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Criminal - Ministerial Reviews. 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.
The case centers on the non-disclosure by police of a taped conversation with a now-deceased further suspect, which the court now finds to be a miscarriage of justice:[12] For the reasons that follow, we admit the fresh evidence. We agree that the conviction must be quashed on the basis of the non-disclosure of the Raymer tape, but conclude that an acquittal is not an appropriate remedy. As we explain, we decline to grant an acquittal because: (1) a properly instructed jury, acting reasonably, could convict the appellant; (2) it is not clearly more probable that the appellant would be acquitted at a hypothetical new trial; and (3) there is no other basis upon which to grant an acquittal. Central to our decision not to acquit are the appellant’s confession to the murder, the equivocacy of the Raymer tape, and the fact that the appellant’s DNA has since been found on the shirt Darla died in. Also key to our decision not to acquit is our conclusion that the appellant has failed to demonstrate that the police were engaged in a conspiracy. Instead, we order a new trial, in keeping with the appellant’s position that a new trial would be preferable to a judicial stay of proceedings.
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3. The ministerial review and referral
[82] In January 2018, Innocence Canada filed an application for ministerial review of the appellant’s conviction for second-degree murder pursuant to s. 696.1 of the Criminal Code. The review was predicated upon the alleged non-disclosure of information.
[83] In August 2023, outgoing Minister of Justice David Lametti, supported by incoming Minister of Justice Arif Virani, advised that they were satisfied that there was a reasonable basis to conclude that a miscarriage of justice likely occurred and referred the matter to this court pursuant to s. 696.3(3)(a)(ii) for a “new appeal from conviction.”
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A. Quashing a Conviction Because of a Miscarriage of Justice
1. The statutory scheme for quashing a conviction
[95] As noted, this appeal comes back to this court by way of a ministerial reference pursuant to s. 696.3(3)(a)(ii) of the Criminal Code. That provision allows the Minister to send an appeal back where there is a “reasonable basis to conclude that a miscarriage of justice likely occurred.” The appeal is to be treated “as if it were an appeal by the convicted person.” In other words, the appeal is to be treated in the normal course, as if it were a “normal” appeal from conviction, carried out in compliance with the statutory provisions of Part XXI of the Criminal Code. Those provisions guide this court as to the procedural, substantive and remedial powers available: Truscott, at para. 70.
[96] Given the appellate nature of the proceeding, the appellant carries “the burden of demonstrating based on evidence admitted on this Reference that there has been a miscarriage of justice”: Truscott, at para. 74; R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 71. An appellant “also bears the onus of establishing any factual assertions that are material to arguments advanced in support of a motion to adduce fresh evidence”: Truscott, at para. 75; Phillion, at para. 71.
[97] This court’s powers on a conviction appeal are set out in s. 686(1) of the Criminal Code. Section 686(1)(a)(iii) allows the court, on an appeal from conviction, to allow an appeal where it is of the opinion that there has been 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; [Emphasis added.] [98] Section 686(2) of the Criminal Code dictates that where an appeal is allowed on these grounds, it is mandatory to quash the conviction:686 (2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction … [Emphasis added.] [99] In the words of the majority in Bouvette, when an appeal has been allowed under s. 686(1)(a), the court of appeal must, “looking backwards”, quash the conviction: at para. 54.
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3. The conviction must be quashed
[155] For these reasons, we accept the Crown concession, based upon the Raymer tape alone, that there was non-disclosure and that there exists a reasonable possibility that the non-disclosure impacted the overall fairness of the trial process. This was a miscarriage of justice and requires that the appellant’s conviction be quashed. . R. v. Rees [consideration of acquittal]
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.
The court considers acquittal as an appellate remedy after finding a miscarriage of justice, here in this historical appeal context:C. An Acquittal Is Not Appropriate
[200] Should the appellant be acquitted? The short answer is “no” because: (i) a properly instructed jury, acting reasonably, could convict the appellant; (ii) it is not clearly more probable that the appellant would be acquitted at a hypothetical new trial; and (iii) there is no basis upon which to exercise our residual discretion.
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2. An acquittal is not appropriate under Truscott
a. The Truscott framework applies in this case
[242] In Truscott, this court held that it was in the interests of justice to deviate from the usual approach to remedy. As the court noted: “[t]he remedial discretion in s. 686(2) is sufficiently broad to permit resort to a more vigorous review of the evidentiary record in those cases where that approach is required in the interests of justice”: at para. 259. Instead of asking whether a reasonable jury could convict on the trial evidence, as augmented by the fresh evidence on appeal, the court may instead engage in a hypothetical new trial to determine if it is “clearly more probable than not that the appellant would be acquitted at a new trial”: at para. 268.
