Remedies on Conviction Appeal
General Principles
Where an error has been found by the appellate court, the court must address the question of what remedy, if any, should be applied.
Appeals against conviction or verdict under s. 686 that are successful may be subject to a remedies including a stay of proceedings, a new verdict, or a new trial. Alternatively, the appellate court has limited ability to dismiss the appeal despite the existence of an error. The court may dismiss certain claims in situations such as where the error would not have changed the verdict or where there was no miscarriage of justice or there was a lack of prejudice.
Applicable Remedies
Where a defence appeal is allowed the court may either order a new trial or enter a verdict of acquittal. (s.686(2))
The court has discretion to enter a verdict of acquittal where:
- the accused has already served part or all of a fit sentence
- where there is no longer sufficient evidence to support a conviction
- where it would be unfair to the accused to have another trial
686
[omitted (1)]
- Order to be made
(2) Where a court of appeal allows an appeal under paragraph (1)(a) [remedy on accused verdict appeal – allow], it shall quash the conviction and
- (a) direct a judgment or verdict of acquittal to be entered; or
- (b) order a new trial.
[omitted (3), (4), (5), (5.01), (5.1) and (5.2)]
- Where appeal allowed against verdict of unfit to stand trial
(6) Where a court of appeal allows an appeal against a verdict that the accused is unfit to stand trial, it shall, subject to subsection (7) [appeal court may set aside verdict of unfit to stand trial], order a new trial.
- Appeal court may set aside verdict of unfit to stand trial
(7) Where the verdict that the accused is unfit to stand trial was returned after the close of the case for the prosecution, the court of appeal may, notwithstanding that the verdict is proper, if it is of the opinion that the accused should have been acquitted at the close of the case for the prosecution, allow the appeal, set aside the verdict and direct a judgment or verdict of acquittal to be entered.
- Additional powers
(8) Where a court of appeal exercises any of the powers conferred by subsection (2) [powers of court – quash conviction], (4) [appeal from acquittal], (6) [where appeal allowed against verdict of unfit to stand trial] or (7) [appeal court may set aside verdict of unfit to stand trial], it may make any order, in addition, that justice requires.
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).
[annotation(s) added]
The Court of Appeal has no power under section 686 to substitute any verdict with a new verdict of "not guilty by reason of mental disorder". It can only order a new trial. However, the scope of the trial can be limited to specific issues only under section 686 (4).[1]
- Section 686(8) Limitation
Section 686(8) cannot be in conflict with the primary order or otherwise limit the accused's rights.[2]
- ↑ R v Luedecke, 2008 ONCA 716 (CanLII), 236 CCC (3d) 317, per Doherty JA
- ↑
R v Hinse, 1995 CanLII 54 (SCC), [1995] 4 SCR 597, at paras 30 to 31, per Lamer CJ
R v Thomas, 1998 CanLII 774 (SCC), [1998] 3 SCR 535, per Lamer CJ, at paras 17, 26
R v Imola, 2019 ONCA 556 (CanLII), 439 CRR (2d) 352, per curiam, at para 27 ("Section 686(8) has a broad remedial purpose. However, because this is a supplementary power, an order made under this subsection cannot be at variance with the primary order or limit the accused’s rights")
Ordering a New Trial
Where a new trial is ordered the provisions of s.686(5) and (5.1) apply:
686
[omitted (1), (2), (3) and (4)]
- New trial under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (ss. 552 to 572)]
(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.
[omitted (5.01)]
- 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.
[omitted (3), (4), (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).
[annotation(s) added]
Where a new trial is ordered and the result of the new trial is a conviction, the sentence given after the original trial will still be in effect.
- Ordering a New Trial (Nunavut)