Canada SC

Supreme Court of Canada: The Bench comprising of Wagner C.J. and Moldaver, Côté, Brown, Rowe, Martin and Kasirer JJ., held that appellate courts cannot always limit the scope of a new trial to a particular theory of liability on a single criminal charge. While setting aside the order of the Appellate Court wherein it had curtailed the scope of re-trial to a specific point, the Bench remarked,

“Put simply, the ancillary order gave rise to a partial acquittal on a single criminal charge — a two-headed hydra-like creation unknown to Canada’s criminal law.”

The instant case dealt with robbery committed by two individuals in a Subway restaurant. One C was arrested in relation to the robbery; although he denied involvement in the robbery but admitted that he had told a group of individuals, including his friends T and L, how to do a robbery what to say how to do it how long to be in there. C was subsequently charged with armed robbery and tried by a judge alone.

Findings of the Courts below

At trial, the Crown advanced two alternative theories of liability: that C was the masked robber and guilty as a principal offender, or that C was guilty as a party to the armed robbery in that he either abetted the commission of the offence, or counselled its commission. The trial judge rejected both theories of liability and acquitted C, holding that the evidence fell short of proving that C was one of the principal offenders. Regarding party liability, the Trial Court found that C could only be convicted as a party if the Crown established that C’s friends T and L had committed the robbery, but the evidence also fell short in that regard.

In appeal, the Appellate Court opined that the Trial Court erred in holding that it was incumbent on the Crown to prove that T and L were the persons who committed the robbery in order to find C guilty. Holding that the Trial Court had failed to recognize that the evidence before him was reasonably capable of establishing that C committed the prohibited act with the requisite intent for party liability on the basis of abetting or counselling, the Appellate Court set aside C’s acquittal and ordered a new trial. However, in doing so, it ordered that the new trial be limited to the question of “whether C is guilty of robbery, as a party, on the basis of abetting or counselling”.

Whether the Appellate Court erred in restricting the scope of the new trial?

Where an appellate court allows an appeal and sets aside an acquittal, it has the power, under s. 686(4)(b)(i) of the Criminal Code, to order a new trial and to make any order, in addition, that justice requires under s. 686(8). However, three conditions must be met for s. 686(8) to apply.

  1. First, the appellate court must have exercised one of the triggering powers conferred under s. 686(2), (4), (6) or (7).
  2. Second, the order issued must be ancillary to the triggering power in that it cannot be at direct variance with the court’s underlying judgment.
  3. Third, the order must be one that justice requires.

Opining that the second and third conditions were not met in the instant case, as the ancillary order limiting the scope of the new trial was at variance with the underlying judgment and was not an order that justice required, the Bench held that the new trial must be on all available modes of committing the offence.

“To prospectively deny a trier of fact the ability to consider a viable theory of liability would be to undermine their ability to carry out their core function: to determine whether the Crown has proven that the accused committed the offence(s) charged.”

The Bench stated, as one of the purposes of the criminal process is to foster a search for truth, justice cannot require that a trier of fact be restricted in their ability to determine how, if at all, an accused participated in a given offence. Hence, the Bench opined that upholding the Court of Appeal’s ancillary order would mean that if, at the new trial, the defence adduced evidence showing that Mr. Cowan did not abet or counsel anyone because he was, in fact, the principal offender, and the trier of fact believed that evidence or it raised a reasonable doubt, the trier of fact would have no option but to acquit Mr. Cowan of the charge of armed robbery and, such a result would make a mockery of the justice system and cannot be what justice requires.

However, while holding that the Court of Appeal was not permitted to restrict the available theories of liability at the new trial, the Bench clarified that it should not be taken to mean that appellate courts do not have the power to limit the scope of a new trial in all circumstances.

Observation and Analysis

For the purposes of determining criminal liability, the Criminal Code does not distinguish between principal offenders and parties to an offence. Hence, where an accused is being tried alone and there is evidence that more than one person participated in the commission of the offence, the Crown is not required to prove the identity of the other participant(s) or the precise part played by each in order to prove an accused’s guilt as a party offence.

Therefore, the Bench held that the Crown was only required to prove that any one of the individuals encouraged by Mr. Cowan went on to participate in the offence either as a principal offender — in which case Mr. Cowan would be guilty as both an abettor and a counsellor — or as a party — in which case Mr. Cowan would be guilty as a counsellor.

Issue Estoppel

Rejecting the accused’s argument that the Court could not order a full new trial because the doctrine of issue estoppel prevents the re-litigation of the Crown’s theory that he was guilty of armed robbery as a principal offender point, the Bench opined that issue estoppel does not apply simply by virtue of the fact that a trial has been held and that there is no final decision made in a prior proceeding where an appellate court finds that a verdict of acquittal on a single criminal charge was tainted by legal error and, accordingly, renders that verdict invalid as a whole by setting it aside and ordering a new trial on the relevant charge.

The Bench stated that in the instant case no issue could be said to have been finally decided in the first trial because the result of that trial, i.e. the acquittal on the single charge of armed robbery had been entirely set aside.


In the above backdrop, the judgment of the Appellate Court setting aside the acquittal on the charge of armed robbery and ordering a new trial was upheld, but the order limiting the scope of new trial was set aside and a full new trial on the armed robbery charge was ordered. [Jason William Cowan v. Queen, 2021 SCC OnLine Can SC 5, decided on 05-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

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