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Criminal - Appeals - New Trial. R. v. Pan [where associated counts]
In R. v. Pan (SCC, 2025) the Supreme Court of Canada dismissed a Crown criminal appeal, here from an Ontario Court of Appeal set aside of convictions for first degree murder, and the ordering of a new trial for associated counts [under s.686 'Powers of the Court of Appeal']:(b) Principles Governing New Trials for Associated Counts
[98] An appellate court’s power to order a new trial originates in statute. The relevant statutory provision is s. 686(1) and (2) of the Criminal Code, which reads as follows: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;
...
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered; or
(b) order a new trial. [99] Section 686(1)(a) authorizes an appellate court to allow an appeal and set aside a verdict if the appellant can show that it was unreasonable or cannot be supported by the evidence, that an error of law was made, or that a miscarriage of justice occurred. In Tayo Tompouba, this Court identified the principle underlying each of these three grounds of appeal, at para. 54:... a court of appeal can generally intervene only where the error was prejudicial to the accused. Otherwise, it is an error without legal consequence, except in cases where the error, without causing direct prejudice to the accused, is so serious that it shakes public confidence in the administration of justice .... [Citations omitted.] [100] Section 686(1)(a) is set out in broad terms to capture any verdict rendered in a manner that was truly unfair to the accused. However, appellate intervention is not unbounded. There is no authority for appellate courts to interfere with a verdict that is unaffected by error and untarnished by a miscarriage of justice (Tayo Tompouba, at para. 56). It is a basic rule, fundamental to our system of adjudication, that appellate courts do not disturb jury verdicts that are both reasonable and fair.
[101] As discussed above, the respondents correctly point out that failure to leave an included offence with the jury is an error of law that triggers appellate intervention under s. 686(1)(a)(ii) (Sarrazin, at para. 65). A conviction on any count that is materially impacted by that error should be set aside. Indeed, there will be situations where a failure to leave an included offence in respect of one count materially impacts not only that count but also an associated one. In such cases, it will be appropriate to set aside both verdicts and order new a trial on each count.
[102] In Ronald, for example, two co-accused, Ms. Ronald and Mr. Gill, were charged with the first degree murder of the victim, Mr. Gill’s wife. The Crown’s theory was that Mr. Gill was involved in the planning but that Ms. Ronald alone committed the killing. The Court of Appeal held that the trial judge erred by failing to leave second degree murder open as a possible verdict for Ms. Ronald because there was an air of reality to the theory that she committed the murder without having planned to do so with Mr. Gill.
[103] The Court of Appeal correctly ordered a new trial both for Ms. Ronald and for Mr. Gill, because on the alternative theory where the killing was unplanned, Mr. Gill was innocent. Therefore, in effect, the jury had been deprived not only of a valid pathway to conviction on a lesser included offence for Ms. Ronald but also of a valid pathway to an acquittal for Mr. Gill. This was a case in which both convictions were materially impacted by a legal error made in respect of instruction on only one of them.
[104] However, in cases where there are convictions that are left unaffected by a legal error, the risk of inconsistency as a result of ordering a new trial on the affected count is not in itself a valid basis for ordering a new trial on the unaffected count.
[105] The issue of factual inconsistency across separate trials has arisen several times in cases where co-accused are tried separately with different results. In Rémillard v. The King (1921), 1921 CanLII 584 (SCC), 62 S.C.R. 21, this Court addressed whether it is possible for a principal to be convicted of a lesser offence than a party at two separate trials. The Court unanimously held that there was no inconsistency in those results. As Anglin J. explained:The fact that in another trial another jury passing upon evidence which may have been somewhat different decided that the offence committed by Roméo Rémillard in killing Lucien Morissette amounted only to manslaughter is wholly irrelevant to the question whether Joseph Rémillard could rightly be put on trial for, and could upon proof that he had aided, abetted or instigated, the homicide, be convicted of murder. As between Romeo Rémillard and the Crown the verdict of the jury who tried him is no doubt conclusive as to the nature of his crime. As between Joseph Rémillard and the Crown it determines nothing. The character of the offence actually committed by each must be decided by the jury charged with the disposition of the indictment against him. [pp. 23-24] Rémillard is binding authority for the proposition that two verdicts across separate trials, though factually inconsistent, cannot be considered legally inconsistent.
