Elements of an offence and a directed verdict

Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, a provincial prosecution, has a useful discussion regarding elements of an offence and what the prosecutor must prove:

The Prosecution "Theory", Particulars, and Proof of Guilt

[39]         Every offence, whether its origins are criminal or regulatory, contains its own essential elements. A finding of guilt of any offence may only be made if the prosecutor establishes each essential element in the offence to the degree required by the applicable standard of proof. To survive an application for a directed verdict of acquittal or a non-suit at the conclusion of its case-in-chief, the prosecution must introduce some evidence on the basis of which a reasonable trier of fact, properly instructed, could find guilt: R. v. Arcuri, [2001] 2 S.C.R. 828, at paras. 1, 21 and 26. Where the evidence adduced on an essential element or as a whole is circumstantial, a judge on a motion for a directed verdict or non-suit must engage in a limited weighing of the whole of the evidence to determine whether a reasonable trier of fact, properly instructed, could return a finding of guilt: Arcuri at paras. 29-30.

[40]         The legal standard of proof, proof beyond a reasonable doubt, has no direct application on a motion for non-suit or a directed verdict of acquittal at the end of the prosecution's case-in-chief.

[41]         In any prosecution, what the prosecutor must prove beyond a reasonable doubt are the essential elements of the offence as charged and particularized in the charging document. The prosecutor is bound by any particulars, voluntarily supplied or court ordered, subject to any rights of amendment that may exist under the governing procedural law and the doctrine of surplusage: R. v. Cox and Paton, [1963] S.C.R. 500, at p. 511.

[42]         In any prosecution, the prosecutor will have a "theory" of the case, usually expressed in opening and closing submissions or addresses. But the prosecutor's "theory" of the case is not something that the prosecutor is bound to prove in order to establish guilt. The prosecutor's "theory" is neither an essential element of the offence, nor a "particular" voluntarily supplied: R. v. Groot (1998), 129 C.C.C. (3d) 293 (Ont. C.A.), at paras. 14-18; R. v. Govedarov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.), at pp. 270-71, aff'd [1976] 2 S.C.R. 308. The prosecutor is bound to prove the essential elements of the offence as charged beyond a reasonable doubt. Nothing more. Nothing less. See, R. v. Largie (2010), 258 C.C.C. (3d) 297 (Ont. C.A.), at paras. 158 and 165.

[43]         The prosecutor may modify his or her "theory" or strategy as the trial progresses: R. v. Pickton, [2010] 2 S.C.R. 198, at para. 19. Trial fairness considerations may intervene and foreclose advancement of an alternative basis of liability inconsistent with the way the parties have conducted their cases throughout: Largie at para. 161; R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), at para. 162.

[44]         The flexibility that permits the prosecutor to adjust his or her trial strategy to meet new or changing circumstances during the trial does not entitle the prosecution to shift ground on an appeal from acquittal. The prosecutor is not entitled to advance a new theory of liability on an appeal from acquittal, nor to raise arguments on appeal upon which the prosecution chose not to rely at trial: R. v. Varga (1994), 90 C.C.C. (3d) 484 (Ont. C.A.), at p. 494; Wexler v. The King, [1939] S.C.R. 350, at pp. 353-54 and 356-57; Savard and Lizotte v. The King, [1946] S.C.R. 20, at pp. 33-34; 37; and 49.
James Morton
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