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Criminals - Appeals - Crown Appeals from Acquittal. R. v. Varghese
In R. v. Varghese (Ont CA, 2024) the Ontario Court of Appeal allows a Crown criminal appeal from a dismissal:[30] A trial judge’s credibility assessment is entitled to substantial deference from this court. The Crown’s ability to appeal an acquittal is circumscribed by s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. 46, which provides that an acquittal can be appealed only in the face of an error involving “a question of law alone”. As stated in R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 29, the onus on the Crown on such an appeal is heavy:Crown appeals of acquittals must be based on errors of law, which are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 39. Not only must the Crown identify an error of law, but the Crown must also establish a nexus between the error of law and the acquittal. [31] Limiting the scope of Crown appeals of acquittals is fundamental to the core tenets of our legal system: R. v. Hodgson, 2024 SCC 25, at paras. 22, 26 to 31. An appealable error “must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof”: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 10. Exceptionally, however, a trial judge’s alleged shortcomings in assessing the evidence may constitute an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24, affirmed in Hodgson, at para. 34. This may occur, for example, when a trial judge assesses the evidence based on a wrong legal principle, makes a finding of fact for which there is no evidence, or fails to consider all of the evidence in relation to the ultimate issue of guilt or innocence”: Hodgson, at para. 35, citing J.M.H..
[32] The Crown is not required to establish that the verdict necessarily would have been different but for a legal error by the trier of fact. It must, however, persuade the appellate court that the error had a material bearing on the acquittal: Lacombe, at para. 56; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; Hodgson, at para. 36. . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the meaning of the widely-used concept of 'question of law' [used here in the Crown appeal limitation of CCC 676(1)(a)]:(3) Defining the Scope of the Crown’s Limited Right of Appeal
[32] The history and rationale of s. 676(1)(a) is important for understanding the purpose and scope of the Crown’s limited right of appeal and helps answer “the vexed question of what constitutes, for jurisdictional purposes, an error of law alone” (see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24). In Biniaris, this Court held that a “question of law alone” is “used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law” (para. 30). The Court declined the invitation to distinguish between a “question of law alone” and a “question of law”, holding that there is “nothing different” between them and that both terms must receive the same interpretation (para. 31).
[33] Consequently, the scope of the Crown’s right of appeal of an acquittal depends on what qualifies as a legal question. This assessment will generally turn on the character of the alleged error, rather than on its severity (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17). A legal question generally flows from an accepted or uncontested factual situation; the appellate court can then reach a purely legal conclusion drawn from the evidence without calling into question the trial judge’s evaluation of the evidence (M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at para. 51.55). Clear examples of legal questions which do not depend on the facts of a given case include, for instance, statutory interpretation, the scope of a constitutional right, and the definition of the essential elements of an offence (para. 51.58).
[34] In other situations, drawing the line between questions of law and questions of fact or of mixed fact and law can become more challenging. This is often the case when the alleged error concerns a trial judge’s assessment of the evidence. As this Court explained in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, “[a]n appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof” (para. 10 (citations omitted)). There are, however, situations in which a “trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal” (J.M.H., at para. 24).
[35] In J.M.H., the Court identified four non-exhaustive such situations:1. Making a finding of fact for which there is no evidence — however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule;
2. The legal effect of findings of fact or of undisputed facts;
3. An assessment of the evidence based on a wrong legal principle;
4. A failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence. [36] Even if the Crown is able to point to an error of law, acquittals are not overturned lightly (see R. v. Cowan, 2021 SCC 45, at para. 46). The Crown must also convince the appellate court, to a reasonable degree of certainty, that the verdict of acquittal would not necessarily have been the same had the error not occurred (Graveline, at para. 15; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2). While the Crown need not persuade the appellate court that the verdict would necessarily have been different, its burden in this respect is a very heavy one (see Graveline, at paras. 14-15 and 19, quoting R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374; see also Sutton, at para. 2). . R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the history and justification of the limited Crown appeal under CCC 676(1)(a):A. What Does It Mean That a Crown Appeal of an Acquittal Under Section 676(1)(a) of the Criminal Code Is Limited to a Ground of Appeal That Involves a Question of Law Alone?
[19] In Canadian law, the Crown’s ability to appeal an acquittal is circumscribed by s. 676(1)(a) of the Criminal Code. It reads:676 (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone; A court’s jurisdiction to hear and address an appeal of an acquittal thus depends upon there being an error involving “a question of law alone”.
[20] Mr. Hodgson concedes that the error identified by the Court of Appeal in relation to self-defence, if made, would qualify as an error of law under s. 676(1)(a). However, with respect to the mens rea for murder, Mr. Hodgson submits there was no question or error of law that would allow the Court of Appeal to intervene.
