Substitution of conviction for acquittal

R. v. Riesberry, 2014 ONCA 744:

[35]       Where this court allows a Crown appeal from an acquittal entered by a judge sitting alone, s. 686(4) of the Criminal Code authorizes this court to set aside the verdict and either order a new trial or enter a guilty verdict. The Crown asks that we enter guilty verdicts on all charges, or, in the alternative, order a new trial.

[36]       To obtain an order setting aside an acquittal and directing a new trial, the Crown must demonstrate that the trial judge committed an error of law, and that the outcome of the trial might reasonably have been different if the error of law had not occurred (R. v. Graveline, 2006 SCC 16 at paras. 14-16).

[37]       To obtain an order setting aside an acquittal and entering a guilty verdict on appeal, s. 686(4)(b)(ii) requires the Crown to go further and prove that "the accused should have been found guilty but for the error in law." This is possible only where all the necessary findings of fact have been made for each element of the offence (either implicitly or explicitly), or if the facts are not in issue (R. v. Cassidy, [1989] 2 S.C.R. 345 at 354).