Appeals by the Accused: Possible Outcomes

AuthorSteve Coughlan/Alex Gorlewski
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.
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
Jury trial — verdict unreasonable/cannot be supported6

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