[21] To address this argument, we look to the principles and historical foundations informing the narrow scope of the Crown’s right to appeal from an acquittal; canvass the meaning of the term “question of law alone”; give guidance on the level of specificity that Crown counsel and appellate courts must provide when invoking a question of law alone to overturn an acquittal; and explain why the Court of Appeal failed to identify an error of law with respect to the intent for murder.
(1) Historical Foundations of the Crown’s Limited Right of Appeal
[22] The restricted nature of the Crown’s ability to appeal from an acquittal has deep roots in the principles that underlie our criminal justice system and was [translation] “[d]eveloped in a particular historical context characterized by the reluctance of Anglo-Canadian law to allow for [it]” (LSJPA – 151, 2015 QCCA 35, at para. 57 (CanLII), per Kasirer J.A., as he then was). Indeed, “[t]here is a historical aversion to Crown appeals that grounds the differing limitations placed on appellate access as between the Crown and a convicted person” (R. v. Budai, 2001 BCCA 349, 153 B.C.A.C. 98, at para. 123, per Ryan J.A.).
[23] Historically, the Crown’s ability to appeal from an acquittal in Canada has been limited to questions of law alone. Although the provisions that set out the Crown’s right of appeal have evolved over the years, this constraint has remained consistent. For example, when Canada’s Criminal Code was enacted in 1892, “an appeal by the Crown against an acquittal was possible only when a question of law had been reserved for the opinion of the Court of Appeal” or through a leave process which allowed the case to proceed as though the question had been reserved (Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616, at p. 662; see The Criminal Code, 1892, S.C. 1892, c. 29, ss. 743 and 744; see also B. L. Berger, “Criminal Appeals as Jury Control: An Anglo‑Canadian Historical Perspective on the Rise of Criminal Appeals” (2006), 10 Can. Crim. L.R. 1, at p. 36). There were further amendments in 1900[1] and 1909[2], and the Crown’s right to appeal an acquittal on a question of law was repealed altogether in 1923 (S.C. 1923, c. 41, s. 9). It is not clear whether this removal was intentional, but the right was later “restored” in 1930 (Morgentaler, at pp. 662‑63; see the explanatory note accompanying s. 38 of House of Commons Bill 138, An Act to amend the Criminal Code, 4th Sess., 16th Parl., 1930 (first reading, May 14, 1930)). The amended text of the relevant provision, s. 1013(4) of the Criminal Code, R.S.C. 1927, c. 36, granted the Attorney General the right to appeal an acquittal on an indictable offence “on any ground of appeal which involves a question of law alone” (S.C. 1930, c. 11, s. 28). Unlike previous iterations of the Crown’s ability to appeal from an acquittal, this amendment did not include a requirement of leave by the trial judge or the Court of Appeal (see the discussion of the 1900 and 1909 amendments in Morgentaler, at p. 662).
[24] This latter amendment — which also reflects the present law — has been described as an “extraordinary remedy” (Department of Justice and Public Safety, Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, 2022 (online), at p. 23-2). The Crown’s ability to appeal an acquittal has been viewed as an “innovation in the procedure of criminal law” that was a “striking departure from fundamental principles of security for the individual” (Cullen v. The King, 1949 CanLII 7 (SCC), [1949] S.C.R. 658, at pp. 665-66, per Rand J., dissenting), having “created an exception to the general rule that no person should be tried twice on the same charge” (Guide Book of Policies and Procedures for the Conduct of Criminal Prosecutions in Newfoundland and Labrador, at p. 23-2). Commentators have referred to it as “drastic”, “exceptional”, “special”, “unusual” and “limited” in an “extrem[e]” or “narrow” manner (see, e.g., Wexler v. The King, 1939 CanLII 41 (SCC), [1939] S.C.R. 350, at p. 358; Rose v. The Queen, 1959 CanLII 67 (SCC), [1959] S.C.R. 441, at p. 442; R. v. Podetz (1981), 1981 ABCA 52 (CanLII), 26 A.R. 307 (C.A.), at para. 10; R. v. W.F.M. (1995), 1995 ABCA 244 (CanLII), 169 A.R. 222 (C.A.), at para. 5; M. L. Friedland, Double Jeopardy (1969), at p. 295; R. v. Orlin (1945), 1945 CanLII 239 (QC CA), 85 C.C.C. 150 (Que. K.B. (App. Side)), at p. 153; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 33; R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 35).
[25] Many other countries also restrict Crown appeals from acquittals. Indeed, the Crown’s right of appeal from an acquittal is broader in Canada than in most other common law jurisdictions (see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 46, and R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 13, both citing R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at pp. 645-46). The United Kingdom imposes significant limitations on the scope of Crown appeals (see Criminal Justice Act 2003 (U.K.), 2003, c. 44, ss. 57(4), 63, 67, 76(3), 76(4), 77, 78 and 79; H. Stewart, “Procedural Rights and Factual Accuracy” (2020), 26 Legal Theory 156, at pp. 170-71), and many foreign jurisdictions do not allow appeals from acquittals at all (see S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 587).
