Criminal Law Notebook

Remedies on Acquittal Appeal

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General Principles

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

s. 686.
...

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.


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).


– CCC

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]

  1. ↑ R v Anthes Business Forms et al., 1975 CanLII 54 (ON CA), per Gale CJ
  2. ↑ R v Bear (C.W.), 2013 MBCA 96 (CanLII), per Steel JA at para 82

Entering a Conviction

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

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...

(b) allow the appeal, set aside the verdict and...
(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.


...
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).


– CCC

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), 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] 3 SCR 931, 2013 SCC 68 (CanLII), per Cromwell and Karakatsanis JJ, at para 39
    R v Katigbak, [2011] 3 SCR 326, 2011 SCC 48 (CanLII), per McLachlin CJ and Charron J, at para 50
  4. ↑ McRae at para 39
    R v Audet, [1996] 2 SCR 171, 1996 CanLII 198 (SCC), 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]

It is not necessary to show "that the verdict would necessarily have been different".[2]

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

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).[7]

  1. ↑ R v Youvarajah, [2013] 2 SCR 720, 2013 SCC 41 (CanLII), per Karakatsanis J, at para 32
  2. ↑ R v Graveline, [2006] 1 SCR 609, 2006 SCC 16 (CanLII), per Fish J, at para 14
    Youvarajah at para 32
  3. ↑ 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), per Gale CJ
  6. ↑ R v Melo, (1986), 29 CCC (3d) 173, 15 O.A.C. 6 (C.A.), 1986 CanLII 4706 (ON CA), per Morden JA, at p. 182
    R v Collins, 1993 CanLII 8632 (ON CA), per Arbour JA
  7. ↑ R v Yelle, 2006 ABCA 276 (CanLII), per Martin JA

Election

686
...

New trial under Part XIX

(5) Subject to subsection (5.01), if an appeal is taken in respect of proceedings under Part XIX and the court of appeal orders a new trial under this Part, 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, 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 and was made by a provincial court judge, the new trial shall be held before a provincial court judge acting under Part XIX, 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 and the Court of Appeal of Nunavut orders a new trial under Part XXI, 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, 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, the new trial shall be held before a judge acting under Part XIX, 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), 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); and
(c) subsection 561(5) 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), and subsection 561.1(6) applies, with any modifications that the circumstances require, to the election.
...
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).


– CCC

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), per Craig JA, at para 20
  2. ↑ R v Cook, 2002 BCCA 225 (CanLII), 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), per Doherty JA, at para 131
  2. ↑ R v Pearson, [1998] 3 SCR 620, 1998 CanLII 776 (SCC), 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
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