[243] Once the decision to quash a conviction is made on the basis of some fresh evidence admitted on appeal under the test from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, (in this case, the Raymer tape), it is no longer necessary to determine whether the rest of the evidence meets the Palmer criteria: Truscott, at para. 270. The focus instead shifts to remedy and how all of the new evidence could reasonably be expected to affect the respective cases of the Crown and defence at a new trial.
[244] In this context, the fact-finding power of this court is limited to interpretations of the material and inferences to be drawn from facts that are not only reasonable but that are readily available from the material: Truscott, at para. 278. Speculation must be avoided and a cautious approach taken: at para. 278.
[245] Before engaging in the hypothetical new trial analysis, it is necessary to first address the Crown’s argument that resort to such an analysis is not appropriate in this case.
[246] In the Crown’s submission, the Truscott framework “should be reserved for the most exceptional of cases”, ones that involve: (1) extraordinary prejudice suffered; (2) a sufficient appellate record on key issues; (3) fresh evidence that unambiguously and substantially weakens key pillars of the Crown’s case; and (4) no forum better placed than the appeal court to assess culpability. The Crown maintains that only where these “preconditions” are met may an appeal court engage in a hypothetical new trial. According to the Crown, “the exceptional threshold requirements for [the appellant] to access the Truscott framework are not satisfied” in this case.
[247] There is no question that, “[i]n a routine appeal, if a conviction would be a reasonable verdict on a retrial, the court should remit the matter to the trial court for that retrial”: Truscott, at para. 258. Both the majority and minority in Bouvette agree with that proposition: see paras. 76, 197.
[248] It is only where a case falls “outside of the norm” that a more vigorous review of the evidentiary record may be appropriate “in the interests of justice”. Truscott, at para. 259. Here, the Crown asks us to clarify when a case will fall “outside of the norm”.
[249] It is important, in addressing this issue, to distinguish between two different questions: (1) when is it appropriate to engage in a more vigorous review of the evidence in accordance with Truscott? and (2) when is it appropriate to grant an acquittal, even though it is possible a reasonable jury could convict? As illustrated below, these are two different questions, and a more vigorous review of the evidence, assuming one is appropriate, will not always result in the conclusion that an acquittal should be ordered.
[250] In considering when it is appropriate to engage in a more vigorous evidentiary review, we are alive to the majority’s caution in Bouvette, that “inquiring into whether it is more probable than not that an acquittal would result at a retrial looks very much like the substantive weighing that is squarely within the competence of a trial court”: at para. 96.
[251] Indeed, in Truscott, this court recognized “the limits of appellate review”, but concluded that “[f]airness to the appellant dictat[ed] that this court should … endeavour to bring this matter to a conclusive end”: at para. 266. The court also recognized that a hypothetical new trial could be viewed as “artificial and speculative”: at para. 278. Without a doubt, “an actual new trial would be preferable to this process”: at para. 278. That, however, was not an option. In the “unique circumstances” of the case, the court determined the appropriate remedy by envisioning how a hypothetical new trial would proceed in light of the entirety of the new information that was before the court: at para. 268.
[252] We note that, in Truscott, the court did not depart from the usual approach to remedy simply because the case involved a miscarriage of justice. Rather, the court took into account other factors that made the case “far from a routine appeal”: at para. 260. In other words, the court signaled that it will not be in every miscarriage of justice case that it is appropriate to apply a different analytical approach to remedy.
[253] In this case, there is an extensive record before this court, including the original trial record and a significant amount of new evidence. The appellant’s primary argument is that he is entitled to an acquittal based on a Truscott analysis. Although the Crown disagrees that it is appropriate to engage in such an analysis, the Crown fully engaged on that issue as well. The appellant, through no fault of his own, was denied a fair trial and therefore suffered a miscarriage of justice. It is clear that no new trial will ever occur because the Crown concedes that it would be unfair to retry the appellant.
[254] In our view, and for all of those reasons, this is a case that falls “outside of the norm” and, therefore, it is appropriate, in the interests of justice, to engage in a Truscott analysis and apply the “clearly more probable than not” test. ....
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