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Criminal - Appeals - Remedy. R. v. Rees
In R. v. Rees (Ont CA, 2025) the Ontario Court of Appeal considered a further (and much later) appeal emanating from "a referral by the Minister of Justice, made pursuant to s. 696.3(3)(a)(ii) ['Applications for Ministerial Review — Miscarriages of Justice - Powers of Minister of Justice'] of the Criminal Code", which - after much incarceration - set aside a conviction for second degree murder, and ordered a new trial.
Here the court, after finding a miscarriage of justice, considers criminal appellate remedies - including Truscott and the recent Bouvette case:B. The Issue of Remedy: An Aquittal, Stay or New Trial?
[157] In the words of the majority in Bouvette, the focus of the analysis now “shifts from a retrospective inquiry into whether the ‘conviction … constitutes a miscarriage of justice’, to a prospective ‘second stage of [the] analysis: having quashed the conviction what is the appropriate remedy?’”: Bouvette, at para. 54, citing Truscott, at para. 245. At this stage, “the appellate court’s remaining remedial task is to select the appropriate path forward, now that the conviction has been effaced, by ordering either an acquittal, a new trial or a judicial stay”: at para. 54.
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2. The statutory framework for remedy
[171] We must determine which of three remedial options is appropriate in the circumstances of this case – an order directing an acquittal (the remedy requested by the appellant), a judicial stay (the remedy requested by the Crown), or a new trial (the alternative remedy requested by the appellant). We begin with a review of the statutory framework and then consider the three options.
[172] Section 686(2) of the Criminal Code provides for two options – an acquittal or new trial – following the quashing of the conviction:686(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial. [173] In addition to these two options, this court has jurisdiction to grant a stay on the basis of s. 686(8):686 (8) Where a court of appeal exercises any of the powers conferred by subsection (2) … it may make any order, in addition, that justice requires. [174] Although s. 686(8) does not make explicit reference to a stay, a stay is one of the orders the court may make where “justice requires”: R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597, at pp. 619-20; Bouvette, at para. 57.
[175] The quashing of a conviction under s. 686(2) is sufficient, in and of itself, to engage the powers under s. 686(8) to stay the proceedings: Bouvette, at para. 59. In other words, an appellate court can order a stay pursuant to s. 686(8) without first ordering a new trial pursuant to s. 686(2)(b). The exercise of power “conferred by subsection (2)”, as referred to in s. 686(8), has been interpreted to mean the quashing of the conviction alone pursuant to s. 686(2).
[176] Importantly, a judicial stay of proceedings brings a definitive end to criminal proceedings and is considered the “most drastic remedy a criminal court can order”: Babos, at para. 30; see also R. v. Regan, 2002 SCC 12, [2002] S.C.R. 297, at para. 53.
3. Bouvette and Truscott
[177] At the time this appeal was heard, Bouvette had been argued in the Supreme Court of Canada and was under reserve. Bouvette has since been released and the parties have provided helpful written submissions as to how Bouvette impacts this appeal. We have considered those submissions.
[178] Ms. Bouvette pled guilty to criminal negligence causing the death of a child whom she was babysitting. The resulting conviction was quashed by the Court of Appeal for British Columbia based on failed disclosure that resulted in a miscarriage of justice: R. v. Bouvette, 2023 BCCA 152, 424 C.C.C. (3d) 513.
[179] The parties had jointly asked the Court of Appeal for British Columbia to set aside the conviction and enter an acquittal. The court declined to do so, instead entering a stay of proceedings. The court chose that remedy because there was evidence on the record upon which a reasonable jury, properly instructed, could convict Ms. Bouvette.
[180] The Supreme Court granted leave to appeal: R. v. Bouvette, [2023] S.C.C.A. No. 235. The focus of the appeal was on the remedy available to Ms. Bouvette considering the miscarriage of justice that resulted from the failed disclosure.
[181] In the Supreme Court of Canada, the parties continued to agree that the Crown had breached Crown disclosure obligations, Ms. Bouvette’s guilty plea had been tainted by that non-disclosure, and, therefore, the guilty plea had to be set aside. The parties also continued to advance the position that the only correct remedy in the circumstances was an acquittal. In their view, the Court of Appeal’s order to stay the proceedings was wrong and an acquittal was required to “remove both the stigma of conviction and the stain of an unresolved allegation of this serious crime”: Bouvette, at para. 4. The Crown took that position even though it acknowledged, for the first time, that there was evidence on the record that could lead a reasonable jury, properly instructed, to convict at a new trial.
