Government appeal of an acquittal

On November 8, 2023, the Court Martial Appeal Court of Canada in H.M. The King v. Crouch, 2023 CMAC 11, in an opinion by Judge Elizabeth A. Bennett, dismissed a prosecution appeal of an acquittal. Excerpt:

[13] The Crown brings this appeal pursuant to s. 230.1(b) of the Act:

230.1 The Minister, or counsel instructed by the Minister for that purpose, has, subject to subsection 232(3), the right to appeal to the Court Martial Appeal Court from a court martial in respect of any of the following matters:

…

(b) the legality of any finding of not guilty;

[14] The Crown is limited to issues that raise a question of law alone. The parties agree that the grounds of appeal raise questions of law alone.

[15] The test on an appeal from an acquittal is not simply demonstrating that an error of law occurred. The Crown bears a heavy burden on an appeal from an acquittal. The Crown must satisfy this Court that any error (or errors) in the context of the case, might reasonably have a material bearing on the acquittal.

[16] The test has been framed in a number of ways, as noted by the majority in R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609 at paras. 14–16:

[14] It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[15] This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, [1949] S.C.R. 658), was explained this way by Sopinka J., for the majority, in R. v. Morin, [1988] 2 S.C.R. 345:

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374]

[16] Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated:

The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v. The Queen, [1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors not occurred. In R. v. Morin, [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2]

[Emphasis added.]

[17] The impact of the errors on the acquittal must not be a matter of speculation (Graveline at para. 17).