In R. v. Whatcott (Ont CA, 2023) the Court of Appeal considered (and allowed) a Crown appeal from an acquittal for a 'willfully promoting hatred' charge [under CCC 319(2)].
Here the court sets out the criteria for a new criminal trial:
[81] To obtain a new trial, the appellant must demonstrate with a reasonable degree of certainty that the verdict would not necessarily have been the same if the legal error had not been made. Although the onus on the appellant is a heavy one, it need not prove the verdict would necessarily have been different. The appellate court must be satisfied that the trial judge’s error might reasonably, in the concrete reality of the case, have had a material bearing on the acquittal: see R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 27, citing R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609, at paras. 14-15; and R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374).
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