Appeal of an Error of Law

This page was last substantively updated or reviewed July 2021. (Rev. # 95636)

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General Principles

Under s.675(1)(a)(ii) and 686(1)(a)(ii), the defence may appeal a conviction on error of law. Under s. 676(1)(a), the Crown may appeal an aquittal on an error of law.

Where there has been an error of law, such as the improper admission evidence, and the evidence may have influenced the trier of fact in reaching its verdict, the conviction must be quashed, irrespective of whether the admissible evidence supports a conviction.

However, the Court may dismiss an appeal and deny any remedy under s. 686(1)(a)(ii), where the court "is of the opinion that no substantial wrong or miscarriage of justice has occurred"(s.686(1)(b)(iii)).

Proper Analysis of Judge's Reasons

The reason for a trial judge should be not be "read or analyzed as if they were an instruction to a jury." The reasons should be "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."

Crown Appeal of Factual Determinations

A crown can appeal factual determinations as errors of law in the following circumstances:

• trial judge found facts in the absence of evidence;
• trial judge erred with respect to the legal effect of the facts;
• trial judge assessed evidence based on a wrong legal principle; or,
• trial judge failed to consider all of the relevant evidence.

Dismissal of Crown Appeal With Error of Law

In Crown appeals, reversible errors of law require the appellant to establish not only an error but that "the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal". But does not need to go so far as to convince the court that "the verdict would necessarily have been different"

This is similar to the curative proviso (686(1)(b)(iii)) on an accused appeal, except that the burden remains on the Crown throughout.

Distinguished from Question of Mixed Fact and Law or Question of Fact

see Standard of Appellate Review

Matters Appealed as Questions of Law

A Crown appeal of an acquittal, errors in law include:

1. making a finding of fact for which there was no evidence;
2. where the legal effect of findings of fact or undisputed fact raises a question of law;
3. an assessment of the evidence based on a wrong legal principle; and
4. a failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence.

The following have been found to be questions of law and so reviewable on the standard of correctness:

• an assessment of the evidence using the wrong legal principle
• failure to consider all evidence in relation to the issue of guilt
• Failure to consider admitted evidence;
• the interpretation of a "legal standard" or "misconceiv[ing] a legal test"
• interpretation of statute
• the reasonableness of grounds, such as in forming grounds of detention
• a judge adds or deducts a requirement to a controlling legal test.
• whether the trial judge failed to deal with the substance of a critical issue
• the weighing and assessing of one or more items of evidence on the basis of an erroneous legal principle

Different Level of Scrutiny

It is an error of law to apply a different level of scrutiny (sometimes called "uneven scrutiny") upon defence evidence than crown evidence. There is no deference applied in the same way as that of credibility determinations. Some Courts have recognized this as a "back door" to re-evaluate credibility and so it should be a "difficult argument" to make.

The legal threshold for proving different level of scrutiny is considered "very high" and "difficult to make successfully."

The appellant cannot "simply ... show that a different trial judge might have made a different assessment of credibility, or that the trial judge failed to make some comment that might have been made in assessing the credibility of the complainant and/or the accused ... the appellant must be able to point to something in the reasons for judgment of the trial judge, or potentially elsewhere in the trial record, that ... make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant."

An uneven scrutiny argument cannot be used as a "veiled invitation to reassess the trial judge’s credibility assessment."

It is not enough that a different judge would have made a different assessment or that he did not "say something" regarding a certain aspect of his assessment, or that he failed to spell out the legal principles.

The appellant must "must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant."

The appellant must meet a threashold of showing "something sufficiently significant" in the reasons or record that established faulty methodology in deciding credibility.

Curative Proviso

Despite any finding of an error of law under s. 686(1)(a)(ii), the court may still dismiss the appeal under the curative proviso under s. 686(1)(b)(iii).

See Also

• Standard of Appellate Review