Supreme Court Judgments

SUPREME COURT OF CANADA
Citation: R. v. Bouvette, 2025 SCC 18			Appeal Heard: November 14, 2024 Judgment Rendered: June 6, 2025 Docket: 40780
Between:   Tammy Marion Bouvette Appellant   and   His Majesty The King Respondent   - and -   Attorney General of Ontario, Canadian Civil Liberties Association, Innocence Canada and Independent Criminal Defence Advocacy Society Interveners       Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 128)	Kasirer J. (Wagner C.J. and Côté, Rowe and Jamal JJ. concurring)
Concurring Reasons: (paras. 129 to 300)	Martin J. (Karakatsanis, O’Bonsawin and Moreau JJ. concurring)

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

Tammy Marion Bouvette                                                                              Appellant

v.

His Majesty The King                                                                                 Respondent

and

Attorney General of Ontario,

Canadian Civil Liberties Association,

Innocence Canada and

Independent Criminal Defence Advocacy Society                                    Interveners

Indexed as: R. v. Bouvette

2025 SCC 18

File No.: 40780.

2024: November 14; 2025: June 6.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for british columbia

                    Criminal law — Appeals — Powers of Court of Appeal — Miscarriage of justice — Remedy — Grounds to enter acquittal on appeal — Crown non-disclosure giving rise to miscarriage of justice and to appeal by convicted person — Court of Appeal quashing conviction but entering judicial stay of proceedings rather than acquittal requested by parties — Court of Appeal concluding that record would admit reasonable possibility of conviction at new trial and that no special circumstances justified acquittal — Whether Court of Appeal erred in declining to enter acquittal — Criminal Code, R.S.C. 1985, c. C-46, s. 686(2).

                    In 2011, B was charged with the second degree murder of a 19‑month‑old child she was babysitting, who drowned in her bath. The child was pronounced brain‑dead in hospital and died soon afterward. An autopsy on the child’s body was performed by M. He testified for the Crown at B’s preliminary inquiry that the child had recent injuries, that she died by drowning and that the manner of death was undetermined. B pleaded guilty to a lesser charge of criminal negligence causing death. She was convicted and sentenced to 12 months’ imprisonment and probation.

                    In 2020, a special prosecutor appointed to conduct an independent review of the case concluded that B may not have received disclosure of significant relevant materials. The special prosecutor recommended an appellate review to determine if a miscarriage of justice had occurred. The Crown disclosed materials that it had received prior to B’s guilty plea and that had not been disclosed to B, including the results of an external peer review of M’s work in B’s case, stating that M’s conclusions in respect of the child’s autopsy were unreasonable.

                    In 2021, an application for an extension of time filed by B to appeal her conviction was allowed and she sought orders vacating her guilty plea, quashing her conviction and entering an acquittal. The Crown agreed that the conviction should be quashed and also sought an acquittal or, in the alternative, a judicial stay of proceedings. The Court of Appeal quashed B’s conviction but declined to enter an acquittal. It concluded that there was evidence on the record upon which a reasonable jury could convict B and it was not satisfied that there were sufficiently exceptional circumstances to justify an acquittal. However, it entered a stay on the basis that compelling B to stand trial again would violate those fundamental principles of justice that underlie the community’s sense of fair play and decency. B appeals to the Court seeking an acquittal. The Crown agrees that she should be acquitted.

                    Held: The appeal should be allowed, the stay of proceedings set aside and an acquittal entered.

                    Per Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ.: B should be acquitted immediately under s. 686(2)(a) of the Criminal Code, on the ground that the Crown seeks an acquittal and has expressly stated that it would call no evidence at a new trial. Rather than forcing the parties to go through pro forma proceedings to achieve this result, or standing in the way of this result by entering a judicial stay, the just result is for the acquittal to be entered now, even though there is evidence on the record that could lead a reasonable jury, properly instructed, to convict B at a new trial.

                    Section 686(2) of the Criminal Code provides that where an appeal has been allowed due to a miscarriage of justice, the court of appeal must quash the conviction. The focus of the appellate court then shifts from a retrospective inquiry into whether the conviction constitutes a miscarriage of justice to a prospective inquiry into the appropriate remedy, whether that is an acquittal (s. 686(2)(a)), a new trial (s. 686(2)(b)), or a judicial stay (s. 686(8)). The remedy of acquittal is to be considered first and the other options are to be considered where an acquittal is not warranted. A judicial stay and an acquittal, unlike a new trial order, both bring the proceedings to a conclusive end and leave the accused in a position of presumptive innocence. By contrast, when a new trial is ordered, the Crown has a variety of options open to it, such as proceeding in pursuit of a conviction, offering no evidence and inviting the trial court to acquit, seeking a withdrawal of the charge, or directing a prosecutorial stay. The difference between an acquittal and a judicial stay is said to lie in the residual stigma for the accused, because an acquittal represents a conclusion of not guilty that a judicial stay does not, although the difference in terms of stigma should not be exaggerated.

                    An appellate court must carefully consider whether an acquittal is warranted, even where there are grounds for a judicial stay. However, courts must be equally careful to enter acquittals only in appropriate cases. If appellate courts routinely rendered judgments of acquittal even while saying there was a prospect of a conviction at a new trial, it would undermine the idea that an acquittal means that the Crown has failed to make out its case on the evidence — a meaning that is said to drive the difference in stigma. Given that there are not different kinds of acquittals, the unsettling impact could be felt across all contexts, including when acquittals are entered at first instance.

                    The first ground for acquittal under s. 686(2) is that there is a lack of evidence to support a reasonable conviction. Where the admissible evidence adduced before the trial court would not have permitted any trier of fact to reasonably convict, or where new evidence adduced on appeal satisfies the appellate court that no trier of fact could reasonably convict, the appellate court must acquit. It would be unjust and pointless to send a matter back for a new trial where the evidence shows that the only reasonable outcome would be an acquittal. Acquitting on this ground respects the institutional limits of appellate courts and leaves intact the generally understood meaning of an acquittal. However, such circumstances are to be distinguished from those where new evidence appears to undermine, to some extent, the prospect that the accused would be convicted at a retrial, but the record still admits of a reasonable possibility of conviction. Such a record does not, on its own, provide grounds to acquit. In the instant case, B has failed to show that a trier of fact would be unable to reasonably convict on the available evidence.

                    The second ground for acquittal is where the Crown seeks an acquittal and says that it would call no evidence at a new trial to ensure that an acquittal will be entered. Unless it would be contrary to the public interest, an appellate court must acquit, thereby giving effect to circumstances that would lead directly to an acquittal if a new trial were ordered, because conviction would be unreasonable on a record with no evidence. As the appellate court is merely entering the same acquittal that would be eventually entered by the trial court, there can be no suggestion that the appellate court is usurping the role of the trier of fact, nor that it is distorting the generally understood meaning of an acquittal. If the Crown does not wish an acquittal to be entered on this ground and prefers to proceed differently, it need only take a different position before the appellate court or decline to make representations about what would occur at a new trial. Recognizing this ground of acquittal is consistent with the idea that courts should restrain themselves from interfering with joint positions of criminal parties as to the final resolution of their matters. It empowers the Crown to address the residual stigma caused by miscarriages of justice in a relatively timely and efficient manner and efforts taken by the Crown to bring an expedited end to proceedings tainted by miscarriage of justice are to be commended and given effect. In the instant case, B must be acquitted under this second ground.

                    There are circumstances that may justify acquittal on other grounds. B and the Crown both take the position before the Court that acquittals should be available on a third broad, discretionary basis. In the circumstances of the instant case, it is unnecessary to define comprehensively the basis on which acquittals can be entered on discretionary grounds under s. 686(2). The parties’ proposed broad discretionary frameworks for acquittal would place at risk both the understood meaning of an acquittal and the proper role of the appellate courts within our system of criminal justice. The law jealously protects the trier of fact’s ability to decide, based on its view of the record, whether the Crown has made out its case, and the law is rightly concerned about appeal courts usurping the role of triers of fact by engaging in a substantive weighing of the evidence. Factors extraneous to the merits of the case, which make up the bulk of the factors in the parties’ proposed frameworks, do not speak clearly to whether the Crown would fail to establish guilt beyond a reasonable doubt. It should be for future courts to scrutinize other purported grounds for acquittal, including those conferring on the appellate court appropriate discretion, in cases where such grounds would actually affect the disposition. They will be in a better position to assess whether, as with the two grounds recognized above, entering an acquittal in the circumstance is appropriate in light of the role of the appellate court and the understood meaning of an acquittal.

                    Per Karakatsanis, Martin, O’Bonsawin and Moreau JJ.: There is agreement with the majority that an acquittal is the appropriate remedy in the instant case. However, the acquittal rests on a different legal foundation than the one advanced by the majority. The instant case is an opportunity for the Court to provide guidance on when a court of appeal should enter an acquittal to remedy a miscarriage of justice. For those narrow set of cases which bear the hallmarks of wrongful convictions, the jurisprudence supports a framework to determine whether an acquittal is in the interests of justice. Courts of appeal should consider the nature of the miscarriage, the remaining merits of the case, and the overall equities of the case.

                    All orders authorized under s. 686 of the Criminal Code, including acquittals, involve and are the products of discretion. After quashing a conviction on any ground, courts of appeal have a wide statutory discretion, grounded in the express wording in s. 686(2), to order an acquittal or a new trial. A stay of proceedings should be considered only after the court has conclusively determined that an acquittal is not appropriate. A stay of proceedings is a drastic remedy of last resort, available only in the clearest of cases. As s. 686(2) provides the appellate court two presumptive remedial options to address the miscarriage of justice, and the acquittal is capable of removing the prejudice and providing a complete remedy, those remedies should be considered first. A court cannot bypass consideration of the primary presumptive remedies of an acquittal and a new trial by going directly to a remedy, such as a stay, under s. 686(8).

                    Generally, if an appeal court is satisfied that the record admits a reasonable possibility of conviction, it will often be appropriate to order a new trial. However, this does not exhaust the court’s broad remedial discretion. In some cases that fall outside the norm, an acquittal will be the only order that serves the interests of justice, even where a new trial is theoretically possible. Where procedural and substantive hallmarks of wrongful convictions are present, an appellate court must consider whether an acquittal is appropriate, even if it cannot conclude that no jury could reasonably convict. Procedural hallmarks of wrongful convictions refer to the unique features of cases where the usual procedures are insufficient for justice to be served, and include: the use of the ministerial referral power (s. 696.3(3)(a)(ii)); a motion for an extension of time to file a notice of appeal (s. 678(2)); the appointment of a special prosecutor; and fresh evidence applications to admit previously undisclosed or newly discovered evidence. Substantive hallmarks of wrongful convictions call into question matters related to guilt. These common hallmarks, which have been considered by many commissions of inquiry, include, but are not limited to: state non‑disclosure of material information; unreliable scientific or expert evidence; eye‑witness and cross‑racial misidentification; improper police investigations; Crown and police tunnel vision; false confessions; false guilty pleas; and systemic discrimination.

                    For those narrow set of cases which bear the hallmarks of wrongful convictions, courts of appeal should apply a framework to determine whether an acquittal is in the interests of justice. In applying this framework, appellate courts should consider the nature and effects of the miscarriage, the potential for a new trial and the likelihood of acquittal, and the equities of a particular case. Such a framework focuses the appeal court’s attention on factors relevant to the question of whether an acquittal is appropriate, while also providing for flexibility to adapt to future cases.

                    The nature of the miscarriage of justice may undermine the evidentiary basis of guilt, cast light on the basis of the original charge, or have an impact on any new trial. For example, there may have been irreparable damage caused by the non-disclosure of material information. There may also be unreliable or dubious expert evidence. Courts have rightly acknowledged the dangers of expert evidence, including the risk that triers of fact may be unable to effectively assess it. Courts have also recognized the problem of false guilty pleas, which may arise due to incompetent advice, inappropriate pressure, a seemingly strong case for the Crown, or failure of the court to make the necessary inquiries of the accused person. Miscarriages of justice and false guilty pleas also have a disproportionate impact on vulnerable groups, including women, Indigenous persons, racialized persons, and persons living with mental health or cognitive concerns.

                    In considering the potential for a new trial and the merits of the Crown’s case, the unreasonable verdict test is ill‑suited for the unique evidentiary challenges where a miscarriage of justice has occurred. Where the high standard for an unreasonable verdict under s. 686(1)(a)(i) would inevitably be met in respect of a new trial, an acquittal should be the presumptive order, even if other grounds of appeal have been argued or accepted. However, appellants do not bear the burden of establishing that a retrial is impossible if the interests of justice in their case otherwise justify a close assessment of the appropriateness of an acquittal. When considering whether an acquittal is justified in the interests of justice, appellate courts should evaluate the strength of the Crown’s case by considering whether the augmented or varied record before the appellate court, which may not necessarily be a “complete” record, establishes clearly that it is more likely than not that an acquittal would result at a retrial. This strikes an appropriate balance between the importance of the merits of a case and the circumstances of a case bearing the hallmarks of wrongful convictions.

                    A united position advanced by the Crown and the defence that an acquittal is the appropriate remedy will attract the respect and deference normally given to joint submissions. However, while concessions made by the Crown should be an important factor in a court’s analysis, no court is bound by concessions of law, including that the Crown seeks an acquittal or has disclosed that it would call no evidence at a new trial. The decision to enter an acquittal remains within the discretion of the court under s. 686(2); while it would be rare, courts retain the discretion to order a new trial despite an acquittal being conceded by the Crown. When faced with a joint concession that an acquittal is the just remedy, the court may ask itself, based on a plain review of the record, whether a properly instructed trier of fact could find that it is more probable than not that the accused would be acquitted on a reasonable doubt standard.

                    Finally, an appeal court must also consider the overall equities of a case in exercising its discretion under s. 686(2). While the equities alone cannot form a standalone basis to substitute an acquittal for a new trial, courts must engage in a qualitative assessment of the circumstances of the appellant and the prejudice they have suffered as a result of the miscarriage of justice. Relevant factors may include: that the appellant has already served part or all of their sentence; that the appellant has undergone multiple trials and appeals; the passage of time; significant personal prejudice, including the burden on the appellant and their family living under the stigma of a conviction.

                    B’s case features many of the procedural and substantive hallmarks of wrongful convictions. It was independently reviewed by a special prosecutor, whose report ultimately led to a motion for an extension of time to appeal and an application to adduce fresh evidence that challenged the safety of her conviction. B was denied extensive undisclosed information which had a bearing on her culpability and raised serious questions about her guilty plea. B was also a vulnerable accused from a disadvantaged background, and her case involved expert evidence that had been called into question.

                    In considering the nature of the miscarriage of justice in B’s case, there are several features common to wrongful conviction cases that merit special consideration. First, B was deprived of disclosure of considerable significance. Because the Court of Appeal did not have a complete record in view of B’s guilty plea, B’s ability to persuasively argue that the verdict against her would be otherwise unreasonable was undermined. The Crown’s failure to make full disclosure was directly linked to B’s conviction, and it therefore erodes public confidence in the proper administration of justice. B’s case also features expert evidence that may be unreliable or dubious. The decisions to charge and to order B to stand trial on the charge of second degree murder were based largely on the expert opinion of M, described later as “unreasonable” in peer review. A diversity of views among experts undermines the prospect of a conviction. Regardless of whether M’s evidence is excluded, the Crown’s remaining case is weak, and it is more probable than not that would be acquitted at a retrial. Finally, the equities in B’s case weigh heavily in favour of an acquittal. B has already served the entirety of her sentence. The victim’s family fully supports an acquittal, and the conviction resulting from her false guilty plea has had a devastating impact on her life.

Cases Cited

By Kasirer J.

                    Distinguished: Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; referred to: R. v. Kwon, 2024 SKCA 50, 438 C.C.C. (3d) 196, rev’d 2025 SCC 11; Dunlop v. The Queen, [1979] 2 S.C.R. 881; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; R. v. Jewitt, [1985] 2 S.C.R. 128; Reference re: Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193; R. v. Selhi, [1990] 1 S.C.R. 277; R. v. Puskas, [1998] 1 S.C.R. 1207; R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425; R. v. D.R.S., 2013 ABCA 18, 542 A.R. 92; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Morrissey (1995), 22 O.R. (3d) 514; Grdic v. The Queen, [1985] 1 S.C.R. 810; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. S. (P.L.), [1991] 1 S.C.R. 909; P.G. v. R., 2007 QCCA 1160; R. v. D.C.S., 2000 NSCA 61, 184 N.S.R. (2d) 299; Boisvert v. R., 2012 QCCA 1945; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Harvey (2001), 57 O.R. (3d) 296, aff’d 2002 SCC 80, [2002] 4 S.C.R. 311; Savard v. The King, [1946] S.C.R. 20; R. v. More (1959), 124 C.C.C. 140; R. v. Ledesma, 2020 ABCA 411; R. v. Hinse, [1997] 1 S.C.R. 3; R. v. Oakes, 2016 ABCA 90, 36 Alta. L.R. (6th) 248; R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516; R. v. Dhillon, 2014 BCCA 480, 16 C.R. (7th) 8; R. v. Ostrowski, 2018 MBCA 125, 369 C.C.C. (3d) 139; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. C.D.G. (1995), 128 Nfld. & P.E.I.R. 312; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180; R. v. Riddle, [1980] 1 S.C.R. 380; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; La Presse inc. v. Quebec, 2023 SCC 22; R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; R. v. Nahanee, 2022 SCC 37; R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3; Brouillard v. The Queen, [1985] 1 S.C.R. 39; R. v. Karuranga, 2021 SKCA 90, 488 C.R.R. (2d) 317; Walsh, Re, 2008 NBCA 33, 335 N.B.R. (2d) 1; R. v. Tom (1992), 79 C.C.C. (3d) 84; R. v. O’Brien (1987), 10 Q.A.C. 135; R. v. Vickerson, 2020 ONCA 434; LSJPA — 1521, 2015 QCCA 1229; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yusif (1994), 74 O.A.C. 348; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679; Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Cordell v. Second Clanfield Properties Ltd., [1969] 2 Ch. 9; R. v. Mars (2006), 205 C.C.C. (3d) 376; R. v. Browne, 2021 ONCA 836, 498 C.R.R. (2d) 345; Doucet v. R., 2024 QCCA 461; R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

By Martin J.

                    Considered: Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; R. v. Biniaris (1998), 124 C.C.C. (3d) 58, rev’d in part 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; referred to: R. v. T.W.W., 2024 SCC 19; R. v. Hinse, [1997] 1 S.C.R. 3; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198; R. v. Akram, 2025 ONCA 158, 445 C.C.C. (3d) 270; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Bernardo (1997), 121 C.C.C. (3d) 123; R. v. Morrissey (1995), 22 O.R. (3d) 514; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828; R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222; R. v. 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Statutes and Regulations Cited

Act to amend the Criminal Code, S.C. 1923, c. 41, s. 9.

Canadian Charter of Rights and Freedoms, ss. 7, 24(1).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 579, 606(1.1), (4), 675(1), 678(2), 686, 696.3(3)(a)(ii).

Criminal Code, 1892, S.C. 1892, c. 29, ss. 746(d), 747.

Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), S.C. 2024, c. 33, ss. 3, 4.

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                    APPEAL from a judgment of the British Columbia Court of Appeal (Fitch, Voith and Skolrood JJ.A.), 2023 BCCA 152, 424 C.C.C. (3d) 513, [2023] B.C.J. No. 634 (Lexis), 2023 CarswellBC 938 (WL), setting aside the conviction of the accused for criminal negligence causing death and entering a stay of proceedings. Appeal allowed.

                    Vanessa de Jong, Kristy Neurauter and Hovan Patey, for the appellant.

                    Marilyn E. Sandford, K.C., and Bryn Laxton-Coglon, for the respondent.

                    Karen Papadopoulos, for the intervener Attorney General of Ontario.

                    Matthew R. Gourlay and Érik Arsenault, for the intervener Canadian Civil Liberties Association.

                    James Lockyer and Pamela Zbarsky, for the intervener Innocence Canada.

                    Daniel J. Song, K.C., Gregory P. Delbigio, K.C., and Tamara M. Levy, K.C., for the intervener Independent Criminal Defence Advocacy Society.

                   The judgment of Wagner C.J. and Côté, Rowe, Kasirer and Jamal JJ. was delivered by

                   Kasirer J. —

I.               Overview

[1]                             The genesis of this appeal can be traced back to the unspeakable tragedy of the death of a 19-month-old baby who drowned in her bath. A miscarriage of justice followed when the Crown failed to meet its disclosure obligations to the person accused of causing that death. The accused entered what would later be understood as an invalid guilty plea to the charge of causing that death by criminal negligence. The resulting conviction was rightly quashed by the Court of Appeal, and the remaining issue is what remedy can and should be ordered to redress the miscarriage of justice. Specifically, the question is whether we should enter an acquittal or affirm the judicial stay ordered by the Court of Appeal.

[2]                             Iyanna Teeple was in the care of her babysitter, the appellant Tammy Marion Bouvette, when she fell unconscious. She later died in hospital. Ms. Bouvette was accused of the child’s second degree murder. About a year and a half later, with the advice of counsel, she pleaded guilty to the lesser charge of criminal negligence causing Iyanna’s death. She was sentenced to 12 months’ imprisonment, followed by a period of probation on strict terms.

[3]                             Following a far-reaching review, a special prosecutor revealed that the Crown had failed to disclose information relating to the reliability of a medical expert’s evidence prior to Ms. Bouvette’s guilty plea, thereby breaching her right to a full and fair defence. The Court of Appeal quashed her conviction pursuant to s. 686(1)(a)(iii) and (2) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”). The court concluded that the conviction was the result of a miscarriage of justice in no uncertain terms: “It is not difficult to imagine why, unarmed with critical information that could assist her, this marginalized, overwhelmed and intellectually challenged appellant would enter a guilty plea to a lesser offence” (2023 BCCA 152, 424 C.C.C. (3d) 513, at para. 110). The court nevertheless found that there was evidence on the record on which a reasonable jury, properly instructed, could convict Ms. Bouvette. In the circumstances, it entered a judicial stay of further proceedings rather than an acquittal under s. 686(2).

[4]                             While one must not lose sight of the terrible fact of Iyanna Teeple’s death, the focus of this appeal is on the remedy available to Ms. Bouvette in light of the miscarriage of justice that befell her when the Crown failed to meet its disclosure obligations. Where an appellate court allows an appeal against a conviction like that of Ms. Bouvette, it may, after quashing the conviction, order one of three main remedies pursuant to s. 686 Cr. C.: it may acquit the accused; it may order a new trial; or it may enter a judicial stay of proceedings. The issue of determining the proper remedy on appeal from a conviction that has been quashed is a regular feature of appellate jurisprudence, including jurisprudence of this Court (see, e.g., R. v. Kwon, 2024 SKCA 50, 438 C.C.C. (3d) 196, at paras. 95 and 97, per Tholl J.A., dissenting, reversed substantially for the reasons of Tholl J.A., 2025 SCC 11). One distinguishing feature of this appeal is the significant areas of agreement between Ms. Bouvette and the Crown before this Court. Both parties agree that the Crown breached its disclosure obligations. There is no dispute that Ms. Bouvette’s tainted guilty plea was properly set aside. Both parties say that the Court of Appeal was right to quash the conviction, and there is no disagreement that Ms. Bouvette has suffered meaningful prejudice. Most importantly for present purposes, they agree that the Court of Appeal was wrong to order a stay in the circumstances and that an acquittal should be entered by this Court in order to remove both the stigma of conviction and the stain of an unresolved allegation of this serious crime. The Crown joins Ms. Bouvette in calling for an acquittal even if, in its view, there is evidence on the record that could lead a reasonable jury, properly instructed, to convict her at a new trial.

[5]                             The inquiry into the proper remedy starts by asking whether Ms. Bouvette should be acquitted. At this stage of the analysis, the focus is not on the past miscarriage of justice that resulted in her conviction; that conviction has already been quashed. The issue is whether, going forward, an acquittal represents the proper and just exercise of the appellate court’s statutory power. It bears emphasizing that there is no risk that Ms. Bouvette will be convicted on the charge relating to Iyanna’s death, because the Crown has undertaken in this case not to bring evidence against her. There are three possible grounds under s. 686(2) Cr. C. that might allow this Court to enter the acquittal as an alternative to the judicial stay ordered in the Court of Appeal.

[6]                             The first, urged by Ms. Bouvette, is that an acquittal must be entered because there is, in her estimation, no evidence upon which a reasonable jury could convict her of the charge. The Crown contests this basis for an acquittal, preferring the Court of Appeal’s reading of the evidence: notwithstanding the disclosure breach, there is nevertheless evidence on the record upon which a reasonable jury could convict.

