Trial Verdicts: Difference between revisions

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==Introduction==
==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's duty is to render a verdict on the charges. The verdict must be either a finding of guilt, stay of proceedings, or acquittal.  
Line 6: Line 8:


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:
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:
{{quotation|
{{quotation2|
'''Finding of guilt, conviction, order or dismissal'''<br>
; 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.
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 {{AnnSec|730L}}, make an order against the defendant or dismiss the information, as the case may be.
<br>
<br>
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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 804;  
|[http://canlii.ca/t/7vf2#sec804 CCC]
R.S., 1985, c. 27 (1st Supp.), s. 178, c. 1 (4th Supp.), s. 18(F);  
{{LegHistory90s|1995, c. 22}}, s. 10.
|{{CCCSec2|804}}
|{{NoteUp|804}}
}}
}}


Line 17: Line 22:


==Procedure==
==Procedure==
[http://canlii.ca/t/7vf2#sec570 Section 570] sets out the required forms the court should use when recording a verdict of any type.
[{{CCCSec|570}} Section 570] sets out the required forms the court should use when recording a verdict of any type.


===Attempts vs Full Offence===
===Attempts vs Full Offence===
{{seealso|Lesser Included Offences}}
{{seealso|Lesser Included Offences}}
{{quotation|
{{quotation2|
'''Full offence charged, attempt proved'''<br>
; Full offence charged, attempt proved
660. Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
660. Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
<br>
<br>
R.S., c. C-34, s. 587.
R.S., c. C-34, s. 587.
|[http://canlii.ca/t/7vf2#sec660 CCC]
|{{CCCSec2|660}}
|{{NoteUp|660}}
}}
}}


{{quotation|
{{quotation2|
'''Attempt charged, full offence proved'''<br>
; 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.
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.
<br>
<br>
'''Conviction a bar'''<br>
; 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.
(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.
<br>
<br>
R.S., c. C-34, s. 588.
R.S., c. C-34, s. 588.
|[http://canlii.ca/t/7vf2#sec661 CCC]
|{{CCCSec2|661}}
|{{NoteUp|661|1|2}}
}}
}}
{{quotation|
{{quotation2|
'''Offence charged, part only proved'''<br>
; 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
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
:(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.
:(b) of an attempt to commit an offence so included.
 
{{removed|(2), (3), (4), (5) and (6)}}
...<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; {{LegHistory00s|2000, c. 2}}, s. 3; {{LegHistory00s|2008, c. 6}}, s. 38; {{LegHistory10s|2018, c. 21}}, s. 20.
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.
|{{CCCSec2|662}}
|[http://canlii.ca/t/7vf2#sec660 CCC]
|{{NoteUp|662|1}}
}}
}}


===Records of Ajudication===
===Records of Ajudication===
{{quotation|
{{quotation2|
570 (1) ...<br>
; Record of conviction or order
'''Transmission of record'''<br>
570 <Br>
(3) Where an accused elects to be tried by a provincial court judge under this Part, 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.
{{removed|(1)}}
<br>
; Acquittal and record of acquittal
'''Proof of conviction, order or acquittal'''<br>
(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 {{AnnSec|Form 37}} shall be drawn up and, on request, a certified copy shall be drawn up and delivered to the accused.
(4) A copy of a conviction in Form 35 or of an order in Form 36 or 37, 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.
 
<br>
; Transmission of record
'''Warrant of committal'''<br>
(3) Where an accused elects to be tried by a provincial court judge under this Part {{AnnSec|Part XIX}}, 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.
(5) Where an accused other than an organization is convicted, the judge or provincial court judge, as the case may be, shall issue or cause to be issued a warrant of committal in Form 21, and section 528 applies in respect of a warrant of committal issued under this subsection.
 
<br>
; Proof of conviction, order or acquittal
'''Admissibility of certified copy'''<br>
(4) A copy of a conviction in Form 35 {{AnnSec|Form 35}} or of an order in Form 36 {{AnnSec|Form 36}} or 37 {{AnnSec|Form 37}}, 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.
(6) Where a warrant of committal is issued by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.
 
