Verdict oddity gets man off dangerous driving causing death charge

TORONTO — A man jailed four years ago for dangerous driving causing death had his conviction quashed Wednesday because of an oddity in the jury verdict that went unnoticed at the time.

In entering an acquittal, Ontario's top court said its hands were tied in terms of ordering a new trial for Sean DeForest.

The strange case arose in Angus, Ont., in September 2007 when the car DeForest and his girlfriend, Ashley Catton, were in made a left turn and collided with a car coming the other way. A motorcycle then slammed into the rear of the second vehicle, leaving the rider injured and his passenger fatally wounded.

Police charged DeForest, then 20, with dangerous driving causing death and with dangerous driving causing bodily harm. The pair were also charged with obstruction for lying to police about who was driving.

At trial, the defence argued Catton, then 19, was the driver. However, the jury appears to have accepted the prosecution view that DeForest was driving.

In announcing their verdict, the jury declared DeForest guilty on Count 1: Dangerous driving causing the death of the motorcycle passenger.

At the same time, however, jurors acquitted him on Count 2: Dangerous driving causing bodily harm to the motorcycle's driver.

No one noticed the contradiction, and Superior Court Justice Anne Mullins later sentenced DeForest to 15 months for the dangerous driving conviction.

On appeal, DeForest's lawyer argued jurors could not have felt certain DeForest was the driver who caused the death, but might not have been the driver responsible for the motorcyclist's injuries.

The Ontario Court of Appeal agreed it made no sense.

"The irreconcilable inconsistency between the verdicts on Counts 1 and 2 undermines the legitimacy and reliability of the convictions on the other charges," the court states.

"All of the convictions must be quashed."

Trial transcripts show the jury orally affirmed it had found DeForest guilty on the first count, but not on the second. There is no indication the trial judge looked at the verdict sheet filled out by the jury or made any further inquires.

However, an examination of the jury sheet indicates the jury did in fact convict DeForest of dangerous driving in Count 2 — but intended to acquit him only of the bodily harm part.

It appears, the Appeal Court concluded, jurors had no doubt DeForest was driving, but were not convinced the injuries to the motorcyclist amounted to bodily harm.

That is not what they announced in open court and it is too late now to ask what they meant to do, the Appeal Court said.

"I find no basis upon which the conviction on Count 1 and the acquittal on Count 2 can be reconciled," said Justice David Doherty, writing for the top court.

Even though the problem might have been a simple communication error, the Appeal Court said it was legally constrained from ordering a new trial given the off-chance the jury did intend to acquit DeForest outright on the second dangerous driving charge.

The court did order a new trial for both accused on the charges of obstructing police.