[7]                             The second avenue for an acquittal rests on the Crown’s announced refusal to prosecute Ms. Bouvette at a retrial. On this ground, an acquittal on appeal should be entered immediately by this Court, even if there is sufficient evidence to order a new trial. The Crown said before us, as it had before the Court of Appeal, that an acquittal should be entered now. Before this Court, it undertook that if a new trial were ordered, it would call no evidence and invite the trial court to acquit. In the circumstances, my view is that convening a new trial would be a waste of judicial resources and subject Ms. Bouvette and Iyanna’s family to unnecessary delay and uncertainty in ending this ordeal. From this perspective, an immediate acquittal by this Court, entered pursuant to s. 686(2) Cr. C., is the only just outcome and one that serves the public interest. The appellate court is not bound by statute to acquit, but ordering either of the alternatives — a new trial or a judicial stay — would be unjust to Ms. Bouvette in the circumstances of this case.

[8]                             Both parties say a third, “discretionary” route for an acquittal is available for this miscarriage of justice, although they acknowledge the law relating to acquittals where a reasonable jury could convict at a new trial is uncertain under s. 686(2) Cr. C. Citing, among other sources, this Court’s decision in Dunlop v. The Queen, [1979] 2 S.C.R. 881, the Crown agrees with Ms. Bouvette that an acquittal can be entered by an appellate court in the present, unusual circumstances, in the interests of justice. The Crown rejects the landmark decision of the Court of Appeal for Ontario in this field, Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, as an unworkable precedent. The parties substantially agree on new factors that should guide, to use the term employed by the Crown, “a discretionary acquittal” (R.F., at para. 121; transcript, at pp. 55, 58-59, 75 and 77; see also pp. 48 and 56-57; R.F., at paras. 101-2; Appellant’s Condensed Book, at p. 1, para. 5).

[9]                             I acknowledge that, where applicable, these are three paths that could authorize an appellate court to enter an acquittal under s. 686(2). The first — an acquittal rooted in the lack of evidence to ground a reasonable conviction — is not available on the facts of this case. The second — an acquittal justified by the Crown’s undertaking to the appellate court not to call evidence at a new trial — is available and not controversial. The third path — the so-called “discretionary acquittal” based on the interests of justice notwithstanding evidence justifying a new trial — presents a jurisprudentially more uncertain route. I am inclined to the view that this is not an appropriate appeal in which to consider the framework for discretionary acquittals or to set aside Truscott as the parties urge us to do. That case concerned circumstances, “outside of the norm” (para. 259), that are markedly different from those of Ms. Bouvette.

[10]                         In Truscott, the Crown was the accused’s adversary in seeking an acquittal, whereas in Ms. Bouvette’s case, both in this Court and in the Court of Appeal, the Crown’s position has been that an acquittal should be entered. In this case, the Crown has undertaken to call no evidence if a new trial were convened, and would invite an acquittal, such that this is not truly a case where a conviction could reasonably be reached by the trier of fact at a retrial, whatever the state of the available evidence. Moreover, the lack of an adversarial context on the question of the right parameters for discretionary acquittals limits this Court’s ability to discern the relative strengths and shortcomings relating to this point of law that goes to the heart of what is an acquittal in criminal law. The most challenging aspect of these submissions concerns the authority of an appellate court to enter an acquittal unrelated to the factual basis for deciding whether the appellant is guilty of the crime as charged where there is evidence on the record upon which a reasonable jury could convict. The parties’ frameworks for this so-called discretionary acquittal, based on broad and unweighted factors, carry with them a risk of being both underinclusive and overinclusive in their application. They would be underinclusive if they allowed an appellate court to deny an acquittal where an acquittal is the only just result. Conversely, they would be overinclusive if the frameworks excluded the possibility of a proper conviction where a conviction would be a just result. With respect for all other views, I would decline to adopt an appellate framework centred on an unprescribed weighing of the equities of the case in these circumstances in which, because of the Crown’s decision not to bring evidence against her at a new trial, Ms. Bouvette’s acquittal is a foregone conclusion.

[11]                         I nevertheless agree with the parties that an acquittal should be entered immediately pursuant to s. 686(2) Cr. C. To quote Crown counsel at the hearing, “an acquittal is an acquittal is an acquittal and the route doesn’t matter” (transcript, at p. 44). In light of the Crown’s undertaking not to call evidence even if a new trial were convened, Ms. Bouvette’s acquittal is a foregone conclusion. Here, the Crown has undertaken to this Court, notwithstanding evidence that suggests a conviction is possible, to seek an acquittal and, if a new trial is ordered, not to produce evidence, including the evidence it has in hand. Convening a trial in Ms. Bouvette’s case, where the Crown has said it seeks an acquittal and has undertaken not to adduce evidence at a new trial, would be a pointless exercise and a waste of limited judicial resources. A principled framework for the exercise of s. 686(2) should not permit an appellate court faced with these circumstances to deny an acquittal. To be clear, it remains the appellate court’s power to acquit under s. 686(2), not that of the Crown. Acknowledging the Crown’s undertaking to this Court, an immediate acquittal is the only just outcome in the circumstances.

[12]                         For the reasons that follow, I would allow the appeal and acquit Ms. Bouvette of the charge of criminal negligence causing the death of Iyanna Teeple under s. 686(2) Cr. C.

II.            Background

[13]                          For the most part, the context necessary to resolve this appeal may be drawn from an agreed statement of facts filed by the parties in the Court of Appeal. I take care to note that the case involves allegations of non‑disclosure by the Crown bearing on, in part, the disputed tenor of evidence given by certain forensic pathologists. I repeat the proper reminder made in the Court of Appeal: no findings are made here on the reliability or dispositive character of the disputed evidence. This is particularly the case in respect of the reliability of evidence given by the different experts involved in this case. I also take care to repeat that nothing in these reasons should be taken as impugning the good faith of the Crown prosecutors involved. This account seeks simply to provide sufficient background to understand the principal issues on appeal relating to the acquittal sought by Ms. Bouvette before this Court.

A.           Death of Iyanna Teeple

[14]                          On May 26, 2011, 19-month-old Iyanna Teeple was left for the day in the care of Ms. Bouvette at her home in Cranbrook, British Columbia. She had regularly babysat the child in the past. Two of Ms. Bouvette’s own children — a 4-year-old and an 18-month-old — were also at the home in her care. She was otherwise alone in the house.

[15]                          In the latter part of the morning, Ms. Bouvette gave Iyanna a bath. At some point, she left the child unattended. The bathtub had no anti‑slip guard.

[16]                          At around 11:30 a.m., Ms. Bouvette called 9-1-1 twice seeking medical assistance for Iyanna. The first responders arrived at about 11:36 a.m. They found Ms. Bouvette attempting to resuscitate the child, who was not breathing and did not have a pulse. Emergency personnel took over resuscitation efforts and transported the child to a local hospital. The child was later airlifted to a Calgary hospital. She was pronounced brain-dead the next day and died soon afterwards.

B.            Investigation

[17]                          The first responders did not observe blood in the child’s mouth or elsewhere at the scene. Soon after they left the house with the child for the hospital, RCMP investigators arrived at the scene. No forensic evidence of significance, including evidence of blood, was observed. Wet spots were noted on the carpets of the living room and upstairs, both outside the bathroom and in a bedroom.

[18]                          Ms. Bouvette gave four statements to the police. The account of events in her police statements, the record of the 9-1-1 calls, and her statements to the first responders were not the same. She initially stated to the police that she had been in the bathroom all along with the child, but had momentarily turned her head away and when she looked back, the child was face down in the water and unconscious. Later, she said she left the bathroom for a very short period and, when she returned, the child was in distress. In a second police statement, she said that one of the other children had struck Iyanna earlier in the morning. In a third statement given in June, Ms. Bouvette described Iyanna falling to the floor with a booster seat chair on top of her on the day of the incident, just prior to the bath. A fourth statement to the police was made in circumstances that the Crown would later consider to be involuntary and choose not to proffer as evidence.

[19]                          In a statement on the day of the incident, Iyanna’s mother informed the police that the child had suffered a viral brain infection several months earlier.

[20]                          Dr. Evan Matshes, then Assistant Chief Medical Examiner in Alberta, performed an autopsy on Iyanna’s body on May 30, 2011. The autopsy concluded that the child had bruises on her face and scalp and a recent tear of her inner upper lip. He concluded the cause of death was drowning and that the manner of death was undetermined. He made further comments to the police and the Crown, including that the child’s head injury was “newish” and that the bruising did not have a benign explanation.

C.            Criminal Proceedings

[21]                          On October 24, 2011, Ms. Bouvette was charged with the second degree murder of Iyanna Teeple.

[22]                          In late May 2012, and prior to Ms. Bouvette’s preliminary inquiry, Alberta Justice commenced a review of cases in which Dr. Matshes performed autopsies, including that of Iyanna. In a word, the reliability of Dr. Matshes’ work was questioned, in particular by the then Chief Medical Examiner of Alberta. In August 2012, further opinions from forensic pathologists offered competing evaluations, including a specific contrary view to the Chief Medical Examiner’s opinion that positions communicated by Dr. Matshes to the authorities were unreasonable.

[23]                          Dr. Matshes testified for the Crown at Ms. Bouvette’s preliminary inquiry on August 28, 2012. He said that Iyanna had died by drowning and that the manner of death was undetermined. He acknowledged that there was controversy in Alberta about the reliability of his work. He testified that Iyanna had bruises to her forehead as well as an injury to her lip and that a fall from the highchair or resuscitation efforts would be unlikely to cause the injuries. He said that the time within which irreversible brain injury would result from oxygen deprivation would be three to five minutes.

[24]                          Subsequently, Ms. Bouvette was ordered to stand trial on a charge of second degree murder.

[25]                          Having heard that Ms. Bouvette might plead guilty in respect of a charge relating to Iyanna’s death, Alberta Justice informed the RCMP in Cranbrook, British Columbia of the review of Dr. Matshes’ work. In light of the possibility that “the case proceed to trial and/or the potential for a wrongful conviction”, Alberta Justice offered to speak to the RCMP (C.A. reasons, at para. 40).

[26]                          An external peer review committee considered Dr. Matshes’ autopsy in the case. Three forensic pathologists reviewed the report and stated that Dr. Matshes’ conclusions in respect of Iyanna’s autopsy were unreasonable. These peer review results, which were critical of Dr. Matshes’ work, were among a bundle of documents sent to Crown counsel in British Columbia by Alberta Justice in December 2012, after Ms. Bouvette had been ordered to stand trial.

[27]                          The Crown did not disclose to the defence a 140-page package of documents from Alberta Justice relating to the external peer review on various cases involving Dr. Matshes, including Iyanna’s case.

[28]                          Eventually, the Crown decided not to rely on the evidence of Dr. Matshes, though this decision was later revisited. For the purpose of a guilty plea to a charge of criminal negligence causing death, his opinions would be relied upon, but only in respect of the cause of death and timing issues pertaining to drowning. Further, the Crown would not rely on one of Ms. Bouvette’s statements to the police that might have been unfavourable to her because it appeared to be involuntary and thus inadmissible.

[29]                          On May 13, 2013, Ms. Bouvette pleaded guilty, through counsel, to a new charge of criminal negligence causing death. The murder charge would be stayed. There was no record of Crown disclosure of the peer review of Dr. Matshes’ work or of the Crown having communicated its decision not to rely on the involuntary police statement. As was later observed by the Court of Appeal, no plea comprehension inquiry as required by s. 606(1.1) Cr. C. was conducted.

[30]                          Ms. Bouvette was convicted and sentenced to 12 months’ imprisonment and probation for criminal negligence causing death.

[31]                          At Ms. Bouvette’s hearing on sentence, Iyanna’s mother, Renee Savarie, provided a victim impact statement through Crown counsel. Crown counsel reported that Ms. Savarie was “devastated” by the loss of her only child and recounted her sense of how that unhappiness would follow Ms. Savarie and her partner for the rest of their lives (A.R., vol. VIII, at pp. 203-4). The sentencing judge recorded that Ms. Savarie expressed her suffering without rancour.

[32]                          In her reasons, the sentencing judge observed that “[w]hat actually occurred in the moments or hours leading to the death of little Iyanna may never be known” (para. 10, reproduced in A.R., vol. I, at p. 75). She considered that Ms. Bouvette’s conduct leading to the death of the child was neither violent nor intentional and was “on the very lowest rung of the ladder of moral blameworthiness” (para. 86). Moreover, Ms. Bouvette’s remorse and her own hardship, including what the judge described as her cognitive deficits, were factors to be taken into account in fixing sentence.

[33]                          The impact that these proceedings visited upon Ms. Bouvette has been most profound. In pleadings in this Court, her counsel described the matter as having turned Ms. Bouvette’s life “upside down” and that the charge and conviction were “devastating” in their consequences (A.F., at para. 2). Ms. Bouvette lost custody of her own four children. She was ostracized from her community, fell into addiction and struggled with homelessness and poverty. She has long since served her prison sentence and continues to labour under the harmful effects of this ordeal.

D.           Independent Review

[34]                          In 2020, the British Columbia Prosecution Service announced the appointment of a special prosecutor to conduct an independent review of the case to determine whether a miscarriage of justice had occurred. About a year later, the Prosecution Service announced that the special prosecutor had made a series of remedial recommendations. The special prosecutor concluded that there was a strong case to be made that Ms. Bouvette had not received disclosure of significant relevant materials. The special prosecutor considered that an appellate review of the case was desirable to determine if a miscarriage of justice had occurred. The Crown subsequently made disclosure of materials identified by the special prosecutor that had previously not been disclosed to Ms. Bouvette.

[35]                          In 2021, Ms. Bouvette filed an application for an extension of time to appeal her conviction, which was granted by a judge of the Court of Appeal (2022 BCCA 9), and a notice of appeal was filed. An application for fresh evidence relating to Ms. Bouvette’s claim of non-disclosure was filed with her appeal. Specifically, she argued that the Crown’s failure to disclose the report of the expert review panel that was critical of Dr. Matshes’ autopsy report meant that her guilty plea should be set aside. In her notice of appeal, Ms. Bouvette said that the conviction based on the guilty plea constituted a miscarriage of justice pursuant to s. 686(1)(a)(iii) Cr. C.

III.         Judgment of the Court of Appeal for British Columbia, 2023 BCCA 152, 424 C.C.C. (3d) 513 (Fitch, Voith and Skolrood JJ.A.)

[36]                          Before the Court of Appeal, Ms. Bouvette sought orders allowing her appeal, vacating the guilty plea entered at trial, quashing the conviction and entering an acquittal. If an acquittal was not available, she sought a judicial stay of proceedings.

[37]                          The Crown conceded that the fresh evidence of non-disclosure should be admitted. It agreed with Ms. Bouvette that the appeal should be allowed and the conviction quashed. The Crown sought an acquittal or, in the alternative, a judicial stay.

[38]                          The Court of Appeal concluded that the non-disclosure established a failure on the part of the Crown and police to disclose information of significance to the defence. Ms. Bouvette had established a prejudice serious enough to constitute a miscarriage of justice, specifically a reasonable possibility that she would not have entered a guilty plea had full disclosure been made.

[39]                          The Court of Appeal proceeded to review the remedial options available to redress the miscarriage under s. 686(2) Cr. C., noting that where an appeal from a conviction is allowed under any of the three grounds set out in s. 686(1)(a) Cr. C. — unreasonable verdict, error of law or miscarriage of justice — the court shall quash the conviction and (a) direct a judgment or verdict of acquittal, or (b) order a new trial.

[40]                          An acquittal will be entered under s. 686(2)(a), wrote the Court of Appeal, “if the appeal court is satisfied, based on the trial record as augmented by the fresh evidence, that no reasonable jury, properly instructed in the law, could convict” (para. 114). The test, continued the court, “is a strict one” (para. 114).

[41]                          “There is appellate . . . authority”, wrote the court, “for the proposition that, in exceptional circumstances, an acquittal may be entered even when it cannot be said that an acquittal would be the only reasonable verdict” (para. 115). The court observed that in Truscott, a new trial was not possible and that the Court of Appeal for Ontario had been satisfied that, on the “complete record” before it, there would never be another forum in a better position to assess the appellant’s culpability (para. 116, citing Truscott, at paras. 260 and 265-69). Still relying on Truscott, the court noted that a new trial will generally be ordered if the appellate court is satisfied that the record on appeal “admits of a reasonable possibility of a conviction” (para. 117, citing Truscott, at paras. 247-48).

[42]                          The court observed that a stay of proceedings was available to prevent an abuse of process, based on the appellate jurisdiction in s. 686(8) Cr. C. and s. 24(1) of the Canadian Charter of Rights and Freedoms (para. 118). Further, it wrote that because a court quashing a conviction is exercising a power conferred on it by s. 686(2), “[i]t is, therefore, unnecessary for the court to order a new trial before making an order staying proceedings” (para. 119). The court recognized, however, that from the point of view of Ms. Bouvette, a stay represents “an inferior remedy” to an acquittal in that, while it removes the stigma of a conviction, it would leave the lingering stigma associated with an unresolved allegation of criminal negligence causing the death of a child (para. 122).

[43]                          In respect of the circumstances of this case, the court concluded that there was evidence on the record upon which a reasonable jury could convict Ms. Bouvette of criminal negligence causing the death of Iyanna. The court cited, in particular, Dr. Matshes’ testimony at the preliminary inquiry that it would have been unlikely for Iyanna to have presented normally in the aftermath of the injuries he observed at the autopsy. This might have accounted for the drowning in the bathtub. “On the same evidence”, wrote the court, “a reasonable jury could also conclude that the appellant knew Iyanna had been injured before she put her in the bathtub” (para. 131). Specifically, the court wrote that a reasonable jury, properly instructed, could “conclude that knowingly leaving an injured 19-month-old child unattended in a bathtub for as long as a minute constitutes a marked and substantial departure from the conduct of a reasonable person in the appellant’s circumstances” (para. 133).

[44]                          On this basis, the court declined to enter an acquittal. It went on to consider whether the court should nonetheless enter an acquittal by reason of special circumstances, by applying the framework developed notably in Truscott. The Crown submitted that the circumstances of the case supported the view that this is an exceptional case warranting a Truscott analysis, observing that Ms. Bouvette had served the entirety of her sentence; that she had suffered great prejudice as a result of the miscarriage of justice; and that the Crown’s case on retrial would be weak, such that it was more likely than not that she would be acquitted at a retrial. The court added that the Crown made clear in oral argument that regardless of the remedy granted by the Court of Appeal, “it has no intention of proceeding with a new trial” (para. 136).

[45]                          Notwithstanding the position of the parties, the Court of Appeal wrote that it was not satisfied that the circumstances of the case were “sufficiently exceptional to justify embarking on a Truscott analysis” (para. 137). In particular, “the theoretical possibility of a new trial” (para. 138) distinguished the present case from Truscott. Moreover, observed the court, it cannot be said here that, as in Truscott, the appellate court had the benefit of a complete record or that no better forum for assessing culpability could exist. Specifically, counsel acknowledged that the Court of Appeal was not in a position to make findings in respect of the disputed forensic pathology evidence and that deciding the matter would necessarily “involve an intolerable degree of judicial speculation” as to the likely outcome of a new trial (para. 139).

[46]                          That said, the Court of Appeal had no hesitation in entering a judicial stay, the alternative order sought by the parties, based on the serious breach of Ms. Bouvette’s right to make a full answer and defence caused by the non‑disclosure. The court made no finding of bad faith or misconduct but did underscore the significant character of the prejudice suffered by Ms. Bouvette as a result of the non‑disclosure and the fact that she had served her sentence in full.

[47]                         In sum, the Court of Appeal allowed the fresh evidence application, which included the transcript of the preliminary inquiry, allowed the appeal, ordered that Ms. Bouvette’s guilty plea at trial be vacated, and quashed the conviction. The court declined to enter an acquittal because it was of the view that there was evidence upon which a properly instructed jury, acting reasonably, could convict Ms. Bouvette at a new trial. Despite the seriousness of the charge, a stay was warranted pursuant to s. 686(8) Cr. C., wrote the court, “because compelling the appellant to stand trial again would violate those fundamental principles of justice [that] underlie the community’s sense of fair play and decency” (para. 144).

IV.         Issues on Appeal

[48]                         Ms. Bouvette appeals from the judicial stay ordered by the Court of Appeal, asking this Court to set it aside and enter an acquittal (A.F., at para. 134).

[49]                         Ms. Bouvette says she should be acquitted on one of two grounds (A.F., at para. 106). First, she argues there is no evidence on which a reasonable trier of fact could convict. Second, and in the alternative, she should be acquitted on a discretionary basis considering the circumstances surrounding her case.

[50]                         Before the Court of Appeal, the Crown agreed that Ms. Bouvette was entitled to an acquittal on the ground that there is no evidence on which a reasonable trier of fact, properly instructed, could convict (R.F., at paras. 118-19), but it now takes a different position. The Crown says that it was open to the Court of Appeal to conclude that Ms. Bouvette should not be acquitted on this ground (para. 119). However, the Crown submits that she should nonetheless be acquitted on a discretionary basis based on the miscarriage of justice and says the Court of Appeal should not have ordered a stay in the event (paras. 7 and 11).

V.           Analysis

A.           Remedial Powers for Appellate Courts Quashing a Conviction

[51]                         In order to determine whether Ms. Bouvette should be acquitted, it is helpful to recall the statutory powers available to the Court of Appeal when it quashed her conviction under s. 686(2) Cr. C. I first consider the relevant orders that may be made under s. 686(2) and (8), before contrasting the two remedies — an acquittal or a judicial stay — that are specifically at issue in this appeal.

(1)          Principal Orders Available: Acquittal, New Trial and Judicial Stay

[52]                         As with all appellate powers, the options available to the appellate court must find their source in legislation (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 21). The principal powers of an appellate court when allowing an appeal against a conviction such as the one at issue are provided for in s. 686(1), (2) and (8) Cr. C. Other powers under s. 686 are available in circumstances unlike those at issue in this appeal, such as substituting another verdict when an appeal is dismissed (see, e.g., s. 686(3)).

[53]                         First, s. 686(1)(a) permits the appellate court to allow the appeal in circumstances including, as provided in subpara. (iii), on any ground where there was a miscarriage of justice:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

 

(a) may allow the appeal where it is of the opinion that

 

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

 

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

 

(iii) on any ground there was a miscarriage of justice;

[54]                         Section 686(2) then provides that when an appeal has been allowed under s. 686(1)(a), the court of appeal must, looking backwards, quash the conviction. Quashing convictions protects accused persons from miscarriages of justice, such as the failure of disclosure in Ms. Bouvette’s case, resulting in convictions that may be characterized as unsafe or even wrongful. The focus of the appellate court then shifts from a retrospective inquiry into whether “the conviction . . . constitutes a miscarriage of justice”, to a prospective “second stage of [the] analysis: having quashed the conviction, what is the appropriate remedy?” (see Truscott, at para. 245). This prospective inquiry is no longer fixed on whether the conviction should be set aside by reason of a miscarriage of justice. Rather, the appellate court’s remaining remedial task is to select the appropriate path forward, now that the conviction has been effaced, by ordering either an acquittal, a new trial or a judicial stay. Regardless of the path chosen, the conviction that was the subject of the appeal will be neither prevented nor perpetuated.

[55]                         Paragraphs 686(2)(a) and (b) set forth two of the remedies relevant here, directing that the same remedies are available regardless of the ground for allowing the appeal under s. 686(1)(a):

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

 

(a) direct a judgment or verdict of acquittal to be entered; or

 

(b) order a new trial.

[56]                         Additional powers are granted to an appellate court in s. 686(8), sometimes called “residual” or “ancillary” powers, which allow the court to make any order, in addition, that justice requires when exercising its power to quash a conviction:

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

[57]                         Together, these provisions provide the appellate court with three main options when it allows an appeal from conviction. As is explicit from s. 686(2)(a) and (b), an appellate court may order a new trial or enter an acquittal in place of the quashed conviction. A third option, the judicial stay, is not explicitly mentioned in s. 686(2) but may be ordered under s. 686(8) as an order ancillary or residual to setting aside the conviction (see R. v. Hinse, [1995] 4 S.C.R. 597, at para. 29). A judicial stay brings a definitive end to the proceedings — a “drastic” remedy (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30). It is only to be granted to prevent an abuse of process in the “clearest of cases”, addressing prejudice to the accused’s right to a fair trial or to the integrity of the justice system (para. 31, citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68). To be plain, while the Criminal Code provides the appellate court with these three options, the remedy of acquittal is to be considered first and the other options are to be considered where an acquittal is not warranted.

[58]                         The Attorney General of Ontario suggested, as an intervener, that a judicial stay should be entered only after the court has decided under s. 686(2) to order a new trial (I.F., at paras. 14-15). With respect, I disagree.

[59]                         It is settled law that quashing the conviction under s. 686(2) is sufficient to engage the power to enter a judicial stay under s. 686(8), even if a new trial is not ordered (see Smith, at para. 22; see also R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 75; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 39; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at para. 51.282). It is therefore best to think of the judicial stay as a third, distinct order. The judicial stay is indeed a further “alternative” to a new trial order and to an acquittal (Hinse, at para. 29). There is no issue, then, in the fact that the Court of Appeal neither ordered a new trial nor acquitted Ms. Bouvette, but simply quashed the conviction and entered a stay (para. 147).

