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Not long ago I learned that the Crown can appeal from verdicts of acquittal in Canada, unlike prosecutors in the U.S.

I once thought that the reason why U.S. judges cannot set aside a jury's verdict of acquittal is that it would violate a right to trial by jury, but law.stackexchange.com told me that that is not the reason; rather the reason was that double jeopardy is not allowed. If the U.S. sees an impermissible double jeopardy in the prosecution's appeal from a verdict of acquittal or in a judge's setting aside such a verdict, and Canada sees no impermissble double jeopardy in an appeal by the Crown, might Canada also see nothing impermissible in a judge's setting aside the acquittal verdict?

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  • Can you provide a link to an example case? It sounds like you're talking about the judge giving a directed verdict, which is something that the prosecution can appeal in the United States and is one of the few exceptions to double jeopardy in US Jurisprudence.
    – hszmv
    Jan 6, 2020 at 15:09
  • @hszmv : Assuming you mean a directed verdict of acquittal on the grounds that no reasonable jury could convict, are you saying prosecutors in the U.S. can appeal from that? Jan 6, 2020 at 22:02
  • @hszmv : To me that sounds as if the right to trial by jury is more what this is about that it is about double jeopardy, since a prosecutors appeal from a directed verdict of acquittal, after a jury has convicted a defendant, would not violate a right to trial by jury. Jan 6, 2020 at 22:04
  • @hszmv : As a non-lawyer I thought the reason why the prosecution cannot appeal from a jury's acquittal in the U.S. is that that would violate a right to trial by jury. But then a bunch of lawyers said: No, that's not the reason; the reason is a rule against double jeopardy. Then you come along and tell me that there's this particular EXCEPTION to the rule against double jeopardy. But if my original naive supposition were right, then this would not constitute an exception at all, since it does not violate a right to trial by jury. Thus Occam's razor seems to favor what I thought at first. Jan 6, 2020 at 22:12
  • Yes, the Prosecution can appeal any acquittal verdict that is a directed verdict of acquittal (there is no directed verdict of guilt). In the U.S., Directed verdicts hinge on questions of law, which is the judge's domain, and not questions of fact, which is the Jury's domain. So if the judge says for legal reasons, there is no way for a jury to find guilt, it's basically saying the judge won't hear something on that charge occurring during a trial... Thus the Jury won't be allowed to deliberate on the subject.
    – hszmv
    Jan 7, 2020 at 13:39

2 Answers 2

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Not generally. While double jeopardy considerations does not apply in Canada until the final verdict (i.e. all appeal processes have been exhausted by decision or failure to appeal within the time limit), the right to a jury trial for serious offences, both under the Constitution Act, 1982 (or the Charter, its bill of rights Part) and the Criminal Code (section 471, which not only makes the jury trial a right, but also the compulsory mode of trial unless both prosecutor and the accused consent), exist.

Under common law principles, the jury's verdict, in the fact-finding role exclusive to the jury, is almost sacrosanct. Even if in Canada an appeal court can set aside a jury's verdict of acquittal or conviction, they may only do so if there is a reviewable legal error (for appeals from the Crown and the accused), or if the verdict of conviction is plainly unreasonable and cannot be supported by evidence (or otherwise may constitute a miscarriage of justice).

In the first case, the reasoning is that the jury's verdict was defective due to e.g. insufficient or wrongful instructions, seeing evidences that should not have been admitted or failure to see evidences that should have been admitted.

In the second case, the appeal court acts as a safeguard, much like in the U.S., for the accused to prevent wrongful convictions however it may occur. Even then, the appeal court cannot in essence conduct a new trial from the appeal records and substitute its own factual findings for those made by a jury, unless it finds that no properly instructed jury can reasonably convict the accused based on the evidences presented (R. v. W.H.).

Now going back to what the trial judge can do after a jury's verdict. The proper course of action in case where the Crown's case cannot support a conviction is for the accused to seek a directed verdict before presenting any evidence. If the judge grants the motion, the judge (not the jury) enters a verdict of acquittal, which can be appealed for errors of law.

Otherwise, the trial judge has no capacity to usurp the fact finding role of the jury. The judge can, however, in exceptional circumstances, declare a mistrial or stay of the proceedings (i.e. the proceeding is concluded without a verdict, due to e.g. abuse of process by the state or other considerations to preserve the integrity of the justice system) following the jury's verdict.

All most all cases on this issue followed a verdict of conviction.

In one unusual case (R. v. Burke), a verdict of "acquittal" was involved. The verdict is in quotes because in this case, the court recorded a verdict of acquittal apparently contrary to the jury's intention, as the jury foreman had coughed before pronouncing "guilty as charged" and the judge (along with the court reporter, the prosecutor and the defence lawyer) misheard "not guilty as charged". After seeing the accused in the parking lot, some jury members were confused and returned to the court and reported the error. However, not all jury members could be immediately contacted and the jury had only reconvened in the court with the accused a couple days after the original verdict, and after some newspapers had reported on the situation. The trial judge decided to enter the intended verdict of "guilty". The accused appealed and the Supreme Court decided in this particular case that:

  • the trial judge can nonetheless exercise a limited jurisdiction after the jury's discharge;
  • the judge could enter the intended verdict if it did not give rise to a reasonable apprehension of bias;
  • in this case, due to the media reports and relatively long delay between the original verdict and the reconvening of the jury, which may have improperly influenced the jury, a mistrial should have been the appropriate remedy instead of entering the intended verdict.

On the appropriateness of a mistrial, the Supreme Court said

In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy.

