Criminal Law Notebook

Directed Verdicts

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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.[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]

  1. ↑ R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J, at paras 49-50, 52, 56 and 57
    R v Timminco Ltd., 2001 CanLII 3494 (ON CA), 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
  2. ↑ R v Declercq, 2012 ABPC 147 (CanLII), per Redman J, at para 4
  3. ↑ Declercq, supra
    Rowbotham, supra
  4. ↑ See R v Henderson (WE), 2012 MBCA 93 (CanLII), per Chartier JA, at para 125
    R v O’Kane (PJ) et al., 2012 MBCA 82 (CanLII), per Hamilton JA, at para 42
    R v Barros, 2011 SCC 51 (CanLII), [2011] 3 SCR 368, 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)(complete citation pending) at para 155
    R v Richard (D.R.) et al, 2013 MBCA 105 (CanLII)(complete citation pending) 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]

  1. ↑ R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin CJ, at para 21
    R v Monteleone, 1987 CanLII 16 (SCC), (1987), 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), (1998), 123 CCC (3d) 225, per Bastarache J, at para 2
    R v O’Kane (PJ) et al, 2012 MBCA 82 (CanLII), per Hamilton JA, at paras 40 to 41
  2. ↑ United States of America v Shephard
  3. ↑ Charemski, supra, at para 3
  4. ↑ Arcuri, supra, at para 21
  5. ↑ see R v Beals, 2011 NSCA 42 (CanLII), 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
  6. ↑ Moteleone, supra, at p. 161
  7. ↑ Arcuri, supra, at paras 1, 23
    R v Beals, 2011 NSCA 42 (CanLII), 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]

  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 153
    R v Arcuri, 2001 SCC 54 (CanLII), [2001] 2 SCR 828, per McLachlin CJ, at paras 23, 30
  2. ↑ Tomlinson, supra, at para 153
    Arcuri, supra, at paras 23 and 30
  3. ↑ 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]

  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 155
    R v Titus, [1983] 1 SCR 259, 1983 CanLII 49 (SCC), per Ritchie J, at p. 264

See Also

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