[182] Bouvette gave the Supreme Court the opportunity to consider the remedial framework to be followed upon setting aside a conviction for a miscarriage of justice.
[183] The court was divided on the analytical framework, although not on the result of the case. Both the five-judge majority and the four-judge minority agreed that it was appropriate to grant an acquittal, although on different grounds. Despite the divergence between the majority and minority, Bouvette provides important guidance for our purposes.
[184] First, Kasirer J., on behalf of the majority, noted that there is a specific order to considering remedies. Where the court quashes a conviction in the wake of finding a miscarriage of justice, the first remedy the court must look to is the appropriateness of an acquittal: Bouvette, at para. 55. Only where an acquittal is rejected should the other remedial options be considered: Bouvette, at para. 57.
[185] Second, the majority stressed that in determining the proper remedy, the “focus is not on the past miscarriage of justice” that resulted in conviction, as “that conviction has already been quashed”: Bouvette, at para 5. “The issue is whether, going forward, an acquittal represents the proper and just exercise of the appellate court’s statutory power”: Bouvette, at para. 5.
[186] Third, the majority addressed the different possible paths to an acquittal.
[187] The first path is an acquittal on the basis that there is insufficient evidence to ground a conviction: Bouvette, at para. 72. Where no reasonable jury could convict on the basis of the evidence, as augmented by the fresh evidence on appeal, the appellate court must exercise its discretion in favour of acquitting the appellant: Bouvette, at paras 73-75. The logic of this approach is inescapable because if there is insufficient evidence to allow a reasonable trier of fact, properly instructed, to convict, then any conviction that may result from a new trial would have to be quashed on appeal as an unreasonable verdict. We will refer to this path, which is already well established, as the “unreasonable verdict” path.
[188] According to the majority, a second path to an acquittal is the one that arose in Bouvette. As Kasirer J. explained, “[u]nless it would be contrary to the public interest, an appellate court must acquit where the Crown seeks an acquittal and says that it would call no evidence at a new trial to ensure that an acquittal will be entered”: Bouvette, at para. 79 (emphasis added). The appellant does not suggest that the second route to an acquittal is operative in this case since the Crown is not inviting an acquittal, even though the Crown has indicated that it would not proceed were a new trial to be ordered.
[189] The third path to an acquittal – “acquittals based on appellate discretion” – was described by the majority as a “route that is uncertain and fraught”: at para. 94. In Bouvette, both the Crown and Ms. Bouvette argued that “discretionary acquittals” should be available on a broader basis than this court described in Truscott. They put forward factors to be considered in granting a discretionary acquittal. For instance, the Crown proposed a constellation of broadly worded factors, including: (1) the history of the proceedings; (2) the circumstances of the accused; (3) whether some or all of the sentence has been served; (4) the position of the parties on the “factual matrix on appeal”; (5) the nature of the proceedings in the court below; (6) the nature of the basis for overturning the conviction; and (7) the impact of the passage of time on the availability and weight of the evidence. Ms. Bouvette expressed general agreement with these factors.
[190] The majority declined to endorse this broad discretionary framework for acquittals. As Kasirer J. explained, it was unnecessary to define “comprehensively” when it is appropriate to grant a “discretionary acquittal” since the case before them could be decided on the basis of the Crown’s request for an immediate acquittal – the second path to an acquittal: Bouvette, at para. 94. Furthermore, the majority was concerned about the “lack of true adversarial engagement” on the issue: at paras. 10, 89, 92-94, 101. Kasirer J. left it to “future courts to scrutinize other purported grounds for acquittal, including those conferring on the appellate court appropriate discretion, in cases where such grounds would actually affect the disposition”: at para. 102.
[191] In the meantime, the majority expressed concern that adopting the parties’ proposals would “place at risk both the understood meaning of an acquittal and the proper role of the appellate courts within our system of criminal justice”: Bouvette, at para. 95. To this end, the majority cautioned that discretionary acquittals should not be “routinely” resorted to: at para. 70.
