Remedies on Acquittal Appeal

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95723)

General Principles

Under s. 686 and 834(1)(a) the Court of appeal order one of several remedies to an unlawful acquittal.

686
[omitted (1), (2) and (3)]

Appeal from acquittal

(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

(a) dismiss the appeal; or
(b) allow the appeal, set aside the verdict and
(i) order a new trial, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

[omitted (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(4)

Before s. 686(4)(b)(i) can be applied there must be an error of law.[1] Once an error of law is established, the appellate must also establish that there is a "nexus between the legal error and the verdict entered."[2]

Appeal by Accused

There is no statutory right of appeal by an accused who is acquitted.[3] This is the case even in the face of severe findings against the accused in the course of the reasons.[4]

Some exceptions permit an appeal of reasons to the Supreme Court of Canada under s. 40 of the Supreme Court Act.[5]

  1. ↑ R v Anthes Business Forms et al., 1975 CanLII 54 (ON CA), 26 CCC (2d) 349, per Gale CJ
  2. ↑ R v Bear (C.W.), 2013 MBCA 96 (CanLII), 299 Man R (2d) 175, per Steel JA, at para 82
  3. ↑ R v Baasch, 2023 NUCA 7 (CanLII), at para 45
  4. ↑ R v X (1974), 1974 CanLII 1649 (ON CA), 20 CCC (2d) 255, 256 (Ont CA)
    R v Israel (1990), 1990 CanLII 11201 (MB CA), 68 Man R (2d) 126, paras 3, 6, 7 Baasch, ibid. at para 48
  5. ↑ Baasch, supra at para 49
    see R. v. Laba, 1994 CanLII 41 (SCC), [1994] 3 S.C.R. 965
    Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd, 2015 SCC 53 (CanLII), [2015] 3 SCR 419, at para 13

Entering a Conviction

Section 686(4)(b)(ii) states:

686
[omitted (1), (2) and (3)]

Appeal from acquittal

(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

[omitted (a)]
(b) allow the appeal, set aside the verdict and
[omitted (i)]
, or
(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

[omitted (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(4)

This section authorizes a Court of Appeal to substitute a verdict of guilt "with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law."[1]

A conviction can be entered under s. 686(4)(b)(ii) if the appellate court is satisfied that the trial judge made all the "[a]ll the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue."[2]

A appellate-level court will only set aside an acquittal and enter a conviction when "the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt."[3] This should only be "in the clearest of cases."[4]

  1. ↑ see also R v Tran, 2008 ABCA 209 (CanLII), 58 CR (6th) 246, per Hunt JA
  2. ↑ R v Cassidy, 1989 CanLII 25 (SCC), [1989] 2 SCR 345, per Lamer J, at para 16 ("an appellate court may overturn an acquittal and enter a conviction rather than ordering a new trial where the Crown satisfies the Court that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. All the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue")
  3. ↑ R v McRae, 2013 SCC 68 (CanLII), [2013] 3 SCR 931, per Cromwell and Karakatsanis JJ, at para 39
    R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326, per McLachlin CJ and Charron J, at para 50
  4. ↑ McRae, supra, at para 39
    R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 48

Ordering a New Trial

For the Crown to succeed in seeking a new trial, it "must show that the trial judge erred and that this error 'might reasonably be thought ... to have had a material bearing on the acquittal'."[1]

Burden

The onus on the crown is a "heavy one."[2]

Proof of Alternative Outcome

It is not necessary to show "that the verdict would necessarily have been different."[3]

A new trial will be ordered under s. 686(4)(b)(i) where the "verdict would not necessarily have been the same if the trial judge had properly directed the jury"[4] or, in the case of a judge-alone trial, that had "the trial Judge properly instructed himself, his judgment of acquittal would not necessarily have been the same."[5] In judge-alone this is measured on an objective, not subjective, standard.[6]

Prosecution To be Done Differently

A new trial is not permitted where the Crown relies on the fact that the prosecution should have been done differently.[7]

Consequences of Ordering New Trial

A successful appeal from a stay of proceedings due to delay can be "remitted for continuation before the original trial judge" under s. 686(8).[8]

  1. ↑ R v Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 SCR 720, per Karakatsanis J, at para 32
  2. ↑ Youvarajah, supra, at para 32
  3. ↑ R v Graveline, 2006 SCC 16 (CanLII), [2006] 1 SCR 609, per Fish J, at para 14
    Youvarajah, supra, at para 32
  4. ↑ R v Vezeau, 1976 CanLII 7 (SCC), [1977] 2 SCR 277, per Martland J
  5. ↑ R v Anthes Business Forms et al., 1975 CanLII 54 (ON CA), 26 CCC (2d) 349, per Gale CJ
  6. ↑ R v Melo, 1986 CanLII 4706 (ON CA), 29 CCC (3d) 173, 15 OAC 6 (CA), per Morden JA, at p. 182
    R v Collins, 1993 CanLII 8632 (ON CA), 79 CCC (3d) 204, per Arbour JA
  7. ↑ Youvarajah, supra, at para 46 ("Crown counsel was not precluded by the trial judge from calling further witnesses or from posing further questions to D.S. The Crown cannot ask for a new trial on the basis that the prosecution should have been conducted differently.")
  8. ↑ R v Yelle, 2006 ABCA 276 (CanLII), 213 CCC (3d) 20, per Martin JA

