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Criminal - Appeals - Remedy. 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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