<br>
; Warrant of committal
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.
(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 {{AnnSec|Form 21}}, and section 528 {{AnnSec5|528}} applies in respect of a warrant of committal issued under this subsection.
|[http://canlii.ca/t/7vf2#sec570 CCC]
 
; 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., {{LegHistory80s|1985, c. C-46}}, s. 570  
R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F);
{{LegHistory90s|1994, c. 44}}, s. 59;  
{{LegHistory00s|2003, c. 21}}, s. 10;
{{LegHistory10s|2019, c. 25}}, s. 262.
{{Annotation}}
|{{CCCSec2|570}}
|{{NoteUp|570|2|3|4|5|6}}
}}
}}


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{{seealso|Guilty Plea}}
{{seealso|Guilty Plea}}


Once a conviction has been entered the protections under s. 11(e) of the Charter for the presumption of innocence are extinguished.<Ref>
Once a conviction has been entered the protections under s. 11(e) of the Charter for the presumption of innocence are extinguished.<ref>
R. v. Oland, [2017] 1 SCR 250, [http://canlii.ca/t/h2q81 2017 SCC 17] (CanLII){{perSCC|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.")<Br>
{{CanLIIRP|Oland|h2q81|2017 SCC 17 (CanLII)|[2017] 1 SCR 250}}{{perSCC-H|Moldaver J}}{{atL|h2q81|35}} ("once a conviction is entered, the presumption of innocence is displaced and s. 11(e) of the Charter no longer applies.")<Br>
</ref>
</ref>


Upon the conclusion of a summary conviction trial and the judge convicts the accused. He must make a "minute or memorandum" of the conviction.<ref>s. 806(1)</ref> Either the accused, the crown, or anyone else may request a certificate of conviction in compliance with Form 35 or 36<ref>
Upon the conclusion of a summary conviction trial and the judge convicts the accused. He must make a "minute or memorandum" of the conviction.<ref>s. 806(1)</ref>
Either the accused, the crown, or anyone else may request a certificate of conviction in compliance with Form 35 or 36<ref>
s. 806(1)</ref>
s. 806(1)</ref>


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 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|kienapple principle]].
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|kienapple principle]].
<ref>R v Bérubé, [http://canlii.ca/t/fsc5z 2012 BCCA 345] (CanLII){{perBCCA| Groberman JA}} at paras 43 to 52 per Groberman JA</ref>
<ref>
{{CanLIIRP|Bérubé|fsc5z|2012 BCCA 345 (CanLII)|326 BCAC 241}}{{perBCCA| Groberman JA}}{{atsL|fsc5z|43| to 52}}</ref>


{{quotation|
{{quotation2|
'''Record of conviction or order'''<br>
; Record of conviction or order
570. (1) Where 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, shall cause a conviction in Form 35 and a certified copy of it, or an order in Form 36 and a certified copy of it, to be drawn up and shall deliver the certified copy to the person making the request.
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 {{AnnSec|Form 35}} and a certified copy of it, or an order in Form 36 {{AnnSec|Form 36}} and a certified copy of it, shall be drawn up and the certified copy shall be delivered to the person making the request.<br>
<br>...<br>
{{removed|(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.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 570  
|[http://canlii.ca/t/7vf2#sec570 CCC]
R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F);
{{LegHistory90s|1994, c. 44}}, s. 59;  
{{LegHistory00s|2003, c. 21}}, s. 10;
{{LegHistory10s|2019, c. 25}}, s. 262.
{{Annotation}}
|{{CCCSec2|570}}
|{{NoteUp|570|1}}
}}
}}


{{quotation|
{{quotation2|
'''Memo of conviction or order'''<br>
; Memo of conviction or order
806. (1) Where a defendant is convicted or an order is made in relation to the defendant, a minute or memorandum of the conviction or order shall be made by the summary conviction court indicating that the matter was dealt with under this Part and, on request by the defendant, the prosecutor or any other person, the court shall cause a conviction or order in Form 35 or 36, as the case may be, and a certified copy of the conviction or order to be drawn up and shall deliver the certified copy to the person making the request.
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 {{AnnSec|Part XXVII}} and, on request by the defendant, the prosecutor or any other person, a conviction or order in Form 35 {{AnnSec|Form 35}} or 36 {{AnnSec|Form 36}}, 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.
<br>
 
'''Warrant of committal'''<br>
; 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 or 22, and section 528 applies in respect of a warrant of committal issued under this subsection.
(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 {{AnnSec|Form 21}} or 22 {{AnnSec|Form 22}}, and section 528 {{AnnSec5|528}} applies in respect of a warrant of committal issued under this subsection.
<br>
 