[60]                         Appellate courts are not bound by statute to enter acquittals in any given situation; Parliament has directed that they choose from amongst available remedies as the circumstances and the interests of justice dictate. That task falls to the courts under s. 686. In other words, Parliament has entrusted appellate courts with the power to acquit under s. 686(2). No one suggests otherwise. This appeal provides an opportunity to clarify when an acquittal, as against a new trial or judicial stay, would be a just and appropriate result, within the proper bounds of the law’s incremental development.

(2)          Distinguishing an Acquittal From a Judicial Stay

[61]                         No one disputes that there are grounds for the judicial stay entered by the Court of Appeal. Regardless of the outcome of this appeal, there will be no new trial. The Court of Appeal did not order one before entering the stay of proceedings and neither party has requested a new trial, whether or not an acquittal is entered. The only issue is whether the Court of Appeal ought to have entered an acquittal in place of the stay. Understanding the nature of these two distinct orders is therefore central to this appeal.

[62]                         An acquittal represents a finding that the accused is not guilty. It means that the Crown has failed to prove its case beyond a reasonable doubt and, subject to a right of appeal, it puts an end to the proceedings. A judicial stay also puts an end to the proceedings and means that the Crown is “disentitled to a conviction” (R. v. Jewitt, [1985] 2 S.C.R. 128, at p. 148). Unlike an acquittal, a stay does not reflect a conclusion on whether or not the person is guilty.

[63]                         While the two remedies are conceptually distinct, they bear important similarities. A judicial stay and an acquittal, unlike a new trial order, both bring a final end to the criminal proceedings against an accused (see Jewitt, at p. 148). When a new trial is ordered, the Crown has a variety of options open to it, such as proceeding with a new trial in pursuit of conviction, offering no evidence and inviting the trial court to acquit, seeking a withdrawal of the charge, or directing a prosecutorial stay (see the Hon. P. J. LeSage, Report of the Commission of Inquiry into certain aspects of the trial and conviction of James Driskell (2007), at p. 130; Reference re: Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 242). The former two options will lead to a final verdict while the latter two will generally not (see, generally, R. v. Selhi, [1990] 1 S.C.R. 277; Criminal Code, s. 579(2); K. Roach, “The Wrongfully Convicted Deserve Acquittals Not Prosecutorial Stays” (2024), 102 Can. Bar Rev. 201, at p. 208).

[64]                         Depending on the avenue pursued by the Crown and the judgment of the trial court, the accused may ultimately be convicted, acquitted or neither. By contrast, an acquittal and a judicial stay both bring the proceedings to a conclusive end (see Roach, at p. 210) and leave the accused in “a position of presumptive innocence” (R.V., at para. 76). They are therefore treated as equivalent for some purposes, such as certain routes of appeal to this Court (see Jewitt, at p. 148; R. v. Puskas, [1998] 1 S.C.R. 1207, at para. 1).

[65]                         The difference between an acquittal and a judicial stay is said to lie in the residual stigma for the accused (A.F., at para. 130; R.F., at para. 91), because an acquittal represents a conclusion of not guilty that a judicial stay does not. The intervener the Canadian Civil Liberties Association suggests that a judicial stay “is only a partial balm to the interests of justice” (I.F., at para. 20).

[66]                         But in truth, even an acquittal will not, of course, remove all stigma associated with the criminal charge. A conclusion of not guilty does not require or imply a factual conclusion of innocence but indicates, in law, that the Crown has failed to prove its case beyond a reasonable doubt (see R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425, at paras. 23-25, citing the Hon. A. Lamer, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), at p. 342; R. v. D.R.S., 2013 ABCA 18, 542 A.R. 92, at para. 15; see also S. N. Lederman, M. K. Fuerst and H. C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (6th ed. 2022), at ¶19.234; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 156, per Charron J., dissenting, but not on this point). I find the transposition of this idea to appellate powers in Mullins-Johnson, at para. 24, helpful: “Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence.”

[67]                         Rather, an acquittal follows from a “broad array of cases ranging from demonstrable factual/actual innocence to a Crown case that establishes probable guilt but falls just short of proof beyond reasonable doubt” (LeSage, at p. 138). It will not always be possible to eliminate public suspicion completely, even after a person charged with a criminal offence is acquitted (P. MacKinnon, “Costs and Compensation for the Innocent Accused” (1988), 67 Can. Bar Rev. 489, at pp. 498-99).

[68]                         For this reason, the difference in terms of stigma should not be exaggerated. This Court has queried whether “the theoretical existence of a charge that has been stayed carries any greater stigma” than an acquittal, and whether the public would truly appreciate the difference, noting that “[a]n unpopular acquittal generates as much public indignation as a stay” (R. v. Potvin, [1993] 2 S.C.R. 880, at pp. 914‑15). Whether a criminal matter ends in an appellate acquittal or a judicial stay, the accused is not in the same position as a person awaiting a trial or an appeal that will determine their guilt, because there is no longer a prospect that they will be convicted on the charge (see generally pp. 910-11).

[69]                         That said, there remains a perception in some quarters that an acquittal removes more stigma associated with the criminal charge than a stay (see Lamer, at p. 319; Roach, at pp. 210-13; see also Truscott, at para. 265). As the intervener Innocence Canada puts it, “the stigma probably never disappears completely, but a court-entered acquittal will go a long way” (I.F., at para. 15). Unlike an acquittal, a judicial stay says nothing of the court’s view of the merits of the case (Jewitt, at p. 148), not even that the Crown has failed to prove its case beyond a reasonable doubt. This difference means it is incumbent on the appellate court to carefully consider whether an acquittal is warranted in every case where a conviction has been quashed. This is true even where there are grounds for a judicial stay, so as to ensure unwarranted stigma does not attach to the accused once the proceedings have ended. This explains the notion, on which there is no dispute here, that an appellate court should first consider grounds for acquittal before deciding whether lesser remedies are available on other grounds (see S. Coughlan, Criminal Procedure (4th ed. 2020), at p. 584, fn. 104, citing R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 540).

[70]                         Courts must be equally careful to enter acquittals only in appropriate cases, so as to avoid distorting their meaning and thereby dulling any stigma-reducing effect. If appellate courts routinely rendered judgments saying there was a prospect of a conviction at a new trial, but entered an acquittal notwithstanding, it would undermine the idea that an acquittal means that the Crown has failed to make out its case on the evidence — a meaning that is said to drive the difference in stigma distinguishing the acquittal from a judicial stay in the first place. Given that “[t]here are not different kinds of acquittals” (Grdic v. The Queen, [1985] 1 S.C.R. 810, at p. 825), the unsettling impact could be felt across all contexts, including when acquittals are entered at first instance.

B.            Grounds for Acquittal Under Section 686(2) Cr. C.

[71]                         With these remedial powers in mind, I turn to consider the grounds on which the remedy sought on this appeal — an acquittal — could properly be entered after a conviction is quashed under s. 686(2). To be clear, I begin by asking whether an acquittal is an appropriate remedy before turning, if necessary, to other options. As I noted above, whether an acquittal is warranted in the circumstances must be considered first, even where there may be grounds for a judicial stay.

(1)          Acquittals Where a Conviction Would Be Unreasonable Based on the Record

[72]                         The most frequently invoked ground for an appellate acquittal is that related to the insufficiency of the evidence underlying a conviction.

[73]                         This is most obvious in cases where the admissible evidence adduced before the trial court would not have permitted any trier of fact to reasonably convict (see R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 53; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 14; R. v. S. (P.L.), [1991] 1 S.C.R. 909, at pp. 915-16; see also P.G. v. R., 2007 QCCA 1160, at paras. 92-93; R. v. D.C.S., 2000 NSCA 61, 184 N.S.R. (2d) 299, at paras. 46-50; Boisvert v. R., 2012 QCCA 1945, at para. 15; T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at paras. 443‑46; J. Sopinka, M. A. Gelowitz and W. D. Rankin, Sopinka, Gelowitz and Rankin on the Conduct of an Appeal (5th ed. 2022), at ⁋4.44; Coughlan, at p. 583). Note that it is the state of the record that is relevant here. This is why, for example, an unreasonable verdict based on insufficiency of the record justifies an acquittal but an unreasonable verdict grounded in a Beaudry error requires asking whether conviction was “in any event, unavailable on the record” (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 23, per Fish J., dissenting, but not on this point; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).

[74]                         Acquitting in such circumstances is necessary to prevent the Crown from having, with the benefit of hindsight, a second opportunity to make out a case, perhaps a different and better case, against the accused (see Pittiman, at para. 14, citing R. v. Harvey (2001), 57 O.R. (3d) 296 (C.A.), at para. 30, aff’d 2002 SCC 80, [2002] 4 S.C.R. 311). This Court has said that providing the Crown that opportunity would come up against fundamental principles of fairness related to the avoidance of double jeopardy (see Savard v. The King, [1946] S.C.R. 20, at pp. 33-34; see also R. v. More (1959), 124 C.C.C. 140 (B.C.C.A.), at pp. 148-50; R. v. Ledesma, 2020 ABCA 411, at para. 21).

[75]                         Even where the evidence advanced at first instance could have reasonably supported a conviction at the time, new evidence adduced on appeal may satisfy the appellate court that no trier of fact could reasonably convict on the record as supplemented (see, e.g., R. v. Hinse, [1997] 1 S.C.R. 3; see also R. v. Oakes, 2016 ABCA 90, 36 Alta. L.R. (6th) 248, at paras. 50-53). Here too the appellate court must acquit. It is in this sense that this ground for acquittal has been rightly described as “mandatory” — it is the only available remedy in such circumstances (Truscott, at paras. 247-48; see also R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 46; R. v. Dhillon, 2014 BCCA 480, 16 C.R. (7th) 8, at para. 28; R. v. Ostrowski, 2018 MBCA 125, 369 C.C.C. (3d) 139, at para. 26; Coughlan, at p. 584). It would be unjust and pointless to send a matter back for a new trial where the evidence shows that the only reasonable outcome would be an acquittal. Indeed, in the circumstances, acquittal is the only just option available to the appellate court. If the law enabled an appellate court to deny an acquittal, it would leave room for injustice by exposing the accused to a new trial or judicial stay when the interests of justice dictate otherwise. The integrity of the acquittal is preserved, as the verdict reflects a failure by the Crown to prove its case beyond a reasonable doubt on the record.

[76]                         These circumstances are to be distinguished from those where new evidence adduced at the appellate stage appears to undermine, to some extent, the prospect that the accused would be convicted at a retrial, but the supplemented record still admits of a reasonable possibility of conviction. The state of such a record does not, on its own, provide grounds to acquit (see R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 76; Maciel, at para. 46, citing R. v. Stolar, [1988] 1 S.C.R. 480; see also R. v. C.D.G. (1995), 128 Nfld. & P.E.I.R. 312 (Nfld. C.A.), at para. 82).

[77]                         Acquitting where the evidence cannot reasonably support a conviction respects the institutional limits of appellate courts and recognizes the institutional advantage of a court of first instance to appreciate evidence. The Attorney General of Ontario recalls that the appellate proceedings must not devolve into “trial by appellate court on the written record” (I.F., at para. 20, citing R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34). As Cromwell J. put it in W.H., appellate review “is a powerful safeguard against wrongful convictions”, but “it is also one that must be exercised with great deference to the fact‑finding role” (para. 34). It cannot be said that the appellate court, based on its own appreciation of the evidence, is depriving the trier of fact of their role in choosing between the available verdicts when that evidence provides only one reasonably available option.

[78]                         This evidentiary ground for acquittal also leaves intact the generally understood meaning of an acquittal, because the court can safely conclude that, on the record, the accused is not guilty of the offence charged: the same conclusion that underlies an acquittal entered at first instance.

(2)          Acquittals Where the Crown Would Invite Acquittal

[79]                         Similar considerations require recognizing a second ground for acquittal under s. 686(2) Cr. C., one that is raised by the unusual circumstances of this appeal. Unless it would be contrary to the public interest, an appellate court must acquit where the Crown seeks an acquittal and says that it would call no evidence at a new trial to ensure that an acquittal will be entered. This is so regardless of whether or not conviction would be unreasonable on the existing record, and regardless of what an appellate court thinks may happen at a hypothetical new trial.

[80]                         The rationale underlying this ground is that the appellate court is, as with the traditional evidentiary ground under s. 686(2), merely giving effect to circumstances that would lead directly to an acquittal in any event. Even if the court were to order a new trial, the least favourable remedy from the perspective of the accused, the Crown’s position would mean the trial court would be required to acquit (see LeSage, at p. 130; Roach, at pp. 224-27). Where an acquittal results from the Crown leading no evidence, it finally resolves the proceedings in a conclusion of not guilty, as with any other acquittal (see R. v. Riddle, [1980] 1 S.C.R. 380, at p. 399). By substituting an acquittal for the conviction now, then, on the basis of the Crown’s undertaking, the appellate court is merely imposing a result in the exercise of its s. 686(2) power that the parties would inevitably reach if a new trial were ordered.

[81]                         As the appellate court is merely entering the same acquittal that would be eventually entered by the trial court, there can be no suggestion that the appellate court is usurping the role of the trier of fact, nor that it is distorting the generally understood meaning of an acquittal. In the new proceedings, not guilty would be the only legal conclusion for the trier of fact to reach because conviction would be unreasonable on a record with no evidence. The acquittal would be entered on the basis that the Crown will not have proven its case against the accused, which reflects the legal meaning of an acquittal.

[82]                         The Attorney General of Ontario says the appellate court in this scenario should, rather than imposing this ultimate result directly, order a new trial and have the trial court enter the acquittal (transcript, at p. 87). With respect, I disagree.

[83]                         The Attorney General of Ontario’s position would require pro forma proceedings that are at odds with timely and efficient criminal justice. This Court has said that all criminal justice participants, including the courts, must do more to address inefficient practices of criminal justice (see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 41, 45 and 116; see also La Presse inc. v. Quebec, 2023 SCC 22, at para. 55). It is trite to say that delays in criminal proceedings continue to be a significant problem for Canadian courts (see Department of Justice Canada, Final Report on the Review of Canada’s Criminal Justice System (2019), at p. 5). It would serve no purpose to hold proceedings before the trial court, at further expense and delay, only to arrive at the very same result an appellate court can effect directly.

[84]                         Additionally, the Attorney General of Ontario’s position would leave accused persons like Ms. Bouvette, who have already succeeded in having their convictions quashed, in a continued state of disquiet until the completion of proceedings that are, in point of fact, a formality rather than any meaningful inquiry into the merits. It is easy to imagine further proceedings visiting real hardship on such accused. Accused persons should not have to wait for purposeless formalities to secure the final disposition that would inevitably ensue.

[85]                         It is central to this ground of acquittal that the Crown has not only said it would call no evidence at an eventual trial and invite an acquittal, but has also asked that an acquittal be entered immediately by the appellate court. If the Crown does not wish that an acquittal be entered on this ground and prefers to proceed differently, it need only take a different position before the appellate court or decline to make representations about what would occur at a new trial (see, e.g., Phillion, at para. 242). As counsel said at the hearing, the Crown need not give an answer to what it would do at a retrial, but when it does, this Court must take that position into account (see transcript, at p. 45).

[86]                         Recognizing this ground of acquittal is consistent with the idea, expressed in other contexts, that courts should restrain themselves from interfering with joint positions of criminal parties as to the final resolution of their matters (see, by analogy, R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204). Respecting joint positions not only serves the goals of timely and efficient justice (see para. 40; see also R. v. Nahanee, 2022 SCC 37, at para. 26), but reflects that the parties are well placed to arrive at an outcome, on the particular circumstances of their case, that is fair and just (see Anthony‑Cook, at para. 44).

[87]                         Where an accused is pleading guilty and being sentenced in accordance with a joint submission, the court must scrutinize the sentence to ensure it is not contrary to the public interest (see Anthony-Cook, at paras. 32-33). In recognition of the importance of joint submissions, the public interest test “sets a very high bar” for interference (Nahanee, at para. 26). It requires the joint submission to be “so unhinged” from the circumstances of the offence and accused that it “would lead reasonable and informed persons, aware of all the relevant circumstances” to believe that the proper functioning of the justice system “had broken down” (Anthony-Cook, at para. 34). Despite the demanding nature of the public interest test, one can imagine joint submissions that would meet it, given the broad array of possible sentences at which the parties may theoretically arrive.

[88]                         An appellate court exercising its authority under s. 686(2) must ensure it is not acting contrary to the public interest. Where the Crown indicates that the accused would inevitably be acquitted at a new trial, it is unlikely that an immediate appellate acquittal would undermine the public interest. An appellate court is simply giving immediate effect to a result — an acquittal — that would be inevitably achieved in the trial court anyway. Where entering an acquittal immediately is not contrary to the public interest, the appellate court is properly fulfilling its supervisory role and arriving at the just outcome in the circumstances. To be clear, there can be no suggestion that the court is transferring, by effect or otherwise, its statutory authority to the Crown or the parties. Ultimately, it is the court that enters the acquittal where, as in these circumstances, it is the just outcome. As previously noted, Parliament has conferred on the appellate court the responsibility to ensure that the appropriate remedy is ordered. An appellate court that does not acquit in these circumstances would necessarily be failing to carry out this task.

[89]                         In practice, recognizing this ground for acquittal empowers the Crown to address the residual stigma caused by miscarriages of justice. As the ground does not require complex evidentiary or contextual argument, and applies regardless of whether or not conviction would be unreasonable on the existing record, it does so in a relatively timely and efficient manner. A framework that would deny people like Ms. Bouvette an acquittal on this ground, and instead require the parties to engage in a broad-ranging and resource‑intensive analysis to achieve the same result, would be countenancing a waste of already limited appellate resources to no apparent end. An acquittal is a foregone conclusion in these circumstances. Thus, it is unnecessary, for the proper administration of justice, to embark on a lengthy determination as to whether it is clearly more probable than not that an accused would be found not guilty at a hypothetical new trial. Efforts taken by the Crown to bring an expedited end to proceedings tainted by miscarriage of justice are to be commended and given effect (see R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at paras. 15 and 31; see also Mullins-Johnson, at paras. 9-10 and 29).

(3)          Acquittals Based on Appellate Discretion

[90]                         I accept that there are circumstances that may justify acquittal on grounds other than those I have identified above, including on grounds that may extend greater discretion to the appellate court (see, e.g., Dunlop, at p. 900; but see Brouillard v. The Queen, [1985] 1 S.C.R. 39, at p. 53; see also Stolar, at pp. 492-93). The parties point us to various appellate court decisions that purport to acquit on a discretionary basis and in reference to factors akin to those referenced in Dunlop, including the Court of Appeal for Ontario’s decision in Truscott (see, e.g., R. v. Karuranga, 2021 SKCA 90, 488 C.R.R. (2d) 317, at paras. 41-43; Walsh, Re, 2008 NBCA 33, 335 N.B.R. (2d) 1, at paras. 57-61; R. v. Tom (1992), 79 C.C.C. (3d) 84 (B.C.C.A.), at pp. 94-95).

[91]                         In Dunlop, this Court acquitted successful appellants against conviction, relying on the fact that the “substance of the case [was] their denial against the testimony of [the complainant] without much more”, but also that they had been subjected to two trials already and had been in custody for over a year (p. 900). Given this Court’s reasoning was limited to the adoption of brief analysis by the dissenting judge of the Court of Appeal, it is unclear what bearing each factor had on the analysis. While I recognize that Dunlop does provide a basis, in the jurisprudence of this Court, for a discretionary acquittal based in part on factors unrelated to the merits of the appeal, in particular where the sentence has been served, our later decision in Brouillard makes plain that the appellant having served their sentence provides no necessary ground for an acquittal on its own (see also R. v. O’Brien (1987), 10 Q.A.C. 135, at para. 12; R. v. Vickerson, 2020 ONCA 434, at para. 8; LSJPA — 1521, 2015 QCCA 1229, at paras. 54‑56). Commenting LSJPA — 1521, which considered both Dunlop and Brouillard, authors Vauclair, Desjardins and Lachance, at para. 51.248, fn. 958, wrote that [translation] “the [Quebec] Court [of Appeal] ordered a new trial despite the sentence served, even though the verdict was not unreasonable, as it was of the view that the new judge could take this into account if the judge had to impose another sentence, or that the Crown could consider it before deciding to have a retrial”.

[92]                         Ms. Bouvette and the Crown both take the position that acquittals should be available on a broad discretionary basis. Ms. Bouvette suggests that these discretionary acquittals need not be exceptional nor limited to the circumstances of the Court of Appeal for Ontario’s decision in Truscott (A.F., at para. 105). She insists that this Court should recognize a broad framework even if unnecessary to resolve her case (transcript, at p. 12), identifying several factors that she says inform the analysis: (1) she has served her sentence, (2) suffered significant prejudice, and (3) lives with severe stigma (A.F., at paras. 107-10; see also transcript, at p. 11). She says that when those factors are met, a miscarriage of justice justifies an appellate acquittal rather than a judicial stay, even if the record indicates a reasonable possibility of conviction at a new trial.

[93]                         The Crown agrees that discretionary acquittals should be available on a broader basis than Truscott, a case that it described at the hearing as “conceptually confusing” (transcript, at p. 41). The Crown proposes a constellation of broadly worded factors including (1) the history of the proceedings, (2) the circumstances of the accused, (3) whether some or all of the sentence has been served, (4) the position of the parties on the “factual matrix on appeal”, (5) the nature of the proceedings in the court below, (6) the nature of the basis for overturning the conviction, and (7) the impact of passage of time on the availability and weight of the evidence (R.F., at paras. 102-8). In oral argument, Ms. Bouvette expressed general agreement with the Crown’s framework (Appellant’s Condensed Book, at p. 1, para. 5; transcript, at p. 11).

[94]                         It is unnecessary, in my respectful view, to define comprehensively the basis on which acquittals can be entered on discretionary grounds under s. 686(2). Given the current state of the jurisprudence, and the lack of true adversarial engagement by the parties, this ground offers a route that is uncertain and fraught in the circumstances of this case. The other avenues addressed above are uncontroversial and an acquittal as a remedy for the miscarriage of justice is a foregone conclusion here. As I will later explain, Ms. Bouvette must be acquitted under the second ground identified above, and the theoretical discussion invited by the parties has no bearing on the outcome of this appeal.

[95]                         In the circumstances, I would not take up the invitation of the parties to endorse these broad discretionary frameworks for acquittal. Their proposals would place at risk both the understood meaning of an acquittal and the proper role of the appellate courts within our system of criminal justice. It is true that some appellate courts have chosen to enter discretionary acquittals under s. 686(2) Cr. C., based on a miscarriage of justice unrelated to the merits, and notwithstanding the presence of evidence on the record that could ground a reasonable conviction. It is not always plain to see, however, in reading these cases, why someone who might be convicted on the merits at a retrial should nevertheless be acquitted on appeal. The law jealously protects the trier of fact’s ability to decide, based on its view of the record, whether the Crown has made out its case. Obviously in an appeal in which fresh evidence admitted on appeal is clearly conclusive of the result, when considered as part of the whole record, an acquittal can be entered (see Stolar, at pp. 491-92). Otherwise, as a general matter, the law is rightly concerned about appeal courts usurping the role of triers of fact by engaging in a substantive weighing of the evidence, which invites great caution in a case like ours where the fresh evidence is not conclusive of the result.

[96]                         Many of the factors advanced for our consideration by the parties here allude to some degree of substantive weighing of the evidence on appeal before entering an acquittal. Relying on such factors risks usurping the role of the trial court because they are unrelated to whether a trier of fact would have multiple options open to them on the evidence, including conviction (compare R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40; W.H., at para. 27). Likewise, inquiring into whether it is more probable than not that an acquittal would result at a retrial looks very much like the substantive weighing that is squarely within the competence of the trial court. An acquittal at first instance means that the trial court did, in fact, have reasonable doubt as to guilt, not that this result was probable. I agree with the Attorney General of Ontario that it is far more natural for trial judges and juries at first instance to test the evidence through an adversarial process (I.F., at para. 20) and that appellate courts must resist the temptation to become a “13th juror” (W.H., at para. 27).

[97]                         Meanwhile, the other factors extraneous to the merits of the case, which make up the bulk of the factors identified by the parties in this appeal, do not speak clearly to whether the Crown would fail to establish guilt beyond a reasonable doubt. Granting an acquittal based on such factors risks undermining the meaning of an acquittal, because the proposed factors could allow for an acquittal in circumstances where the accused may have eventually been convicted at a retrial, and possibly even where such a result would be likely. Since an acquittal is an acquittal (Grdic, at p. 825), the stigma-reducing effect of all acquittals is at risk. A criminal trial is supposed to determine “whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty” (Mullins-Johnson, at para. 23, citing Lamer, at p. 342). Moreover, in subsequent criminal proceedings, an acquittal has been said to be equivalent in meaning “to a finding of innocence” (M. L. Friedland, Double Jeopardy (1969), at p. 129; see also Grdic, at p. 825). Appellate proceedings that lose sight of these fundamental concepts of criminal justice could risk “a misleading result that does a disservice to the administration of justice” (I.F. (Attorney General of Ontario), at para. 19).

