A question of law alone?

What is “a question of law alone”?  The issue is important for appeal purposes.  Today’s decision in R. v. Powell, 2010 ONCA 105 is helpful in this regard:

[29]         In Schuldt, a trial judge, sitting without a jury, acquitted the accused of attempting to break and enter with intent to commit an indictable offense despite what the Manitoba Court of Appeal later considered to be unquestionable evidence of his guilt.  A divided Manitoba Court of Appeal allowed the Crown’s appeal: R. v. Schuldt, 23 Man. R. (2d) 75.  The majority’s decision was based on the view that the evidence was not capable of creating any doubt as to the accused’s guilt and so it was an error of law to acquit.  Hall J.A., writing for the majority, remarked at para. 5: “In the present case, I do not think the evidence is capable of creating any doubt as to the guilt of the accused”.  He also stated:

To entertain any doubt on the issue of intent is, in my opinion, not reasonable but fanciful and quite out of touch with the reality of the case.  There must be a factual foundation upon which to have reasonable doubt, and it simply does not exist in the present case. [Emphasis added.]. 

Even Huband J.A., in dissent, unequivocally stated he would have convicted had he been the trial judge.

[30]         The Supreme Court of Canada reversed the Manitoba Court of Appeal and restored the acquittal.  Lamer J. (as he then was) wrote for the unanimous Court.  He began by expressing his concerns about the principle of double jeopardy embodied in s. 11(h) of the Charter, noting the carefully circumscribed parameters for allowing a Crown appeal from an acquittal.  He stressed that Canadian jurisprudence restricts the scope of appeal from a verdict of acquittal to a question of law. 

[31]         Lamer J. then turned to the argument that there was no factual foundation on which the trial judge could have properly based a finding of reasonable doubt.  He recognized the general proposition that the total absence of a foundation for a finding of fact is an error of law, but pointed out there remained the question as to the circumstances under which a finding could properly be made that there is a total absence of evidence.  It is unnecessary to review his careful exposition of the earlier cases upon which the Crown relied.  Suffice it to say that he concluded that the proposition that the total absence of a foundation for a finding of fact is an error of law generally has no application to a trial judge’s conclusion that there is reasonable doubt.  As the accused does not have to prove the existence of reasonable doubt, no particular evidence to support the finding of reasonable doubt is necessary and the proposition does not apply. 

[32]         Lamer J. explained there is but one exceptional circumstance where an evidentiary basis is required to acquit.  That is where the law provides for a presumption and places a burden on the accused to displace it.  In such a case, it is an error of law to acquit in the face of the presumption.  The trial judge commits an error of law by finding reasonable doubt in the absence of any evidence to support the displacement of the presumption.    His conclusion at para. 39 is clear and succinct:

In other words, absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused, and such a finding, if in error, is an error of fact. 

[33]         This is a longstanding proposition.  Lamer J. pointed out that Cartwright C.J. had said essentially the same thing earlier in Lampard v. The Queen, [1969] S.C.R.  373, at p. 381:

In a criminal case (except in the rare cases in which a statutory provision places an onus upon the accused) it can sometimes be said as a matter of law that there is no evidence upon which the Court can convict but never that there is no evidence on which it can acquit; there is always the rebuttable presumption of innocence.

[34]         Lamer J. also reiterated observations that Ritchie J. had made in Sunbeam.  Ritchie J., on his review of the jurisprudence had found there was no authority “for the proposition that in an appeal against a judgment of acquittal under … the Criminal Code ‘a question of law alone’ is involved whenever a reviewing court is of opinion that the finding of the trial judge was unreasonable and improper having regard to the evidence”.  In Sunbeam, Ritchie J. had gone on to express his concern that if the phrase “a question of law alone” were construed in that way, it would enlarge the meaning of the phrase “a question of law” as it occurs in other sections of the Criminal Code and that such an interpretation would “broaden the scope of appellate jurisdiction under the Criminal Code beyond the limitations which are stipulated in the express language of the Code itself”.