[192] As for Truscott, the Bouvette majority found that it was decided in a very different and distinguishable context. In Truscott, the Crown requested a new trial, the passage of time rendered a new trial impossible, and the nature of the miscarriage of justice was “completely different”: Bouvette, at para. 124.
[193] The minority decision in Bouvette, authored by Martin J., adopted a decidedly different approach. The minority did not feel constrained by what the majority saw as a lack of adversarial engagement as to whether the discretionary route to an acquittal should be changed: Bouvette, at paras. 140-42. Instead, the minority took the opportunity to clear up what they described as “confusion and inconsistency” in the case law: Bouvette, at para. 139.
[194] Martin J., at para. 144, summarized the minority’s legal framework as follows:As I will explain, for cases that fall “outside of the norm” (Truscott, at para. 259), the jurisprudence supports a framework which straightforwardly asks whether an acquittal is in the interests of justice for this narrow set of cases which bear the hallmarks of wrongful convictions. In so doing, courts of appeal should consider the nature of the miscarriage, the remaining merits of the case, including the likelihood of the trial taking place, and the overall equities of the case. Primary weight must be given to the court’s consideration of the merits. A court’s finding that an acquittal is more probable than not is thus generally a pre-requisite to that court entering an acquittal. Furthermore, though the equities cannot be the sole basis upon which to enter an acquittal, they may inform the court’s final balancing in determining whether an acquittal is appropriate. [Emphasis added,] [195] In fleshing out this framework, Martin J. discussed Truscott at some length. She highlighted that, “‘[a]s a general rule’ the appeal court will order a new trial for a miscarriage of justice where the record on appeal admits of a reasonable possibility of conviction”: para. 232, citing Truscott, at para. 248. Martin J. noted that the court in Truscott “did not purport to establish an exhaustive or exclusive framework”: Bouvette, at para. 236. The fact that a new trial was not possible for Mr. Truscott was a relevant factor but “not a legal prerequisite for an acquittal”: at para. 238. She also noted that “[n]ot every appeal will have … a record resembling the one in Truscott”, sometimes as a result of the very nature of the miscarriage of justice: at para. 240.
[196] Martin J., at para. 246, endorsed the “flexible approach” applied in Truscott, since the Truscott “standard” struck an appropriate balance:In my view, when considering whether an acquittal is justified in the interests of justice, the standard applied by the Truscott court — whether the augmented or varied record establishes clearly that it is more probable than not that an acquittal would result at a retrial based on a reasonable doubt standard (para. 268) — strikes an appropriate balance between the importance of the merits of a case and the circumstances of cases bearing the hallmarks of wrongful convictions. This flexible approach is justified by the challenges and unfairness that may be occasioned by applying strict tests in these cases that fall outside the norm, as well as the proper use of limited judicial resources. [Emphasis added.] [197] Therefore, it appears to us that the minority endorsed the “Truscott standard”, that being whether it is clearly more probable than not that the appellant would be acquitted at a new trial. That said, we note that in some parts of her reasons, Martin J. omitted the word “clearly” in articulating the standard: see, e.g., paras. 236, 247-48, 265, 274-75, 281, 297.
[198] In summary, we read Bouvette as providing the following guidance relating to Truscott. The majority has not overruled the Truscott framework – rather, it left consideration of Truscott for another day. In contrast, the minority accepted the “Truscott standard”, and built upon that standard in clarifying when a discretionary acquittal is available. The minority also clarified that “equities alone cannot form a standalone basis to substitute an acquittal for a new trial”: at para. 268.
[199] To state the obvious, to the extent that the minority’s analysis conflicts with the majority’s, the majority’s analysis prevails. The majority in Bouvette did not overrule Truscott as a source of authority as to when an acquittal may be granted, and the minority’s expansion of Truscott was not accepted by the majority. Although we draw insight from Bouvette and guidance from the majority reasons, the Truscott test, decided by a panel of five judges of this court, remains binding on us. . R. v. Bouvette
In R. v. Bouvette (SCC, 2025) the Supreme Court of Canada allowed a criminal remedial appeal, here to grant an acquittal (as opposed to a judicial stay) [under CCC 686(2) 'Powers of the Court of Appeal']:(1) Principal Orders Available: Acquittal, New Trial and Judicial Stay
[52] As with all appellate powers, the options available to the appellate court must find their source in legislation (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 21). The principal powers of an appellate court when allowing an appeal against a conviction such as the one at issue are provided for in s. 686(1), (2) and (8) Cr. C. Other powers under s. 686 are available in circumstances unlike those at issue in this appeal, such as substituting another verdict when an appeal is dismissed (see, e.g., s. 686(3)).
