Simon's Megalomaniacal Legal Resources

Criminal - Appeals - Crown Appeals from Acquittal [CCC 676] (2)

. R. v. D.L.

In R. v. D.L. (Ont CA, 2025) the Ontario Court of Appeal dismissed criminal cross-appeals - here by the Crown from acquittals for charges of "three counts of sexual assault and one count of extortion" - but by the defendant against convictions of numerous other counts "all of which alleged assaults and uttering threats".

Here the court emphasizes theCrown's burden when appealing an acquittal:

[32] The Crown’s burden when appealing an acquittal is “very heavy”. The scope of a Crown appeal is limited to legal questions that do not impugn the underlying facts or the trial judge’s evaluation of the evidence: R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, at para. 33. And even when a trial judge commits an error of law, “acquittals are not overturned lightly”. The Crown must demonstrate, with a “reasonable degree of certainty”, that the verdict would not necessarily have been the same had the error not occurred: Hodgson, at para. 36.

. R. v. Varennes

In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.

Here the court held that the Quebec Court of Appeal has jurisdiction to consider the Crown appeal, here against the appellant's argument that the order was not an acquittal [as per CCC 676(1)(a): "against a judgment or verdict of acquittal"]:

A. The Court of Appeal Had Jurisdiction To Hear the Appeal

[29] The Crown appealed to the Court of Appeal under s. 676(1)(a) of the Criminal Code. This provision allows the Crown to appeal “against a judgment or verdict of acquittal . . . on any ground of appeal that involves a question of law alone”. This language closely tracks the right of a convicted person to appeal “against his conviction” under s. 675(1)(a).

[30] The appellant argues that the Court of Appeal had no jurisdiction to hear an appeal against an order for a judge-alone trial after the verdict had been entered. He submits the trial judge’s order for a judge-alone trial could not be appealed under s. 676(1)(a) because it is not a judgment of acquittal. By appealing in this way, the Crown can unfairly use a procedural irregularity to challenge a verdict it does not like. Instead, the Crown should have sought leave to appeal to this Court after the order was issued, potentially under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.

[31] I disagree.

[32] Interlocutory appeals in criminal matters are generally not allowed, in order to avoid fragmenting proceedings (R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10; R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at p. 954). Certiorari provides an exception to this rule and permits a party to challenge jurisdictional errors by a trial judge on an interlocutory basis (Awashish, at para. 20). But certiorari is not available against decisions of a superior court judge and so was not open to the Crown in this case (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 865).

[33] The appellant’s position would require a party in a criminal proceeding before a superior court to seek immediate leave to appeal to this Court under s. 40 of the Supreme Court Act, against any order by a trial judge that relates to jurisdiction rather than to the merits of the proceeding. It may be that an order relating to the mode of trial is appealable under s. 40 of the Supreme Court Act. However, this Court’s precedents make clear that a party can challenge such an order within an appeal against a verdict entered after trial.

[34] This Court has held that verdicts rendered in the context of a legal error that results in a loss of jurisdiction (sometimes termed a “nullity”) can be appealed post-trial (Sanders v. The Queen, 1969 CanLII 47 (SCC), [1970] S.C.R. 109, at pp. 147-48). It follows that the Crown can appeal acquittals under s. 676(1)(a) by arguing a loss of jurisdiction due to errors made in pretrial rulings.

[35] Indeed, this Court expressly held in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at pp. 346-50, that the Crown can challenge pretrial procedural rulings unrelated to the merits of an acquittal in an appeal against that acquittal. Since Litchfield, this Court has heard and adjudicated multiple appeals against verdicts that alleged only jurisdictional errors unrelated to the substantive accuracy of the verdicts entered at trial (see, e.g., R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101; R. v. Tayo Tompouba, 2024 SCC 16).

[36] The Crown can invoke s. 676(1)(a) to appeal acquittals that they argue are void for jurisdictional error. The appeal in this case was validly before the Court of Appeal.

. R. v. Singh

In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal:

Governing Principles

[16] Section 676(1)(a) of the Criminal Code provides that:

The Attorney General or counsel instructed by him for the purpose may appeal to the Court of Appeal:

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. [Emphasis added.]

[17] In R. v. Hodgson, 2024 SCC 25, 494 D.L.R. (4th) 501, the Supreme Court discussed the limited scope of a Crown appeal and the rationale for unequal access to the appellate process. One of the reasons for limiting a Crown appeal to a question of law alone is to ensure that someone is not placed in jeopardy twice for the same matter: at paras. 29-31. The distinction between a trial judge’s (and jury’s) unique duty to find facts, which should not be revisited after an acquittal, and pure questions of law, which in some instances can, serves to protect acquitted persons from “the repeated exercise of [the power to deprive their liberty] on the same facts unless for strong reasons of public policy”: at para. 30, quoting Cullen v. The King, 1949 CanLII 7 (SCC), [1949] S.C.R. 658, at p. 668, per Rand J., dissenting. Put another way, restricting the Crown’s right of appeal is to ensure that legal errors are rectified when necessary, but not to allow a reconsideration of the facts.

[18] As the majority in Hodgson explains, a legal error is generally “a purely legal conclusion drawn from the evidence without calling into question the trial judge's evaluation of the evidence”: at para. 33, citing M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at para. 51.55.

[19] Even when the Crown successfully argues that a trial judge committed an error in law, it bears the “heavy onus” of “establish[ing] that the [error] might reasonably have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; R. v. Vaillancourt, 2019 ABCA 317, 93 Alta. L.R. (6th) 98, at para. 14.