[98]                         I am not unmindful of the prejudice that a miscarriage of justice can occasion, nor of the unfairness a new trial might visit on the accused. But where there is evidence on the record upon which a reasonable jury could convict, other considerations may well suggest that an acquittal, signalling that the accused is not guilty on the evidence, would not be appropriate (see, e.g., R. v. Yusif (1994), 74 O.A.C. 348, at para. 28). Obvious factors include the state interest in the victim’s prejudice and the social interest in the integrity of acquittals grounded in the facts. The victim’s perspective was not an explicit feature in the factors that the Crown and Ms. Bouvette agree upon as the basis for a discretionary acquittal before us. At the hearing, the Crown gave, in my respectful view, an ambiguous answer on this point, saying that the impact on the victim should not be “a major factor, but it may be in some cases . . . a factor of some significance” (transcript, at p. 74).

[99]                         The challenge, for the law, is discerning when a miscarriage of justice will justify an appellate acquittal on these broader discretionary grounds, circumstances that the Attorney General of Ontario says, if they are to be recognized at all, “should be narrowly defined” (I.F., at para. 31). To be sure, a miscarriage of justice relates to the fairness of the proceedings that led to a conviction and can mean that the conviction must be quashed. As Ms. Bouvette most properly recalls, the importance of avoiding miscarriages of justice is not disputed (see A.F., at para. 89, citing R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 61, per Abella J.). But it bears repeating that the conviction resulting from the miscarriage of justice has been quashed. The challenge facing the appellate court is no longer correcting the past injustice that culminated in conviction, but to chart, prospectively, the remedial path to a just outcome. As I have said, it is not the past miscarriage of justice that, in itself, dictates whether an acquittal, a new trial or a judicial stay is appropriate, but the exercise by the court of its statutory remedial power. These are distinct matters. For example, if, after a conviction is quashed as resulting from a miscarriage of justice, there remains evidence upon which a reasonable conviction can rest, it is not plain how the character of the wrong associated with the past miscarriage of justice can justify a remedy of “not guilty” going forward.

[100]                     Fixing the proper compass of discretionary acquittals should therefore be approached with caution given these additional dangers, which are not present for the other grounds of acquittal I have recognized above. The frameworks advanced by the Crown and Ms. Bouvette demonstrate no material consideration of these attendant dangers and offer no obvious means to manage them. Many of the factors identified by the parties have at most a tenuous link to the understood meaning of an acquittal, and their unweighted nature could, I fear, justify an acquittal in situations that are not circumscribed in a principled manner. Frameworks like these, structured around long lists of broadly worded, overlapping, and discretionary factors, can cause confusion that militates against their adoption (see, e.g., Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, at paras. 68 and 71). When there is no prescribed weighing of such factors, the determination may well be evasive of appellate review, insofar as the weighing would presumably attract deference. The parties’ frameworks would foster undue complexity that could undermine the predictability associated with just outcomes on appeal.

[101]                     It is perhaps unsurprising that the submissions on the framework in this case are not developed at a greater level of detail given the lack of adversarial context on this issue. The adversarial context is “a fundamental tenet of our legal system [that] helps guarantee that issues are well and fully argued by parties who have a stake in the outcome” (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pp. 358‑59). This calls to mind the remarks of Megarry J., offered in another context, who alluded to the “purifying ordeal of skilled argument on the specific facts of a contested case” and observed, famously, that “[a]rgued law is tough law” (Cordell v. Second Clanfield Properties Ltd., [1969] 2 Ch. 9, at p. 16). The submissions on discretionary acquittals were not adversarial as between the parties here, because the Crown and Ms. Bouvette both argued for similar broad discretionary frameworks, fixing largely on the same list of factors, some of which have no bearing on the outcome of the appeal that concerns them. An adversarial context would be best suited to allow this Court to fully contend with the competing views inherent in setting out a comprehensive framework for discretionary acquittals. In its absence, and given that the matter need not be resolved here, this Court should tread cautiously (see J. W. Morden, “The ‘good’ judge” (2005), 23(4) Advocates’ Soc. J. 13, at p. 21; R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 84).

[102]                     In the circumstances, it should be for future courts to scrutinize other purported grounds for acquittal, including those conferring on the appellate court appropriate discretion, in cases where such grounds would actually affect the disposition. They will be in a better position to assess whether, as with the two grounds recognized above, entering an acquittal in the circumstance is appropriate in light of the role of the appellate court and the understood meaning of an acquittal. Where there is no other basis for an acquittal as the just outcome, the interests of justice and the circumstances of a given case will ensure that the law develops usefully and even-handedly.

[103]                     I recall that, even where there are no grounds for acquittal, factors extraneous to the merits of the case, such as many of those invoked in the parties’ frameworks for discretionary acquittal, may still work to prevent the matter proceeding to a new trial. Factors relating to the unfairness of a retrial directly inform the need for a judicial stay (see Babos, at para. 32), and may contribute to the Crown’s decision of whether to proceed with a new trial if ordered. Indeed, it was on the basis of such factors that the Court of Appeal declined to order a new trial in this case.

C.            Ms. Bouvette Must Be Acquitted by This Court Under Section 686(2) Cr. C.

[104]                     Applying these principles to the case of Ms. Bouvette, and with respect to the decision to enter a stay in the Court of Appeal, I am of the view that she must be acquitted. While there is no basis to say a conviction on this evidence would necessarily be unreasonable, the Crown’s position is determinative in the exceptional circumstances of this case.

[105]                     Grounds for acquittal need not be considered in a particular order and appellate courts may, for instance, find it appropriate to consider the Crown’s position before asking if conviction would be unreasonable on the record. I recall Grdic: an acquittal is an acquittal as a matter of law, and the evidentiary ground for that result is not superior, in law, to any other. If an acquittal is warranted on one ground, considering the others becomes unnecessary. In the case of Ms. Bouvette, I have considered both the evidentiary ground and the ground rooted in the Crown’s undertaking not to call evidence at a new trial, so as to address the points of genuine disagreement between the parties to her appeal. Some of this disagreement relates to the basis for an evidentiary acquittal. I turn first to that ground.

(1)          Record Alone Cannot Ground Acquittal

[106]                     I agree with the Court of Appeal that Ms. Bouvette has failed to show that a conviction on this record would necessarily be unreasonable.

[107]                     Determining whether no trier of fact could reasonably convict on a given evidentiary record is an exercise familiar to appellate courts, as it is itself a basis to allow an appeal from conviction (see Biniaris, at para. 36; s. 686(1)(a)(i) Cr. C.; see also Vauclair, Desjardins and Lachance, at para. 51.248). The determination requires more than simply a conclusion that the appellate court has reasonable doubt as to guilt based on its own view of the record (see W.H., at para. 27; see also R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 3). The different institutional competence of the appellate and trial courts means that the appellate court does not sit in the same privileged position as the trier of fact when it comes to the appreciation of the evidence, and must be careful not to usurp its role. Still, the appellate court must examine all the evidence and engage in a “limited weighing” to determine whether reasonable conviction is precluded (R. v. Browne, 2021 ONCA 836, 498 C.R.R. (2d) 345, at para. 30; see W.H., at para. 28, citing Biniaris, at paras. 36 and 39; see also Doucet v. R., 2024 QCCA 461, at para. 11).

[108]                     The Crown suggests the Court of Appeal’s conclusion about whether this threshold has been met is supported by factual findings to which this Court owes deference. While it took the position that the evidence could not reasonably support conviction before the Court of Appeal, it now seeks to uphold the Court of Appeal’s decision to the contrary (R.F., at paras. 118-19).

[109]                     To the extent the Crown suggests deference is owed, I disagree. The Court of Appeal’s conclusion on this issue was, quite properly, focused on what a reasonable trier of fact could or could not find based on the record, not on making findings of fact itself (paras. 128-33). The question of whether a trier of fact could reasonably arrive at a given conclusion on the evidence is not a question of fact — it is a question of law that must be answered correctly (see, by analogy, R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at paras. 15-16; see also J. Fortin, Preuve pénale (1984), at p. 313). Therefore, while I take careful note of the Court of Appeal’s reasons, its conclusion must not be upheld unless it is correct.

[110]                     Ms. Bouvette says the Court of Appeal erred in finding there is evidence on which a reasonable trier of fact could convict. She says that it should not have relied on the evidence of Dr. Matshes (A.F., at paras. 113 and 129). Before the guilty plea, the Crown had relied on this evidence for a limited purpose and now says it would not rely on that evidence if there were a new trial (paras. 113-14). The evidence was at the heart of the miscarriage of justice because material related to the reliability of the expert evidence was not disclosed (para. 128). Ms. Bouvette says that when Dr. Matshes’ evidence is set aside, the evidence that would be available to the trier of fact on a retrial could not support a reasonable conviction (paras. 112 and 114). At the hearing, Ms. Bouvette acknowledged that there was other evidence that the child had fallen from a chair in a way that left a visible mark, but said the Court of Appeal had wrongly relied on Dr. Matshes’ evidence about the extent of the child’s injury when placed in the bath (transcript, at pp. 8-10).

[111]                     The Crown disagrees (R.F., at para. 113). It says the decision not to call Dr. Matshes at a retrial does not require excluding his evidence from the record for the purposes of this analysis. The evidence is not inadmissible and is not conclusively undermined by new evidence (para. 114). The Crown says its decision as to what evidence to proffer at a new trial is not relevant to the analysis (para. 115). As counsel put it at the hearing, “the fact that Dr. Matshes [was] a witness whom I conceded I would not call is irrelevant. I wasn’t going to call any witnesses because there was not going to be a trial” (transcript, at p. 83). The Crown says the Court of Appeal was right to conclude that the evidence Ms. Bouvette left the child alone in the bath for a certain time soon after she suffered a fall from a chair could form a reasonable basis for conviction (R.F., at para. 118).

[112]                     I agree with the Crown that the evidence of Dr. Matshes should not be excluded from consideration of the sufficiency of the record for present purposes. Ms. Bouvette draws an analogy here to inadmissible evidence, which is not legally available to the trier of fact to ground conviction and is therefore irrelevant to whether a properly instructed trier of fact could reasonably convict (A.F., at para. 129; transcript, at pp. 30-31). But the fact that the appellate court believes the Crown is not likely to call evidence at a retrial is readily distinguishable from inadmissibility because the former does nothing to establish that the trier of fact is legally barred from considering the evidence. Treating admissible evidence on which the Crown may not rely as if it were inadmissible would invite the appellate court to engage in speculation about Crown strategy at a new trial, which would not be appropriate. The Crown’s position before this Court that it would call no evidence says nothing about whether the available evidence supports conviction, but, as I have explained, is better considered as a separate ground for acquittal.

[113]                     What is required is to analyze the “legally admissible evidence” put before the appellate court in its totality and conduct a limited weighing to determine whether a reasonable jury could convict (S. (P.L.), at p. 916; see also Sopinka, Gelowitz and Rankin, at ⁋4.44). This includes the evidence that could be used by Ms. Bouvette to challenge Dr. Matshes’ opinions, and which was not disclosed to her for the purpose of informing her guilty plea, leading to the miscarriage of justice. In argument before this Court, Ms. Bouvette points to how she might go about that challenge were a new trial held (A.F., at paras. 44-68). But this Court’s analysis must not focus on whether this challenge would succeed before the trier of fact, nor on whether it raises a reasonable doubt in the appellate court, which would amount to a substantive weighing of the evidence. The exercise must remain a limited weighing, focused on whether a trier of fact could reasonably convict Ms. Bouvette beyond a reasonable doubt on the record (see Biniaris, at para. 36).

[114]                     I am aware that in a case like the present, the trier of fact would be bound to consider other reasonable possibilities inconsistent with guilt and would have to be satisfied that guilt is the only reasonable conclusion on the totality of the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55; Vauclair, Desjardins and Lachance, at para. 51.220). The limited weighing required here must be done in light of the Crown’s obligation to prove guilt beyond a reasonable doubt.

[115]                     Without expressing any view on the likelihood of conviction, I agree with the Court of Appeal that Ms. Bouvette has failed to show that a trier of fact would be unable to reasonably convict for criminal negligence causing death on the available evidence (para. 133). I note that the Court of Appeal expressly stated that it accepted, “for the purposes of this analysis that a jury could not reasonably find any of Iyanna’s injuries to have been inflicted by the appellant” (para. 133). Nonetheless, as the Court of Appeal concluded, the evidence on the record could allow a reasonable jury to conclude that knowingly leaving an injured infant unattended in a bathtub for even a short period could amount to criminal negligence. This is not a case in which the new evidence is “so decisive” that it excludes the possibility that a trier of fact could have reasonably convicted (Hay, at para. 76).

[116]                     Even without the opinion evidence of Dr. Matshes, there was admissible evidence available to the Crown suggesting that: (1) the child sustained a visible injury when she fell to the floor while in Ms. Bouvette’s care (A.R., vol. III, at pp. 169-72 and 180; A.F., at para. 25); (2) that later the same day the child was left alone in the bathtub by Ms. Bouvette for a minute (A.R., vol. II, at p. 209; see also vol. III, at p. 30; A.F., at para. 12); and (3) that while in the bath the child became unconscious (A.R., vol. III, at p. 175; A.F., at para. 22) and later died. Viewed in light of the totality of the available evidence in this particular case, the possibility that a trier of fact could reasonably convict cannot be excluded.

[117]                     The record therefore provides no basis, on its own, for Ms. Bouvette’s acquittal.

(2)          Immediate Acquittal by This Court Is Warranted, Based on the Crown’s Undertaking

[118]                     This Court must nevertheless acquit Ms. Bouvette immediately under s. 686(2)(a) Cr. C., on the ground that the Crown seeks an acquittal and would invite the trial court to acquit at a new trial.

[119]                     Both here and before the Court of Appeal, the Crown unambiguously sought an acquittal for Ms. Bouvette (C.A. reasons, at para. 126; R.F., at para. 121). The Crown’s position as to what would occur if a new trial were ordered was not clear before the Court of Appeal, beyond the fact that it would not proceed with a new trial (C.A. reasons, at para. 136; R.F., at para. 113). However, as I have noted, the Crown expressly clarified in its submissions before this Court that if a new trial were ordered it “would call no evidence” and that the trial court “would acquit” (transcript, at p. 42). Indeed, the Crown has been explicit that it would not merely withdraw the charge, another avenue open to it that would avoid proceeding to a new trial, but would instead “call the matter into court and have the Crown call no evidence”, as had been done in other matters resulting in acquittal (pp. 80-81).

[120]                     The Crown’s position is therefore plain that it would invite the trial court to acquit. If this Court were to order new trial and the Crown were to conduct the prosecution in this way, Ms. Bouvette would be acquitted. Rather than forcing the parties to go through pro forma proceedings to achieve this result, proceedings that would cause further delay and anxiety for Ms. Bouvette, or standing in the way of this result by entering a judicial stay, the just result is for the acquittal to be entered now. This also respects the joint position of the parties by analogy to this Court’s approach in Anthony-Cook.

[121]                     Consequently, Ms. Bouvette must be acquitted by the Court without further delay or any possible distress associated with sending the matter back to the trial court.

(3)          Acquittal Based on Appellate Court Discretion Need Not Be Considered

[122]                     Ms. Bouvette and the Crown both take the position that Ms. Bouvette should be acquitted on a discretionary basis. As I have said, I would most respectfully not take up the invitation of the parties to endorse the broad discretionary frameworks for acquittal they advance and would leave the scope of such acquittals to another day.

[123]                     Ms. Bouvette’s appeal is distinguishable from discretionary acquittal cases like Truscott, where an acquittal was not available on either of the two grounds identified above (see paras. 253 and 265). It bears emphasizing that in Truscott, unlike in the appeal as argued before this Court, the Crown denied that an acquittal was an appropriate remedy, and explicitly declined to commit to any of the options that would have been available to it had a new trial been ordered (paras. 253 and 257). The Crown said a new trial order was required, even though it acknowledged that conducting that trial would be impossible (para. 254). Physical evidence adduced at trial had been destroyed and key witnesses were deceased or incapable (para. 254). The nature of the substantive issue in Truscott was, unlike this case, about identity; Mr. Truscott maintained that he was not the person who had murdered Lynne Harper almost 50 years earlier (para. 260).

[124]                     These circumstances in Truscott, which the Court of Appeal for Ontario characterized as “highly unusual” (para. 787), are not Ms. Bouvette’s circumstances. While they have both served their sentences, which as I have said does not itself provide grounds for an acquittal, these cases are otherwise very dissimilar. In Ms. Bouvette’s case the Crown sought an acquittal both here and at the Court of Appeal, and says it would have called the matter into court and adduced no evidence if a new trial had been ordered. Ms. Bouvette has endured a miscarriage of justice resulting in an unsound conviction that has now been vacated, and there is no dispute that the Court of Appeal erred in declining an acquittal. This distinction from Truscott was specifically acknowledged by Ms. Bouvette at the hearing (transcript, at p. 15). It must also be said that the circumstances in Truscott that made retrial theoretically impossible are simply not present here, and that the nature of miscarriage of justice justifying quashing the convictions in each case is completely different. While a retrial was not possible in Truscott, a retrial here would be possible, but for the position of the Crown. All told, Ms. Bouvette’s case is quite unlike Truscott.

[125]                     This is not, therefore, an appeal in which we must consider the suitability of the Truscott framework, nor any alternatives to it. The principles governing the availability and appropriateness of discretionary acquittals should be left to another day; they are not material to Ms. Bouvette’s case because she will be acquitted regardless. In view of the Crown’s position that, if a new trial were ordered, it would arraign Ms. Bouvette and call no evidence against her, the trial court on the retrial will have no choice but to order an acquittal in the circumstances. This Court must make that order now in the interests of justice.

[126]                     In this case, and instances like it, an appellate court can and should exercise its statutory authority to enter an acquittal forthwith given that the time, expense and uncertainties associated with a hypothetical trial on appeal need not be incurred.

[127]                     Therefore, I express no view on whether Ms. Bouvette would be entitled to an acquittal on a distinct, discretionary basis.

VI.         Disposition

[128]                     I would allow the appeal, set aside the judicial stay and enter an acquittal.

                   The reasons of Karakatsanis, Martin, O’Bonsawin and Moreau JJ. were delivered by

                   Martin J. —

I.               Overview

[129]                     This appeal concerns the discretion of appellate courts to enter an acquittal in a conviction appeal where the appellant has established a miscarriage of justice. It asks the Court to clarify when an appellate court may enter an acquittal if the record discloses that a jury, acting judicially, could reasonably convict, but the interests of justice may justify an acquittal.

[130]                     From 2011 to 2013, Ms. Bouvette was prosecuted in relation to the death of a 19‑month-old child in her care. Facing a charge of second degree murder and unaware of crucial evidence calling into question the reliability of the expert evidence against her, Ms. Bouvette agreed to plead guilty to criminal negligence causing death. She served a 12-month jail sentence.

[131]                     Years later, information surfaced which showed that the Crown had failed to disclose significant evidence it had in its possession before Ms. Bouvette pled guilty. Much of that information related to the reliability of the medical examiner’s report on which the initial charge and plea were based. A special prosecutor was appointed to inquire fully into the circumstances of Ms. Bouvette’s conviction and, eventually, the soundness and safety of her conviction were placed before the Court of Appeal for British Columbia. The Crown made significant concessions before the Court of Appeal based on the special prosecutor’s review: that the Crown’s breach of its disclosure obligations amounted to a miscarriage of justice; the evidence was such that no reasonable jury, properly instructed, could convict Ms. Bouvette at any hypothetical retrial; and that she merited an acquittal.

[132]                     The Court of Appeal concluded that, as a result of the Crown’s failure to disclose this evidence of “considerable significance” to the defence (2023 BCCA 152, 424 C.C.C. (3d) 513, at para. 99), and the effect it may have had on her decision to plead guilty, Ms. Bouvette’s conviction was the product of a miscarriage of justice and must be set aside. However, the court rejected the Crown’s concession that an acquittal was warranted and instead entered a stay of proceedings.

[133]                     Ms. Bouvette appeals to this Court seeking an acquittal and clarification about when a court of appeal may enter an acquittal when a miscarriage of justice has led to the quashing of a conviction. The Crown conceded this issue was ripe for consideration and was of public importance.

[134]                     I agree with my colleague that an acquittal is the appropriate remedy; an acquittal is available under s. 686(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), to remedy a miscarriage of justice; and an acquittal may be justified on grounds other than where a conviction would be unreasonable. I also accept his reasons for rejecting the argument advanced by the Attorney General of Ontario (“AGO”) that, faced with a miscarriage of justice, courts of appeal should only order a new trial and leave the matter of other remedies in the hands of Crown prosecutors.

[135]                     However, I write separately to address live issues in this case and to outline the provisions and principles which both ground and guide a court of appeal’s exercise of its statutorily granted discretion to order an acquittal for a proven miscarriage of justice. As my reasons indicate, the acquittal warranted in this case rests on a different legal foundation than the one advanced by my colleague.

[136]                     Both parties and all interveners — the AGO, Innocence Canada, the Canadian Civil Liberties Association, and the Independent Criminal Defence Advocacy Society — implored the Court to bring some clarity and coherence to this underexamined but fundamentally important area of the law. They seek a clear framework for appeal courts to apply when confronted with the appropriate remedy for a miscarriage of justice. They have presented argument, in their written and oral submissions, about the considerations which should inform the exercise of this discretion and argue about their relative merits and disadvantages.

[137]                     There are many reasons why this Court is obliged to provide the very guidance that all the parties and interveners have requested. This Court has a “responsibility . . . to provide clear and authoritative statements of law and guidance to lower courts” (R. v. T.W.W., 2024 SCC 19, at para. 79). It is designed and operates to serve “the community’s interest in obtaining an authoritative settlement of questions of law of importance to the whole nation” (see P. H. Russell, “The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform” (1968), 6 Osgoode Hall L.J. 1, at pp. 28-29). In the absence of clarity from this Court, intermediate appellate courts and litigants may “find themselves mired in uncertainty” (P. Daly, “Introduction”, in P. Daly, ed., Apex Courts and the Common Law (2019), 3, at p. 14).

[138]                     The key issue before this Court is whether the Court of Appeal erred in staying the proceedings against Ms. Bouvette instead of entering an acquittal — which calls directly into question when a court of appeal should grant an acquittal for a miscarriage of justice. The last time this Court considered this issue was 28 years ago in R. v. Hinse, [1997] 1 S.C.R. 3 (“Hinse 1997”). Although the Court entered an acquittal based on a miscarriage of justice, it did so in a brief judgment, without setting out an authoritative approach to s. 686(2).

[139]                     The subsequent case law has been plagued by confusion and inconsistency, and various courts of appeal employ diverse legal tests. Indeed, the British Columbia Court of Appeal took a different approach than the one adopted by the Court of Appeal for Ontario in 2007, when it acquitted Steven Truscott of the 1959 murder of Lynne Harper based on a miscarriage of justice (Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321). That acquittal was based on many factors and findings, including an assessment of fresh evidence, the remaining merits of the case, and the intense prejudice suffered by Mr. Truscott, including the high stigma of being convicted of murder. The British Columbia Court of Appeal questioned whether the Truscott court established a general legal standard for acquittals or whether it was simply explaining why an acquittal was in the public interest in the unique circumstances of that case.

[140]                     That the Crown advances a framework for analysis, with which the defence has agreed, does not prevent this Court from providing the necessary guidance. Courts routinely encourage parties to agree when and on what they can, and to limit their dispute to only those matters which truly divide them, which extends to finding common ground on the governing legal principles. The Crown’s proposed framework builds upon an analysis of the key characteristics and factors in decided cases. It also relies upon the findings, analysis and accumulated wisdom of the experienced jurists entrusted to head inquiries and commissions into various miscarriages of justice and wrongful convictions.

[141]                     In my view, the context of this appeal allows the Court to reach sound conclusions. The parties do not agree on all issues, and the appeal attracted interested attorneys general and other interveners, who provided various other points of view. Crucially, it always remains the duty of the Court to fulfill its role of ensuring that the interests of justice are properly served. In the circumstances of this case, fulfilling this duty requires the resolution of an unsettled, but critically important, issue in this area of law. The Crown and defence hold institutionally adverse positions: they protect different interests, serve different parties, and each has well defined legal and ethical obligations arising from their separate roles (see, generally, Boucher v. The Queen, [1955] S.C.R. 16; see also R. v. Anthony‑Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 44). The recognition of these divergent imperatives is one reason why judicial decision makers usually treat joint submissions made by these opposing parties with a high level of interest and respect. Courts find general merit in the idea that when such definitionally adverse parties agree, the shared proposal has likely been fully canvassed and rigorously evaluated according to their own, distinct animating norms. Of course, even when the Crown and defence unite to speak in one voice, whether about bail, a plea, sentencing or a legal framework, courts are not bound by such joint submissions and will exercise their independent judgment on the issues before them (see, e.g., Anthony-Cook; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 68; R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 105; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 27; R. v. Akram, 2025 ONCA 158, 445 C.C.C. (3d) 270, at para. 58).