[53] First, s. 686(1)(a) permits the appellate court to allow the appeal in circumstances including, as provided in subpara. (iii), on any ground where there was a miscarriage of justice:686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice; [54] Section 686(2) then provides that when an appeal has been allowed under s. 686(1)(a), the court of appeal must, looking backwards, quash the conviction. Quashing convictions protects accused persons from miscarriages of justice, such as the failure of disclosure in Ms. Bouvette’s case, resulting in convictions that may be characterized as unsafe or even wrongful. The focus of the appellate court then shifts from a retrospective inquiry into whether “the conviction . . . constitutes a miscarriage of justice”, to a prospective “second stage of [the] analysis: having quashed the conviction, what is the appropriate remedy?” (see Truscott, at para. 245). This prospective inquiry is no longer fixed on whether the conviction should be set aside by reason of a miscarriage of justice. Rather, the appellate court’s remaining remedial task is to select the appropriate path forward, now that the conviction has been effaced, by ordering either an acquittal, a new trial or a judicial stay. Regardless of the path chosen, the conviction that was the subject of the appeal will be neither prevented nor perpetuated.
[55] Paragraphs 686(2)(a) and (b) set forth two of the remedies relevant here, directing that the same remedies are available regardless of the ground for allowing the appeal under s. 686(1)(a):(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial. [56] Additional powers are granted to an appellate court in s. 686(8), sometimes called “residual” or “ancillary” powers, which allow the court to make any order, in addition, that justice requires when exercising its power to quash a conviction:(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires. [57] Together, these provisions provide the appellate court with three main options when it allows an appeal from conviction. As is explicit from s. 686(2)(a) and (b), an appellate court may order a new trial or enter an acquittal in place of the quashed conviction. A third option, the judicial stay, is not explicitly mentioned in s. 686(2) but may be ordered under s. 686(8) as an order ancillary or residual to setting aside the conviction (see R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597, at para. 29). A judicial stay brings a definitive end to the proceedings — a “drastic” remedy (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30). It is only to be granted to prevent an abuse of process in the “clearest of cases”, addressing prejudice to the accused’s right to a fair trial or to the integrity of the justice system (para. 31, citing R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). To be plain, while the Criminal Code provides the appellate court with these three options, the remedy of acquittal is to be considered first and the other options are to be considered where an acquittal is not warranted.
[58] The Attorney General of Ontario suggested, as an intervener, that a judicial stay should be entered only after the court has decided under s. 686(2) to order a new trial (I.F., at paras. 14-15). With respect, I disagree.
[59] It is settled law that quashing the conviction under s. 686(2) is sufficient to engage the power to enter a judicial stay under s. 686(8), even if a new trial is not ordered (see Smith, at para. 22; see also R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 75; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 39; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at para. 51.282). It is therefore best to think of the judicial stay as a third, distinct order. The judicial stay is indeed a further “alternative” to a new trial order and to an acquittal (Hinse, at para. 29). There is no issue, then, in the fact that the Court of Appeal neither ordered a new trial nor acquitted Ms. Bouvette, but simply quashed the conviction and entered a stay (para. 147).
[60] Appellate courts are not bound by statute to enter acquittals in any given situation; Parliament has directed that they choose from amongst available remedies as the circumstances and the interests of justice dictate. That task falls to the courts under s. 686. In other words, Parliament has entrusted appellate courts with the power to acquit under s. 686(2). No one suggests otherwise. This appeal provides an opportunity to clarify when an acquittal, as against a new trial or judicial stay, would be a just and appropriate result, within the proper bounds of the law’s incremental development.
(2) Distinguishing an Acquittal From a Judicial Stay
[61] No one disputes that there are grounds for the judicial stay entered by the Court of Appeal. Regardless of the outcome of this appeal, there will be no new trial. The Court of Appeal did not order one before entering the stay of proceedings and neither party has requested a new trial, whether or not an acquittal is entered. The only issue is whether the Court of Appeal ought to have entered an acquittal in place of the stay. Understanding the nature of these two distinct orders is therefore central to this appeal.