'''Admissibility of certified copy'''<br>
; Admissibility of certified copy
(3) Where a warrant of committal in Form 21 is issued by a clerk of a court, a copy of the warrant of committal, certified by the clerk, is admissible in evidence in any proceeding.
(3) If a warrant of committal in Form 21 {{AnnSec|Form 21}} 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.
<br>
 
R.S., 1985, c. C-46, s. 806; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1994, c. 44, s. 80.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 806;
|[http://canlii.ca/t/7vf2#sec806 CCC]
R.S., 1985, c. 27 (1st Supp.), s. 185(F);
{{LegHistory90s|1994, c. 44}}, s. 80;
{{LegHistory10s|2019, c. 25}}, s. 318
{{Annotation}}
|{{CCCSec2|806}}
|{{NoteUp|806|1|2|3}}
}}
}}


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A trial judge maintains jurisdiction up until sentencing to vacate a finding of guilt and replace it with a finding of not guilty.<ref>
A trial judge maintains jurisdiction up until sentencing to vacate a finding of guilt and replace it with a finding of not guilty.<ref>
e.g. R v Griffith, [http://canlii.ca/t/g012s 2013 ONCA 510] (CanLII){{perONCA|Rosenberg JA}}</ref> This occurrence is "rare" and should only arise in "exceptional circumstances".<ref>
e.g. {{CanLIIRP|Griffith|g012s|2013 ONCA 510 (CanLII)|116 OR (3d) 561}}{{perONCA|Rosenberg JA}}</ref>
Griffith{{ibid}}</ref> If a judge is considering to vacate a verdict, he must permit counsel to provide further submissions.<ref>
This occurrence is "rare" and should only arise in "exceptional circumstances."<ref>
Griffith{{ibid}} at paras 33 to 36</ref>
{{ibid1|Griffith}}</ref>  
If a judge is considering to vacate a verdict, he must permit counsel to provide further submissions.<ref>
{{ibid1|Griffith}}{{atsL|g012s|33| to 36}}</ref>


{{reflist|2}}
{{reflist|2}}


==Conditional Stay==
==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.<ref>R v Provo [http://canlii.ca/t/1ft4r 1989 CanLII 71] (SCC){{perSCC|Wilson J}} at para 21</ref> 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.<Ref>R v Terlecki, [http://canlii.ca/t/1fv00 1985 CanLII 16] (SCC), [1985] 2 SCR 483{{perSCC|Dickson CJ}} at p 529<br>
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.<ref>
R v Jewitt, [http://canlii.ca/t/1ftxr 1985 CanLII 47], [1985] 2 SCR 128{{perSCC|Dickson CJ}}</ref> 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.  
{{CanLIIRP|Provo|1ft4r|1989 CanLII 71 (SCC)|[1989] 2 SCR 3}}{{perSCC|Wilson J}}{{atL|1ft4r|21}}</ref>
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.<ref>
{{CanLIIRP|Terlecki|1fv00|1985 CanLII 16 (SCC)|22 CCC (3d) 224}}{{perSCC|Dickson CJ}}{{atp|529}}<br>
{{CanLIIRP|Jewitt|1ftxr|1985 CanLII 47 (SCC)|[1985] 2 SCR 128}}{{perSCC|Dickson CJ}}</ref>  
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.  


{{reflist|2}}
{{reflist|2}}


==Acquittal==
==Acquittal==
There is only one type of acquittal. It does not distinguish or qualify the basis of the acquittal.<Ref>
There is only one type of acquittal. It does not distinguish or qualify the basis of the acquittal.<ref>
R v Grdic [http://canlii.ca/t/1cxms 1985 CanLII 34] (SCC), (1985), 19 CCC (3d) 289 (S.C.C.){{perSCC|Lamer CJ}} at pp. 293 to 294<br>
{{CanLIIRP|Grdic|1cxms|1985 CanLII 34 (SCC)|19 CCC (3d) 289}}{{perSCC|Lamer CJ}}{{atps|293 to 294}}<br>
</ref>
</ref>


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.<ref>
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.<ref>
R v Mullins-Johnson, [http://canlii.ca/t/1tb2m 2007 ONCA 720] (CanLII){{TheCourt}}
{{CanLIIRP|Mullins-Johnson|1tb2m|2007 ONCA 720 (CanLII)|228 CCC (3d) 505}}{{TheCourtONCA}}
</ref>
</ref>


