Canadian Criminal Procedure and Practice/Trials/Verdicts

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Introduction[edit]

The judge's duty is to render a verdict on the charges. The verdict must be either a finding of guilt, stay of proceedings, or acquittal.

The judge has the ability, where the evidence does not make out the actual charge, to convict for included offences to the original charge under s. 662.

Finding of guilt[edit]

A finding of "guilt" is separate and distinct from a "conviction". It is only the finding of guilt which permits a judge to enter a conviction. A conviction is not however the only option of a judge, for example she may also consider a conditional stay of proceedings on the basis of the keinnapple principle. [1]

  1. R. v. Bérubé, 2012 BCCA 345 (CanLII) at para. 43 to 52

Kienapple principle against multiple convictions[edit]

The Kienapple principle prevents multiple convictions for a single criminal act.[1]

Before the court can consider the issue of Keinapple, the court must first be satisified that the crown has proven the offender had committed all of the offences at issue.[2]

The two part test is summarized as follows:

“there must be both a factual and legal nexus between the charges. Multiple convictions are only precluded under the Kienapple principle if they arise from the same ‘cause’, ‘matter’, or ‘delict’, and if there is sufficient proximity between the offences charged. This requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.”[3]

There must be a factual connection between the offences. The proven elements of the offence must arise out of the same underlying facts.

There must be a legal connection between the offences as well. The offence elements must have sufficient correspondence with each other. That is, they must be “substantially” the same.[4]

Keinnapple does not apply where it is contrary to the legislative intent of the offence provisions.

Where Keinapple applies, the offence which is conditionally stayed is the “lesser” of the two.[5]


  1. See Kienapple v. R., [1975] 1 SCR 729 [1] and R. v. Prince, [1986] 2 SCR 480 [2]
  2. R v Sullivan 1991 CanLII 85 (SCC), [1991] 1 SCR 489
  3. R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246 at p. 256
  4. R v Prince 1986 CanLII 40, [1986] 2 SCR 480 at 34
  5. R v JF 2008 SCC 60, [2008] 3 SCR 215

Conditional Stay[edit]

A conditional stay is a post-trial verdict for a charge which, on the evidence would amount to a conviction, but due to the barred by the rule against multiple convictions.[1] The stay is conditional until such time as the charge in which a conviction was entered is finally disposed of on appeal or the expiration of the appeal period.[2] If the an appeal is successfully made from conviction the conditional stay is dissolved allowing the court of appeal to remit the charge for trial once more.


  1. R v Provo 1989 CanLII 71 (SCC) at 21
  2. Terlecki [1985 2 SCR 483] at p. 529
    R v Jewitt, 1985 CanLII 47

Directed Verdict[edit]

A directed verdict is a defence motion, made at the closing of the crown's case but before the defence is to call any evidence, requesting the dismissal of the case on the basis that the essential elements of the offence are not made out. This is right of defence from the common law.[1] Historically, a successful directed verdict motion judge would literally direct a jury to enter a verdict of not guilty.[2] This has since been changed, and now does not involved the jury. It is simply a consider a motion for non-suit.[3]

The test to apply has been established in three cases.[4]

The test to be applied is from R v Monteleone, [1987] 2 S.C.R. 154, 1998 CanLII 819 at p. 161:

...Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

To put in more simply, the judge must determine "whether or not there is any evidence, direct or indirect, upon which a jury, properly instructed, could reasonably convict." The judge must be satisfied there is some evidence that establishes each constituent element of the offence[5]

Thus, the test requires that the judge not 1) weigh evidence, 2) test the quality or reliability of admissible evidence 3) draw inferences of fact. However, courts are allowed to do "limited weighing" of the evidence to assess "whether it is capable of supporting the inferences the Crown asks the jury to draw."[6]

A directed verdict will not be granted if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.[7] The motion for directed verdict should not be granted if there has been adduced admissible evidence which could, if believed, result in conviction. The Crown, in order to meet the test set out in Sheppard, must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.[8]

This test is the same test that is applied at the conclusion of preliminary inquiry.[9]

  1. R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333
    R. v. Rowbotham; R. v. Roblin, 1994 CanLII 93 (SCC), [1994] 2 S.C.R. 463 at p. 467
  2. R. v. Declercq, 2012 ABPC 147 at 4
  3. R v Declercq, supra and R. v. Rowbotham 1994 CanLII 93 (SCC), [1994] 2 SCR 463
  4. The United States of America v. Shephard, [1976] 30 C.C.C.(2d) 424 1976 CanLII 8;
    R v Monteleone, 1987 CanLII 16 (SCC), (1987), 35 C.C.C.(3d) 193 at p.161; and
    R. v. Charemski 1998 CanLII 819 (SCC), (1998), 123 C.C.C.(3d) 225
  5. R. v. Arcuri, 2001 SCC 54 (CanLII), [2001] 2 S.C.R. 828, at para 21
  6. R. v. Arcuri, 2001 SCC 54 at 1
    R. v. Beals, 2011 NSCA 42
  7. United States of America v. Shephard, 1976 CanLII 8, [1977] 2 SCR 1067
  8. R. v. Charemski, supra
  9. see R. v. Beals, 2011 NSCA 42 at 20
    The Preliminary Hearing uses the test from United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067 at 1080 ("Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.")

Reasons[edit]

See Canadian Criminal Procedure and Practice/Appeals#Insufficiency Reasons

Mistrial[edit]

A declaration of a mistrial "should only be granted as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned."[1]

The decision to grant an application for a mistrial is discretionary.[2]

An appellate court should only intervene where the decision "is so clearly wrong as to amount to an injustice". [3]

Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated.[4]

  1. R. v. Toutissani, 2007 ONCA 773 (CanLII) at para. 9
  2. R. v. Grant (I.M.), 2009 MBCA 9 (CanLII) at para. 69
  3. Grant at para. 69
  4. R. v. Lee, 2002 CanLII 8304 (ON CA)