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Criminal - Jury - Directing a Verdict. R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court considers the appellate SOR for a jury issue of directed verdict:(4) Standard of review
[33] There is no dispute about the standard of review on an appeal from a directed verdict and the applicable analysis on a directed verdict motion.
[34] The Crown may appeal a directed verdict of acquittal on a question of law alone, pursuant to s. 676(1)(a) of the Criminal Code. The standard of review on an appeal from a directed verdict of acquittal is correctness: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at paras. 1-4. Further, whether an included offence arises on the evidence and should have been left to the jury is also reviewable on a correctness standard: R. v. Doxtator, 2022 ONCA 155, 161 O.R. (3d) 81, at para. 25, rev’d but not on this point, 2022 SCC 40 (Richard Doxtator) and leave to appeal refused, [2022] S.C.C.A. No. 121 (Jasmine Doxtator).
[35] In considering whether to grant a directed verdict of acquittal, a trial judge must consider whether there is any evidence upon which a reasonable jury, properly instructed, could render a guilty verdict. Where the evidence includes circumstantial evidence, the trial judge must engage in a limited weighing of the circumstantial evidence in order to determine what reasonable inferences may be drawn from it (in the context of the evidence as a whole). In engaging in this task, the judge does not assess credibility, but rather, considers whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-23. . R. v. Singh
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where the question (and answer) is "can a judge, as the trial judge did here, direct a verdict of guilt? The answer is no.":[1] This appeal raises one question: can a judge, as the trial judge did here, direct a verdict of guilt? The answer is no. Even when the chance of an acquittal is remote, an accused is entitled to the jury’s verdict. I would therefore allow this appeal and order a new trial with respect to the offence for which the trial judge directed a guilty verdict. The following reasons explain why I have reached that conclusion.
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[14] In R. v. Krieger, 2006 SCC 47, 272 D.L.R. (4th) 410, at para. 18, a unanimous Supreme Court held:It is true, of course, that the fate of the accused will often be sealed by their own testimony and admissions, or by the concessions and submissions of their counsel. But absent a plea of guilty, the need for a verdict remains. And in a trial by judge and jury, the verdict must be that of the jury, not the judge – unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground. [Emphasis added.] [15] While a trial judge may direct an acquittal when there is no evidence upon which a reasonable jury, properly instructed, could convict, “there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty”: R. v. Gunning, 2005 SCC 27, 253 D.L.R. (4th) 76, at para. 28.
[16] The appellant put his fate in the hands of the jury, and even though the evidence against him was overwhelming (on the count for which the trial judge entered a conviction), he was entitled to their verdict. He was deprived of that.
[17] The trial judge could have instructed the jury that they “should find” or “should have no difficulty finding” the appellant guilty of the lesser included offence. Instead, he himself made the finding of guilt thereby removing the question entirely from the jury. And Krieger tells us that this is problematic because, while a lawyer, as an officer of the court, cannot encourage jury nullification by inviting jurors to not follow the law as it has been explained to them, it is “well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law – but they do have the power to do so when their consciences permit no other course”: Krieger, para. 27 [emphasis removed].
[18] The Crown relies on this court’s decision in R. v. MacDonald, 2008 ONCA 572, 92 O.R. (3d) 180. In MacDonald, the appellant, charged with murder, “clearly and repeatedly admitted his culpability on the charge of manslaughter” and wanted the jury to specifically find him guilty of either second degree murder or manslaughter. What distinguishes MacDonald from the present appeal is that Mr. MacDonald “did not want a verdict of acquittal left with the jury because that suggestion would run at cross purposes to his attempt to gain a tactical advantage by presenting himself as a ‘stand up’ person prepared to acknowledge and take responsibility for the wrong he had done”: MacDonald, at para. 33. In other words, the trial judge in MacDonald was entitled to take the verdict of acquittal away from the jury because doing so reflected the accused’s position at trial and respected his right to control his own defence. The appellant in this case made no such tactical decision.
[19] Nor does R. v. Scordino, 2025 ONCA 12, where the trial judge removed manslaughter from the jury’s consideration, assist the Crown. While there is a lengthy discussion about a trial judge’s power to not instruct on an included offence, Scordino does not stand for the proposition that judges can direct verdicts of guilt; the ratio is that “only [a] jury may determine that the essential elements [of an offence] have been proven”, a boundary that “must be strictly observed”: at para. 8.
[20] The question is always whether the verdict of guilt that was rendered was the jury’s verdict. Here it was not. Accordingly, it cannot stand.
[21] The Crown’s alternative argument is that in the event we find that the trial judge erred, the error had no bearing on the outcome as the result, absent the error, would have inevitably been the same. In other words, the evidence against the appellant was overwhelming.
[22] Section 686(1)(b)(iii) of the Criminal Code permits an appellate court to dismiss an appeal, even when errors were committed in the court below, if the court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”. But even when the chance of acquittal is remote, an accused is still entitled to the jury’s verdict (R. v. Allen, 2007 ONCA 790, at para. 5), which means the proviso has no application in circumstances like these. As Fish J. wrote in Krieger, at para. 25:[L]ittle needs to be said about the proviso set out in s. 686(1)(b)(iii) of the Criminal Code. That provision may perhaps be applied where there has been an imperfect trial by jury but not where, as here, there has in effect been no trial by jury at all. [23] At the end of the day, while the appellant was entitled to a jury trial on the two counts charged in the Indictment, with respect to the count alleging that he had obtained sexual services from an adult for consideration, he did not get that trial.
[24] This case is distinguishable from Scordino, where this court applied the curative proviso to maintain the jury’s finding of guilt on first degree murder. In Scordino, the trial judge erred by directing the jury to answer “yes” to the question of whether the accused had the state of mind for second degree murder if they were to find that he was the shooter. Notwithstanding the error, this court applied the proviso because the jury had separately concluded that the killing was planned and deliberate which rendered the error “harmless in the sense that it could not have affected the verdict”: para. 52. This is very different from the circumstances in the present appeal, where the jury acquitted the appellant on the two counts charged and were not asked to make a finding on the included offence. Put another way, unlike in Scordino, the issue confronting us is not whether an error impacted the jury’s verdict; it is that the jury did not render a verdict at all. Again, the proviso has no application in a situation like this.
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