New & Notable: Clarifying alleged ambiguities in jury verdict

Winston Roberts was with charged with assault and sexual assault. At trial the complainant testified that the sexual assault was a continuous incident which involved digital penetration, fondling and intercourse. In the Crown’s closing submission jurors were told that they were not required to be ad idem as to how they reached their verdict but rather they were only required to deliver a unanimous verdict.


The jury found the accused guilty as charged. At the sentencing hearing an issue arose as to what facts Roberts should be sentenced upon: 2012 ONSC 3271.


Prior to sentencing Roberts retained new counsel; at sentencing his counsel took the position that the Crown’s closing remarks created an ambiguous verdict since each juror could have based the conviction for sexual assault on any one of the sexual acts described by the complainant. As such, the defence submitted that the trial judge was entitled to determine the facts independent of the jury’s verdict in determining the appropriate sentence.


First, the trial judge agreed that the Crown’s comment and the three different evidentiary basis which the crown outlined opened the door to an ambiguous decision. With respect to the differences Coats J explained that:


While these differences of opinion may co-exist in a unanimous verdict of guilty, such differences (unknown if such existed) could lead to different penal liabilities upon sentence [para 16].


Second, Coats J embarked upon a fact finding analysis noting first that:


It is clear from my charge and the submissions of counsel that the main issue in the trial was consent. The Crown's theory was that touching, digital penetration and intercourse all occurred without consent. The defence position was that the touching and intercourse occurred with consent. Mr. Roberts denied that digital penetration occurred.


The defence requested that I focus on whether the evidence of the complainant established that non-consensual intercourse had occurred [paras 25-26].


Coats J then pointed out that the jury, having been properly instructed on WD since Roberts’ had testified, rejected Roberts’ evidence. As such the trial judge then carefully reviewed the complainant’s evidence and determined that each of the acts, digital penetration, fondling and intercourse had in fact occurred without her consent.