|This page was last substantively updated or reviewed January 2021. (Rev. # 81413)|
Under s. 686(1)(a)(i), the defence may appeal a conviction where there was an "unreasonable or cannot be supported by the evidence". This is one of several grounds of appeal based on evidence. It states:
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,...
- [omitted (ii) and (iii)]
- [omitted (b), (c), (d) and (e)]
[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).
Unreasonable verdict (or "unreasonable acquittal") is not a ground of appeal known in law.
The "unreasonable verdict" ground of appeal is known as a "powerful safeguard against wrongful convictions".
In an unreasonable verdict appeal, the appellate court engages in a review of the facts to determine reasonableness, which includes some reweighing of the evidence.
The finding of "unreasonable verdict" so as to intervene should be "exceedingly rare".
The review is an "independent" assessment of facts. It is done "through the lens of judicial experience", which can highlight certain frailties of evidence that may not have been fully appreciated by the trial judge. The review is supposed to be an additional "safeguard against conviction of the innocent".
The review of a judge's reasons is not supposed to be a "line-by-line treature hunt for error".
The court of appeal must give "great deference" to the fact-finding role of the jury. It should not turn a jury trial into "trial by appellate court on the written record".
- Basis of Unreasonable Verdicts
Case law has developed three main types of unreasonableness which can form the grounds of an appeal:
- "the evidence as a whole is such that a reasonable jury, properly instructed and acting judicially, could not have reached the verdict"
- "fact findings on material matters of a decisive character are clearly wrong" or
- "whether the reasoning process used by the judge to get from the evidence to the verdict does not make sense in the way described ...in logic"
R v Biniaris, 2000 SCC 15 (CanLII),  1 SCR 381, per Arbour J, at para 33
R v Al-Rawi, 2018 NSCA 10 (CanLII), 359 CCC (3d) 237, per Beveridge JA, at paras 16 to 17
- ↑ R v WH, 2013 SCC 22 (CanLII),  2 SCR 180, per Cromwell J, at para 34 (“While appellate review for unreasonableness of guilty verdicts is a powerful safeguard against wrongful convictions, it is also one that must be exercised with great deference to the fact-finding role of the jury. Trial by jury must not become trial by appellate court on the written record”).
R v PLS, 1991 CanLII 103 (SCC),  1 SCR 909, per Sopinka J ("In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts.")
R v Sinclair, 2011 SCC 40 (CanLII),  3 SCR 3, per Fish J (dissenting on different issue), at para 22
R v CP, 2019 ONCA 85 (CanLII), 373 CCC (3d) 244, per MacPherson JA (2:1), at para 43
R v Baltovich, 2004 CanLII 45031 (ON CA), , (2004), 191 CCC (3d) 289, per curiam, at para 154
R v Biniaris, 2000 SCC 15 (CanLII),  SCR 381, per Arbour J, at paras 40 to 41
R v Burke, 1996 CanLII 229 (SCC),  1 SCR 474, per Sopinka J, at para 6
R v AS, 2016 SKCA 166 (CanLII), per Jackson JA, at para 23
- ↑ WH, supra, at para 34 (“While appellate review for unreasonableness of guilty verdicts is a powerful safeguard against wrongful convictions, it is also one that must be exercised with great deference to the fact-finding role of the jury. Trial by jury must not become trial by appellate court on the written record”).
R v G(DJ), 2012 ABCA 336 (CanLII), 539 AR 116, per Hunt JA, at para 8
R v Fleig, 2014 ABCA 97 (CanLII), 572 AR 161, per curiam
R v Roasting, 2016 ABCA 138 (CanLII), 10 WWR 537, per curiam, at paras 13 to 14
"Properly Instructed Jury" Test
- Unreasonable Verdict (Yebes/Biniaris Test)
The standard of review for unreasonable verdict is where the verdict is one that "no properly instructed jury, acting judicially, could reasonably have rendered".
A verdict that is unreasonable must be one where the judge "revealed he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached.
The applicable test for unreasonable verdict "requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze, and within the limits of appellate disadvantage, weigh the evidence." Or to put it another way: "whether on the whole of the evidence the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered"
The test does not concern itself with whether the verdict was the only reasonable verdict, but whether it was a reasonable verdict.
Section 686(1)(a)(i) requires the reviewing court to "engage in a thorough re-examination of the evidence" to decide whether "on all the evidence, the verdict was a reasonable one." The verdict must be one that was open to the jury to consider. It is not an error for the judge to simply take a different view of the evidence than the jury.
A court of appeal must not merely substitute its view for that of the jury but in applying the Yebes test is entitled to review, analyze and, within the limits of appellate disadvantage, weigh the evidence. 
The test applies equally to a jury and a judge sitting alone. In the latter case, the review may be easier because the appellate court will be able to examine the reasons provided by the judge, which may reveal a flaw in the evaluation of the evidence. Such a deficiency in the analysis may appear where a judge was not alive to an applicable legal principle or entered a verdict inconsistent with the factual conclusions reached. 
