Trial Verdicts
| This page was last substantively updated or reviewed January 2020. (Rev. # 91054) |
Introduction
The judge's duty is to render a verdict on the charges. The verdict must be either a finding of guilt, stay of proceedings, or acquittal.
The judge has the ability, where the evidence does not make out the actual charge, to convict for included offences to the original charge under s. 662.
Under s. 804, at the conclusion of a summary conviction trial, the court must either (a) convict the accused; (b) discharge him under s.730; (c) make an order against him; or (d) dismiss the information:
- Finding of guilt, conviction, order or dismissal
804 When the summary conviction court has heard the prosecutor, defendant and witnesses, it shall, after considering the matter, convict the defendant, discharge the defendant under section 730 , make an order against the defendant or dismiss the information, as the case may be.
R.S., 1985, c. C-46, s. 804; R.S., 1985, c. 27 (1st Supp.), s. 178, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.
Procedure
Section 570 sets out the required forms the court should use when recording a verdict of any type.
Attempts vs Full Offence
- Attempt charged, full offence proved
661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.
- Conviction a bar
(2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.
R.S., c. C-34, s. 588.
- Offence charged, part only proved
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted
- (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
- (b) of an attempt to commit an offence so included.
[omitted (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.
Records of Ajudication
- Record of conviction or order
570
[omitted (1)]
- Acquittal and record of acquittal
(2) If an accused who is tried under this Part is found not guilty of an offence with which the accused is charged, the judge or provincial court judge, as the case may be, shall immediately acquit the accused in respect of that offence, an order in Form 37 [forms] shall be drawn up and, on request, a certified copy shall be drawn up and delivered to the accused.
- Transmission of record
(3) Where an accused elects to be tried by a provincial court judge under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], the provincial court judge shall transmit the written charge, the memorandum of adjudication and the conviction, if any, into such custody as the Attorney General may direct.
- Proof of conviction, order or acquittal
(4) A copy of a conviction in Form 35 [forms] or of an order in Form 36 [forms] or 37 [forms], certified by the judge or by the clerk or other proper officer of the court, or by the provincial court judge, as the case may be, or proved to be a true copy, is, on proof of the identity of the person to whom the conviction or order relates, sufficient evidence in any legal proceedings to prove the conviction of that person or the making of the order against that person or his acquittal, as the case may be, for the offence mentioned in the copy of the conviction or order.
- Warrant of committal
(5) If an accused other than an organization is convicted, the judge or provincial court judge, as the case may be, shall issue a warrant of committal in Form 21 [forms], and section 528 [endorsing warrant] applies in respect of a warrant of committal issued under this subsection.
- Admissibility of certified copy
(6) If a warrant of committal is signed by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.
R.S., 1985, c. C-46, s. 570 R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, s. 59; 2003, c. 21, s. 10; 2019, c. 25, s. 262.
[annotation(s) added]
Finding of Guilt
Once a conviction has been entered the protections under s. 11(e) of the Charter for the presumption of innocence are extinguished.[1]
Upon the conclusion of a summary conviction trial and the judge convicts the accused. He must make a "minute or memorandum" of the conviction.[2] Either the accused, the crown, or anyone else may request a certificate of conviction in compliance with Form 35 or 36[3]
A finding of "guilt" is separate and distinct from a "conviction". It is only the finding of guilt which permits a judge to enter a conviction. A conviction is a "judgement of the court". It is not however the only option of a judge, for example she may also consider a conditional stay of proceedings on the basis of the kienapple principle. [4]
- Record of conviction or order
570 (1) If an accused who is tried under this Part is determined by a judge or provincial court judge to be guilty of an offence on acceptance of a plea of guilty or on a finding of guilt, the judge or provincial court judge, as the case may be, shall endorse the information accordingly and shall sentence the accused or otherwise deal with the accused in the manner authorized by law and, on request by the accused, the prosecutor, a peace officer or any other person, a conviction in Form 35 [forms] and a certified copy of it, or an order in Form 36 [forms] and a certified copy of it, shall be drawn up and the certified copy shall be delivered to the person making the request.
[omitted (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 570 R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, s. 59; 2003, c. 21, s. 10; 2019, c. 25, s. 262.