[142]                     The scarcity of authority from this Court, the widely acknowledged uncertainty in the jurisprudence, and the able argument of the parties and interveners provide this Court with ample foundation to consider the very issue before us, which is when a court of appeal may order an acquittal when there has been a miscarriage of justice. However, there is another compelling reason why this Court should provide guidance now and not wait for a future case that may never come or may take another 28 years. The provisions of the Code allowing convicted persons wide-ranging access to appellate courts to remedy any miscarriage of justice provide critical protection to accused persons against unsafe and wrongful convictions.

[143]                     Whenever miscarriages of justice occur, they merit the full attention of the justice system and this Court. A lack of clarity about when to enter an acquittal to remedy a miscarriage of justice risks undermining the ability of courts to exercise this discretion in a principled and consistent manner and undercutting their responsibility to act as “guardian[s] of the justice system” (United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 71, citing Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503). Not only will this arise in many of the myriad types of miscarriages of justice which arise, but it takes on particular urgency given the known link between miscarriages of justice and wrongful convictions (R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 61, per Abella J.). Over the years, we have learned a great deal about the causes and costs of wrongful convictions. Appellate courts not only have the clear power to enter an acquittal in such cases, an acquittal may be the only remedial order that responds fully, finally and fairly to the injustices inherent in, and generated, by a wrongful conviction.

[144]                     As I will explain, for cases that fall “outside of the norm” (Truscott, at para. 259), the jurisprudence supports a framework which straightforwardly asks whether an acquittal is in the interests of justice for this narrow set of cases which bear the hallmarks of wrongful convictions. In so doing, courts of appeal should consider the nature of the miscarriage, the remaining merits of the case, including the likelihood of the trial taking place, and the overall equities of the case. Primary weight must be given to the court’s consideration of the merits. A court’s finding that an acquittal is more probable than not is thus generally a pre-requisite to that court entering an acquittal. Furthermore, though the equities cannot be the sole basis upon which to enter an acquittal, they may inform the court’s final balancing in determining whether an acquittal is appropriate.

II.            Background and Issues on Appeal

[145]                     This appeal relates solely to the issue of remedy; Ms. Bouvette does not appeal the Court of Appeal’s conclusion that there has been a miscarriage of justice which justified setting aside her guilty plea and quashing her conviction. Thus, when Ms. Bouvette appears before this Court arguing that an acquittal is the appropriate order to bring this miscarriage of justice to a final conclusion, the presumption of her innocence has been restored and the charge against her remains. While the existence of a miscarriage of justice is not a point of dispute before this Court, its nature and circumstances are highly relevant to the issue of remedy.

[146]                     This miscarriage of justice was the direct result of the Crown’s failure to disclose highly material information to the defence, contrary to its duty under R. v. Stinchcombe, [1991] 3 S.C.R. 326, and in breach of Ms. Bouvette’s constitutional rights. Both the charge against her for the second degree murder of the child and her guilty plea to criminal negligence causing death were based, in large part, on the opinions of Dr. Evan Matshes, the medical examiner who conducted the autopsy on the child. In his written report, as supplemented by his verbal comments to police and testimony at the preliminary inquiry, Dr. Matshes opined that while the child’s death was caused by drowning, the child had other injuries that suggested to him that “[t]his is a child who has been injured by another person in the last couple of days”; there was “no benign explanation” for the injuries sustained by the child; the bruising pattern was “typical of abused children”, all of which “ma[de] the whole story of what happened questionable” (C.A. reasons, at paras. 34-39 and 43).

[147]                     Faced with this expert opinion evidence, Ms. Bouvette, with the advice of counsel, agreed to plead guilty to the lesser offence in May 2013. Ms. Bouvette is Indigenous, the mother of four children, and was 27 years of age on the date of the alleged offence. Ms. Bouvette has been diagnosed with borderline intellectual functioning and attention-deficit/hyperactivity disorder and attended special educational classes while in school.

[148]                     Before the British Columbia Prosecution Service, acting for the prosecuting Crown, accepted Ms. Bouvette’s guilty plea, it received multiple communications in May, August and December 2012 from Alberta Justice, its counterpart in that province, informing them that Alberta had begun a formal investigation to review and assess the reliability of the expert opinions given by Dr. Matshes in various cases across different provinces, including in the case of the child. Much information was received by the prosecuting Crown, including statements that supported Dr. Matshes, but among the material of significant interest to the defence, and not disclosed to Ms. Bouvette and her counsel, was the following:

(i)                 In May 2012, Alberta Justice advised the Cranbrook detachment of the RCMP that Dr. Matshes’ work, including that undertaken in the matter of the child in the instant case, was under review and that Alberta’s Chief Medical Examiner, Dr. Anny Sauvageau, had expressed concerns about Dr. Matshes’ work.

(ii)              On August 29, 2012, the day after the preliminary inquiry commenced, Crown counsel was advised by Alberta Justice that the reasonableness of Dr. Matshes’ conclusions in the matter of the child in the instant case was in question and under review. The author of the communication noted that it was being sent to the Cranbrook Crown counsel “so that she can properly prosecute her case and make disclosure to the defence” (C.A. reasons, at para. 57; A.R., vol. VI, at pp. 27-28).

(iii)            On December 13, 2012, Crown Counsel received a 140-page package of documents from Alberta Justice relating to the results of an external peer review committee’s examination of Dr. Matshes’ findings in a number of cases, including the death of the child in the instant case. The three-member panel, comprised of forensic pathologists, concluded that Dr. Matshes’ opinions expressed to the police and Crown counsel were “not reasonable”, and that his conclusions with respect to the cause of death and manner of death were also unreasonable (C.A. reasons, at paras. 62 and 64; A.R., vol. II, at p. 15; A.R., vol. VI, tab 13).

[149]                     In addition, before her guilty plea, the Crown had determined that, of the four statements Ms. Bouvette made to the police, the fourth was not voluntary and could not be lawfully used as evidence against her. The Crown did not share this decision with Ms. Bouvette or her counsel before it accepted her guilty plea.

[150]                     A trial court accepted Ms. Bouvette’s guilty plea, entered on her behalf by her counsel. No plea comprehension inquiry was conducted as required by s. 606(1.1) of the Code. The court found her guilty of criminal negligence causing death and sentenced her to 12 months’ imprisonment and probation. She served this sentence, and she has suffered other significant prejudice. At the time of the child’s death, she had custody of her four children and was not using drugs or abusing alcohol. After her initial arrest, she began using crack cocaine and lost custody of her children. Since her conviction, her life has been marred by addiction, homelessness, poverty, and poor mental and physical health.

[151]                     In late 2019, Ms. Bouvette’s counsel became aware of the concerns with Dr. Matshes’ work. The Fifth Estate, a television program, broadcast a story about Dr. Matshes. In January 2020, the British Columbia Prosecution Service announced the appointment of a special prosecutor. The special prosecutor conducted an independent review to determine whether a miscarriage of justice had occurred and took corrective measures when the full circumstances of Ms. Bouvette’s guilty plea and conviction were brought to light. In March 2021, Ms. Bouvette filed a notice of appeal and applied to extend the time to appeal her conviction. The Court of Appeal granted the extension on the consent of the Crown.

[152]                     Before the Court of Appeal, the Crown made three crucial concessions. First, it agreed that the Crown breached its disclosure obligations and that the non-disclosure caused serious prejudice to Ms. Bouvette; as a result of that prejudice, the appellant’s guilty plea was the product of a miscarriage of justice and could be withdrawn, and her conviction quashed. Second, the Crown asked for an order acquitting Ms. Bouvette of the charges which remained outstanding against her: understanding that such charges are not displaced by vacating the guilty plea or quashing the conviction. Third, the Crown accepted and argued that, on the trial record as amended by the fresh evidence, there was no longer evidence upon which a reasonable jury, properly instructed, could convict the appellant at a retrial. Alternatively, the Crown sought an acquittal on the basis that at a hypothetical retrial, it was more likely than not that the appellant would be acquitted, per Truscott.

[153]                     The Court of Appeal accepted that there had been a miscarriage of justice, allowed Ms. Bouvette to withdraw her guilty plea and quashed her conviction for criminal negligence causing death. It stated, “[i]t is not difficult to imagine why, unarmed with critical information that could assist her, this marginalized, overwhelmed and intellectually challenged appellant would enter a guilty plea to a lesser offence” (para. 110).

[154]                     However, the Court of Appeal rejected the Crown’s concession of an acquittal and instead used its discretion to enter a stay of proceedings as an ancillary order under s. 686(8). The Court of Appeal rejected the joint submission of both parties and came to its own conclusion on whether the remaining record admitted a reasonable possibility of conviction. Even knowing that the Crown declared they would not be tendering or relying upon Dr. Matshes’ opinions at any hypothetical retrial, the Court of Appeal determined a reasonable jury, properly instructed, could still convict on the criminal negligence charge because it could conclude, based primarily on her leaving an injured 19‑month‑old alone in the bathtub for up to a minute, that she had committed “a marked and substantial departure from the conduct of a reasonable person in [her] circumstances” (para. 133).

[155]                     The court then considered whether it should exercise its remedial discretion to order an acquittal for a miscarriage of justice under s. 686(2)(a). It distinguished Truscott and concluded that an acquittal was only possible in “exceptional circumstances”, which must include an inability to conduct a retrial (para. 115).

[156]                     Before this Court, the appellant advances two main arguments. First, she argues that the Court of Appeal erred in finding that a properly instructed jury could convict in circumstances where the Crown has said the remaining evidence, after excising the pathologist’s report, could not support a conviction at any hypothetical retrial. Second, she says that the Court of Appeal erred in its narrow interpretation of the appellate authority under s. 686(2)(a), which grants a broad remedial discretion to enter acquittals where it is in the interests of justice. The appellant argues she should have been acquitted as she has long since served her sentence and suffered from significant prejudice arising from a miscarriage of justice.

[157]                     Although it took a different position before the Court of Appeal, the Crown now argues that a reasonable jury could convict on the available evidence but that an acquittal should be entered based on exceptional circumstances. By advancing this new position, the Crown brings even more sharply into focus the main issue before us: what test should govern acquittals for miscarriages of justice when a reasonable jury could convict at a hypothetical new trial?

III.         Analysis

[158]                     I first provide an overview of the statutory framework and then consider the two alternative bases upon which the appellant says an acquittal is justified to remedy the miscarriage of justice established under s. 686(1)(a)(iii). As I will explain, the Court of Appeal was correct to conclude that a reasonable jury could convict on the available evidence, but it erred in not entering an acquittal in light of the overall circumstances of this case.

A.           The Statutory Scheme Grants Courts of Appeal a Broad Power To Enter an Acquittal for a Miscarriage of Justice Under Section 686(2) in a Multitude of Scenarios

[159]                     The starting point is that, after quashing the conviction on any ground, courts have a wide statutory discretion, grounded in the express wording of s. 686(2), to order an acquittal or a new trial. As a last resort, it may impose a stay of proceedings as an ancillary order under s. 686(8). Section 686 of the Code provides as follows:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

 

(a) may allow the appeal where it is of the opinion that

 

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

 

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

 

(iii) on any ground there was a miscarriage of justice;

 

(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

 

(a) direct a judgment or verdict of acquittal to be entered; or

 

(b) order a new trial.

 

. . .

 

(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.

[160]                     The relevant provisions of the Code plainly demonstrate that it is courts of appeal which have been granted a broad jurisdiction to review verdicts. The various powers outlined in this part of the Code are explicitly bestowed on appellate courts and the role ascribed to them is unquestionably supervisory, a role which is also at the core of their raison d’être and well within their traditional terrain. The Code captures a central rule of law consideration: that courts, including statutory courts, sit as the ultimate guardians of the Constitution. It has given courts of appeal the authority to act as the final arbiters about which remedial orders are justified in what circumstances. I accept that concessions made by the Crown should be an important factor in the court’s analysis, but given the court’s ultimate supervisory role, I cannot agree that an acquittal “must” be entered because the Crown seeks one and has disclosed that it would call no evidence at a new trial (majority reasons, at para. 79).

(1)          The Code Provides Accused Persons Broad Access to Appellate Review From Conviction

[161]                     The remedial powers set out in s. 686(2) must be understood in light of s. 675(1) of the Code, which provides persons convicted of an indictable offence broad access to appellate review on “virtually any ground” (R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 17). As Doherty J.A. observed in Bernardo, when ss. 675 and 686 are considered together, it is clear Parliament contemplated “unobstructed access to a wide-ranging review of the trial record at a first level of appeal” (para. 18, citing R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 538-40).

[162]                     A person convicted of an offence in proceedings by indictment may appeal a conviction without leave on questions of law, and with leave on questions of fact, and mixed law and fact, or for any other “sufficient ground of appeal” (s. 675(1)(a)(iii)). The latter is “a residual jurisdiction to relieve against miscarriages of justice that do not strictly raise questions of law or fact” (J. Sopinka, M. A. Gelowitz and W. D. Rankin, Sopinka, Gelowitz and Rankin on the Conduct of an Appeal (5th ed. 2022), at ⁋⁋3.42-3.43).

[163]                     Similarly, the unifying rationale for all three grounds for allowing an appeal in s. 686(1)(a) (i.e., unreasonable verdict, error of law, or miscarriage of justice) is to protect against convictions that are the product of a miscarriage of justice, with s. 686(1)(a)(iii) serving as a residual clause (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 76, per Charron J., citing Morrissey, at pp. 539-40; Sopinka, Gelowitz and Rankin, at ⁋4.26; T. Desjardins, L’appel en droit criminel et pénal (2nd ed. 2012), at para. 419).

[164]                     The only ground that was at issue before the Court of Appeal was s. 686(1)(a)(iii). As a residual clause, this provision permits courts to remedy any miscarriage of justice, but courts have generally grouped them under two categories: the irregularity either renders the trial unfair in fact, or creates the appearance of unfairness such that the integrity of the administration of justice is at risk (see R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51, quoting R. v. Wolkins, 2005 NSCA 2, 229 N.S.R. (2d) 222, at para. 89; R. v. Kahsai, 2023 SCC 20, at paras. 67-69; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 69, per LeBel J.; Fanjoy v. The Queen, [1985] 2 S.C.R. 233, at p. 240; Sopinka, Gelowitz and Rankin, at ⁋⁋4.34-4.35; S. Coughlan and A. Gorlewski, The Anatomy of Criminal Procedure: A Visual Guide to the Law (2019), at p. 331; S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶18.14). I will return to the breadth of this ground later in these reasons.

(2)          Section 686(2) Expressly Empowers Courts With a Broad Remedial Discretion

(a)           Section 686(2) Provides the Court a Discretion To Order an Acquittal or a New Trial

[165]                     It is the remedial power in s. 686(2) that is at the crux of this appeal. A review of the text, context and purpose of that provision demonstrates how Parliament did more than open the door to an acquittal after a miscarriage of justice: the working and wording of s. 686 and the express and clear terms of s. 686(2) create a plenary authority allowing appellate courts to order either an acquittal (s. 686(2)(a)) or a new trial (s. 686(2)(b)) whenever any one of the three grounds to allow an appeal in s. 686(1)(a) has been established. The provision does not make an order for a new trial the presumptive remedy, nor does it require the court to consider either remedy in any particular order.

[166]                     Pursuant to the opening words of s. 686(2), a court of appeal “shall” quash a conviction which suffers any of the infirmities listed in s. 686(1)(a), as a fundamentally flawed verdict cannot stand. Quashing the conviction returns the accused to a condition of presumptive innocence (R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 76).

[167]                     After that truly mandatory provision is respected, the charge remains outstanding, and the choice between the remedies provided for in s. 686(2) is entirely within the discretion of the court of appeal (R. v. Haslam (1990), 56 C.C.C. (3d) 491 (B.C.C.A.), at p. 502; R. v. Levy (1991), 62 C.C.C. (3d) 97 (Ont. C.A.); Sopinka, Gelowitz and Rankin, at ⁋4.44). The power to order either an acquittal or a new trial is not statutorily circumscribed to, or required in, any enumerated situations. A broad and flexible remedial power in s. 686(2) is also supported by Parliament’s inclusion of s. 686(8), which provides a discretion to make any ancillary order “that justice requires” (R. v. Provo, [1989] 2 S.C.R. 3, at pp. 19-20; R. v. Thomas, [1998] 3 S.C.R. 535, at para. 19; R.V., at para. 74). Courts have entered a judicial stay of proceedings under s. 686(8), as the Court of Appeal did in this case.

[168]                     Courts have developed principles and rules that guide the exercise of their discretion and to assess when it is appropriate to enter an acquittal or order a new trial once they have determined to allow the appeal from conviction. The statutory ground upon which a conviction is quashed may impact the court’s exercise of its discretion on the appropriate “path forward” (majority reasons, at para. 54). When an appellant establishes an unreasonable verdict under s. 686(1)(a)(i), that too is remedied by quashing the conviction, but the nature of the unreasonable verdict will impact whether a new trial or acquittal is generally the appropriate remedy (Sinclair, at para. 23; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 34). In this way, the ground that results in the quashing of the conviction also informs the analysis of which remedy is appropriate. The nature and extent of an error of law under s. 686(1)(a)(ii) can also inform the scope of an order for a new trial (see, e.g., R. v. Pearson, [1998] 3 S.C.R. 620; Thomas, at para. 58; R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at paras. 47-57). The type of miscarriage of justice established under s. 686(1)(a)(iii) can affect the court’s remedial analysis beyond the quashing of a conviction (see, e.g., R. v. Abukar, 2007 ABCA 286, where the court rejected the Crown’s argument that a new trial was not required on some counts alleged to be untainted by a reasonable apprehension of bias). I note also that the nature of the miscarriage of justice that had befallen Mr. Truscott was expressly used by the court in its analysis of the appropriate remedy (Truscott, at para. 260). As has always been the case, to arrive at a just outcome, the court may need to consider the nature of the ground upon which the appeal was allowed to craft an order that sufficiently remedies the prejudice suffered by an appellant.

[169]                     I would also emphasize that conceptually, there is no statutory basis in s. 686 that requires the court to enter an acquittal in specific circumstances. As with any grant of discretion, applicable principles may point the court towards one conclusion over another (see R. v. Harvey (2001), 57 O.R. (3d) 296 (C.A.), at para. 30; Truscott, at para. 247). And to the extent that an acquittal is more common for unreasonable verdicts than miscarriages of justice, such an order is still the result of a judicial exercise of the discretion, but is not compelled under the statute (see majority reasons, at para. 7).

[170]                     Even where an appellant has established an unreasonable verdict, the court retains the discretion to dismiss the appeal under s. 686(1)(b)(i) and substitute a verdict of guilty for a lesser included offence under s. 686(3) (see, e.g., R. v. Biniaris (1998), 124 C.C.C. (3d) 58 (B.C.C.A.), at para. 26, rev’d in part on other grounds 2000 SCC 15, [2000] 1 S.C.R. 381 (“Biniaris SCC”), at para. 16; R. v. Turner, 2023 MBCA 40, 426 C.C.C. (3d) 211, at paras. 55-56).

[171]                     There is no need, nor would it be beneficial, to create a new conceptual category of “discretionary acquittals” to apply only in cases of miscarriages of justice (see majority reasons, at paras. 8-9; I.F. (AGO), at para. 11). Indeed, my colleague’s approach also engages the application of discretion based on particular factors, and acknowledges that a court of appeal retains the discretion to refuse to direct an acquittal where it is contrary to the public interest (para. 87). Importantly, these acquittals are not of such a different nature that they merit their own grouping — a separate class to be handled with special attention, and perhaps even suspicion.

[172]                     All orders authorized under s. 686 involve and are the products of discretion: whether the order is an acquittal for an unreasonable verdict, a new trial because of an error of law; or a stay of proceedings for a miscarriage of justice. Further, all acquittals ordered by the court of appeal, on any statutorily authorized ground, are also similarly discretionary. We do not speak of a “discretionary new trial” or “discretionary stay of proceedings”, and we do not refer to a “discretionary acquittal” when the verdict was judged to be unreasonable. Care, even caution, is required when assessing, and choosing between, alternative remedial orders. For reasons of conceptual clarity, and because all orders and all acquittals are discretionary, the introduction or use of the concept of discretionary acquittals is not necessary or helpful and runs the risk of confusion.

[173]                     Parliament fully understood that an “acquittal” simply means that the Crown has not met the burden of establishing guilt beyond a reasonable doubt. It is a common and well-understood verdict at first instance. And yet Parliament also granted clear and express authority to courts of appeal to grant just such a power of “acquittal” when they allow an appeal against conviction on any of the three grounds listed in s. 686(1)(a). Given this express conferral of statutory authority, there is no reason to believe that acquittals granted in the public interest to redress a proven miscarriage of justice will debase, dilute or otherwise diminish the status of an acquittal. 

[174]                     Indeed, courts have entered acquittals after allowing appeals on each of the three grounds in s. 686(1)(a). For example:

(i)                 after concluding that the verdict was unreasonable: Venneri v. R., 2011 QCCA 1957, rev’d in part 2012 SCC 33, [2012] 2 S.C.R. 211; R. v. Lacroix, 2008 SCC 67, [2008] 3 S.C.R. 509; R. v. L.A.P., 2000 MBCA 109, 150 Man. R. (2d) 247, at para. 32, aff’d 2001 SCC 28, [2001] 1 S.C.R. 757; R. v. Roy, 2024 SKCA 98, at para. 31; R. v. Shaw, 2024 ONCA 119, 170 O.R. (3d) 161, at paras. 163-201; R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.);

(ii)              after holding that an error of law had been established: R. v. Dillabough (1975), 28 C.C.C. (2d) 482 (Ont. C.A.); R. v. Grant (1975), 23 C.C.C. (2d) 317 (B.C.C.A.); Dunlop v. The Queen, [1979] 2 S.C.R. 881, at p. 900; R. v. Boissonneault (1986), 29 C.C.C. (3d) 345 (Ont. C.A.); R. v. M.B. (1986), 53 Sask. R. 55 (C.A.); R. v. Sophonow (1986), 38 Man. R. (2d) 198 (C.A.); Haslam; R. v. Mohamed (1991), 64 C.C.C. (3d) 1 (B.C.C.A.); R. v. Tom (1992), 79 C.C.C. (3d) 84 (B.C.C.A.); R. v. P.L., [1995] O.J. No. 854 (Lexis), 1995 CarswellOnt 4000 (WL) (C.A.); R. v. Sargent, 2006 ABCA 411, 401 A.R. 146, at para. 3; R. v. W.J.G., 2006 MBCA 20, 205 Man. R. (2d) 5, at para. 11; R. v. Titong, 2021 ABCA 75, at paras. 18-20; R. v. Karuranga, 2021 SKCA 90, 488 C.R.R. (2d) 317, at paras. 41-43; R. v. Deuling, 2024 YKCA 7, at paras. 50-51; and

(iii)            where an appellant established a miscarriage of justice: Hinse 1997; Truscott, at para. 787; R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425, at para. 28; Walsh, Re, 2008 NBCA 33, 335 N.B.R. (2d) 1; R. v. Sherret-Robinson, 2009 ONCA 886, at paras. 9-10; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369, at paras. 33-34 and 39; R. v. Brant, 2011 ONCA 362; R. v. Lewis, 2012 SKCA 81, 399 Sask. R. 180; R. v. D.R.S., 2013 ABCA 18, 542 A.R. 92; R. v. Shepherd, 2016 ONCA 188, at paras. 13 and 21; R. v. J.C., 2024 ABCA 69, at paras. 4 and 13-14.

(b)          Where Parliament Intended To Limit the Appellate Court’s Discretion, It Did So Expressly

[175]                     The clear grant of broad remedial discretion in s. 686(2) upon allowing a conviction appeal may be contrasted with provisions that expressly constrain the appellate court’s powers in other situations.

[176]                     For example, on a successful appeal from acquittal, the court may order a new trial or enter a verdict of guilty, but may only convict where specific provided conditions are met (s. 686(4)(b)) and not where “the verdict is that of a court composed of a judge and jury” (s. 686(4)(b)(ii)). Likewise, while an appellate court may substitute a verdict of unfit to stand trial or not criminally responsible on account of mental disorder pursuant to s. 686(1)(d), after setting aside a conviction, the court has no statutory power to do so where it sets aside an acquittal (s. 686(4); R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 126). A further example is found in s. 686(6), which requires an appellate court to order a new trial when it allows an appeal against a verdict that the accused is unfit. This is subject to s. 686(7), which allows the court to enter an acquittal “if it is of the opinion that the accused should have been acquitted at the close of the case for the prosecution”. While a new trial is the presumptive remedy, if the verdict that an accused is unfit was returned after the close of the case for the prosecution, the court must first consider whether an acquittal is appropriate. No such limiting language or requirement is found in s. 686(2).