A reviewing court must articulate the basis upon which it finds that the conclusions reached by a jury were unreasonable. A "lurking doubt" or "vague unease" based on the court’s review is not sufficient justification for a finding of unreasonableness but may trigger increased appellate scrutiny.
A jury does not provide reasons for its verdict. To justify a finding of unreasonableness regarding the verdict of a properly instructed jury, the appeal court will not be able to point to express deficiencies in analysis. It must fall back upon and articulate inferences drawn from a review of the evidence to support its conclusion that the jury, in arriving at its guilty verdict, could not have been acting judicially. 
Jury instructions attempt to convey accumulated judicial experience to the jury. Still, in certain rare cases, the totality of the evidence and the peculiar factual circumstances will lead an experienced, legally trained, jurist to conclude that the fact-finding exercise applied at trial must have been flawed in light of the unreasonable results it produced. 
- "Acting Judicially"
Acting judicially, in this context, means not only acting dispassionately in applying the law and adjudicating on the basis of the law and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. The reviewing court’s assessment must, in other words, proceed through “the lens of judicial experience” to identify and articulate, as precisely as possible, those features of the case which suggest that the verdict was unreasonable. There may be several causes of concern, none of which, in isolation, might have required a particular warning to the jury. 
- Appellate Explanation
The reviewing court "must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence."
- Reading Judgement as a Whole
The reasons should be read as a whole, and not held to a standard of perfection nor should it be the equivalent of jury instructions. The reasons for judgement should never be "read or analyzed as if they were instructions to a jury".
It is inappropriate to "simply plucking colloquial elements" from a trial judge's "thorough reasons" or to "cherry pick" infelicitous phrases.
A judge's decision should not be analyzed by "dissecting them into small pieces and examining each piece in isolation".
An error of the trial judge in finding an acquittal, once found, can only result in a new trial being ordered where the error had “a material bearing on the acquittal”
- Errors in Judgement
A mere misstatement at "one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence."
Courts are given great deference when considering whether findings are supported by the evidence.
The reviewing court should avoid re-visit the trial judge's assessments of the evidence including "discrepancies and then “cherry pick” bits and pieces that may be favourable to the accused.".
- Circumstantial Cases
On a circumstantial case, the reasonableness of the case will depend on "inferences reasonably available from the totality of the evidence" and whether the "Crown’s ultimate burden to demonstrate that guilt is the only reasonable inference to be drawn from the totality of that evidence".
An allegation that the judge failed to consider other reasonable inferences flowing from the evidence, the appellate judge must consider whether the trial judge's attempts to "draw the line" between reasonable doubt and speculation ws unreasonable.
- Credibility Cases
Where the verdict turns on findings of credibility, a court reviewing the jury verdict must ask "whether the jury’s verdict is supportable on any reasonable view of the evidence".
In making this assessment the appellate court must remember that the trier of fact is best situated to assess inconsistencies of witnesses as well as their motive to lie.
- Accused's Choice Not to Testify
When considering reasonableness, the court of appeal may take into account the accused's choice not to testify as indicating that the accused could not provide an innocent explanation of their conduct.
- Limits of Review
Review of a jury verdict is constrained by two "well-established boundaries". First, the court must give "due weight to the advantage of the jury as [they] saw and heard the evidence as it unfolded". The judge should not act as the "13th juror" and should not act on "vague unease", "lurking doubt", or even a "reasonable doubt". Second, the reviewing court may assess "within the limits of appellate disadvantage" and weigh the evidence and consider whether "judicial fact-finding precludes the conclusion reached by the jury".
When a properly instructed jury returned a verdict and that is perceived "to be unreasonable conviction, the only rational inference,… is that the jury, and arriving at that guilty verdict, was not acting judicially" resulting in an overturning of the verdict.
- Disagreement by Trial Judge
Where the trial judge disagrees with the verdict rendered by the jury its is often a case where the judicial system must "tolerate reasonable difference of opinion on factual issues".
R v Biniaris, 2000 SCC 15 (CanLII),  SCR 381, per Arbour J, at para 36
R v Li, 2013 ONCA 81 (CanLII), 296 CCC (3d) 408, per Watt JA, at para 123
R v Sinclair, 2011 SCC 40 (CanLII),  3 SCR 3, per Fish J, at para 4 (dissent) and para 44, per LeBel J (concur.)
R v Jackson, 2007 SCC 52 (CanLII),  3 SCR 514, per Fish J, at para 2
- ↑ Binaris, supra, at para 37
- ↑ Biniaris, supra, at para 36
R v Yebes, 1987 CanLII 17 (SCC),  2 SCR 168, per McIntyre J
See also RP, supra
- ↑ R v Portillo, 2003 CanLII 5709 (ON CA), 174 OAC 226, 176 CCC (3d) 467, per Doherty JA
- ↑ R v AG, 2000 SCC 17 (CanLII),  1 SCR 439, per L’Heureux-Dube J, at para 6
Biniaris, supra, at para 38("It is insufficient for the court of appeal to refer to a vague unease, or a lingering or lurking doubt based on its own review of the evidence. This “lurking doubt” may be a powerful trigger for thorough appellate scrutiny of the evidence, but it is not, without further articulation of the basis for such doubt, a proper basis upon which to interfere with the findings of a jury. In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner.")