[62] An acquittal represents a finding that the accused is not guilty. It means that the Crown has failed to prove its case beyond a reasonable doubt and, subject to a right of appeal, it puts an end to the proceedings. A judicial stay also puts an end to the proceedings and means that the Crown is “disentitled to a conviction” (R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at p. 148). Unlike an acquittal, a stay does not reflect a conclusion on whether or not the person is guilty.
[63] While the two remedies are conceptually distinct, they bear important similarities. A judicial stay and an acquittal, unlike a new trial order, both bring a final end to the criminal proceedings against an accused (see Jewitt, at p. 148). When a new trial is ordered, the Crown has a variety of options open to it, such as proceeding with a new trial in pursuit of conviction, offering no evidence and inviting the trial court to acquit, seeking a withdrawal of the charge, or directing a prosecutorial stay (see the Hon. P. J. LeSage, Report of the Commission of Inquiry into certain aspects of the trial and conviction of James Driskell (2007), at p. 130; Reference re: Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 242). The former two options will lead to a final verdict while the latter two will generally not (see, generally, R. v. Selhi, 1990 CanLII 130 (SCC), [1990] 1 S.C.R. 277; Criminal Code, s. 579(2); K. Roach, “The Wrongfully Convicted Deserve Acquittals Not Prosecutorial Stays” (2024), 102 Can. Bar Rev. 201, at p. 208).
[64] Depending on the avenue pursued by the Crown and the judgment of the trial court, the accused may ultimately be convicted, acquitted or neither. By contrast, an acquittal and a judicial stay both bring the proceedings to a conclusive end (see Roach, at p. 210) and leave the accused in “a position of presumptive innocence” (R.V., at para. 76). They are therefore treated as equivalent for some purposes, such as certain routes of appeal to this Court (see Jewitt, at p. 148; R. v. Puskas, 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207, at para. 1).
[65] The difference between an acquittal and a judicial stay is said to lie in the residual stigma for the accused (A.F., at para. 130; R.F., at para. 91), because an acquittal represents a conclusion of not guilty that a judicial stay does not. The intervener the Canadian Civil Liberties Association suggests that a judicial stay “is only a partial balm to the interests of justice” (I.F., at para. 20).
[66] But in truth, even an acquittal will not, of course, remove all stigma associated with the criminal charge. A conclusion of not guilty does not require or imply a factual conclusion of innocence but indicates, in law, that the Crown has failed to prove its case beyond a reasonable doubt (see R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425, at paras. 23-25, citing the Hon. A. Lamer, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), at p. 342; R. v. D.R.S., 2013 ABCA 18, 542 A.R. 92, at para. 15; see also S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶19.234; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 156, per Charron J., dissenting, but not on this point). I find the transposition of this idea to appellate powers in Mullins-Johnson, at para. 24, helpful: “Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence.”
[67] Rather, an acquittal follows from a “broad array of cases ranging from demonstrable factual/actual innocence to a Crown case that establishes probable guilt but falls just short of proof beyond reasonable doubt” (LeSage, at p. 138). It will not always be possible to eliminate public suspicion completely, even after a person charged with a criminal offence is acquitted (P. MacKinnon, “Costs and Compensation for the Innocent Accused” (1988), 67 Can. Bar Rev. 489, at pp. 498-99).
[68] For this reason, the difference in terms of stigma should not be exaggerated. This Court has queried whether “the theoretical existence of a charge that has been stayed carries any greater stigma” than an acquittal, and whether the public would truly appreciate the difference, noting that “[a]n unpopular acquittal generates as much public indignation as a stay” (R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at pp. 914‑15). Whether a criminal matter ends in an appellate acquittal or a judicial stay, the accused is not in the same position as a person awaiting a trial or an appeal that will determine their guilt, because there is no longer a prospect that they will be convicted on the charge (see generally pp. 910-11).