(2) Rationales for the Crown’s Limited Right of Appeal
[26] The absence of a “principle of parity of appellate access in the criminal process” as between the Crown and the accused is explained on the basis of the different policy considerations underlying the Crown’s right of appeal against acquittals (Biniaris, at para. 33).
[27] Avoiding wrongful convictions is one rationale that explains why the scope of the accused’s right of appeal is wider than the Crown’s. As explained in Biniaris, “[e]rror-free trials are desirable as such, but even more so as a safeguard against wrongful convictions” (para. 26).
[28] In the case of jury trials, appellate courts’ respect for a jury acquittal is another reason for limiting the Crown’s right of appeal to questions of law alone (T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at para. 72).
[29] The most important justification behind the limited nature of the Crown’s right of appeal, however, lies in the principle against double jeopardy. In the United States, it is for this reason that the Supreme Court has concluded that an appeal against an acquittal would violate the Fifth Amendment (see, e.g., McElrath v. Georgia, 601 U.S. 87 (2024), at p. 94). The protection against double jeopardy is also part of the framework that governs the Crown’s ability to obtain a retrial after an acquittal in the United Kingdom (Criminal Justice Act 2003, s. 76(4)(c)).
[30] This rationale is also crucial in Canadian law. Our Court has held that the Crown’s ability to appeal an acquittal does not violate s. 11(h) of the Canadian Charter of Rights and Freedoms (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at pp. 155-56, per McIntyre J., dissenting, but not on this point). Nevertheless, as Kasirer J.A. noted in LSJPA – 151, the Crown’s [translation] “limited right of appeal seeks to prevent an appeal on the facts to protect acquitted persons from the double jeopardy associated with a new trial” (para. 57 (footnote omitted)). As explained in Cullen, “[a]t the foundation of criminal law lies the cardinal principle that no [individual] shall be placed in jeopardy twice for the same matter . . . . It is the supreme invasion of the rights of an individual to subject [that individual] by the physical power of the community to a test which may mean the loss of [their] liberty or [their] life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy” (p. 668).[3]
[31] Thus, expanding the Crown’s right of appeal beyond its proper scope would have a profound impact on the interests of accused persons, especially due to the considerable anxiety created by the prospect of a new trial after a person has been acquitted (see Budai, at para. 125, quoting R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 890, per McLachlin J., concurring in the result). Allowing the Crown’s restricted right of appeal to expand beyond its scope would undermine the provision’s protection against wrongful convictions and double jeopardy. . R. v. L.B.
In R. v. L.B. (Ont CA, 2023) the Court of Appeal considered the limitation on Crown appeals to 'questions of law' only [under CCC 676]:[2] These grounds of appeal must be assessed in light of the fact that the Crown may only appeal an acquittal in proceedings by indictment on questions of law alone (see Criminal Code, s. 676(1)(a)). This can be contrasted with the right of an accused to appeal a conviction on grounds that it is unreasonable or not supported by the evidence (Criminal Code, s. 686(1)(a)).
[3] As we explain below, the grounds of appeal advanced by the Crown do not raise questions of law alone. We therefore dismiss the appeal.
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[29] The Crown cannot appeal on the basis that the trial judge made a credibility assessment that was unreasonable. Once again, a different trial judge may well have come to a different conclusion in respect of this issue. But that is of no moment in a Crown appeal of an acquittal which, as we have emphasized, is available only on questions of law alone as per s. 676(1)(a)) of the Criminal Code. . R. v. T.L.
In R. v. T.L. (Ont CA, 2023) the Court of Appeal noted a limit on Crown appeals:[1] The Crown appeals T.L.’s acquittal for sexual assault of the complainant. Under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown may only appeal an acquittal on a question of law alone. The Crown submits that the trial judge erred in law in her analysis. . R. v. Spicer
In R. v. Spicer (Ont CA, 2023) the Court of Appeal states the test for a Crown appeal from an acquittal:[13] Finally, even accepting that any error occurred in the trial judge’s reasoning, the SCAJ was required to determine whether any such error materially affected the trial judge’s ultimate conclusion. As this court observed in R. v. B.(S.C.) (1997), 1997 CanLII 6319 (ON CA), 36 O.R. (3d) 516 (C.A.), at para. 44:On a Crown appeal from acquittal, an appellate court may only order a new trial if it is reasonably certain that the trial judge would not necessarily have acquitted the accused had no error been made: [citation omitted]. In R. v. Evans 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, 82 C.C.C. (3d) 338 at p. 350, Cory J. emphasized that "the Crown must satisfy the court with a reasonable degree of certainty that the verdict would not necessarily have been the same." He stressed that this "is a very heavy onus and it is fitting that it should be.”
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