Election

686
[omitted (1), (2), (3) and (4)]

New trial under Part XIX

(5) Subject to subsection (5.01) [trial under Part XIX – Nunavut], if an appeal is taken in respect of proceedings under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] and the court of appeal orders a new trial under this Part [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], the following provisions apply:

(a) if the accused, in his notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;
(b) if the accused, in his notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, be held before a judge or provincial court judge, as the case may be, acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], other than a judge or provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the judge or provincial court judge who tried the accused in the first instance;
(c) if the court of appeal orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and
(d) notwithstanding paragraph (a), if the conviction against which the accused appealed was for an offence mentioned in section 553 [absolute jurisdiction offences] and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], other than the provincial court judge who tried the accused in the first instance, unless the court of appeal directs that the new trial be held before the provincial court judge who tried the accused in the first instance.
New trial under Part XIX — Nunavut

(5.01) If an appeal is taken in respect of proceedings under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)] and the Court of Appeal of Nunavut orders a new trial under Part XXI [Pt. XXI – Appeals – Indictable Offences (ss. 673 to 696)], the following provisions apply:

(a) if the accused, in the notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;
(b) if the accused, in the notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, and without a further preliminary inquiry, be held before a judge, acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], other than a judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance;
(c) if the Court of Appeal of Nunavut orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and
(d) despite paragraph (a), if the conviction against which the accused appealed was for an indictable offence mentioned in section 553 [absolute jurisdiction offences], the new trial shall be held before a judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)], other than the judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance.
Election if new trial a jury trial

(5.1) Subject to subsection (5.2) [election if new trial a jury trial — Nunavut], if a new trial ordered by the court of appeal is to be held before a court composed of a judge and jury,

(a) the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge;
(b) the election shall be deemed to be a re-election within the meaning of subsection 561(5) [right to re-elect from superior with prelim – notice and transmitting record]; and
(c) subsection 561(5) [right to re-elect from superior with prelim – notice and transmitting record] applies, with such modifications as the circumstances require, to the election.
Election if new trial a jury trial — Nunavut

(5.2) If a new trial ordered by the Court of Appeal of Nunavut is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election shall be deemed to be a re-election within the meaning of subsection 561.1(1) [right to re-elect with consent – Nunavut], and subsection 561.1(6) [notice when no preliminary inquiry or preliminary inquiry completed — Nunavut] applies, with any modifications that the circumstances require, to the election.
[omitted (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).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 686(5), (5.01), (5.1), and (5.2)

When a new trial is ordered under s. 686(5), the accused does not have a right to re-elect the mode of trial.[1]

However, an ordered re-trial from a judge and jury verdict may re-elect to a trial by judge alone with the consent of the Crown.[2]

  1. ↑ R v Sagliocco, 1979 CanLII 516 (BC CA), 51 CCC (2d) 188, per Craig JA, at para 20
  2. ↑ R v Cook, 2002 BCCA 225 (CanLII), 164 CCC (3d) 540, per Mackenzie JA

Limiting New Trial Issues

Under s. 686(8) when the Court of Appeal orders a new trial they may also order that the trial issues be narowed.[1]

On a successful appeal on the basis of the issue of entrapment, the court of appeal may quash the conviction but affirm the verdict of guilt and return it to trial on the sole issue of post-verdict entrapment.[2]

The Court of appeal may send a matter back for retrial on the sole issue "of whether [the accused's] automatism should lead to an acquittal or an NCR-MD verdict."[3]

  1. ↑ "s. 686
    ...
    (8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires."
    R v Luedecke, 2008 ONCA 716 (CanLII), 236 CCC (3d) 317, per Doherty JA, at para 131
  2. ↑ R v Pearson, 1998 CanLII 776 (SCC), [1998] 3 SCR 620, per Lamer CJ and Major J, at para 16 ("conviction is quashed, the verdict of guilt is affirmed, and the new trial is to be limited to the post-verdict entrapment motion.")
  3. ↑ Luedecke, supra, at para 136

Ancillary Order Powers

See Remedies_on_Conviction_Appeal#Ancillary_Order_Powers (s. 686(8))

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