Appeals by the Accused: Possible Outcomes

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 340-342

340 Post-trial Matters / Appeals

4.1(e) Appeals by the Accused: Possible Outcomes

Section 686(2) of the Criminal Code, RSC 1985, c C-46 [Code] permits a court of

appeal, following a successful appeal from conviction, to either order a new

trial or enter an acquittal. To a large extent, this is a discretionary decision,

but some rules have been laid down about how appeal courts should exercise

this discretion. This chart is presented in the form of a continuum, ranging

from cases where a new trial is very likely to be ordered, to more discretionary

areas, to those cases where an acquittal ought to be entered. See, generally, the

discussion in Steve Coughlan, Criminal Procedure, 3d ed (Toronto: Irwin Law,

2016) at ch 12, s B(1)(b)(vi), Consequences of a Successful Appeal.

A court of appeal is generally limited to choosing between ordering a new

trial or entering an acquittal. However, where there has been an abuse of pro-

cess, a court can order a stay of proceedings, and a court of appeal has access to

this remedy based on the power in s 686(8) of the Code to “make any order . . .

that justice requires”: see the discussion in Chart 4.1(b), Appeals by the Crown:

Possible Outcomes, note 3.

1. JUDGE-ALONE TRIAL — VERDICT UNREASONABLE/JUDGE-

ALONE TRIAL — VERDICT CANNOT BE SUPPORTED BY EVIDENCE

In R v Beaudry, 2007 SCC 5, and R v Sinclair, 2011 SCC 40, the Court reached

the conclusion that s 686(1)(a)(i), allowing for an appeal where a verdict “is

unreasonable or cannot be supported by the evidence,” should be understood

to set out two dierent tests in the case of a trial by judge alone, since a judge

— unlike a jury — will set out the reasons for the conviction: see Chart 4.1(d),

Appeals by the Accused: Narrowing the Bases for Success, note 1. If the judge’s

reasoning is illogical then the verdict is “unreasonable” and the appeal should

be granted even though the conclusion reached could have been reached in

Order a new trial Judge-alone trial — verdict unreasonable1

Unreasonable based on inconsistent verdicts2

Error of law/miscarriage of justice3

Fresh evidence but conviction possible4

Conviction possible but special circumstances5

Enter an acquittal Fresh evidence showing no reasonable jury could convict /

factual innocence4

Judge-alone trial — verdict cannot be supported by

evidence1

Jury trial — verdict unreasonable/cannot be supported6