Directed Verdicts: Difference between revisions
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==General Principles== | ==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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Litchfield|1frxj|1993 CanLII 44 (SCC)|[1993] 4 SCR 333}}{{perSCC|Iacobucci J}}{{atsL|1frxj|49| to 50}}, {{atsL-np|1frxj|52|, 56 and 57}}<br> | ||
{{ | {{CanLIIRP|Timminco Ltd|1fq18|2001 CanLII 3494 (ON CA)|153 CCC (3d) 521}}{{perONCA|Osborne JA}}{{atsL|1fq18|18| to 20}}<br> | ||
{{CanLIIRP|Rowbotham; Roblin|1frrr|1994 CanLII 93 (SCC)|[1994] 2 SCR 463}}{{perSCC|Lamer CJ}}{{atp|467}} (" A directed verdict is not a creature of statute but rather of the common law. ")</ref> | {{CanLIIRP|Rowbotham; Roblin|1frrr|1994 CanLII 93 (SCC)|[1994] 2 SCR 463}}{{perSCC|Lamer CJ}}{{atp|467}} (" A directed verdict is not a creature of statute but rather of the common law. ")</ref> | ||
Historically, a successful directed verdict motion judge would literally direct a jury to enter a verdict of not guilty.<ref> | Historically, a successful directed verdict motion judge would literally direct a jury to enter a verdict of not guilty.<ref> | ||
{{ | {{CanLIIRx|Declercq|frglm|2012 ABPC 147 (CanLII)}}{{perABPC|Redman J}}{{atL|frglm|4}}</ref> | ||
This has since been changed, and now does not involve the jury. It is simply a consider a motion for non-suit.<ref> | This has since been changed, and now does not involve the jury. It is simply a consider a motion for non-suit.<ref> | ||
{{supra1|Declercq}}<br> | {{supra1|Declercq}}<br> | ||
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; Standard of Review | ; Standard of Review | ||
The standard of review of a directed verdict is one of correctness based on it being a question of law.<ref> | The standard of review of a directed verdict is one of correctness based on it being a question of law.<ref> | ||
See {{ | See {{CanLIIRP|Henderson (WE)|ft95w|2012 MBCA 93 (CanLII)|284 Man R (2d) 164}}{{perMBCA|Chartier JA}}{{atL|ft95w|125}}<br> | ||
{{ | {{CanLIIRP|O’Kane (PJ) et al|ft4r5|2012 MBCA 82 (CanLII)|292 CCC (3d) 222}}{{perMBCA|Hamilton JA}}{{atL|ft4r5|42}}<br> | ||
{{ | {{CanLIIRP|Barros|fnk5t|2011 SCC 51 (CanLII)|273 CCC (3d) 129}}{{perSCC|Binnie J}}{{atL|fnk5t|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”)<br> | ||
{{ | {{CanLIIRP|Tomlinson|g51wx|2014 ONCA 158 (CanLII)|307 CCC (3d) 36}}{{perONCA|Watt JA}}{{atL|g51wx|155}}<br> | ||
{{ | {{CanLIIRP|Richard (D.R.) et al|g25wh|2013 MBCA 105 (CanLII)|299 Man R (2d) 1}}{{perMBCA|Cameron JA}}{{atL|g25wh|71}}<br> | ||
</ref> | </ref> | ||
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==Directed Verdict Test== | ==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 reasonably convict.<ref> | 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 reasonably convict.<ref> | ||
{{ | {{CanLIIRP|Arcuri|51xv|2001 SCC 54 (CanLII)|[2001] 2 SCR 828}}{{perSCC|McLachlin CJ}}{{atL|51xv|21}}<br> | ||
{{CanLIIRP|Monteleone|1ftl9|1987 CanLII 16 (SCC)|35 CCC (3d) 193}}{{perSCC|McIntyre J}}{{atp|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.")<br> | {{CanLIIRP|Monteleone|1ftl9|1987 CanLII 16 (SCC)|35 CCC (3d) 193}}{{perSCC|McIntyre J}}{{atp|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.")<br> | ||
{{CanLIIRPC|The United States of America v Shephard|1mx51|1976 CanLII 8|, [1977] 2 SCR 1067, (1976) 30 CCC (2d) 424}}{{perSCC|Ritchie J}}<br> | {{CanLIIRPC|The United States of America v Shephard|1mx51|1976 CanLII 8|, [1977] 2 SCR 1067, (1976) 30 CCC (2d) 424}}{{perSCC|Ritchie J}}<br> | ||
{{CanLIIRP|Charemski|1fqtc|1998 CanLII 819 (SCC)|123 CCC (3d) 225}}{{perSCC|Bastarache J}}{{atL|1fqtc|2}}<br> | {{CanLIIRP|Charemski|1fqtc|1998 CanLII 819 (SCC)|123 CCC (3d) 225}}{{perSCC|Bastarache J}}{{atL|1fqtc|2}}<br> | ||
{{ | {{CanLIIRP|O’Kane (PJ) et al|ft4r5|2012 MBCA 82 (CanLII)|292 CCC (3d) 222}}{{perMBCA|Hamilton JA}}{{atsL|ft4r5|40| to 41}}<br> | ||
{{CanLIIP|Al-Enzi|jd2mx|2021 ONCA 81 (CanLII)}}{{perONCA|Tulloch JA}}{{AtL|jd2mx|148}} | {{CanLIIP|Al-Enzi|jd2mx|2021 ONCA 81 (CanLII)}}{{perONCA|Tulloch JA}}{{AtL|jd2mx|148}} | ||
{{CanLIIRP|Hayes|j6x3t|2020 ONCA 284 (CanLII)|391 CCC (3d) 453}}{{perONCA|Tulloch JA}}{{atL|j6x3t|65}}<Br> | {{CanLIIRP|Hayes|j6x3t|2020 ONCA 284 (CanLII)|391 CCC (3d) 453}}{{perONCA|Tulloch JA}}{{atL|j6x3t|65}}<Br> | ||
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This test is the same test that is applied at the conclusion of preliminary inquiry under s. 548(1).<ref> | This test is the same test that is applied at the conclusion of preliminary inquiry under s. 548(1).<ref> | ||
see {{ | see {{CanLIIRP|Beals|fld2s|2011 NSCA 42 (CanLII)|277 CCC (3d) 323}}{{perNSCA|Saunders JA}}{{atL|fld2s|20}}<br> | ||