An aquittal only establishes "legal innocence" but does not address "factual innocence".
An aquittal only establishes "legal innocence" but does not address "factual innocence".
<ref>
<ref>
Mullins-Johnson{{ibid}}
{{ibid1|Mullins-Johnson}}
</ref>
</ref>


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".<ref>
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."<ref>
Grdic - reconsideration of res judicata and ability to re-prosecute accused<br>
{{supra1|Grdic}} - reconsideration of res judicata and ability to re-prosecute accused<br>
R v Grant [http://canlii.ca/t/1fsjc 1991 CanLII 38] (SCC), (1991), 67 CCC (3d) 268{{perSCC|Lamer CJ}}
{{CanLIIRP|Grant|1fsjc|1991 CanLII 38 (SCC)|67 CCC (3d) 268}}{{perSCC|Lamer CJ}}
</ref>
</ref>


{{quotation|
{{quotation2|
570.<br>...<br>
; Record of conviction or order
'''Acquittal and record of acquittal'''<br>
570<Br>
(2) Where 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 and shall cause an order in Form 37 to be drawn up, and on request shall make out and deliver to the accused a certified copy of the order.
{{removed|(1)}}
<br>
; Acquittal and record of acquittal
...<br>
(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 {{AnnSec|Form 37}} shall be drawn up and, on request, a certified copy shall be drawn up and delivered to the accused.<br>
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.
{{removed|(3), (4), (5) and (6)}}
|[http://canlii.ca/t/7vf2#sec570 CCC]
R.S., {{LegHistory80s|1985, c. C-46}}, s. 570  
R.S., 1985, c. 27 (1st Supp.), ss. 112, 203, c. 1 (4th Supp.), s. 18(F);
{{LegHistory90s|1994, c. 44}}, s. 59;  
{{LegHistory00s|2003, c. 21}}, s. 10;
{{LegHistory10s|2019, c. 25}}, s. 262.
{{Annotation}}
|{{CCCSec2|570}}
|{{NoteUp|570|2}}
}}
}}


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* [[Mistrials]]
* [[Mistrials]]
* [[Functus Officio]]
* [[Functus Officio]]
* [[Appeals#Insufficiency Reasons|Sufficiency of Reasons]]
* [[Sufficiency of Reasons]]
* [[Withdraw and Dismissal of Charges]]
* [[Withdraw and Dismissal of Charges]]

Latest revision as of 14:41, 14 July 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 95581)

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.

– CCC (CanLII), (DOJ)

Note up: 804

Procedure

Section 570 sets out the required forms the court should use when recording a verdict of any type.

Attempts vs Full Offence

See also: Lesser Included Offences
Full offence charged, attempt proved

660. Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R.S., c. C-34, s. 587.

– CCC (CanLII), (DOJ)

Note up: 660

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.

– CCC (CanLII), (DOJ)

Note up: 661(1) and (2)

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.

– CCC (CanLII), (DOJ)

Note up: 662(1)

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]

– CCC (CanLII), (DOJ)

Note up: 570(2), (3), (4), (5), and (6)

Finding of Guilt

See also: Guilty Plea

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]

– CCC (CanLII), (DOJ)

Note up: 570(1)

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]

– CCC (CanLII), (DOJ)

Note up: 806(1), (2) and (3)

  1. ↑ 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.")
  2. ↑ s. 806(1)
  3. ↑ s. 806(1)
  4. ↑ 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]

  1. ↑ e.g. R v Griffith, 2013 ONCA 510 (CanLII), 116 OR (3d) 561, per Rosenberg JA
  2. ↑ Griffith, ibid.
  3. ↑ 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.

  1. ↑ R v Provo, 1989 CanLII 71 (SCC), [1989] 2 SCR 3, per Wilson J, at para 21
  2. ↑ 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]

– CCC (CanLII), (DOJ)

Note up: 570(2)

An acquittal order should use Form 37.

  1. ↑ R v Grdic, 1985 CanLII 34 (SCC), 19 CCC (3d) 289, per Lamer CJ, at pp. 293 to 294
  2. ↑ R v Mullins-Johnson, 2007 ONCA 720 (CanLII), 228 CCC (3d) 505, per curiam
  3. ↑ Mullins-Johnson, ibid.
  4. ↑ 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

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