Right of Appeal by Crown of Verdicts or Sentences for Indictable Offences

From Criminal Law Notebook

General Principles

See also: Right of Appeal of Verdicts or Sentences for Summary Offences and Right of Appeal by Accused of Verdicts or Sentences for Indictable Offences

The crown may appeal on indictable matters for the situations set out in section 676:

Right of Attorney General to appeal

676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
[omitted (b), (c) and (d)]

[omitted (1.1), (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

CCC (CanLII), (DOJ)


Note up: 676(1)

So long as the "trial judge took a legally correct approach to the evidence, the Crown cannot argue that the verdict is unreasonable."[1]

Before the Crown can successfully obtain a new trial, they must "establish that the error of law might reasonably have had a material bearing on the acquittal."[2] The threshold relies on a “reasonable degree of certainty”.[3] It is not a question of "abstract or purely hypothetical possibility", nor is it one that is "necessarily" material.[4]

This section provides the Crown with a right of appeal to an acquittal or NCR verdict on a question of law alone (676(1)(a)), a court order to quash an indictment (676(1)(b), 676(1)(c)), an order for a stay of proceedings (676(1)(c)).[5]

  1. R v Rudge, 2011 ONCA 791 (CanLII), 283 CCC (3d) 3, 108 O.R. (3d) 161, per Epstein JA, at para 35
    R v Curry, 2014 ONCA 174 (CanLII), 317 O.A.C. 329, at para 37
    R v Palmer, 2021 ONCA 348 (CanLII), per Tulloch JA, at para 60
  2. R v Vaillancourt, 2019 ABCA 317 (CanLII), 93 Alta LR (6th) 98, per curiam, at para 14
    R v Graveline, 2006 SCC 16 (CanLII), [2006] 1 SCR 609, per Fish J, at para 14
  3. R v George, 2017 SCC 38 (CanLII), [2017] 1 SCR 1021, per Gascon J, at para 27
  4. George, ibid., at para 27
  5. R v Chapman, 2016 ONCA 310 (CanLII), 337 CCC (3d) 269, per Cronk JA, at para 13

Question of Law

See also: Appeal of an Error of Law

The Crown has a right of appeal an acquittal only on a question of law.[1]

Crown appeals on questions of law include:[2]

  1. misinterpretation or misapplication of salient legal standards, including the elements of the offences;
  2. assessing evidence based on erroneous legal principles;
  3. making findings of fact not based on the evidence;
  4. failing to give legal effect to findings of fact or of undisputed facts;
  5. failing to consider all the evidence bearing on guilt or innocence;
  6. failing to properly admit evidence; and,
  7. failing to provide adequate reasons

The meaning of "question of law alone" is no different than "question of law."[3]

Acquittals based on matters of credibility cannot be appealed.

Burden

The Crown has a "heavy onus" to overturn an acquittal, particularly on jury verdicts.[4] Acquittals are not lightly overturned.[5]

Connection Between Error and Acquittal

Even where there is a question of law alone, the Crown must still establish a connection between the error in law and the acquittal. The error must be "directly and concretely" related to the acquittal.[6]

Categories

There are at least four categories of cases where assessments of evidence amount to an error of law:[7]

  1. it is an error of law to make a finding of fact for which there is no supporting evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Rather, it is a conclusion that the standard of persuasion beyond a reasonable doubt has not been met;
  2. the legal effect of findings of fact or of undisputed facts may give rise to an error of law;
  3. an assessment of the evidence based on a misapprehension or misdirection concerning a legal principle is an error of law; and
  4. a failure to consider all the evidence in relation to the ultimate issue of guilt or innocence is also an error of law.
Unreasonable Verdict or Miscarriage of Justice

The Crown is prohibited from appealing a verdict on the basis that it is simply "unreasonable". Thee must be an error of law that leads to it.[8]

Cases of "unreasonable verdict" or "miscarriage of justice" have little relevance to crown appeals under s. 676(1)(a) for error of law.[9]