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.")<br> | 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.")<br> | ||
{{supra1|Arcuri}}{{atL|51xv|21}}<br> | {{supra1|Arcuri}}{{atL|51xv|21}}<br> | ||
| Line 55: | Line 55: | ||
Thus, the test requires that the judge not 1) weigh evidence, 2) test the quality or reliability of admissible evidence 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."<ref> | Thus, the test requires that the judge not 1) weigh evidence, 2) test the quality or reliability of admissible evidence 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."<ref> | ||
{{supra1|Arcuri}}{{atsL|51xv|1|}}, {{atsL-np|atL|51xv|23}}<br> | {{supra1|Arcuri}}{{atsL|51xv|1|}}, {{atsL-np|atL|51xv|23}}<br> | ||
{{ | {{CanLIIRP|Beals|fld2s|2011 NSCA 42 (CanLII)|277 CCC (3d) 323}}{{perNSCA|Saunders JA}} | ||
</ref> | </ref> | ||
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==Circumstantial Evidence== | ==Circumstantial Evidence== | ||
Where the case rests on circumstantial evidence as opposed to direct evidence the judge may embark on "limited weighing" of the evidence to bridge the gap in the evidence required to establish an essential element.<ref> | Where the case rests on circumstantial evidence as opposed to direct evidence the judge may embark on "limited weighing" of the evidence to bridge the gap in the evidence required to establish an essential element.<ref> | ||
{{ | {{CanLIIRP|Tomlinson|g51wx|2014 ONCA 158 (CanLII)|307 CCC (3d) 36}}{{perONCA|Watt JA}}{{atL|g51wx|153}}<br> | ||
{{ | {{CanLIIRP|Arcuri|51xv|2001 SCC 54 (CanLII)|[2001] 2 SCR 828}}{{perSCC|McLachlin CJ}}{{atsL|51xv|23|}}, {{atsL-np|51xv|30|}}<br> | ||
</ref> | </ref> | ||
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==Included Offences== | ==Included Offences== | ||
Where the offence contains [[Lesser Included Offences|included offences]] the accused may seek a directed verdict on the primary offence as well as some but not all the included offences.<ref> | Where the offence contains [[Lesser Included Offences|included offences]] the accused may seek a directed verdict on the primary offence as well as some but not all the included offences.<ref> | ||
{{ | {{CanLIIRP|Tomlinson|g51wx|2014 ONCA 158 (CanLII)|307 CCC (3d) 36}}{{perONCA|Watt JA}}{{atL|g51wx|155}}<br> | ||
{{CanLIIRP|Titus|1txh7|1983 CanLII 49 (SCC)|[1983] 1 SCR 259}}{{perSCC|Ritchie J}}{{atp|264}}<br> | {{CanLIIRP|Titus|1txh7|1983 CanLII 49 (SCC)|[1983] 1 SCR 259}}{{perSCC|Ritchie J}}{{atp|264}}<br> | ||
</ref> | </ref> | ||
Revision as of 17:12, 16 August 2021
- < Procedure and Practice
- < Trials
- < Verdicts
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]
- ↑
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. ") - ↑ R v Declercq, 2012 ABPC 147 (CanLII), per Redman J, at para 4
- ↑
Declercq, supra
Rowbotham, supra - ↑
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 reasonably convict.[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]
The judge must be satisfied there is some evidence that establishes each constituent element of the offence.[4]
This test is the same test that is applied at the conclusion of preliminary inquiry under s. 548(1).[5]
- 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."[6]
Thus, the test requires that the judge not 1) weigh evidence, 2) test the quality or reliability of admissible evidence 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."[7]
- ↑
R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin CJ, at para 21
R v Monteleone, 1987 CanLII 16 (SCC), 35 CCC (3d) 193, per McIntyre J, at p. 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
jd2mx, 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 - ↑ United States of America v Shephard
- ↑ Charemski, supra, at para 3
- ↑ Arcuri, supra, at para 21
- ↑
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
- ↑
Moteleone, supra, at p. 161
- ↑
Arcuri, supra, at paras 1, 51xv23
R v Beals, 2011 NSCA 42 (CanLII), 277 CCC (3d) 323, per Saunders JA
Circumstantial Evidence
Where the case rests on circumstantial evidence as opposed to direct evidence the judge may embark on "limited weighing" of the evidence to bridge the gap in the evidence required to establish an essential element.[1]
"Limited weighing" in circumstantial cases does not include "factual inferences" to assess credibility or reliability.[2]
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".[3]
- ↑
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
- ↑
Tomlinson, supra, at para 153
Arcuri, supra, at paras 23 and 30
- ↑
Tomlinson, supra, at para 154
Arcuri, supra, at para 23
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]
- ↑
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