Directed Verdicts

From Criminal Law Notebook
This page was last substantively updated or reviewed March 2021. (Rev. # 96792)

General Principles

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 and not statute.[1] Historically, a successful directed verdict motion judge would literally direct a jury to enter a verdict of not guilty.[2] This has since been changed, and now does not involve the jury. It is simply a consider a motion for non-suit.[3]

Standard of Review

The standard of review of a directed verdict is one of correctness based on it being a question of law.[4]

  1. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J, at paras 49 to 50, 52, 56 and 57
    R v Timminco Ltd, 2001 CanLII 3494 (ON CA), 153 CCC (3d) 521, per Osborne JA, at paras 18 to 20
    R v Rowbotham; Roblin, 1994 CanLII 93 (SCC), [1994] 2 SCR 463, per Lamer CJ, at p. 467 (" A directed verdict is not a creature of statute but rather of the common law. ")
  2. ↑ R v Declercq, 2012 ABPC 147 (CanLII), per Redman J, at para 4
  3. ↑ Declercq, supra
    Rowbotham, supra
  4. ↑ See R v Henderson (WE), 2012 MBCA 93 (CanLII), 284 Man R (2d) 164, per Chartier JA, at para 125
    R v O’Kane (PJ) et al, 2012 MBCA 82 (CanLII), 292 CCC (3d) 222, per Hamilton JA, at para 42
    R v Barros, 2011 SCC 51 (CanLII), 273 CCC (3d) 129, per Binnie J, at para 48 (“Whether or not the test is met on the facts is a question of law which does not command appellate deference to the trial judge”)
    R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 155
    R v Richard (D.R.) et al, 2013 MBCA 105 (CanLII), 299 Man R (2d) 1, per Cameron JA, at para 71

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 return a verdict of guilty."[1]

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.[2] 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.[3]

Preliminary Inquiry or Trial

This test is the same test that is applied at the conclusion of preliminary inquiry under s. 548(1).[4]

  1. ↑ R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin CJ, at para 21 (The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”)
    R v Monteleone, 1987 CanLII 16 (SCC), 35 CCC (3d) 193, per McIntyre J, at p. 160 to 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, , [1977] 2 SCR 1067, (1976) 30 CCC (2d) 424, per Ritchie J
    R v Charemski, 1998 CanLII 819 (SCC), 123 CCC (3d) 225, per Bastarache J, at para 2
    R v O’Kane (PJ) et al, 2012 MBCA 82 (CanLII), 292 CCC (3d) 222, per Hamilton JA, at paras 40 to 41
    R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 148
    R v Hayes, 2020 ONCA 284 (CanLII), 391 CCC (3d) 453, per Tulloch JA, at para 65
    R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 151
  2. ↑ United States of America v Shephard
  3. ↑ Charemski, supra, at para 3
  4. ↑ see R v Beals, 2011 NSCA 42 (CanLII), 277 CCC (3d) 323, per Saunders JA, 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

Evidence

The test remains generally the same whether the evidence is direct or circumstantial.[1]

The judge must be satisfied there is some evidence that establishes each constituent element of the offence.[2]

When dealing with direct evidence the judge must not 1) weigh evidence, 2) test the quality or reliability of admissible evidence or 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."[3]

  1. ↑ Arcuri, supra, at para 22 ("The test is the same whether the evidence is direct or circumstantial")
    Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, at pp. 842-43(complete citation pending)
  2. ↑ Arcuri, supra, at para 21 ("Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”)
  3. ↑ Arcuri, supra, at paras 1, 23
    R v Beals, 2011 NSCA 42 (CanLII), 277 CCC (3d) 323, per Saunders JA

Circumstantial Case and Inferences

Where the Crown relies on circumstantial evidence the question whether the elements not provable by direct evidence "may reasonably be inferred from circumstantial evidence." This assessment of inference will involve "limited weighing" of the evidence.[1]

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."[2]

  1. ↑ Arcuri, supra, at para 23 ("The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: ... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt")
    R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 153
    R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin CJ, at paras 23, 30
  2. ↑ Tomlinson, supra, at para 154
    Arcuri, supra, at para 23

Weighing Evidence

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."[1]

"Limited weighing" in circumstantial cases does not include "factual inferences" to assess credibility or reliability.[2]

Limited weighing does not—strictly speaking—involve drawing inferences of fact. Rather the judge determines whether, "if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt." The exercise is one of "reasonbleness of the inferences" sought to be drawn from the circumstantial evidence.[3]

  1. ↑ Moteleone, supra, at p. 161
  2. ↑ Tomlinson, supra, at para 153
    Arcuri, supra, at paras 23 and 30
  3. ↑ Arcuri, supra, at para 30

Included Offences

Where the offence contains included offences the accused may seek a directed verdict on the primary offence as well as some but not all the included offences.[1]

  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 155
    R v Titus, 1983 CanLII 49 (SCC), [1983] 1 SCR 259, per Ritchie J, at p. 264

See Also

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