[106] Jennifer argues that Rémillard is distinguishable and instead relies on this Court’s decision in R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074. In that case, two co-accused, Mr. Nygaard and Mr. Schimmens, were charged with first degree murder. Having found a legal error relating exclusively to Mr. Schimmens’ alibi defence, the Court concluded that both accused had to have a new trial:If Nygaard did not also have a new trial, the incongruous and unacceptable result might be that Schimmens, the prime mover in the crime, was found guilty of second degree murder while Nygaard, the party to the crime, was found guilty of murder in the first degree. [p. 1094] [107] A similar issue was taken up two years later in R. v. Hick, 1991 CanLII 47 (SCC), [1991] 3 S.C.R. 383. There, two co-accused, Mr. Hick and Mr. Marshall, were charged with unlawful confinement and sexual assault. Mr. Hick entered a guilty plea upon an indictment alleging commitment of the offence of unlawful confinement, while Mr. Marshall went to trial, where he was acquitted of both counts. At issue was whether Mr. Hick should have been entitled to withdraw his plea in light of Mr. Marshall’s acquittal. Citing Rémillard, this Court held that he could not, as “the jury verdict is only conclusive as between the Crown and the accused at that trial” (p. 386).
[108] In my view, Rémillard and Hick articulate the correct legal principles. To the extent that it is inconsistent, Nygaard should not be followed because it was decided per incuriam. A decision is made per incuriam, or by inadvertence, when it fails to consider a relevant statute or binding authority (see R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77). For a decision to be overturned on the basis that it was made per incuriam, it is not enough to point to an authority that is missing from the reasons. The inadvertence must “have struck at the essence of the decision” (para. 77). In other words, “it must be shown that the missing authority affected the judgment” (ibid., citing M. Rowe and L. Katz, “A Practical Guide to Stare Decisis” (2020), 41 Windsor Rev. Legal Soc. Issues 1, at p. 19).
[109] The Court in Nygaard did not reconcile its decision with Rémillard, which was binding authority. Had the Court in Nygaard considered the legal constraints imposed on it by Rémillard, it would have reached a different result; it could not have concluded that Mr. Nygaard had to receive a new trial solely because his co-accused Mr. Schimmens was to receive one. To the extent that Nygaard stands for the proposition that a party must receive a new trial solely because the principal offender has received a new trial, it should not be followed.
[110] This conclusion brings the common law into conformity with s. 23.1 of the Criminal Code, which was enacted prior to the Court’s decision in Nygaard but after the offence in that case was committed. Section 23.1 states that ss. 21 to 23, which are provisions on party liability, apply to an accused “notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence”. The enactment of s. 23.1 put to rest any argument that a party must receive a new trial solely because the principal will receive a new trial.
[111] A jury’s factual findings at a trial are confined to that trial because they are wholly dependent on, and inextricable from, the evidence and argument at that trial (Rémillard, at pp. 23-24; Hick, at p. 386; R. v. Chol, 2021 BCCA 279, 73 C.R. (7th) 78, at para. 31). Parties make tactical decisions about what evidence to adduce, how to frame it, and what theories to argue. It is a necessary feature of our system of justice that different trials may yield results that imply different factual findings. This follows directly from the fact that innocence is presumed and that this presumption can be rebutted only through evidence properly adduced at the trial in which a person’s guilt is considered.
[112] In sum, there is no statutory authority for an appellate court to order a new trial solely to pre-empt the risk of factually inconsistent verdicts sometime in the future, nor would such an order be appropriate in any event. As a basic principle, appellate courts do not disturb validly rendered, untainted jury verdicts. . R. v. Whatcott
In R. v. Whatcott (Ont CA, 2023) the Court of Appeal considered (and allowed) a Crown appeal from an acquittal for a 'willfully promoting hatred' charge [under CCC 319(2)].
Here the court sets out the criteria for a new criminal trial:[81] To obtain a new trial, the appellant must demonstrate with a reasonable degree of certainty that the verdict would not necessarily have been the same if the legal error had not been made. Although the onus on the appellant is a heavy one, it need not prove the verdict would necessarily have been different. The appellate court must be satisfied that the trial judge’s error might reasonably, in the concrete reality of the case, have had a material bearing on the acquittal: see R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 27, citing R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609, at paras. 14-15; and R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374).
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