Criminal Law Notebook

Appeal of an Error of Law

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General Principles

See also: Standard of Appellate Review

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.[1]

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".[2] 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".[3]

Crown Appeal of Factual Determinations

A crown can appeal factual determinations as errors of law in the following circumstances:[4]

  • 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" [5]

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

  1. ↑ Colpits v The Queen, 1965 CanLII 2 (SCC), [1965] SCR 739
  2. ↑ R v Villaroman, 2016 SCC 33 (CanLII), [2016] 1 SCR 1000, per Cromwell J, at para 15
    R v Morrissey, 1995 CanLII 3498 (ONCA), 22 OR (3d) 514 (CA), per Doherty JA, at p. 525
  3. ↑ Villaroman, ibid., at para 15
    R v Laboucan, 2010 SCC 12 (CanLII), per Charron J, at para 16
    R v REM, 2008 SCC 51 (CanLII), per McLachlin CJ, at para 16
    see also R v CLY, 2008 SCC 2 (CanLII), per Abella J, at para 11
  4. ↑ R v JMH, 2011 SCC 45 (CanLII), [2011] 3 SCR 197, per Cromwell J
    R v Percy, 2020 NSCA 11 (CanLII), per Beveridge JA, at para 37
  5. ↑ see R v Graveline, 2006 SCC 16 (CanLII), per Fish J, at para 14
    R v Duguay, 2007 NBCA 65 (CanLII), per Deschênes JA, at paras 26 to 27

Matters Appealed as Questions of Law

A Crown appeal of an acquittal, errors in law include:[1]

  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[2]
  • failure to consider all evidence in relation to the issue of guilt[3]
  • Failure to consider admitted evidence;[4]
  • the interpretation of a "legal standard" [5]
  • interpretation of statute[6]
  • the reasonableness of grounds, such as in forming grounds of detention[7]
  • a judge adds or deducts a requirement to a controlling legal test.[8]
  • whether the trial judge failed to deal with the substance of a critical issue[9]
  • the weighing and assessing of one or more items of evidence on the basis of an erroneous legal principle[10]
  1. ↑ see R v JMH, 2011 SCC 45 (CanLII), per Cromwell J, at paras 24 to 32
  2. ↑ JMH, ibid., at paras 24 to 32
  3. ↑ JMH, ibid., at paras 24 to 32
  4. ↑ R v Mohan, 1994 CanLII 80 (SCC), per Sopinka J at 20
  5. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per Lebel J, at para 18
  6. ↑ R v Fedossenko, 2014 ABCA 314, per curiam (2:1), at para 2
  7. ↑ R v Moore, 2012 BCCA 400 (CanLII), per Saunders JA
  8. ↑ e.g. Canada (Director of Investigation and Research) v Southam Inc, 1997 CanLII 385 (SCC), [1997] 1 SCR 748, per Iacobucci J, at para 39
    R v Hillgardener, 2010 ABCA 80 (CanLII), per curiam, at para 19
  9. ↑ R v REM, 2008 SCC 51 (CanLII), per McLachlin CJ, at para 57
  10. ↑ R v AA, 2015 ONCA 558 (CanLII), 327 CCC (3d) 377, per Watt JA, at para 65

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.[1] There is no deference applied in the same way as that of credibility determinations.[2] Some Courts have recognized this as a "back door" to re-evaluate credibility and so it should be a "difficult argument" to make.[3]

The legal threshold for proving different level of scrutiny is considered "very high" and "difficult to make successfully".[4]

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".[5]

An uneven scrutiny argument cannot be used as a "veiled invitation to reassess the trial judge’s credibility assessment".[6]

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.[7]

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".[8]

  1. ↑ R v Phan, 2013 ONCA 787 (CanLII), per Epstein JA, at paras 29 to 35
  2. ↑ Phan, ibid., at para 31
  3. ↑ Phan, ibid. R v Aird, 2013 ONCA 447 (CanLII), per Laskin JA, at para 39
  4. ↑ R v Cloutier, 2011 ONCA 484 (CanLII), 272 CCC (3d) 291, per Weiler JA, at paras 86, 93 to 94
    R v Jones, 2013 ONCA 245 (CanLII), per curiam, at para 8
    R v Schell, 2013 ABCA 4 (CanLII), 542 AR 1, per curiam, at paras 34-35{{{3}}}
    R v Da Costa, 2014 ONSC 1000 (CanLII), per Campbell J, at para 9
  5. ↑ R v Howe, 2005 CanLII 253 (ONCA), 192 CCC (3d) 480 (Ont.C.A.), per Doherty JA, at para 59
    De Costa, ibid., at para 9
  6. ↑ Aird, 2013 ONCA 447, at para. 39(complete citation pending)
    R v SP, 2021 ONCA 233 (CanLII), per curiam, at para 27
  7. ↑ Howe, supra, at paras 58 to 59
  8. ↑ Howe, ibid., at para 59

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

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