A directed verdict (or "non-suit" motion) is a defence motion made at the closing of the crown's case but before the defence is to call any evidence, requesting the dismissal of the case on the basis that the essential elements of the offence are not made out. This is right of defence from the common law. Historically, a successful directed verdict motion judge would literally direct a jury to enter a verdict of not guilty. This has since been changed, and now does not involved the jury. It is simply a consider a motion for non-suit.
Standard of Review
The standard of review of a directed verdict is one of correctness based on it being a question of law.
- R v Litchfield, 1993 CanLII 44 (SCC),  4 SCR 333 at para 49-50, 52, 56 and 57
R v Timminco Ltd., 2001 CanLII 3494 (ON CA) at para 18 to 20
R v Rowbotham, Roblin 1994 CanLII 93 (SCC),  2 SCR 463 at p. 467
- R v Declercq, 2012 ABPC 147 (CanLII) at para 4
See R v Henderson (W.E.), 2012 MBCA 93 (CanLII) at para 125
R v O’Kane (P.J.) et al., 2012 MBCA 82 (CanLII) at para 42
R v Barros, 2011 SCC 51 (CanLII),  3 SCR 368, at para 48
Directed Verdict Test
The test to be applied for a directed verdict is whether or not there is any evidence, direct or indirect, upon which a jury, properly instructed, could reasonably convict.
A directed verdict will not be granted if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The motion for directed verdict should not be granted if there has been adduced admissible evidence which could, if believed, result in conviction. The Crown, in order to meet the test set out in Sheppard, must adduce some evidence of culpability for every essential element of the crime for which the Crown has the evidential burden.
The judge must be satisfied there is some evidence that establishes each constituent element of the offence.
This test is the same test that is applied at the conclusion of preliminary inquiry under s. 548(1).
The judge should not "weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made" nor should the judge draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury."
Thus, the test requires that the judge not 1) weigh evidence, 2) test the quality or reliability of admissible evidence 3) draw inferences of fact. However, courts are allowed to do "limited weighing" of the evidence to assess "whether it is capable of supporting the inferences the Crown asks the jury to draw."
R v Arcuri, 2001 SCC 54 (CanLII),  2 S.C.R. 828, at para 21
R v Monteleone, 1987 CanLII 16 (SCC), (1987), 35 CCC (3d) 193 at p.161 ("whether direct or circumstantial [evidence], which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal.")
The United States of America v Shephard, 1976 CanLII 8,  2 SCR 1067, (1976) 30 CCC (2d) 424
R v Charemski 1998 CanLII 819 (SCC), (1998), 123 CCC (3d) 225 at para 2
R v O’Kane (PJ) et al, 2012 MBCA 82 (CanLII), at paras 40 to 41 per Hamilton JA
- United States of America v Shephard
- R v Charemski, supra, at para 3
- Arcuri, supra at para 21
see R v Beals, 2011 NSCA 42 (CanLII) at para 20
The Preliminary Hearing uses the test from United States of America v Shephard at 1080 (cited to SCR) ("Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.")
Arcuri, supra at para 21
see Preliminary Inquiry Evidence
Moteleone, supra at p. 161
R v Arcuri, supra at paras 1, 23
R v Beals, 2011 NSCA 42 (CanLII)
Where the case rests on circumstantial evidence as opposed to direct evidence the judge may embark on "limited weighing" of the evidence to bridge the gap in the evidence required to establish an essential element.
"Limited weighing" in circumstantial cases does not include "factual inferences" to assess credibility or reliability.
The judge must determine whether the circumstantial evidence is "reasonably capable of supporting the inferences" sought and whether the evidence, if believed, "supports an inference of guilt".
R v Tomlinson, 2014 ONCA 158 (CanLII) at para 153
Arcuri at paras 23, 30
Tomlinson, supra at para 153
Arcuri, supra at paras 23 and 30
Tomlinson, supra at para 154
Arcuri, supra at para 23
R v Tomlinson, 2014 ONCA 158 (CanLII) at para 155
Titus at p. 264