- ↑ AG, supra, at para 6
R v Rhyason, 2007 SCC 39 (CanLII),  3 SCR 108, per Abella J, at para 10
R v Sheppard, 2002 SCC 26 (CanLII),  1 SCR 869, per Binnie J, at para 55
see also, R v Gagnon, 2006 SCC 17 (CanLII),  1 SCR 621, per Bastarache and Abella JJ, at para 19
R v REM, 2008 SCC 51 (CanLII),  3 SCR 3, per McLachlin CJ, at para 16 (“read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”)
R v Villaroman, 2016 SCC 33 (CanLII),  1 SCR 1000, per Cromwell J, at para 15
R v Laboucan, 2010 SCC 12 (CanLII),  1 SCR 397, per Charron J, at para 16
R v CLY, 2008 SCC 2 (CanLII),  1 SCR 5, per Abella J, at para 11
R v Morrissey, 1995 CanLII 3498 (ON CA), , 22 OR (3d) 514, per Doherty JA, at p. 525
Villaroman, supra, at para 15
- ↑ R v Davis, 1999 CanLII 638 (SCC),  3 SCR 759, per Lamer CJ (inappropriateness of “simply plucking colloquial elements [from a] trial judge's thorough reasons” )
- ↑ R v Morrissey, 1995 CanLII 3498 (ON CA), ,  O.J. No. 639 (CA), per Doherty JA, at para 28 ("[I]t is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole.")
- ↑ R v Graveline, 2006 SCC 16 (CanLII),  1 SCR 609, per Fish J, at para 14
- ↑ R v CRB, 1990 CanLII 142 (SCC),  1 SCR 717, per McLachlin J, at p. 737
R v RW, 1992 CanLII 56 (SCC),  2 SCR 122, per McLachlin J
R v Burke, 1996 CanLII 229 (SCC),  1 SCR 474, per Sopinka J
R v WH, 2013 SCC 22 (CanLII),  2 SCR 180, at para 26
R v Dow, 2013 NSCA 111 (CanLII), per Bryson JA, at paras 8, 12
R v Wills, 2014 ONCA 178 (CanLII), 308 CCC (3d) 109, per Doherty JA, at para 33
R v Villaroman, 2016 SCC 33 (CanLII),  1 SCR 1000, per Cromwell J, at para 71
R v MacDonald, 2020 NSCA 69 (CanLII), per Derrick JA, at paras 30 to 31
R v Roberts, 2020 NSCA 20 (CanLII), per Bryson JA, at para 19
R v Charlton, 2019 ONCA 400 (CanLII), 146 OR (3d) 353, per Harvison Young JA, at para 61
R v WH, 2013 SCC 22 (CanLII),  2 SCR 180, at para 2
Charlton, ibid., at para 61
R v François, 1994 CanLII 52 (SCC),  2 SCR 827, at pp. 835-37
R v Beaudry, 2007 SCC 5 (CanLII),  1 SCR 190, at paras 4, 63
R v Daye, 2022 ONCA 675 (CanLII), at para 24
R v Dell, 2005 CanLII 5667 (ON CA), at para 35(complete citation pending)
- ↑ WH, supra
- ↑ WH, supra
- ↑ R v Effert, 2011 ABCA 134 (CanLII), 502 AR 276, per curiam
- ↑ R v Savory, 2022 ONCA 132 (CanLII), per curiam
Clearly Wrong Findings (Beaudry test)
A verdict may also be unreasonable if the trial judge draws an inference or makes an essential finding of fact essential to the verdict that:
- is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or
- is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge.
R v Flores, 2013 MBCA 4 (CanLII), 288 Man R (2d) 173, per Monnin J
See R v Sinclair, 2011 SCC 40 (CanLII),  3 SCR 3, per LeBel J, at paras 19, 21
R v Beaudry, 2007 SCC 5 (CanLII),  1 SCR 190, per Charron J, at paras 97 to 98
Sinclair, supra, at para 44
R v Li, 2013 ONCA 81 (CanLII), 296 CCC (3d) 408, per Watt JA, at para 123
R v RP, 2012 SCC 22 (CanLII),  1 SCR 746, per Deschamps J, at para 12
Misapprehension of Evidence
In most cases, the proper remedy for an unreasonable verdict resulting in a conviction is an acquittal.
To determine if an acquittal is an appropriate remedy the reviewing court must consider whether "verdict one that a properly instructed jury could reasonably have rendered" If the answer is "no" then the verdict is unreasonable.
R v Newton, 2017 ONCA 496 (CanLII), 349 CCC (3d) 508, per Laskin JA, at para 26