[69] That said, there remains a perception in some quarters that an acquittal removes more stigma associated with the criminal charge than a stay (see Lamer, at p. 319; Roach, at pp. 210-13; see also Truscott, at para. 265). As the intervener Innocence Canada puts it, “the stigma probably never disappears completely, but a court-entered acquittal will go a long way” (I.F., at para. 15). Unlike an acquittal, a judicial stay says nothing of the court’s view of the merits of the case (Jewitt, at p. 148), not even that the Crown has failed to prove its case beyond a reasonable doubt. This difference means it is incumbent on the appellate court to carefully consider whether an acquittal is warranted in every case where a conviction has been quashed. This is true even where there are grounds for a judicial stay, so as to ensure unwarranted stigma does not attach to the accused once the proceedings have ended. This explains the notion, on which there is no dispute here, that an appellate court should first consider grounds for acquittal before deciding whether lesser remedies are available on other grounds (see S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 584, fn. 104, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 540).
[70] Courts must be equally careful to enter acquittals only in appropriate cases, so as to avoid distorting their meaning and thereby dulling any stigma-reducing effect. If appellate courts routinely rendered judgments saying there was a prospect of a conviction at a new trial, but entered an acquittal notwithstanding, it would undermine the idea that an acquittal means that the Crown has failed to make out its case on the evidence — a meaning that is said to drive the difference in stigma distinguishing the acquittal from a judicial stay in the first place. Given that “[t]here are not different kinds of acquittals” (Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, at p. 825), the unsettling impact could be felt across all contexts, including when acquittals are entered at first instance. The court continues extensively [at paras 71-103] to elaborate on the related themes.
. R. v. W.W.
In R. v. W.W. (Ont CA, 2025) the Ontario Court of Appeal allows a Crown criminal appeal, here from an acquittal from a CCC 171.1(1)(b) charge of "transmitting sexually explicit material to a person the respondent believed to be under the age of 16 years for the purpose of committing either sexual assault (s. 271) or exposing one’s genital organs to a person under 16 years of age (s. 173(2))".
Here the court considers the remedy in this case:[73] Exercising this court’s jurisdiction under s. 686(4)(b)(ii) of the Criminal Code, to set aside an acquittal and enter a conviction, should be done in only the “clearest of cases”: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 48. These rare cases arise where “the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt”: R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 50. The ultimate question is whether, after removing the legal error, the trial judge made all of the findings necessary to support a verdict of guilt, whether those findings were implicitly or explicitly made: R. v. A.E., 2022 SCC 4, [2022] 1 S.C.R. 20, at para. 2; R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, at pp. 354-55; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 30; see also, Lutoslawski, at para. 1. . R. v. Snowden
In R. v. Snowden (Ont CA, 2023) the Court of Appeal considered the criminal law of appellate remedies:I. THE REMEDY
[120] The Crown submitted that, if successful on this appeal, a new hearing under Part XXIV should be ordered. This is due to the fact that, after determining the SPIO issue, the sentencing judge did not consider the further criteria in s. 753(1)(a) and (b).
[121] Typically, appellate courts have no power to remit a case back to the sentencing judge for a new hearing or further consideration: see R. v. Abdelrazzaq, 2023 ONCA 231, at para. 5. Section 687(1) of the Criminal Code empowers the court to either allow the appeal and “vary the sentence within the limits prescribed by law”, or dismiss the appeal.
[122] Appeals taken under Part XXIV are different. Section 759(3) provides:(3) The court of appeal may
(a) allow the appeal and
(i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or
(ii) order a new hearing, with any directions that the court considers appropriate; or
(b) dismiss the appeal. [Emphasis added.] [123] This is an appropriate case in which to order a new hearing. I have identified the legal error in the sentencing judge’s interpretation of an SPIO, turning on the causation issue. But this marks only the beginning of the required analysis. Sentencing judges must then engage in a qualitative analysis of the manner and circumstances in which the predicate offences were committed, as discussed above. This is a factual inquiry, best left to a judge of first instance for determination.
[124] Moreover, given her conclusion on the SPIO issue, the sentencing judge, understandably, did not address the other criteria in ss. 753(1)(a) and (b). These too must be addressed at the new hearing, not for the first time on appeal.
[125] Lastly, it was somewhat less than clear what items of child pornography in the representative sample applied to which offence committed by the respondent – in particular, which formed the making available offence. This may need to be qualified in order to permit the contextual analysis that is required.
[126] If it is feasible, the case should be remitted back to the same sentencing judge. She has already considered the voluminous evidence adduced at the hearing, and has made certain factual findings, including some relating to credibility. With the cooperation of the parties, significant efficiencies might be achieved before the same sentencing judge.
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