Substituting a Conviction for and Acquittal on Appeal

R. v. Katigbak, 2011 SCC 48 was released a few minutes ago.  It deals with specific defences in child pornography cases.  It also deals with when a Court of Appeal may substitute a conviction for an acquittal at trial.

 

Appellate courts may only substitute an acquittal with a conviction if the trial judge's findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt.  A Court of Appeal may not make findings of fact;  if such findings as necessary were not made by the trial judge a new trial is required.  The Court writes:

 

[50]                          The next question is whether the Court of Appeal erred in substituting a conviction for the trial judge's acquittal insofar as the pre-November 2005 activities are concerned.  The Court of Appeal concluded, beyond a reasonable doubt, that Mr. Katigbak could not rely on either the artistic merit or the public good defence, and went on to substitute a verdict of conviction for the trial judge's acquittal.  Since this was an appeal from acquittal, the jurisdiction of the Court of Appeal was limited to "question[s] of law alone":  s. 676(1)(a) of the Criminal Code.  Consequently, the Court of Appeal could not make its own findings of fact.  Additionally, s. 686(4)(b)(ii) of the Criminal Code establishes that appellate courts may only substitute an acquittal with a conviction if the trial judge's findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt.  If the trial judge's findings of fact do not support a conviction beyond a reasonable doubt, the proper remedy is a new trial.