[annotation(s) added]
- Memo of conviction or order
806 (1) If a defendant is convicted or an order is made in relation to the defendant, a minute or memorandum of the conviction or order must be made by the summary conviction court indicating that the matter was dealt with under this Part [Pt. XXVII – Summary Convictions (ss. 785 to 840)] and, on request by the defendant, the prosecutor or any other person, a conviction or order in Form 35 [forms] or 36 [forms], as the case may be, and a certified copy of the conviction or order must be drawn up and the certified copy must be delivered to the person making the request.
- Warrant of committal
(2) Where a defendant is convicted or an order is made against him, the summary conviction court shall issue a warrant of committal in Form 21 [forms] or 22 [forms], and section 528 [endorsing warrant] applies in respect of a warrant of committal issued under this subsection.
- Admissibility of certified copy
(3) If a warrant of committal in Form 21 [forms] is signed by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.
R.S., 1985, c. C-46, s. 806; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1994, c. 44, s. 80; 2019, c. 25, s. 318
[annotation(s) added]
- ↑
R v Oland, 2017 SCC 17 (CanLII), [2017] 1 SCR 250, per Moldaver J, at para 35 ("once a conviction is entered, the presumption of innocence is displaced and s. 11(e) of the Charter no longer applies.")
- ↑ s. 806(1)
- ↑ s. 806(1)
- ↑ R v Bérubé, 2012 BCCA 345 (CanLII), 326 BCAC 241, per Groberman JA, at paras 43 to 52
Vacating a Finding of Guilt
A trial judge maintains jurisdiction up until sentencing to vacate a finding of guilt and replace it with a finding of not guilty.[1] This occurrence is "rare" and should only arise in "exceptional circumstances."[2] If a judge is considering to vacate a verdict, he must permit counsel to provide further submissions.[3]
- ↑ e.g. R v Griffith, 2013 ONCA 510 (CanLII), 116 OR (3d) 561, per Rosenberg JA
- ↑ Griffith, ibid.
- ↑ Griffith, ibid., at paras 33 to 36
Conditional Stay
A conditional stay is a post-trial verdict for a charge which, on the evidence would amount to a conviction, but is barred from doing so due to the rule against multiple convictions.[1] The stay is conditional until such time as the charge in which a conviction was entered is finally disposed of on appeal or the expiration of the appeal period.[2] If an appeal is successfully made from conviction the conditional stay is dissolved allowing the court of appeal to remit the charge for trial once more.
- ↑ R v Provo, 1989 CanLII 71 (SCC), [1989] 2 SCR 3, per Wilson J, at para 21
- ↑
R v Terlecki, 1985 CanLII 16 (SCC), 22 CCC (3d) 224, per Dickson CJ, at p. 529
R v Jewitt, 1985 CanLII 47 (SCC), [1985] 2 SCR 128, per Dickson CJ
Acquittal
There is only one type of acquittal. It does not distinguish or qualify the basis of the acquittal.[1]
The criminal law does not make a distinction between actual innocence and mere failure to meet the criminal standard. Findings of actual innocence does not fall within the purpose of criminal law.[2]
An aquittal only establishes "legal innocence" but does not address "factual innocence". [3]
From the Crown's perspective who may seek to prosecute the accused, an acquittal is to be treated as the functional "equivalent to a finding of innocence."[4]
- Record of conviction or order
570
[omitted (1)]
- Acquittal and record of acquittal
(2) If an accused who is tried under this Part is found not guilty of an offence with which the accused is charged, the judge or provincial court judge, as the case may be, shall immediately acquit the accused in respect of that offence, an order in Form 37 [forms] shall be drawn up and, on request, a certified copy shall be drawn up and delivered to the accused.
[omitted (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 570 R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, s. 59; 2003, c. 21, s. 10; 2019, c. 25, s. 262.
[annotation(s) added]
An acquittal order should use Form 37.
- ↑
R v Grdic, 1985 CanLII 34 (SCC), 19 CCC (3d) 289, per Lamer CJ, at pp. 293 to 294
- ↑ R v Mullins-Johnson, 2007 ONCA 720 (CanLII), 228 CCC (3d) 505, per curiam
- ↑ Mullins-Johnson, ibid.
- ↑
Grdic, supra - reconsideration of res judicata and ability to re-prosecute accused
R v Grant, 1991 CanLII 38 (SCC), 67 CCC (3d) 268, per Lamer CJ