The Courts must "avoid seizing on perceived deficiencies in a trial judge's reasons for acquittal to create a ground of unreasonable acquittal."[10]

Acquittal Verdict Includes Offences Where Other Charges Convicted

676
[omitted (1) and (1.1)]

Acquittal

(2) For the purposes of this section, a judgment or verdict of acquittal includes an acquittal in respect of an offence specifically charged where the accused has, on the trial thereof, been convicted or discharged under section 730 [order of discharge] of any other offence.
[omitted (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 676(2)

  1. see s. 676(1)(a)
  2. R v Trachy, 2019 ONCA 622 (CanLII), 379 CCC (3d) 51, per Benotto JA, at para 68
  3. R v Biniaris, 2000 SCC 15 (CanLII), [2000] 1 SCR 381, per Arbour J, at para 31
  4. R v Samuels (J.K.), 2009 ONCA 614 (CanLII), 265 OAC 214, per Laskin J, at para 19
    R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629, per Cory J, at p. 645 referring to a “very heavy onus”
  5. R v Sutton, 2000 SCC 50 (CanLII), [2000] 2 SCR 595, per McLachlin CJ, at para 2
  6. R v RGB, 2012 MBCA 5 (CanLII), 275 Man.R. (2d) 119, 287 CCC (3d) 463, per Freedman and Chartier JJA, at para 19
  7. R v JMH, 2011 SCC 45 (CanLII), [2011] 3 SCR 197, per Cromwell J, at paras 25 to 32
  8. Biniaris, supra, at para 32
  9. R v JMH, 2011 SCC 45 (CanLII), [2011] 3 SCR 197, per Cromwell J, at para 35
  10. R v Walker, 2008 SCC 34 (CanLII), [2008] 2 SCR 245, per Binnie J, at para 2

Crown Appeal on Specific Types of Charges

Decision on Mental Health

676
[omitted (1), (1.1) and (2)]

Appeal against verdict of unfit to stand trial

(3) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against a verdict that an accused is unfit to stand trial, on any ground of appeal that involves a question of law alone.
[omitted (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

CCC (CanLII), (DOJ)


Note up: 676(3)

Stay of Proceedings or Quashing of Indictment

Crown Appeal of Sentence

Crown appeals of sentence for indictable offences must have leave of the court of appeal.[1]

The crown may appeal on indictable matters for the situations set out in section 676:

Right of Attorney General to appeal

676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

[omitted (a), (b) and (c)]
or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.

[omitted (1.1), (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

CCC (CanLII), (DOJ)


Note up: 676(1)

  1. see s 676 (1)(d) ("with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law.")

Crown Appeal of Parole Ineligibility

Decision on Parole Ineligibility for Murder

676
[omitted (1), (1.1), (2) and (3)]

Appeal against ineligible parole period

(4) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal in respect of a conviction for second degree murder, against the number of years of imprisonment without eligibility for parole, being less than twenty-five, that has been imposed as a result of that conviction.
[omitted (5) and (6)]
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.

CCC (CanLII), (DOJ)


Note up: 676(4)

Decision on Delayed Parole Under s. 743.6 or 745.51

676
[omitted (1), (1.1), (2), (3) and (4)]

Appeal against decision not to make section 743.6 order

(5) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under section 743.6 [an order delaying parole eligibility].

Appeal against decision not to make s. 745.51(1) order

(6) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under subsection 745.51(1) [order delaying parole for multiple murders].
R.S., 1985, c. C-46, s. 676; R.S., 1985, c. 27 (1st Supp.), s. 139, c. 1 (4th Supp.), s. 18(F); 1991, c. 43, s. 9; 1995, c. 22, s. 10, c. 42, s. 74; 1997, c. 18, s. 93; 2002, c. 13, s. 65; 2008, c. 18, s. 28; 2011, c. 5, s. 3.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 676(5) and (6)