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Criminal - Appeal - Standard of Review. R. v. Rioux
In R. v. Rioux (SCC, 2025) the Supreme Court of Canada dismissed a criminal defendant's appeal, this brought against a successful Crown appeal for sexual assault at the Quebec CA, that brought by the Crown against an acquittal.
Here the court considers the meaning of error of law and mixed errors of fact and law:[43] .... What amounts to an error of law alone is based on the character of the error, rather than on its severity (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17; Hodgson, at para. 33).
[44] Sometimes, questions of law are clearly identifiable, for example, where a purely legal conclusion is drawn from the evidence, without putting the evaluation of the evidence into question (M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2025 (32nd ed. 2025), at para. 51.56). They may also arise where “the trial judge finds all the facts necessary to meet the test but errs in law in its application” (R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 11).
[45] In other cases, parsing questions of law from questions of fact or mixed fact and law is more complex. Legal errors of this nature may arise where there is “an assessment of the evidence based on a wrong legal principle” (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 28-30; Chung, at para. 11). To help identify questions of law alone, J.M.H. sets out four non-exhaustive grounds where “shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal” (para. 24). In the court below in the present case, the Crown argued that the trial judge failed to consider all the evidence in relation to the ultimate issue of guilt or innocence. The dissenting judge concluded, contrary to the majority, that the trial judge properly considered all the relevant evidence [translation] “but found that the probative value of the respondent’s testimony, which he believed, nevertheless allowed him to acquit” (para. 67).
[46] Even in the presence of one of these errors, acquittals are not to be overturned lightly (see Hodgson, at para. 36; R. v. Cowan, 2021 SCC 45, [2021] 3 S.C.R. 323, at para. 46). The Crown must “convince the appellate court, to a reasonable degree of certainty, that the verdict of acquittal would not necessarily have been the same had the error not occurred” (Hodgson, at para. 36, citing R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 15). The burden on the Crown is onerous (see Hodgson, at para. 36; Graveline, at paras. 14-15 and 19, quoting R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 (“Morin 1988”), at p. 374; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2). . R. v. Othman
In R. v. Othman (Ont CA, 2025) the Ontario Court of Appeal simply stated the criminal SOR for questions of law:(i) The Standard of Review
[43] The decision whether to put a defence to the jury is a question of law, reviewable on a standard of correctness: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 55.
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