Trial judges and juries do not always come to a decision that is considered to be “just” the first time around. Therefore, the accused and the Crown have a right to appeal the decision to a higher court. But what happens when an accused is acquitted of the charges they were facing, and the Crown appeals the acquittal to try and return a verdict of guilty?

A court of appeal can allow an appeal and make a different ruling, where (1) the result of the trial is unreasonable and cannot be supported by the evidence or (2) the trial judge made a mistake in terms of the law or (3) a substantial wrong or injustice has occurred. However, if a trial court has committed an error but the court of appeal is of the opinion that no substantial wrong or injustice has occurred, the court may dismiss the appeal.

How does the criminal justice system try and ensure that the accused is not being tried twice for the same offence? The Crown cannot use an appeal to put forward a different case than it did at trial. Furthermore, the Crown cannot make an intentional decision to not admit certain evidence that was available at trial in order to be able to appeal. If new evidence surfaces, an application to admit fresh evidence must be made. The accused, on the other hand, is not bound by the trial court’s reasoning and may attempt to defend and justify the acquittal in any manner they see fit.

The Crown has the burden of proving that the verdict would not have been the same due to an error in the way the law was applied or based on the fact that all findings, which support a verdict of guilty, were not made by the trial court. To succeed on appeal where there is a jury, the Crown has the burden of proving that the result of the case would not have been the same if the trial judge had properly directed the jury before they came to their decision.

Where the Crown meets this burden, the court of appeal may order a new trial. Alternatively, where the trial was composed of a judge and jury, the court of appeal can enter a verdict of guilty and either establish a sentence itself or return the matter to the trial court to impose a sentence. The court of appeal also has the authority to order the trial court to continue the trial where a “stay of proceedings” has occurred (a stay of proceedings is like an acquittal, but it results from an abuse of process, including abuse by law enforcement or abuse by the criminal justice system in not hearing the case in a reasonable amount of time).

If you or someone you know is facing an appeal by the Crown, or would like to appeal a conviction, call us – 519.204.7966. We will use our expertise to fight for the fairest outcome possible.