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Criminal - Appeals - Remedy (2). R. v. Fitzpatrick
In R. v. Fitzpatrick (Ont CA, 2026) the Ontario Court of Appeal allowed two criminal appeals, one against a first-degree murder conviction and the other against a manslaughter conviction.
Here the court considered the appellate remedy of a new trial - which it holds can only be justified if the jury verdict was 'unreasonable':[69] As the Supreme Court observed in R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916, an error of law necessitates a new trial only “if there is legally admissible evidence on which a conviction could reasonably be based”. Accordingly, I must apply the well-established test for determining whether a verdict is unreasonable, which asks “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 34. The application of the test is not an opportunity for an appellate court to simply retry the case. The entirety of the evidence is reviewed “to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier-of-fact properly instructed and acting judicially could have convicted”: R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 3; R. v. Marrone, 2023 ONCA 742, 431 C.C.C. (3d) 330, at para. 30.
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[71] This evidence is entirely circumstantial. Thus, the question to be answered is “could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence?”: Mars, at para. 4.
[72] When a court assesses the reasonableness of a verdict based on forensic evidence, it must consider two questions: first, whether the whole of the evidence permits the inference that the forensic evidence was deposited in connection with the offence and not at some other time or place; and second, whether it would be open to the jury to conclude that the appellant’s guilt is the only rational conclusion available on the totality of the evidence or lack of evidence: R. v. Browne, 2021 ONCA 836, at para. 32. . R. v. Marshman
In R. v. Marshman (Ont CA, 2026) the Ontario Court of Appeal allows a Crown criminal appeal, here brought against acquittals for "making written child pornography[1] (s. 163.1(2)); distributing written child pornography (s. 163.1(3)); possession of written child pornography (s.163.1(4)); and two counts of child luring (s. 172.1(1)(b))".
The court considered the appellate remedial options of "substitution of convictions or the order of a new trial", here where 'entrapment' became an issue after the Crown's successful appeal:[61] I would allow the Crown’s appeal on all counts. However, this gives rise to the question of the appropriate remedy – the substitution of convictions or the order of a new trial. This is complicated by the respondent’s position that, if the Crown’s appeal is allowed, a new trial should be ordered so that he may raise the issue of entrapment. As the respondent was found not guilty at trial, the issue was not litigated.
[62] Section 686(4)(b)(ii) of the Criminal Code permits this court to set aside acquittals and enter guilty verdicts on an appeal from a judge alone trial if, but for the trial judge’s errors in law, guilt would have been proven beyond a reasonable doubt: R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at paras. 86-87.
[63] The Crown asks us to set aside the acquittals, enter findings of guilt on all counts, and remit the case to the trial judge to consider the entrapment issue. This was the approach in R. v. Braithwaite, 2023 ONCA 180. In that case, the appellant was convicted at trial but did not advance the issue of entrapment. However, this court accepted the submission that the Supreme Court of Canada’s decision in R. v. Ramelson, 2022 SCC 44, [2022] 3 S.C.R. 450, “provides more detailed guidelines concerning the propriety of online sting operations than were previously in place”: Braithwaite, at para. 10. This court quashed the conviction and ordered a new trial limited to the entrapment issue, citing R. v. Pearson, 1998 CanLII 776 (SCC), [1998] 3 S.C.R. 620, at para. 16.
[64] I would make the same order in this case with respect to all counts. I have explained above why I would set aside the acquittals. Moreover, the evidence establishes beyond a reasonable doubt the preconditions for liability for all of the offences with which the respondent was charged. Accordingly, I would enter findings of guilt. As the record before this court is insufficient for the purposes of adjudicating the entrapment issue, I would order a new trial on all counts restricted to the issues of entrapment and sentencing.
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