The Crown’s heavy burden on appeal of an acquittal

When the suspect of a crime is a stranger to the victim, a common police technique is to conduct a photo line-up, in which the complainant attempts to identify his attacker among a series of individuals who may match the suspect’s description given to the police.

“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^[1].”

Nolet c. R., 2021 QCCA 166

The facts

At trial, a Municipal Court judge excluded a photo of the accused’s driver’s license obtained in violation of the Canadian Charter of Rights and Freedoms. This photo was the one used in the photo line-up. The judge believed that the identification made at trial had been contaminated by this photograph and that there was a reasonable doubt as to the identity of the assailant. She, therefore, acquitted the accused.

The prosecution appealed the case, and the Superior Court ordered a new trial, finding that the trial judge had erred in excluding the photo obtained from the accused’s driver’s license. This decision was subsequently appealed again before the Quebec Court of Appeal by the accused.

The judgement

The Court of Appeal overturned the Superior Court’s decision and acquitted the accused. The Court of Appeal noted that when the prosecution appeals an acquittal, it bears a particularly heavy onus to prove that the error made at trial had a significant impact on the verdict. In this case, the decision of the Municipal Court judge regarding the exclusion of the photograph from the driver’s license had no influence on the verdict. Indeed, the trial judge still retained a reasonable doubt as to the identification of the assault, as the complainant as well as an eyewitness indicated that they were not completely certain that the accused was the aggressor.

This case illustrates the burden on the prosecution when appealing a verdict of acquittal. It is not sufficient to show that the trial judge erred in law, the prosecution must also show that there is a “reasonable degree of certainty” that his error may have influenced the result.