[177]                     Where express reference is expected, the court can infer that the failure to mention something is the result of a deliberate decision to exclude it (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 8.09[1]; see also Canada v. Loblaw Financial Holdings Inc., 2021 SCC 51, [2021] 3 S.C.R. 687, at para. 59; Cadieux (Litigation Guardian of) v. Cloutier, 2018 ONCA 903, 143 O.R. (3d) 545, at para. 114). These examples demonstrate that Parliament has narrowed remedial powers in the circumstances it has deemed warrant such restrictions. If Parliament had intended to restrict the court’s power to enter an acquittal to certain circumstances, such as where an appellant established an unreasonable verdict, it could have done so. It did not.

(c)           The Legislative Evolution Supports a Broad Remedial Discretion

[178]                     The legislative evolution of appellate jurisdiction and remedial powers in criminal matters also reinforces the conclusion that Parliament intended for appellate courts to have a broad remedial discretion to enter an acquittal.

[179]                     Criminal appeals are of relatively recent origin in the common law. Early controls and review procedures under English common law were rarely used or of limited effectiveness, and it was not until the 19th century that reform efforts to permit appellate review intensified (P. D. Marshall, “A Comparative Analysis of the Right To Appeal” (2011), 22 Duke J. Comp. & Int’l L. 1, at pp. 4-7; B. L. Berger, “Criminal Appeals as Jury Control: An Anglo-Canadian Historical Perspective on the Rise of Criminal Appeals” (2006), 10 Can. Crim. L.R. 1, at pp. 4-9 and 25-29).

[180]                     Reform efforts faced strong opposition due to an “abiding confidence” in juries and also trial judges, the belief that wrongful convictions were rare, and a desire for speedy disposition of cases (R. J. Sharpe, The Lazier Murder: Prince Edward County, 1884 (2011), at p. 116; Berger, at pp. 25-29). Two high-profile cases of wrongful convictions in England were the impetus for enacting statutory rights of appeal both in England and in Canada (Marshall, at pp. 8-9).

[181]                     The first codification of the criminal law in the Criminal Code, 1892, S.C. 1892, c. 29, permitted a court of appeal to order an acquittal if it was “of [the] opinion in a case . . . that the ruling was erroneous, and that the accused ought to have been acquitted” (s. 746(d)), and a new trial when the verdict was against the weight of the evidence (s. 747). The Act to amend the Criminal Code, S.C. 1923, c. 41, later enacted s. 1014, which largely mirrored our current s. 686 and no longer limited the remedies to particular grounds. Upon allowing an appeal against conviction, the court of appeal could “quash the conviction and direct a judgment and verdict of acquittal to be entered” or “direct a new trial” (s. 9; see also V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L. Rev. 446, at pp. 458-61). 

[182]                     Accordingly, early misconceptions about the frequency of errors by juries and trial judges ultimately gave way to appellate review and an unencumbered statutory authority to grant an acquittal where an appeal from conviction is allowed under s. 686(1)(a). No substantial amendments have been made to what is now s. 686(2) of the Code, confirming the broad remedial powers of appellate courts.

[183]                     This overview demonstrates that Parliament expressly and intentionally granted courts of appeal wide statutory authority to grant acquittals for a proven miscarriage of justice.

B.            The Court of Appeal Did Not Err in Concluding That a Reasonable Jury Could Convict

[184]                     I turn now to the appellant’s first argument that the Court of Appeal erred in holding that a reasonable jury could convict Ms. Bouvette on the entirety of the record, as amplified on appeal. She argues that the court erred by relying on Dr. Matshes’ opinions in coming to this conclusion, since the Crown had advised it would not be tendered at a retrial. She urges this Court to consider his evidence in the context of the non-disclosure and evidence which contradicted his opinions (A.F., at para. 131).

[185]                      In determining whether an acquittal is appropriate where a miscarriage of justice has been established, appellate courts may consider whether, on the record augmented by fresh evidence, a properly instructed jury, acting judicially, could reasonably convict (R. v. Yebes, [1987] 2 S.C.R. 168, at p. 185; Biniaris SCC, at para. 36; R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 42). This standard, applied in the jurisprudence when considering an unreasonable verdict under s. 686(1)(a)(i), has also been applied to assess whether an acquittal is the appropriate remedy under s. 686(2)(a) (see, e.g., Walsh, at para. 62; Truscott, at para. 247; I.F. (Innocence Canada), at para. 11; I.F. (Canadian Civil Liberties Association), at paras. 9-10; see also Sopinka, Gelowitz and Rankin, at ⁋⁋4.43-4.44). For clarity, I refer to this as the “Yebes/Biniaris” standard throughout my reasons. The Yebes/Biniaris standard has been described as a strict one (R. v. Kwok, 2002 BCCA 177, 164 C.C.C. (3d) 182, at para. 27; R. v. Grandbois (2003), 63 O.R. (3d) 161 (C.A.), at para. 13; Truscott, at para. 752). It does not ask whether a properly instructed jury could reasonably acquit (Papasotiriou, at para. 42). Rather, an appellate court can only intervene if no properly instructed jury, acting judicially, could reasonably have found the appellant guilty (Biniaris SCC, at para. 36; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 74-80; R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2). 

[186]                     Determining whether a verdict is unreasonable is an evaluative exercise. In the particular circumstances of this case, and consistent with the approach taken by courts in similar circumstances, it also requires some degree of consideration about the availability and quality of evidence at a hypothetical retrial (see, e.g., Walsh, at paras. 63-94; R. v. Hinse (1994), 64 Q.A.C. 53 (“Hinse 1994”), rev’d in part Hinse 1997). Although the appellate court must not act as a “13th juror”, its role is not spent by its conclusion that there was some evidence which, if believed, supports the verdict and conviction (R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28; Chacon-Perez, at para. 76). The court must also ask itself whether the jury’s conclusion conflicts with the bulk of judicial experience (Biniaris SCC, at para. 40). In this evaluative exercise, the court must review, analyze, and, within the limits of the appellate role, weigh the evidence to ask whether based on accumulated judicial experience there is “a risk of an unjust conviction” (W.H., at para. 29; see also Biniaris SCC, at paras. 40-41; Chacon-Perez, at para. 74). Both objective and subjective assessments are involved (Biniaris SCC, at para. 36).

[187]                      In my view, Ms. Bouvette cannot succeed on this ground, even though I agree with the Crown’s submission in the court below that the remaining case against her is “weak” (Appellant’s Supplemental Record (“A.S.R.”), tab 1, at para. 31). I therefore agree with my colleague that there was no reversible error on the first ground of appeal because, even excising Dr. Matshes’ opinion, it cannot be said that no reasonable jury could convict.

C.            An Acquittal May Be Entered When It Is Justified in the Interests of Justice

[188]                     At the heart of this appeal is whether, in the face of a proven miscarriage of justice, courts of appeal may enter an acquittal even where a reasonable jury could convict at a hypothetical new trial, and, if so, the principles that govern their remedial discretion to do so. While fully authorized by statute, the Court of Appeal concluded that an “exceptional remedial approach” to s. 686(2) had been recognized in Truscott and other appellate decisions (C.A. reasons, para. 137). It was not satisfied that Ms. Bouvette’s case was “sufficiently exceptional” to warrant its application (paras. 137-38). The court distinguished the circumstances from Truscott on two bases — first, a new trial was not possible in Truscott while there was still a theoretical possibility of a new trial here; and second, the record before the Court of Appeal was incomplete while the Truscott court had the benefit of a complete record to assess culpability (paras. 114-15 and 138-39). The Court of Appeal observed in particular that it was not in a position to make findings respecting the disputed forensic pathology evidence. It concluded that a stay of proceedings was clearly nevertheless warranted.

[189]                     The parties agree that the Court of Appeal erred by declining to enter an acquittal in this case. The appellant objects to the Court of Appeal’s reading of Truscott and submits that Truscott did not hold that “exceptional” circumstances were a prerequisite to the exercise of discretion to enter an acquittal in a case where a reasonable jury could convict (A.F., at para. 94). She relies on appellate jurisprudence from before and after Truscott where courts have acquitted in the interests of justice, without resort to that framework (paras. 98-105). In the alternative, Ms. Bouvette argues that the circumstances of her case are sufficiently “exceptional” to justify an acquittal (para. 110).

[190]                     The Crown accepts that a category of “exceptional circumstances cases” exists, but points to significant uncertainty and inconsistency in the way courts have exercised their discretion in such cases (R.F., at paras. 80-93). It proposes a framework that allows courts to analyze the appropriate remedy in those cases based on a contextual appreciation of the nature and history of the proceedings, the circumstances of the appellant, and the “factual matrix” on appeal, among other factors (paras. 102-9). In oral submissions, counsel for Ms. Bouvette indicated her support of such an approach (transcript, at p. 17). The Crown also notes lack of clarity in the case law about when a stay of proceedings is appropriate, rather than an acquittal (R.F., at paras. 91-92).

[191]                     With respect, I agree that the Court of Appeal erred by interpreting its remedial discretion narrowly and declining to enter an acquittal pursuant to s. 686(2). In what follows, I will first consider the ground of miscarriage of justice, before explaining when courts ought to consider an acquittal as a potential remedy when there is a reasonable possibility of conviction on retrial. I then propose a framework to guide courts in their determination of the appropriate remedy pursuant to their broad discretion in s. 686(2).

[192]                     In my view, three basic analytical components may be distilled from the jurisprudence to help courts determine whether it is interests of justice to order an acquittal in a given case: the nature and effects of the miscarriage; what may happen at a putative new trial, including the likelihood of acquittal; and the overall equities of a particular case. In considering these factors, courts must be mindful of a primary motivation for remedying miscarriages of justice — the prevention of wrongful convictions. Drawing on decades of jurisprudence, the framework attempts to bring clarity and coherence to this area of law.

(1)          The Category of Miscarriage of Justice Captures a Broad Range of Circumstances That May Justify Allowing an Appeal

[193]                     Miscarriages of justice that have been recognized under s. 686(1)(a)(iii) capture a diverse array of errors, misconduct, or irregularities. As a residual ground for allowing a conviction appeal, it has a “long reach”, ensuring that a conviction which is the product of any miscarriage of justice, not just those caught by the first two grounds, cannot stand (Morrissey, at p. 541; R. v. Tayo Tompouba, 2024 SCC 16, at para. 72). The power reflects the criminal justice system’s broader concern with ensuring that convictions are the result of rigorous and fair proceedings in which accused are presumed innocent unless proven guilty beyond any reasonable doubt (see Burns, at para. 95; R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 120-21).

[194]                     The statutory framework thus ensures all residual miscarriages of justice may be identified and remedied. No one remedy can be expected to address such a diversity of cases. The Court has recognized that miscarriages of justice may arise from various failures in the justice system, which may be intentional or not. Some may involve the trial judge, such as misapprehensions of evidence (see, e.g., R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 1; R. v. Smith, 2021 SCC 16, [2021] 1 S.C.R. 530, at para. 2; see also S. Coughlan, Criminal Procedure (4th ed. 2020), at pp. 576-77), and reasonable apprehension of bias (see, e.g., R. v. S. (R.D.), [1997] 3 S.C.R. 484; R. v. Curragh Inc., [1997] 1 S.C.R. 537; see also Sopinka, Gelowitz and Rankin, at ⁋4.38).

[195]                     Other participants in the justice system may also be implicated, such as where Crown non-disclosure is a major contributing factor in the conviction of an innocent person (see Stinchcombe, at p. 336, citing Royal Commission on the Donald Marshall, Jr., Prosecution (“Marshall Inquiry”), vol. I, Findings and Recommendations (1989)). Other impropriety or irregularities in the trial process may impact trial fairness or give rise to an appearance of unfairness, establishing a miscarriage of justice. Examples include Crown and police conduct in jury selection (R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 79), or the ineffective assistance of counsel (see, e.g., R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 28; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62). Uninformed guilty pleas may also be the basis of a miscarriage, where it has resulted in prejudice to the accused. Our Court has emphasized that, in these cases, the focus is the misinformation itself and whether it would have impacted the accused’s decision to enter a guilty plea (R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 19 and 34-35).

[196]                     Miscarriage of justice cases are thus concerned with fairness and the safety of the underlying conviction. The Code provides for a broad power in clear terms to order an acquittal or a new trial for any of these circumstances.

[197]                     I accept that, generally, if an appeal court is satisfied that the entirety of the record at the end of the appeal admits a reasonable possibility of a conviction on a retrial, it will often be appropriate for the appeal court to order a new trial (R. v. Stolar, [1988] 1 S.C.R. 480, at p. 491; R. v. S. (P.L.), [1991] 1 S.C.R. 909, at pp. 915-16; R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at para. 46; Sopinka, Gelowitz and Rankin, at ⁋4.44). However, as Truscott and other like decisions instruct, this does not exhaust the court’s broad remedial discretion, because “[s]ome cases fall outside of the norm” (para. 259). There will be cases in which an acquittal is not only a remedy that serves the interests of justice, it will be the only order which does so, even where a new trial is theoretically possible.

[198]                     I agree with Ms. Bouvette that nothing is gained by speaking of the remedial discretion to enter an acquittal as “exceptional”, in the sense of it being rare or extraordinary, and neither the statute nor the Truscott framework compels such a characterization. However, the discretion is often exercised in unique and compelling circumstances, reflecting the diversity of ways in which irregularities may arise in the justice system. Those circumstances, including matters with any procedural or substantive hallmarks of a wrongful conviction, may alert the court of appeal that it is necessary to consider factors beyond the reasonable possibility of a conviction.

(2)          Threshold for Remedial Discretion: Procedural and Substantive Hallmarks of Wrongful Convictions

[199]                     It is not necessary or desirable to exhaustively define all cases where an acquittal may be appropriate even where the record suggests a jury could reasonably convict. However, this appeal underscores that special attention must be paid to those cases where there is a proven miscarriage of justice which is, or approaches being, a wrongful conviction. Courts must take notice of errors, misconduct, or frailties in the evidence that have been associated with the conviction of the innocent, given the tragic reality that in every criminal justice system, no matter how good, there will be wrongful convictions or miscarriages of justice (see G. Zellick, “Facing up to Miscarriages of Justice” (2006), 31 Man. L.J. 555, at p. 555). As I explain below, Ms. Bouvette’s case bears many such features.

[200]                     In my view, where procedural and substantive hallmarks of wrongful convictions are present, it is incumbent on an appellate court to consider whether an acquittal is appropriate, even if it cannot conclude that no jury could reasonably convict. Without endorsing an exhaustive definition, a useful description of a wrongful conviction is one which “is overturned based on new matters of significance related to guilt not considered when the accused was convicted or pled guilty” (K. Roach, “The Wrongfully Convicted Deserve Acquittals not Prosecutorial Stays” (2024), 102 Can. Bar Rev. 201, at fn. 12; see also E. P. MacCallum, Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008), vol. 1, at p. 365).

[201]                      By procedural hallmarks, I refer to the unique features of cases where the usual or routine procedures are insufficient to ensure the interests of justice will be served. For example, appeals based on miscarriages of justice may come before a court of appeal in different ways, and often after a significant passage of time. One mechanism is through the ministerial referral power in s. 696.3(3)(a)(ii) of the Code (see, e.g., Truscott; Walsh). The Code has been recently amended to establish the Miscarriage of Justice Review Commission; when other provisions in the same amending Act are proclaimed into force, the commission will exercise the referral power rather than the Minister of Justice (Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), S.C. 2024, c. 33, ss. 3 and 4). Courts may be faced with a motion for an extension of time to file a notice of appeal (Code, s. 678(2); see, e.g., R. v. Hinse, [1995] 4 S.C.R. 597 (“Hinse 1995”), at para. 3). In other instances, a special prosecutor might be appointed, leading to an appeal many years after the original proceedings (see, e.g., R. v. Henry, 2010 BCCA 462, 262 C.C.C. (3d) 307; R. v. Dhillon, 2014 BCCA 480, 16 C.R. (7th) 8).

[202]                     Also common are fresh evidence applications to admit previously undisclosed or newly discovered evidence. This evidence will often dramatically alter the factual landscape, undermining the safety of the conviction (see Truscott, at para. 753; Walsh, at paras. 91-92; Hinse 1994, at paras. 37-39; Dhillon, at paras. 10-17). Such cases may also require appellate courts to exceptionally assume functions of a trial court, including hearing viva voce evidence (see Reference re Milgaard (Can.), [1992] 1 S.C.R. 866; Truscott, at para. 25; R. v. Ostrowski, 2018 MBCA 125, 369 C.C.C. (3d) 139, at para. 1).

[203]                     Substantive hallmarks of wrongful convictions should also alert a court that an acquittal must be considered. In part, this is because many of the hallmarks call into question matters related to guilt. We have learned a great deal about the causes and costs of wrongful convictions from the many commissions of inquiry that have identified common and pervasive contributing factors. The lessons of these reports will be touched on further below, but these common hallmarks include, but are not limited to, the following:

1.      state non-disclosure of material information;

2.      unreliable scientific or expert evidence;

3.      eyewitness and cross-racial misidentification;

4.      improper police investigations;

5.      Crown and police tunnel vision;

6.      false confessions;

7.      false guilty pleas; and

8.      systemic discrimination.

(See M. Green, “Crown Culture and Wrongful Convictions: A Beginning” (2005), 29 C.R. (6th) 262; L. Stuesser, “Experts on Eyewitness Identification: I Just Don’t See It” (2006), 31 Man. L.J. 543; B. MacFarlane, “Convicting The Innocent: A Triple Failure of the Justice System” (2006), 31 Man. L.J. 403; Roach (2024); M. Vijaykumar, “A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada” (2018), 51 U.B.C. L. Rev. 161; K. Roach, “Canada’s False Guilty Pleas: Lessons from The Canadian Registry of Wrongful Convictions” (2023), 4 Wrongful Conv. L. Rev. 16.)

[204]                     Ms. Bouvette’s case features many of these procedural and substantive hallmarks. While the Crown does not concede the point, the appellant maintains she was wrongfully convicted (A.F., at para. 5). Ms. Bouvette’s case was independently reviewed by a specially appointed prosecutor who conducted an exhaustive review, ultimately leading to a motion for an extension of time to appeal (2022 BCCA 9) and an application to adduce extensive fresh evidence that directly challenged the safety of her conviction (C.A. reasons, at paras. 5-7). She was denied extensive and significant undisclosed information which had a bearing on her culpability and raised serious questions about her guilty plea. She was a vulnerable accused from a disadvantaged background, and her case involved expert evidence that had been called into question. In my view, the circumstances of this case provided the Court of Appeal ample grounds to consider whether an acquittal was justified, notwithstanding that a new trial was theoretically possible and that the record was “incomplete” (para. 139).

(3)          Framework for Remedial Discretion Where Threshold Is Met

[205]                     As the parties and interveners have emphasized, appellate courts have deliberated over the availability of an acquittal using different approaches. The Crown’s survey of the jurisprudence (R.F., at paras. 67-89) demonstrates that in some cases, such as Truscott, courts have embarked upon a consideration of the merits (see also Ostrowski; Walsh), while in others, factors speaking to the equities of a case are the primary basis of an acquittal (see, e.g., Dunlop, at p. 900; Sophonow). Sometimes it is a combination of both (see, e.g., D.R.S., at paras. 18-19). It is clear, however that in all cases the courts concluded, based on the unique circumstances before them, that an acquittal was in the interests of justice. In my view, the inconsistency in approaches reflects the variety in facts and circumstances that is to be expected in cases of miscarriage of justice, and calls for an approach that allows courts discretion to balance those factors that are of compelling weight in a given case.

[206]                     As noted above, to determine whether an acquittal is in the interests of justice, appellate courts should consider the nature and effects of the miscarriage, the potential for a new trial and the likelihood of acquittal, and the equities of a particular case. In most cases, entering an acquittal will require the court to be satisfied that an acquittal is more probable than not based on a reasonable doubt standard at a putative new trial. Although the equities alone cannot justify an acquittal, they are relevant in the court’s overall balancing, and particularly where the miscarriage has impacted the court’s ability to assess the merits. Such a framework focuses the appeal court’s attention on factors relevant to the question of whether an acquittal is appropriate, while also providing for flexibility to adapt to future cases.

(a)           Nature and Effects of the Miscarriage of Justice

[207]                     An important contextual factor in an appellate court’s balancing to determine the appropriate remedy is the nature of the particular miscarriage of justice and its effects on the proceedings. An appeal court will be justified in considering the nature of the proven miscarriage of justice in determining the appropriate remedy — to do otherwise could lead to an unjust outcome and the perpetuation of a wrongful conviction. Preventing wrongful convictions is a fundamental goal of our justice system (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 40). In circumstances like those of Ms. Bouvette, Mr. Truscott and others, the nature of the miscarriage of justice impacts their ability to otherwise persuasively argue that the verdict against them is unreasonable (see, e.g., C.A. reasons, at paras. 130-31).

[208]                     We have learned from the multiple commissions of inquiry that there are features common to wrongful convictions cases that merit special consideration in an appellate court’s determination of the appropriate remedy after allowing an appeal on the basis of a miscarriage of justice. The nature of the miscarriage may undermine the evidentiary basis of guilt, cast light on the basis of the original charge, and have an impact on any new trial where one is theoretically possible. This factor has impacted courts’ analysis of remedy in different ways, including the effect on a new trial (see, e.g., R. v. Doyle, 2023 ONCA 427, 428 C.C.C. (3d) 293, at para. 12, regarding expert evidence; see also Sophonow regarding identification evidence).

[209]                     In this case, there are four such factors.

[210]                     First, Ms. Bouvette was deprived of disclosure of considerable significance to her defence (C.A. reasons, at paras. 93-112). The right to disclosure is protected by s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees the accused’s ability to make full answer and defence (R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 61; R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22). The commissioned inquiries into the wrongful convictions of Thomas Sophonow, James Driskell and Donald Marshall Jr. have underscored that non-disclosure of material information is a substantial contributing cause to wrongful conviction (see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (1989), at pp. 3-4 and 34-35; see also Marshall Inquiry, vol. I, at p. 238; P. deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) (“Sophonow Inquiry”), at p. 83; P. J. LeSage, Report of the Commission of Inquiry into certain aspects of the trial and conviction of James Driskell (2007) (“Driskell Inquiry”), at p. 6). Commissioner Cory noted the “irreparable” damage caused by the non-disclosure on Mr. Sophonow’s case (see, e.g., Sophonow Inquiry, at p. 83). The failure to disclose all relevant evidence deprived Donald Marshall Jr. of his liberty for 11 years for a crime that he had not committed (Marshall Inquiry, vol. I, at pp. 238 et seq.).

[211]                     As one legal commentator has opined, “[e]very Canadian historical wrongful conviction is attributable, at least in part, to the Crown’s failure to provide full disclosure to the defence” (Green, at p. 265; see, e.g., Truscott; Walsh; Henry). Non-disclosure also implicates the duty of the Crown to disclose to the defence all relevant evidence, with relevance being defined broadly to ensure that the accused has any evidence that may be useful in meeting the Crown’s case, advancing a defence, or making a decision which may affect the conduct of a defence (Taillefer, at para. 59). This duty arises naturally from the role of Crown attorneys as “ministers of justice” in our criminal justice system (Stinchcombe, at p. 340; see also p. 333, citing Boucher, at pp. 23-24).

[212]                     The Crown’s failure to make full disclosure to Ms. Bouvette was directly linked to her conviction, as she would not have pleaded guilty had that disclosure been made (C.A. reasons, at paras. 101 and 110). In addition, the non-disclosure calls into question the initial charging decision, eroding public confidence in the proper administration of justice. Ms. Bouvette was charged with second degree murder and ordered to stand trial on that offence, after a preliminary inquiry, on the strength of Dr. Matshes’ opinion (A.R., vol. V, at p. 36; A.R., vol. VIII, at pp. 17-18). Significantly, on appeal, the court did not have the benefit of a considered cross-examination as part of the record, making it difficult for the Court of Appeal to opine on the likely outcome of a potential new trial (paras. 95 and 139). Similarly, Ms. Bouvette’s ability to persuasively argue that the verdict against her would be otherwise unreasonable was undermined (see, e.g., paras. 130-31).

[213]                     Finally, the trial Crown should have been well aware that this information was required to be disclosed. The emails from Alberta Justice gave full notice of the issue and highlighted for the trial Crown that the information was necessary “so that she [could] properly prosecute her case and make disclosure to the defense” (A.R., vol. VI, at p. 28 (emphasis added)). The cover letter enclosing the results of the external peer review opened with the following: “Please find additional disclosure with regard to your case, given to you in order to comply with our Stinchcombe obligations” (p. 29 (emphasis added)).

