniaris, sometimes
the totality of the evidence and the peculiar factual circumstances of a given case will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced.
There again is our standard of assessment, the “experienced jurist,” applying her perfect knowledge in a perfect world. Justice Arbour further articulated her understanding of “acting judicially” as:
not only acting dispassionately in applying the law and adjudicating on the basis of the law and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. The reviewing court’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, as precisely as possible, those features of the case which suggest that the verdict was unreasonable.
Thus, not only must the jury act judicially, but the decision, which they render, must be consistent with “judicial experience.”
The reviewing court must therefore not only use the judicial “lens” in assessing how the jury came to their decision, but must also use the judicial “bifocals” in ensuring that the determination accords with their judicial experience. This requires a broader analysis of precedent to confirm such a consistency. Therefore, in entering into an unreasonable verdict analysis, the reviewing court must not only look to the totality of the evidence at bar but also at the weight of case law on the particular issue. Thus, in W.H., not only must the specific inconsistencies and improbabilities of the complaint’s evidence be assessed judicially, but the court must also consider through the “lens of judicial experience” as reflected through case law, whether or not the jury’s decision makes “judicial” sense. We look to the SCC’s decision on this case to make this analysis “crystal-clear.”