Grounds of Appeal from Verdicts

From Criminal Law Notebook

Crown Appeal

The Crown can generally appeal where there is an error in law.

The sufficiency of the evidence is a question of fact and not a question of law from which the Crown can appeal.[1]

Failure to Draw Inferences

Failure to draw inferences of intent or guilt from the facts is an error of fact.[2]

"Material Error" test

For an error of law to be sufficient to set aside an aquittal, the appellate court must be satsified that the error "might reasonably be thought... to have had a material bearing on the acquittal."[3] Put differently, it is necessary to show that the verdict would "not necessarily have been the same had the errors not occurred."[4]

It is not necessary that the Crown prove that the result would "necessarily" have been different but for the error of law.[5]

Unreasonable Verdict

There is no right to appeal by Crown for "unreasonable verdict."[6] This includes unreasonable assessements of credibility.[7]

Burden

The burden is on the Crown to satisfy the court with a "reasonable degree of certainty" such that the outcome "may well have been affected by it."[8]

Summary Appeal Under s. 813 on Grounds Other Than Error of Law

The Crown has some limited ability appeal under s. 813 on the basis of questions of fact, including where teh verdict was unreasonable.[9]

  1. ↑ R v Sunbeam Corp., 1968 CanLII 33 (SCC), [1969] SCR 221, per Ritchie J, at pp. 230-238
    R v Lampard, 1969 CanLII 695 (SCC), [1969] SCR 373, per Cartwright CJ, at pp. 379-381
    R v Whynot, 1983 CanLII 3495 (NSCA), 9 CCC (3d) 449, per Hart JA, at pp. 450-451
    R v Schuldt, 1985 CanLII 20 (SCC), [1985] 2 SCR 592, per Lamer J, at pp. 610-611
    R v Roman, 1989 CanLII 113 (SCC), [1989] 1 SCR 230, per curiam, at pp. 231-232
    R v B(G), 1990 CanLII 115 (SCC), [1990] 2 SCR 57, per Wilson J, at pp. 69-71
    R v Blundon, 1993 CanLII 7785 (NL CA), 84 CCC (3d) 249, per Cameron JA, at pp. 276-280
    R v Tortone, 1993 CanLII 57 (SCC), [1993] 2 SCR 973, per Major J, at pp. 985-987
    R v Kent, 1994 CanLII 62 (SCC), [1994] 3 SCR 133, per Major J, at pp. 141-143
  2. ↑ Lampard, supra Sunbeam, supra
  3. ↑ R v Graveline, 2006 SCC 16 (CanLII), [2006] 1 SCR 609, per Fish J, at para 14
    R v Goldfinch, 2019 SCC 38 (CanLII), 435 DLR (4th) 1, per Karakatsanis J, at para 135
    R v Barton, 2019 SCC 33 (CanLII), per Moldaver J, at para 160
  4. ↑ R v Sutton, 2000 SCC 50 (CanLII), [2000] 2 SCR 595, per McLachlin CJ, at para 2 ("The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v The Queen, ..., requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred.") R v Vézeau, 1976 CanLII 7 (SCC), [1977] 2 SCR 277, per Martland J
  5. ↑ Gravline, ibid., at para 14 ("The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.")
  6. ↑ R v RGB, 2012 MBCA 5 (CanLII), 287 CCC (3d) 463, per Freedman and Chartier JJA, at para 8
  7. ↑ RGB, ibid., at para 9
  8. ↑ R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345, per Sopinka J
    Gravline, supra, at para 15
  9. ↑ R v Kendall, 2005 CanLII 21349 (ON CA), [2005] OJ No 2457, per Cronk JA (2:1), at para 46 ("Under s. 813 of the Criminal Code, the Crown may appeal from an order that stays proceedings on an information or dismisses an information. Unlike in indictable matters, the Crown's right of appeal in summary proceedings is not limited to questions of law alone and the Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable")

Available Grounds

  • Appeal of an Error of Law (676(1)(a))
    • including Insufficient Reasons (Judge-alone only)
    • including Misapprehension of Evidence (Judge-alone only)
    • including Jury Instruction

Remedies

Defence Appeal

Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal. The Defence can appeal both issues of fact and law.(ss. 675 and 676)

The powers of the Court of Appeal to interfere with a conviction on an appeal are stated under s.686:

Powers

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
[omitted (b)]
(c) may refuse to allow the appeal where it is of the opinion that the trial court arrived at a wrong conclusion respecting the effect of a special verdict, may order the conclusion to be recorded that appears to the court to be required by the verdict and may pass a sentence that is warranted in law in substitution for the sentence passed by the trial court; or
(d) may set aside a conviction and find the appellant unfit to stand trial or not criminally responsible on account of mental disorder and may exercise any of the powers of the trial court conferred by or referred to in section 672.45 [disposition hearings] in any manner deemed appropriate to the court of appeal in the circumstances.
(e) [Repealed, 1991, c. 43, s. 9]

[omitted (2), (3), (4), (5), (5.01), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s. 26; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).

– CCC (CanLII), (DOJ)

Note up: 686(1)

As noted in the language of s. 686, these standards apply equally to an appeal from a finding of NCR or finding against fitness to stand trial.

Available Grounds

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