[214]                     Second, this case features another widely recognized cause of wrongful convictions: expert evidence that may be unreliable or dubious (see, e.g., F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (1998), at p. 315). Courts have rightly acknowledged the dangers of expert evidence, including the risk that triers of fact may be unable to effectively assess it. They have thus emphasized the gatekeeping role of the trial judge and their broad discretion to exclude it (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 16-24; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 76-84 and 90). The Goudge Inquiry, prompted by several miscarriages of justice linked to pediatric forensic pathologist Dr. Charles Smith, revealed cogent concerns regarding the role of expert medical evidence in criminal cases. The inquiry observed that medical experts provide evidence that lawyers and courts may be ill-equipped to understand or question, provide opinions without explaining the reasoning, or use terms that laypersons may misinterpret (S. T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008)).

[215]                     In numerous tragic cases, the Court of Appeal for Ontario found miscarriages of justice where the Crown relied on Dr. Smith’s evidence to prosecute parents of young children for infanticide or manslaughter. In many cases, this led to plea agreements and profound prejudice for the wrongfully convicted (Sherret-Robinson; Kumar; Brant; Shepherd; R. v. Blackett, 2018 ONCA 119; Doyle).

[216]                     The decisions to charge Ms. Bouvette and to order her to stand trial on the charge of second degree murder were based largely on the expert opinion of Dr. Matshes, described later as “unreasonable” in peer review (see A.R., vol. V, at p. 36; A.R., vol. VIII, at pp. 17-18). The non-disclosed external peer review of Dr. Matshes’ autopsy findings in 14 different cases concluded that his opinion was unreasonable in 13 of the 14 referred cases (A.F., at para. 62; A.R., vol. VI, at pp. 122-64), including in the case of the child in the instant case (A.R., vol. VI, at p. 160). While there were competing medical expert views in this case, I note that in Doyle, the court concluded that a diversity of views among the experts undermined the prospect of a conviction and entered an acquittal over a request for a new trial by the Crown (paras. 12 and 15). Any expert evidence proffered on a theoretical new trial would be subject to similar challenges.

[217]                     Two final, related factors are relevant to Ms. Bouvette’s case: the problem of false guilty pleas and vulnerabilities of particular accused persons.

[218]                     There has been increasing recognition of the problem of “false” guilty pleas, stemming from a broader consciousness of, and concern about, wrongful convictions (Roach (2023), at pp. 19-20). Pomerance J. (as she then was) acknowledged the impossible decision for many accused: “. . . a person who is factually innocent may perceive a plea of guilt to be the lesser of the two evils — a choice between a proverbial rock and a harder place. The cost of maintaining innocence — be it financial, emotional, familial, custodial or other — may be seen as too high” (R. v. McIlvride-Lister, 2019 ONSC 1869, 373 C.C.C. (3d) 490, at para. 60; see also C. Sherrin, “Guilty Pleas from the Innocent” (2011), 30 Windsor Rev. Legal Soc. Issues 1, at p. 34). False pleas may arise for many reasons, including incompetent advice, inappropriate pressure, a seemingly strong case for the Crown, or failure of the court to make the necessary inquiries of the accused person (see, e.g., R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 11; Kumar, at para. 34). Courts may set aside a guilty plea where there is material non-disclosure that could have affected the accused’s decision to plead guilty (Taillefer, at para. 90).

[219]                     Relatedly, vulnerable groups, including women, Indigenous persons, racialized persons, and persons living with cognitive difficulties are disproportionately victims of false guilty pleas (Roach (2023), at pp. 20-27; see also A. Carling, “A Way to Reduce Indigenous Overrepresentation: Prevent False Guilty Plea Wrongful Convictions” (2017), 64 Crim. L.Q. 415, at p. 419). The Marshall Commission fuelled extensive discussions about the role of racism in wrongful convictions more generally; the Commission ultimately acknowledged that it was an “inescapable” conclusion that Mr. Marshall was wrongfully convicted “because he was a Native person” (Marshall Inquiry, vol. I, at p. 17; see J. Mannette, ed., Elusive Justice: Beyond The Marshall Inquiry (1992); B. H. Wildsmith, “Getting at Racism: The Marshall Inquiry” (1991), 55 Sask. L. Rev. 97). More recently the wrongful convictions in Manitoba of two Indigenous men, Brian Anderson and Allan Woodhouse, came to light almost 50 years later when new evidence suggested that their confession did not correspond with their abilities in English, their second language. After a new trial was ordered by the Minister of Justice, the prosecutor stated in open court that “[s]ystemic racism impacted the investigation, the prosecution and the adjudication of this case” (Roach (2024), at p. 226).

[220]                     Scholars have also noted the disproportionate impact of miscarriages of justice on vulnerable groups, such as women, Indigenous persons and those with mental health or cognitive concerns (D. Parkes and E. Cunliffe, “Women and wrongful convictions: concepts and challenges” (2015), 11 Int’l J. L. Context 219; K. Roach, “The Wrongful Conviction of Indigenous People in Australia and Canada” (2015), 17 Flinders L.J. 203). Professor Roach has observed that Indigenous persons may have a more difficult time contesting their innocence or be more inclined to plead guilty to a crime they maintain they did not commit (pp. 212-13). These circumstances may exacerbate the personal consequences of a miscarriage of justice on the appellant, and they also speak to systemic impacts in light of the recognized over-representation of Indigenous people in the justice system.

[221]                     The Court of Appeal, at paras. 101 and 110, accepted the following evidence from Ms. Bouvette: “I did not believe I was responsible for [the child]’s death. However, [defence counsel] told me I should take the plea offer. . . . I felt like I had no choice but to plead guilty. I wanted to get out of jail and I was facing 25 years.” Ms. Bouvette was caught between the proverbial rock and a harder place, and she was at a considerable disadvantage due to the Crown’s failure to disclose relevant materials. Ms. Bouvette is a marginalized Indigenous woman living with a cognitive difficulty and her vulnerabilities contributed to the miscarriage of justice (C.A. reasons, at paras. 101, 107 and 110). Although the Crown accepted that a court would find her fourth statement to police to be involuntary, I note that in the five-hour interview, she told police she did not understand why she was there, and explained she had a learning disability (para. 32). I agree with the Court of Appeal’s observation that, “[i]t is not difficult to imagine why, unarmed with critical information that could assist her, this marginalized, overwhelmed and intellectually challenged appellant would enter a guilty plea to a lesser offence” (para. 110).

[222]                     That this case has the procedural and substantive hallmarks associated with wrongful convictions weighs heavily in favour of an acquittal.

(b)          The Possibility of a New Trial and the Strength of the Remaining Case

[223]                     Courts of appeal have, sometimes inconsistently, considered the ultimate prospects for conviction or acquittal, and the likelihood a retrial would proceed, when determining the remedy for a miscarriage of justice. In my view, given that the two remedial options available under s. 686(2) are to enter an acquittal or to order a new trial, the merits of the Crown’s remaining case and what would happen in terms of process if a new trial were ordered are highly relevant considerations.

[224]                     The British Columbia Court of Appeal was of the view that because a new trial for Ms. Bouvette was not impossible, and it did not have as complete a record as in Truscott, it could not order an acquittal. With respect, these errors arose from a misreading of the Truscott decision. In this section, I first review the Truscott decision, the propositions it established and how it cannot be distinguished on that basis. I then draw on its principles, and others, to provide guidance on how to assess the merits of the remaining case, the likelihood of any putative new trial, and how fairness considerations may impact those assessments.

(i)            The Truscott Case

[225]                     The 2007 Truscott decision was the culmination of a decades-long process in which Mr. Truscott fought to have his wrongful conviction remedied and his name cleared.

[226]                     In 1959, at age 14, Mr. Truscott was tried as an adult for the murder of 12-year-old Lynne Harper, was convicted after a two-week trial and sentenced to death by hanging, a sentence that was eventually commuted. His appeals were dismissed (Reference re Truscott, [1967] S.C.R. 309). He served over 10 years at a training school for boys and in the penitentiary before being granted parole in 1969. Mr. Truscott maintained his innocence and the case was subject to sustained scrutiny for almost 50 years in both judicial and non-judicial forums (Truscott, at paras. 13-24 and 71).

[227]                     Mr. Truscott applied to the Minister of Justice for a review of his conviction in 2001, and the Minister referred the case to the Court of Appeal for Ontario (see paras. 22-24). A five-member panel comprised of McMurtry C.J.O. and Doherty, Weiler, Rosenberg and Moldaver JJ.A. were asked to inquire into the safety of Mr. Truscott’s murder conviction. They not only reviewed the full record, they received a vast amount of fresh evidence, including viva voce evidence from witnesses who testified before them (paras. 25-27).

[228]                     Despite the unique nature of the Truscott reference, the court recognized that it was nevertheless bound by the limits of appellate review under the Code (paras. 70, 72 and 74-75). It acknowledged how “[r]elatively little ha[d] been written about the principles guiding the exercise of the remedial discretion in s. 686(2)” and how the authorities offered “little guidance” as to when an acquittal, versus a new trial with a direction that the trial be stayed, would be appropriate (paras. 247 and 249). The court sought to fill that void and set out its understanding of the basic principles that applied to the exercise of its remedial powers.

[229]                     First, it observed that, where a conviction is quashed, s. 686(2) provides two possible remedies — an acquittal or a new trial (para. 246).

[230]                     Second, if the court orders a new trial, s. 686(8) permits it to also order a stay of that new trial where it “would be manifestly unfair to the appellant” (para. 246).

[231]                     Third, where it is clear that no reasonable jury could convict, “the appeal court’s discretion must be exercised in favour of ordering an acquittal” (para. 247). However, the court did not order Mr. Truscott’s acquittal on this basis because they could not say the high bar for an unreasonable verdict was met.

[232]                     Fourth, and related to the previous point, “[a]s a general rule” the appeal court will order a new trial for a miscarriage of justice where the record on appeal admits of a reasonable possibility of conviction (para. 248).

[233]                     Fifth, and of most relevance to this appeal, it recognized that some cases are “outside of the norm” (para. 259; see also paras. 253 and 257-58). It rejected the Crown’s position that an acquittal could only be entered where no reasonable jury could convict and instead concluded that “[t]he remedial discretion in s. 686(2) is sufficiently broad to permit resort to a more vigorous review of the evidentiary record in those cases where that approach is required by the interests of justice” (para. 259).

[234]                     Concluding that the case before it was not a routine appeal, the court looked to many factors that justified a different remedial approach. These included: the finding that Mr. Truscott’s conviction was a miscarriage of justice; he maintained his innocence from the night Lynne Harper disappeared; he lived under the burden of the miscarriage of justice; the weakness of the Crown’s case in light of the augmented record; and the absence of another forum that could ever make an assessment of culpability on a “complete record” (para. 260). In assessing the overall circumstances of the case, the court also considered it significant that almost 50 years later, no new trial could ever be held (paras. 73 and 259).

[235]                     The process the court used to determine how it would exercise its remedial discretion was to envision a hypothetical new trial. The Crown would not tell the court what it would do if a new trial was ordered. The court nevertheless examined the merits of the current case against Mr. Truscott based on the augmented record. They applied the following standard: Mr. Truscott would be entitled to an acquittal if “based on all of the information now available, that it is clearly more probable than not that the appellant would be acquitted” at that trial (para. 268).

[236]                     Thus, the Court of Appeal acquitted Mr. Truscott after having quashed his conviction on the basis of a miscarriage of justice, where the unreasonable verdict standard was not met, because the interests of justice required a more vigorous review of the record and showed clearly that Mr. Truscott would probably have been acquitted at any putative new trial. While it certainly was speaking of the specific circumstances raised in the case before it, it also recognized and employed a broad and flexible approach to an acquittal for miscarriages of justice, which has since been considered by several courts of appeal (see, e.g., Walsh; D.R.S.; Dhillon, at para. 54; Ostrowski, at paras. 25-26). I agree with the appellant that the court in Truscott did not purport to establish an exhaustive or exclusive framework (A.F., at paras. 94-96).

[237]                      Contrary to the conclusions of the British Columbia Court of Appeal in Ms. Bouvette’s case, the Court of Appeal in Truscott did not require or speak of an “exceptional remedial approach” to s. 686(2). It mentioned cases that fell outside the norm, which is a different concept. The Court of Appeal did not need to be satisfied that Ms. Bouvette’s case was “sufficiently exceptional” to warrant its application (para. 137; see also paras. 115 and 138). However, even if “exceptional” is stretched to include cases outside the norm, the procedural and substantive hallmarks of a wrongful conviction and Ms. Bouvette’s circumstances call for a rigorous review in the interests of justice.

[238]                      Nor can the Truscott decision be distinguished on the basis that a new trial was not possible for Mr. Truscott, while there was still a theoretical possibility of a new trial for Ms. Bouvette. That was a relevant factor in Truscott, not a legal prerequisite for an acquittal. Reading the relevant passages of the decision as a whole, the impossibility of a retrial was not proposed as a necessary condition of the exercise of discretion under s. 686(2) in all cases. The court noted the broad discretion afforded by that provision, and considered the inability to retry Mr. Truscott as one factor among others that justified such an approach to ensure fairness and finality in that case (paras. 259-67).

[239]                     Thus, in terms of legal principle, appellants do not bear the burden of establishing that a retrial is impossible if the interests of justice in their case otherwise justify a close assessment of the appropriateness of an acquittal, including an assessment of the merits (Truscott, at paras. 259 and 263). The Crown also argued against this standard on the basis that it is unclear what “impossibility” means in the context of a retrial, especially because a trial is always theoretically possible (transcript, at pp. 63, 65 and 67). I agree that imposing a requirement that a retrial be impossible would also be practically unworkable.

[240]                     Nor should too much weight be given to the British Columbia Court of Appeal’s conclusion that its record was incomplete, while the Truscott court had the benefit of a complete record to assess culpability (paras. 114-15 and 138-39). Not every appeal will have or require a record resembling the one in Truscott before the court may exercise its broad remedial discretion. In Truscott, the court repeatedly noted the highly “unique circumstances” of that case and rendered a very lengthy and thoughtful decision, the bulk of which was dedicated to its assessment of the fresh evidence. Such a record would be near-impossible to achieve in most appeals, even those which fall outside the norm due to a potential wrongful conviction, and its absence should not be an impediment to an appellant seeking an acquittal, in part because such a requirement would create an unworkable and unnecessary strain on finite party, societal and judicial resources. I accept that the record developed before the court in Truscott can be considered the gold standard, but nevertheless I agree with the Crown that to impose such an onerous requirement would be impractical and unduly prejudice many appellants who have suffered a miscarriage of justice (R.F., at paras. 95-96; transcript, at p. 66).

[241]                     Moreover, the very nature of the miscarriage of justice established may prevent an appellant from creating whatever a “complete record” is seen to require. For example, information may be unavailable because of the passage of time, lack of available evidence, or where state non-disclosure has impacted their ability to test the evidence at trial. As explained below, the appeal court should assess the strength of the Crown’s case in the context of the case as a whole, and not foreclose an acquittal simply because a record is not “complete”.

(ii)          The Merits of the Crown’s Case

[242]                     I accept that where the high standard for an unreasonable verdict under s. 686(1)(a)(i) would inevitably be met in respect of a new trial, an acquittal should be the presumptive order, even if other grounds of appeal have been argued or accepted, as it is in the interests of justice, fairness and efficiency, that this final order should be granted at the appellate level. As explained in Truscott, where any conviction following a retrial would presumably be quashed as an unreasonable verdict, the court would not give the Crown a second opportunity to present its case (para. 247).

[243]                     However, as the Crown argued unsuccessfully before the court in Truscott (at paras. 253 and 255), the intervener the AGO also submits to us that only where the appeal court concludes that no reasonable jury could convict, should it enter an acquittal (I.F., at para. 8). I do not accept this argument. As the Code allows, and as Truscott recognized, courts retain discretion under s. 686(2) to evaluate the strength of the Crown’s case without reference to this strict standard; a lower standard may justify an acquittal in all of the circumstances.

[244]                      Importing the Yebes/Biniaris standard as the sole basis for justifying an acquittal after a miscarriage of justice is contrary to the express and broad authority provided in s. 686(2), as previously discussed. In Yebes, the Court clarified that this legal standard is applied by appellate courts to assess when a verdict is “unreasonable”, reflecting the statutory language in s. 613(1)(a)(i) (now s. 686(1)(a)) (pp. 180-83 and 185; see also Biniaris SCC, at para. 24). While it has been used by courts as a basis for entering acquittals after a miscarriage of justice, nothing in s. 686(1)(a)(iii) or (2) requires it (see, e.g., Hinse 1997; Walsh; Truscott, at para. 247; Dhillon, at para. 50). In Hinse 1997, the Court applied this standard when entering an acquittal as a remedy to a miscarriage of justice (para. 2), but nowhere in its three-paragraph endorsement does Gonthier J. purport to establish this standard as the only route to an acquittal. Simply put, it is a sufficient, but not necessary, basis to enter an acquittal.

[245]                     More importantly, the unreasonable verdict test is a strict standard and ill-suited for the unique evidentiary challenges where a miscarriage of justice has occurred. Indeed, in Yebes itself, this Court’s foundational case affirming the unreasonable verdict test, the Court upheld Tomas Yebes’ wrongful conviction (Roach (2024), at p. 225). As a result of a miscarriage of justice, the record before the appellate court may be differently constituted from how it might have been had the investigation and trial proceedings unfolded in a proper manner. Ms. Bouvette’s case provides an example: as a result of the significant non-disclosure and eventual guilty plea, there was no trial record for the appeal court to consider. 

[246]                     In my view, when considering whether an acquittal is justified in the interests of justice, the standard applied by the Truscott court — whether the augmented or varied record establishes clearly that it is more probable than not that an acquittal would result at a retrial based on a reasonable doubt standard (para. 268) — strikes an appropriate balance between the importance of the merits of a case and the circumstances of cases bearing the hallmarks of wrongful convictions. This flexible approach is justified by the challenges and unfairness that may be occasioned by applying strict tests in these cases that fall outside the norm, as well as the proper use of limited judicial resources.

[247]                     The strength of the Crown’s case is undoubtedly a factor that is relevant to a court’s assessment of what remedy is in the interests of justice. Where it is apparent to the court that an acquittal is more probable than not, the public interest in holding a new trial may be minimal, but where there is a very strong case, the public interest in a trial is higher. As Binnie J. noted in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, in the context of the curative proviso, an order of a new trial “raises significant issues for the administration of justice and the proper allocation of resources” (para. 46). The standard applied by the court in Truscott allows an appeal court to assess this important factor with sufficient flexibility to be attentive to the circumstances of the miscarriage, which may undermine the basis of the conviction and impact the record available on appellate review.

[248]                     Assessing whether an acquittal is more probable than not based on a reasonable doubt standard is an evaluative exercise, to be undertaken through the lens of judicial experience, similar to the exercise of appellate review in assessing whether there is an unreasonable verdict (see, e.g., Biniaris SCC, at paras. 39-41; see also Penney, Rondinelli and Stribopoulos, at ¶¶18.7-18.8). Nevertheless, I emphasize that a “complete record” — by which I mean, a record equivalent to what might have been before a trier of fact in the absence of a miscarriage — should not be a prerequisite for appeal courts to make this assessment. Fairness considerations dictate that where the ability of the appeal court to evaluate the merits has been complicated by a miscarriage of justice, any resulting ambiguity should not prejudice the appellant. Moreover, the court’s conclusion on the record must be weighed alongside other factors which may be relevant, including the likelihood that a retrial will actually take place and the equities of the case, both discussed further below.

(iii)        Crown’s Position on Retrial and Remedy

[249]                     Given that an acquittal or a new trial are the two remedial options under s. 686(2), appellate courts would want to consider the reasonable likelihood there will actually be a new trial, and whether it would simply involve the Crown calling no evidence. As previously explained, the test for an acquittal is not whether a new trial is impossible, although such a finding would be a strong factor in favour of an acquittal. Given the difficulty of defining the “impossibility” of a new trial, most often courts will be required to gauge the likelihood of a new trial. This objective assessment may be made on the facts before the court as well as the submissions of the parties. As examples, a key witness may be deceased (Reference re: Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 241), the significant passage of time may mean that some of the evidence is unavailable (Truscott, at paras. 254 and 266) or the Crown may voluntarily concede that a new trial is not a realistic option (Walsh, at para. 96).

[250]                     If the court of appeal is being asked to use its statutory discretion to grant the remedy of a new trial, it would benefit from full information from both parties about whether a new trial will likely occur and its probable outcome (see, e.g., Ostrowski, at para. 2; R.V., at para. 77; Phillion, at paras. 241-42). If the Crown seeks a new trial it should be in a position to state its then-current intention as to whether it will in fact conduct any requested new trial within a reasonable time, appreciating that the intention may change and the Crown may take a different course of action, subject only to review for abuse of process (R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at paras. 31 and 64).

[251]                     Based on all it knows, the court must ask itself whether, when viewed objectively, there is a reasonable likelihood that new proceedings can be recommenced. Courts of appeal will be mindful of the fairness of placing the accused in renewed jeopardy, as well as considering the societal and judicial resources required to support a retrial. The court’s objective inquiry is not per se concerned with whether the Crown will institute new proceedings, but rather the likelihood that it can do so.

[252]                     If a trial can and will be held, the court can consider this against its assessment of the merits and equities of a case to determine the appropriate remedy. However, if the Crown undertakes, as it did in this case, to simply to call no evidence at a new trial, like cases where a trial is theoretically impossible, this will strongly favour an acquittal (transcript, at pp. 41-42). Section 686(2) provides appellate courts the discretion to enter an acquittal in these circumstances, avoiding the unnecessary use of judicial resources and further suffering of the accused, victims, and their families (see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 2).

[253]                     Finally, and importantly, the Crown’s position on remedy, and particularly a concession that an acquittal is appropriate, should be accorded significant weight. The Crown is well placed, perhaps more than any other justice system participant, to make this assessment, as it may have access to significant information not before the court. The Crown rarely concedes an acquittal and this position would likely speak to its view, in fulfilling its duties in the public interest, of the seriousness of the underlying miscarriage of justice (Boucher, at pp. 23-24).

[254]                     However, I emphasize that the ultimate decision to accept the Crown’s concession, or enter an acquittal where the Crown indicates it would call no evidence on retrial, remains within the discretion of the court under s. 686(2). Parliament entrusted appellate courts with the acquittal power, not the Crown.

[255]                     Even where an acquittal is conceded, courts must still be satisfied that it is appropriate. Though it would perhaps be rare, courts retain the discretion to order a new trial if the interests of justice do not dictate an acquittal. In such circumstances, it may impugn the integrity of the appellate court to abdicate its supervisory role and enter the acquittal solely on the strength of the Crown’s position.

[256]                     Even when the Crown concedes an acquittal and confirms that it will call no evidence, it is well established that “no court is bound by concessions of law, whether made by the Crown or an accused” (R. v. Robertson, 2021 SKCA 125, 495 C.R.R. (2d) 31, at para. 14, citing R. v. Silveira, [1995] 2 S.C.R. 297, at para. 100; R. v. Elshaw, [1991] 3 S.C.R. 24, at p. 48, per L’Heureux-Dubé J., dissenting). As this Court affirmed in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, “[n]o one in this country is entitled to their own law” (para. 96).

[257]                     As in the context of reviewing a plea offered under s. 606(4) or a joint submission on bail, sentencing, or a legal framework, courts always maintain a supervisory role (see, e.g., Anthony‑Cook, at para. 3; Antic, at para. 68; Zora, at para. 105; Pickton, at para. 27; Akram, at para. 58). A prosecutor “has ample and unfettered scope, short of asking the court to acquit on the charge before the court, to enforce the criminal law as he or she sees fit and to decide what charges will be prosecuted”; however, once proceedings have been instituted, courts have an important role in the decision to be made (R. v. Naraindeen (1990), 75 O.R. (2d) 120 (C.A.), at p. 127).

[258]                     In my view, a united position advanced by the Crown and the defence that an acquittal is the appropriate remedy will attract the respect and deference normally given to joint submissions. In such a case, it can be assumed that each party has conducted a thorough assessment of the merits of the appeal, the likely outcome of any possible new trial, and the availability and appropriateness of an acquittal as a remedy. When the Crown seeks an acquittal, the court may presume that the overall equities of the case and the likelihood of a new trial weigh in favour of an acquittal, absent clear evidence that points in a different direction. This posture is consistent with the presumption that the Crown acts in the public interest and in good faith (Boucher, at p. 24; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 95). It also underscores the expectation that the Crown will necessarily speak to whether an acquittal is more likely than not when it argues in favour of an acquittal.