This case does not directly apply to a case where the jury intended an acquittal, but the considerations may still be applied in extremely limited circumstances. While no one but the jury is privy to their deliberation process and no judge can overturn a jury's acquittal because they think the jury's verdict is unreasonable, it could be imagined that, for example, if a jury reports an acquittal and a member of jury before being discharged makes a claim of jury intimidation or the Crown presents clear evidence of jury manipulation, the trial judge might still have the authority to declare a mistrial. But this has not been clarified in jurisprudence.

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Double Jeopardy in the U.S. does have some exceptions to it, and this might not be impermissible in the United State. There's generally three exceptions, and I'll discuss from most common to least common. First, I'd like to clarify two things:

For my discussions the term "Event" will be used to indicate a specific alleged crime and will be specifically original with respect to alleged perpetrator, victim, and time, manner, and place involved in the crime.

In the U.S., Double Jeopardy is often best understood as a ban on the prosecution (state) from initiating the appellant process. They can only appeal subsequent decisions after the defendant appeals the initial case. The defendant will appeal a decision if they are found guilty, but would never appeal an acquittal. Since the prosecution cannot initiate appeals, the only time they will happen is following a guilty verdict. Double Jeopardy is also specific to one event. If Alice is acquitted of a charge of Murder for killing Bob, she cannot be tried for the murder of Bob ever again. She can still be prosecuted on a charge of Murder for killing Charlie as the two events are separate (by dint of the fact that the victims are different) and for perjury if she testified falsely to her innocence in killing Bob (i.e. new evidence brought to light would have convicted her after the fact). This is also a seperate event as the new trial is about whether she lied while under oath, not if she killed Bob.

That out of the way, in the U.S. there are three general exceptions:

  • Dual Sovereignty - Double Jeopardy only applies to a single court system, while all U.S. citizens are under at least 2 court systems jurisdictions at any time: Their State (or territorial) and the Federal Government while in U.S. Geographic Territory (and Embassies and overseas holdings). Typically the states prosecute most crimes first and the Feds will prosecute any related crimes second. If it's between two or more states, the Feds and all states party to the crime will have to negotiate, though typically the feds will defer to states first. If a state and the federal government have the same law, the feds may prosecute for the exact same crime regardless of outcome.

For example, suppose a man illegally crosses the Canadian Border into Montana and kills someone. The state of Montana can prosecute the illegal immigrant for murder and the U.S. federal government can prosecute him for both Murder and Illegal immigration. In practice, however, the Federal Government usually will respect the outcome of the state's case for all similar crimes so the defendant could be acquitted of Murder in Montana, and the Federal Government will likely drop the charge and just try him for illegal immigration (a strictly federal crime). There are some situations where the feds will try the murder despite the conviction, but it's usually if federal prosecuters think that some shenanigans were involved. At the absolute worst, as many as 7 seperate courts could have jurisdiction on one event (If you commit a crime at the Four Corners (the border between Colorodo, Utah, Arizona, and New Mexico, the only place in the U.S. where four states share a border) in addition to the Federal Government and two Tribal governments (the Utes in Utah and the Navajo in the other three all have reservation jurisdiction at this point. In the case of the Navajo, they only have one reservation in the three states, so they don't get three seperate cracks at it.).

  • Directed Verdict - Less likely, but still a possibility, Directed Verdict occurs when a Judge tells the jury to render a verdict for a charge. If this occurs, it will be immediately after the Prosectuion resting their case and before the Defense calls their witnesses. The Defense is entitled to make a motion for dismissal of charges and if granted, the Judge will instruct the Jury to find "Not Guilty" for at least one charge if not all of them. Basically, they are granted if the Prosecution fails to even meet evidence burden of the charges that he grants. It's actually quite common to make the motion, though it is rare to have it granted. The Judge may also consider making the grant after closing remarks before giving the case to the jury for deliberation. If it is granted, the Prosection will be given the right to appeal the verdict. If you'd like to look up some cases, the directed verdict was granted to some charges in one of the Freddy Grey Murder trials (I forget which of the defendants got it, but it wasn't appealed as the rest of the charges were found "Not Guilty") and a Defimation case against Project Veritas (though this was a civil case, the judge felt the elements of Defimation were not met by the prosection to sufficently even let the jury decide. The Plaintiff may start appeals in Civil cases, so Double Jeopardy is not a thing. One of the Defendants has a description of the experience on their Youtube Channel if you would like to learn more about the case).

  • Fixing the Trial - If it can be proven that some of the jury or the judge in a bench trial were unfairly biased to the Defendant through means outside of the court and acquitted the defendant, then the defendant was never "in danger of life or limb" to quote the Constitution, and thus, a second trial on the same event is not a violation of Double Jeopardy because they weren't in Jeopardy the first time. This has happened exactly once in all of U.S. History (a member of the Chicago Mob was given a bench trial and the judge was bribed to find the defendant "not guilty." The Judge eventually confessed to this in his suicide note and the courts ruled that jury or judge tampering to be an exception to Double Jeopardy with respect to the original trial. The mobster was tried for the exact same event in the exact same court twice and found Guilty, the only time this has ever occurred in U.S. History.).

It should be pointed out that mistrials and new trials granted on appeal are not exceptions as in both instances, the legal fiction in place is that the original trial never happened and the Defendant is being tried for the first time. Mistrials can be declared prior to the verdict by anyone, but only by request of the Defense on appeals, and new trials are always granted by the defense on appeal. The Prosecution has to recharge the defense with the crime and may choose not to for any number of reasons (from the case was weak and barely got the guilty verdict to losing evidence critical to securing a new guilty verdict to the recovery of exculpatory evidence that proves the Defense was innocent all along.).

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  • A directed verdict of acquittal is nonetheless subject to the double jeopardy bar in the U.S. (en.wikipedia.org/wiki/Evans_v._Michigan), but the state is allowed to introduce procedures to make such motions non-final if they do not call it an acquittal that ends the trial.
    – xngtng
    Dec 30, 2022 at 15:41

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