[259]                     While courts must assume a deferential posture when reviewing whether an acquittal is appropriate in the circumstances, as with all joint submissions, they must nevertheless conduct an independent judicial assessment of the record and the arguments and be satisfied that an acquittal is appropriate. The deferential posture to a joint submission may mean that the court’s assessment of the remaining merits need not be as rigorous as it would otherwise be when the parties’ positions are at odds. Therefore, when faced with the joint concession that an acquittal is the just remedy, the court may ask itself, based on a plain review of the record, whether a properly instructed trier of fact could find that it is more probable than not that the accused would be acquitted on a reasonable doubt standard.

[260]                     This approach strikes an appropriate balance between ensuring that the courts remain guardians of the rule of law, while also respecting Crown attorneys’ unique quasi-judicial role as ministers of justice. Courts have undertaken a similar, summary approach in the face of a Crown concession that an acquittal is the appropriate remedy (Mullins-Johnson; Hanemaayer; Sherret-Robinson; Kumar, at para. 37; Brant, at para. 3; Shepherd, at para. 20).

[261]                     In this case, the Crown has conceded that the appeal should be allowed, and an acquittal entered (R.F., at paras. 7 and 103-9). This concession is an indicator that this is the appropriate remedy in these circumstances. In concluding that it should seek an acquittal from this Court, and as a quasi-minister of justice, the Crown attorney would have already considered the strength of its case at a retrial, as well as the public interest in holding a new trial. Despite the Crown’s concession, this Court, as the guardian of the rule of law, does not abdicate its supervisory role to ensure that the interests of justice are properly fulfilled.

[262]                     An assessment of the merits of this case also does not suggest any public interest in a new trial. If a new trial is ordered, the Crown has stated that it would have Ms. Bouvette arraigned, call no evidence and ask that the court enter an acquittal (transcript, at pp. 41-42). This information on the viability of a retrial makes clear that the extant charge against Ms. Bouvette will not be pursued.

[263]                     Moreover, as the Crown conceded before the Court of Appeal, its case on any retrial is “weak” (para. 135). The fresh evidence undermines the credibility and reliability of Dr. Matshes’ opinion. At the preliminary inquiry, Dr. Matshes testified that Alberta Health Services had done an internal review of his cases and had “found no problems” with his work (A.R., vol. VII, at p. 54). The undisclosed evidence casts doubt on Dr. Matshes’ statement, which may negatively bear on his credibility. The undisclosed results of the external peer review committee’s examination of Dr. Matshes’ findings in a number of cases, concluding that his opinion in 13 of 14 different cases, including that of the child in the instant case, was unreasonable, severely undermine the prospect of a conviction on the basis of his evidence (A.F., at para. 62; A.R., vol. VI, at p. 160). This is in addition to the concern that had been expressed by Alberta’s Chief Medical Examiner, Dr. Sauvageau, about Dr. Matshes’ work. I further note that, should the Crown seek an opinion from a different expert, the diversity of these views would undoubtedly impact the reliability of that opinion (see Doyle, at para. 12).

[264]                     In assessing the evidence through a judicial lens, I have also borne in mind that, due to the miscarriage of justice, Ms. Bouvette was unable to test the opinion of Dr. Matshes at a trial with the benefit of the undisclosed evidence (see R.F., at para. 104). Further, though her appeal did not involve adducing fresh viva voce evidence, this is due to the Crown’s concession before the Court of Appeal that an acquittal would be appropriate in the circumstances (para. 100).

[265]                     I conclude that it is more probable than not that Ms. Bouvette would be acquitted at any hypothetical retrial based on a reasonable doubt standard. I would arrive at the same conclusion regardless of whether Dr. Matshes’ evidence was excluded from consideration, or alternatively with the credibility and reliability of any expert evidence undermined.

(c)           The Overall Equities of the Case

[266]                     In a number of cases, this Court and provincial appellate courts have entered acquittals on the basis of “matters external to the evidence before the trier of fact” (Sopinka, Gelowitz and Rankin, at ⁋4.46), that is, evidence outside the merits of the case against the appellant. The contextual framework for acquittals proposed by the Crown, and drawn from the jurisprudence, includes such factors as the circumstances of the appellant, the passage of time, and prejudice to the appellant as a result of the miscarriage of justice (R.F., at paras. 107-9). The appellant argues that the exceptionally serious prejudice she has suffered warrants an acquittal on its own (A.F., at paras. 109-10).

[267]                     I agree that an appeal court must consider the overall equities of a case in exercising its discretion under s. 686(2). This exercise is consistent with the overwhelming weight of the jurisprudence that has accounted for factors extraneous to the merits in its decision on the appropriate remedy. In addition to the inherent and serious prejudice that accrues from serving a sentence that may be based on an unsafe conviction or enduring multiple proceedings to overturn a conviction, our Court has recognized that “[e]specially in the absence of an acquittal, it is often difficult for people wrongly accused of such crimes to fully regain their positions in society and free themselves from the stigma and trauma of those false allegations” (Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 2).

[268]                     However, in my view, a consideration of the equities alone cannot form a standalone basis to substitute an acquittal for a new trial, especially when only one factor is present (for instance, the serving of a sentence) (see Brouillard v. The Queen, [1985] 1 S.C.R. 39, at p. 53; R. v. Vickerson, 2020 ONCA 434, at paras. 5-8; R. v. O’Brien (1987), 10 Q.A.C. 135, at paras. 11-12). I acknowledge that, in Dunlop, this Court entered an acquittal on the basis that the accused had served part of their sentences and undergone multiple trials, but that case was decided well before the Court clarified an appeal court’s remedial jurisdiction to enter a stay of proceedings (R. v. Power, [1994] 1 S.C.R. 601, at pp. 612-15 and 620; Hinse 1995, at paras. 20-23).

[269]                     Nevertheless, courts must engage in a qualitative assessment of the circumstances of the appellant and the prejudice they have suffered, and may continue to suffer, as a result of the miscarriage of justice, as part of the court’s overall assessment of whether an acquittal is in the interests of justice. The jurisprudence suggests that relevant factors may include:

(a)   That the appellant has already served part or all of their sentence (see, e.g., Dunlop; Dillabough; Boissonneault; D.R.S.; Tom; R. v. McArthur, 1999 ABCA 117, 232 A.R. 349, at para. 15; Sargent; Sophonow; Karuranga);

(b)   That the appellant has undergone multiple trials and appeals (see, e.g., Dunlop; Sophonow);

(c)   The passage of time (D.R.S.; Truscott; Titong); and

(d)   Significant personal prejudice, including the burden on the appellant and their family living under the stigma of a conviction (Truscott).

[270]                     In respect of courts entering an acquittal where the appellant had already served part or all of their sentence, I do not agree with the AGO’s suggestion that Dunlop — where this Court entered an acquittal because the appellant had been subject to two trials, two appeals, and served part of their sentence (p. 900) — was overtaken by its decision in Brouillard (I.F., at para. 23). As a matter of horizontal stare decisis, this Court could not have intentionally “impliedly departed” from its prior decision in Dunlop without any “express reference of that departure” (L. David, Stare Decisis, The Charter and the Rule of Law in the Supreme Court of Canada (2020), at p. 18 (emphasis deleted); see also fn. 69). Further, in Brouillard, the Court did not address whether, generally, factors extraneous to the merits could form a basis to enter an acquittal. Rather, in the circumstances of that case, it rejected the argument that the accused ought to be acquitted because he had served his probationary sentence (p. 53; see also Vickerson, at para. 8; O’Brien). 

[271]                     In considering the equities in this case, I conclude that they weigh heavily in favour of an acquittal. Ms. Bouvette has already served the entirety of her sentence. Before this Court, the Crown advised that the victim’s family fully supported an acquittal (transcript, at p. 74). The conviction has had a devastating impact on her life (A.S.R., tab 3, at paras. 22-39). During her time incarcerated, she was seriously assaulted for being a “baby killer” and had to be moved to segregation (para. 29). As a consequence of her false guilty plea, she has lost custody of her four children, has struggled with substance use issues, and her mental health has been severely impacted (paras. 22-39). In her own words: “As a result of [my] [c]onviction, I lost everything: my name, my freedom, my children, and my whole self. I am mentally messed up and traumatized. I have very bad depression and I can’t smile anymore” (para. 32).

(d)          Relative Weighing of Factors

[272]                     Generally, where there is a reasonable possibility of conviction, a new trial should be ordered, including where there is fresh evidence that is not sufficiently cogent to exclude such a possibility (Truscott, at paras. 247-48; Stolar, at pp. 491-92; Maciel, at para. 46). But as the foregoing discussion confirms, courts have recognized that there will be cases where, despite these circumstances, an acquittal may be an appropriate remedy. In such cases, the court must balance all relevant factors to determine whether a new trial or acquittal is required in the interests of justice.

[273]                     In exercising this discretion, courts of appeal must give primary weight to their consideration of the potential for a new trial and the likelihood of an acquittal or conviction. In some cases, a new trial may be the appropriate order because the remaining merits of the Crown’s case are strong and outweigh other factors, even after taking account of the impact of the miscarriage of justice on the record. In the face of a strong Crown case, and where a new trial is reasonably likely, an acquittal will rarely, if ever, be justified.

[274]                     A court’s finding that an acquittal is more probable than not is thus generally a pre-requisite to that court entering an acquittal. However, I recognize that the nature and impacts of the miscarriage of justice can assist in contextualizing those cases where a court may be unable to determine the likely result at a putative new trial. In some cases, the nature of the miscarriage may have effectively impeded the appellant’s ability to persuasively argue that an acquittal would be more likely than not. In these instances, a court may be unable to make any definitive determination about the likely result at a putative new trial. In those limited circumstances, I accept that an acquittal may be nevertheless justified where the Crown’s case is weak, a new trial is not reasonably likely and there are strong equities present.

[275]                     Similarly, a consideration of the equities of the case can assist the court in weighing the public interest in holding a new trial. As an example, where the court is satisfied that an acquittal is more probable than not, the equities may further compel the conclusion that an acquittal is the appropriate remedy. In such a case, if an appellant has already served their sentence and has undergone multiple trial or appeals, the equities will generally weigh in favour of an acquittal as there will be a demonstrable lack of public interest in holding a new trial, even if they cannot form a standalone basis.

[276]                     In its final balancing, the appeal court’s assessment should also include a qualitative consideration of the impact of the remedy of an acquittal on an appellant relative to other available remedial orders. An acquittal provides a final and complete response and brings an end to both the charges and the proceedings.

[277]                     Conversely, where a court orders a new trial, the Crown will generally have four options: bring the case to trial, direct a stay of the charge, apply to withdraw the charge, or call no evidence at a retrial. If the Crown determines it will not proceed with a new trial, it is only if the Attorney General were to choose the last option that an appellant would be acquitted; on either of options two or three, there would be no final verdict (Truscott, at para. 257). The court may also enter a judicial stay, which I consider separately below.

[278]                     A prosecutorial stay under s. 579 of the Code does not protect an accused from re-prosecution on the same stayed charge and will not sustain a plea of autrefois acquit (R. v. Tateham (1982), 70 C.C.C. (2d) 565 (B.C.C.A.), at pp. 567-68; see also R. v. T.G., 2017 ONSC 3213, at para. 33). It is “characterized by both a lack of judicial supervision and a lack of finality” (Driskell Inquiry, at p. 130) and maintains the “sword of Damocles” in the form of re-prosecution dangling over the accused (Roach (2024), at p. 214). Commissioner MacCallum found that David Milgaard, who was wrongfully convicted, was left with “significant stigma” and “without the chance of a not guilty verdict” (p. 336). Following the quashing of his conviction, the Crown directed a prosecutorial stay. Mr. Milgaard was left in legal limbo and anguished under the threat of re-prosecution for half a decade until he was finally acquitted.

[279]                     Similar to a prosecutorial stay, a withdrawal does not give rise to the plea of autrefois acquit, and offers no protections for the accused against double jeopardy (R. v. Karpinski, [1957] S.C.R. 343). However, “it is requested in open court, it is subject to some judicial supervision and it sends a clear message to the public that the Crown is not prosecuting the case” (Driskell Inquiry, at p. 132; see also S. A. Cohen, Due Process of Law: The Canadian System of Criminal Justice (1977), at pp. 158-59).

[280]                     Courts may also wish to consider the accused’s position on the appropriate remedy. Though a court of appeal may determine that it is appropriate to enter an acquittal, an accused may ask that a new trial be ordered where the Crown will publicly call no evidence on the record in the trial court. The post-acquittal remarks of the wrongfully convicted show that this process offers public accountability and a marked degree of exoneration for a wrongfully convicted accused (see Roach (2024), at pp. 224-28). In appropriate circumstances, this process provides the Crown or court an opportunity to publicly apologize and acknowledge the failure of the justice system (see, e.g., Mullins-Johnson, at para. 27; R. v. Gillespie and Mailman, 2024 NBKB 2, at paras. 4-7).

[281]                     Based on a consideration of all the relevant factors in the case before us, the interests of justice dictate an acquittal, and not a stay of proceedings, as the appropriate order. On the evidence before this Court, I am satisfied that it is more likely than not that Ms. Bouvette would be acquitted at a putative new trial. Further, unlike a stay, this final order alleviates the unfairness and stigma that this miscarriage of justice has caused to Ms. Bouvette. An acquittal is further justified in light of the significant equities that undermine the public’s interest in ordering a new trial.

(4)          Additional Guidance Regarding an Acquittal Versus a Stay

[282]                     The parties and interveners have sought guidance regarding how courts should consider the merits of an acquittal relative to a judicial stay of proceedings entered pursuant to s. 686(8) of the Code (A.F., at paras. 94 and 110; R.F. at para. 91; I.F. (Canadian Civil Liberties Association), at paras. 16-24; I.F. (Independent Criminal Defence Advocacy Society), at paras. 17-24). The issue before this Court is whether the Court of Appeal erred in entering a stay of proceedings. Both parties, for different reasons, impugn the Court of Appeal’s decision to enter a stay. My colleague and I agree that a judicial stay is a distinct order that may be available to the appeal court, and further that this ancillary order under s. 686(8) is not on equal footing with the primary remedial orders, which are codified in s. 686(2) (majority reasons, at para. 63). As such, it should only be considered after the court has conclusively determined that an acquittal is not appropriate. I do not agree with the characterization of the stay as one of three “principal” or “main” remedial orders upon allowing an appeal from conviction (majority reasons, at paras. 52 and 57).

[283]                     Upon quashing a conviction, the Code prescribes two presumptive remedies — an acquittal (s. 686(2)(a)) or a new trial (s. 686(2)(b)) (Truscott, at para. 246). I acknowledge that it is not necessary in all cases for courts to order an acquittal or a new trial before triggering its residual power under s. 686(8) (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385 (“Smith 2004”), at para. 22; R.V., at para. 75). Smith 2004 affirmed that a remedy under s. 686(8) becomes available upon quashing a conviction, as it is an exercise of a power under s. 686(2) (para. 22).

[284]                     However, simply because a remedy is available upon the quashing of the conviction, does not mean that it is appropriate to consider it as a third “alternative” on the same footing as a new trial or acquittal. In Hinse 1995, this Court confirmed that, even when the power to enter a stay is exercised pursuant to s. 686(8), it is subject to the substantive constraints on the exercise of the power, as set out in the jurisprudence (para. 23). As “an alternative” order, it is only available in “appropriate circumstances” (para. 20).

[285]                     The jurisprudence establishes that a stay of proceedings is a drastic “remedy of last resort”, available only in the clearest of cases if prejudice caused by the abuse will be manifested, perpetuated, or aggravated through the conduct of the trial; there must be no alternative remedy capable of redressing the prejudice (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at para. 76; see also R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 75-77; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paras. 89-90; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 53-54; Taillefer, at para. 117; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-33). They are to be granted “rarely” (Tobiass, at para. 59).

[286]                     The circumstances that lead to a miscarriage of justice may very well constitute an abuse of process causing prejudice to the accused’s fair trial interests or the integrity of the justice system (Babos, at para. 31). However, as s. 686(2) of the Code provides the appellate court two presumptive remedial options to address the miscarriage of justice, and the acquittal is capable of removing the prejudice and providing a complete remedy, principles relating to the availability of a stay dictate that those remedies be considered first. Where a court concludes on applicable principles that an acquittal is warranted over a new trial, there is no need to consider a stay.

[287]                     In cases of miscarriage of justice which bear the hallmarks of wrongful convictions, if the court is not satisfied that an acquittal is appropriate, then a new trial becomes the presumptively appropriate remedy. Nevertheless, a new trial may not be appropriate in the circumstances for many reasons, including and primarily because such an order would be manifestly unfair to an accused or risk an abuse of process application (Truscott, at para. 246; R.V., at para. 77). If the court is so satisfied, it may then go on to consider if a stay is justified. In my view, it is in this sense that Hinse 1995 described a stay as “an alternative” — it is available to the appellate court as a remedial order “under certain limited circumstances” (para. 29). The Court considered the nature of the residual power in s. 686(8) generally and referred to the stay as an example of an ancillary order (paras. 28-30).

[288]                     In this case, the Court of Appeal’s order of analysis was correct. Once the court concluded a miscarriage of justice had been established, it determined whether an acquittal was appropriate by applying the unreasonable verdict standard and subsequently, the Truscott standard. After ruling out an acquittal, the court went on to consider the appropriateness of the stay.

[289]                     This approach is also consonant with the objective of a judicial stay, which is a prospective remedy aimed at preventing an abuse of process (Tobiass, at para. 91; R. v. Brunelle, 2024 SCC 3, at para. 59). Its effect is to stay the charges and any and all proceedings that would follow. However, if an acquittal is warranted in the circumstances, there is no need to consider whether another remedy is necessary to prevent any ongoing abuse. Moreover, as the Court of Appeal recognized, as a remedy a stay is ultimately “inferior” to an acquittal, leaving in place the stigma of the unresolved charges (para. 122; Truscott, at para. 265). Therefore, a stay would only be an appropriate remedy of last resort where to order a new trial “would be manifestly unfair to the appellant” (Truscott, at para. 246).

[290]                     Finally, it is helpful to properly contextualize this Court’s decisions in Smith 2004, R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, and R.V. to clarify any perceived misunderstandings about the availability and appropriateness of a remedy under s. 686(8). While these decisions clarified that a court need not order a new trial to enter a stay under s. 686(8), a court cannot bypass consideration of the primary presumptive remedies of an acquittal and a new trial, by going directly to a remedy, such as a stay, under s. 686(8).

[291]                     In Smith 2004, Binnie J.’s comments regarding s. 686(8) was within the context of the Crown arguing that the court lacked the jurisdiction to hear the appeal of a deceased person because it would not be able to order a new trial (para. 22). It was within this specific context that this Court held that a remedy under s. 686(8) becomes available upon the quashing of a conviction under s. 686(2). 

[292]                     This Court’s reasoning in Smith 2004 revealed two important and interrelated points. First, “[i]t is not necessary to order a new trial” before imposing a stay of proceedings (para. 22 (emphasis added)). Relatedly, this Court’s reasoning supports a strong inference that a stay is a remedy of last resort — that is, the presumptive remedies under s. 686(2) would not have been appropriate in the circumstances. Defence counsel for the deceased appellant had sought a new trial and conceded that an acquittal was not the appropriate remedy (paras. 54 and 59). Had this Court exercised its jurisdiction to hear the appeal, and given that a new trial could not have been ordered for the deceased person, the only remaining available remedies that may have been appropriate in the circumstances would have necessarily been those found in s. 686(8). 

[293]                     Similarly, in Bellusci, in the context of a Crown appeal from acquittal, Fish J. affirmed that the court “need not order a new trial or enter a verdict of guilty in order to trigger the application of s. 686(8)” (para. 39 (emphasis added)). This Court’s analysis affirmed that the remedies under s. 686(4)(b) were presumptively appropriate until and unless the court determined that they were not appropriate in the circumstances. Fish J. endorsed the Court of Appeal of Alberta’s analysis in R. v. Yelle, 2006 ABCA 276, 397 A.R. 287, where the court ordered the continuation of a trial under s. 686(8) because the presumptive remedies under s. 686(4)(b) were first found to be not appropriate in the circumstances (Bellusci, at para. 41, quoting Yelle, at paras. 17-18).

[294]                     Finally, this Court in R.V. considered s. 686(8) within the context of a stay and confirmed through its analysis that it is a remedy of last resort only to be considered once the presumptive remedies are determined to be not appropriate. Moldaver J. affirmed that the “ordinary remedy” is to “send . . . the acquittal back for retrial” (para. 73 (emphasis added)). However, in the particular circumstances of that case, he determined that a stay would be justified because a new trial would “needlessly risk an abuse of process application” and “bring no benefit to the administration of justice” (para. 77). Thus, though the availability of a stay does not depend upon an order for a new trial, to determine its appropriateness as a drastic prospective remedy of last resort, courts should turn their mind to whether ordering a new trial “needlessly risk[s] an abuse of process application” and consequently, would not be appropriate in the circumstances (para. 77; see also Hinse 1995, at para. 23).

(5)          Summary of Principles

[295]                     Once an appellant has established a miscarriage of justice under s. 686(1)(a)(iii), the court of appeal must quash the conviction. The Code then directs the court to determine whether an acquittal or an order for a new trial is appropriate in the circumstances (s. 686(2)). Where no reasonable jury could convict, an acquittal is the appropriate order. Moreover, generally, where there remains a reasonable possibility of conviction, the court will order a new trial (Truscott, at paras. 247-48; Stolar, at pp. 491-92; Maciel, at para. 46).

[296]                     However, in certain cases outside of the norm, courts should go on to consider whether the interests of justice dictate an acquittal, even if there remains a reasonable possibility of conviction. Specifically, in those cases which bear the procedural and substantive hallmarks of wrongful convictions, courts should follow the remedial framework set out in these reasons. In this subset of miscarriages of justice, to determine whether an acquittal is in the interests of justice, appellate courts will consider and balance the nature and effects of the miscarriage, the potential for a new trial and the likelihood of acquittal, and the overall equities of a particular case.

[297]                     The appropriate remedial framework must consider those features common to wrongful convictions cases. The nature of the miscarriage of justice may undermine the evidentiary basis of guilt, cast light on the basis of the original charge, and have an impact on any new trial where one is theoretically possible. Courts must also assess the potential for a new trial and the likelihood of acquittal. A determination that it is more probable than not that an acquittal would result at a retrial based on the augmented or varied record will generally be required as a pre-requisite to entering an acquittal and it will also weigh strongly in favour of such an order. Moreover, where a new trial is judged to be not reasonably likely to be held, for whatever legitimate reason, it should not be ordered. In those cases where the Crown concedes an acquittal, courts may assume a deferential posture but, in exercising their statutory power according to relevant principles, they must conduct a judicial assessment that an acquittal is appropriate. Finally, courts must also consider the overall equities of the case, which includes a consideration of the prejudice that the appellant has experienced as a consequence of serving their sentence, undergoing multiple trials and appeals, and the passage of time.

[298]                     In exercising their discretion, courts of appeal must give primary weight to their consideration of the potential for a new trial and the likelihood of acquittal or conviction. The nature and impacts of the miscarriage of justice may assume a greater role in contextualizing those cases where a court may be unable to determine the likely result at a putative new trial. Similarly, a consideration of the overall equities of the case can assist the court in weighing the public interest in holding a new trial. A consideration of the equities alone cannot form a standalone basis to substitute an acquittal for a new trial, especially when only one factor is present. In this exercise, the court must never lose sight of the ultimate question of whether the interests of justice require an acquittal or a new trial.

D.           Conclusion: An Acquittal Is Justified in This Case

[299]                     As I have sought to explain in these reasons, after applying the above framework to Ms. Bouvette’s matter, an acquittal is justified in the interests of justice. The Court of Appeal erred by foreclosing an assessment of whether an acquittal was appropriate because a trial was still theoretically possible. Since this case exhibited several of the procedural and substantive hallmarks of wrongful convictions, as discussed above, the conclusion that there is a reasonable possibility of conviction is not the end of the matter. It was necessary for the court to go on to consider the appropriate remedy by considering the relevant factors, though I am mindful that it did not have the benefit of these reasons.

IV.         Disposition

[300]                     I would allow the appeal, set aside the stay of proceedings, and enter an acquittal.

                    Appeal allowed.

                    Solicitors for the appellant: Michael Klein Law, Vancouver; Myers, Karp, Patey, Neurauter, Vancouver.

                    Solicitors for the respondent: Ritchie Sandford McGowan, Vancouver.

                    Solicitor for the intervener Attorney General of Ontario: Attorney General of Ontario — Crown Law Office, Criminal, Toronto.

                    Solicitors for the intervener Canadian Civil Liberties Association: Henein Hutchison Robitaille, Toronto.

                    Solicitors for the intervener Innocence Canada: Lockyer Zaduk Zeeh, Toronto; Innocence Canada, Toronto.

                    Solicitors for the intervener Independent Criminal Defence Advocacy Society: Pringle Law, Vancouver; Gregory P. Delbigio Professional Corporation, Vancouver; UBC Innocence Project, Vancouver.