The Crown can only appeal an acquittal on “a question of law alone”. The Ontario Court of Appeal’s April 22, 2014 decision in R. v. S.H. considered what constitutes such a question. While Watt J.A. ultimately found that the Crown’s appeal did raise a question of law alone, the fact that he insisted on addressing this issue in depth, even though the accused did not seem to seriously contest it, demonstrates the importance of always ensuring that an appellate court has jurisdiction over a particular matter.

The case concerned a 60-year man who had sexually assaulted two neighbours in a manner that was completely out of character. He did not contest that he had done the acts but said he had no memory of the events, and led neurological evidence that he was in an automatistic state at the time. The trial judge accepted that he was in such an automatistic state – a finding that the Crown did not dispute on appeal. The trial judge further found that his automatism was caused by a “disease of the brain” instead of a “disease of the mind” and consequently acquitted the accused instead of finding him not criminally responsible by reason of mental disorder. The Crown appealed the trial judge’s conclusion that the automatism was not caused by a disease of the mind.

Before turning to the merits of the Crown’s appeal, Watt J.A. first addressed the jurisdictional question. He wrote:

The Threshold Issue: A Question of Law Alone?

[42]    The parties spent little time on the threshold question of whether the ground of appeal advanced involves a question of law alone as required by s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. It is essential, nonetheless, that we be satisfied that the error alleged lies within the scope of our jurisdiction on an appeal by the Crown.

The Positions of the Parties

[43]    For the appellant, Ms. Krick takes no issue with the trial judge’s finding that the respondent’s conduct said to constitute the actus reus of the offences charged was involuntary. She focusses her submissions on the legal characterization of the condition that was the genesis of the involuntary or automatistic conduct. That characterization, she says, involves a question of law alone. An error in characterizing the automatism as non-mental disorder automatism, rather than as mental disorder automatism, involves a question of law alone within the meaning of s. 676(1)(a) of the Criminal Code.

[44]    For the respondent, Mr. Sheppard voices no strenuous opposition to the Crown’s claim that the issue raised involves a question of law alone. He queries, however, whether what is involved is not more a question of mixed law and fact than a question of law alone.

The Governing Principles

[45]    Where a trial judge finds all the facts necessary to reach a legal conclusion but fails to do so, a court of appeal can accept the facts as found by the trial judge and disagree with the legal conclusion without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law, not the facts nor inferences to be drawn from the facts. The issue raised involves a question of law alone within the meaning of s.676(1)(a): R. v. Morin, [1992] 3 S.C.R. 286, at p. 294; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R.197, at para. 28; and R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 48.

[46]     The interpretation of a legal standard or the application of a legal standard to an uncontroverted factual premise involve questions of law alone: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 21; and Luedecke, at para. 50.

The Principles Applied

[47]   The trial judge found that the respondent’s conduct was involuntary. He was satisfied that the respondent was likely in an automatistic state when he entered the complainants’ homes and sexually assaulted them. The appellant accepts these findings.

[48]     The appellant parts company with the trial judge on the legal characterization of the respondent’s condition as non-mental disorder automatism. This involves either the interpretation of a legal standard or the application of a legal standard to a fixed factual predicate. What is involved in either case is a question of law alone: Araujo, at para. 18; and Luedecke, at para. 50.

[49]    I am satisfied that the error alleged by the appellant in the characterization of the respondent’s involuntary conduct as non-mental disorder automatism, rather than mental-disorder automatism, involves a question of law alone within s. 676(1)(a) of the Criminal Code. It follows that the issue raised falls within our statutory authority.

Watt J.A. ultimately accepted the Crown’s position, held that the trial judge erred in the manner in which he concluded that the automatism was not caused by a “disease of the mind”. However, he noted that the Court of Appeal had no jurisdiction to impose a verdict of not criminally responsible by reason of mental disorder and disposed of the appeal as follows:

[85]    The Crown has established legal errors that, in combination, vitiate the finding of non-mental disorder automatism that grounded the respondent’s unqualified acquittals. Our dispositive authority does not extend, however, to substitution of a special verdict of NCRMD: Criminal Code s. 686(4); and Luedecke, at para. 129. Crown counsel accepted that the respondent’s conduct was involuntary, thus we cannot substitute a conviction as s. 686(4)(b)(ii) might otherwise permit.

[86]    The parties agree that if the appeal is allowed, we should set aside the acquittals and order a new trial confined to a determination of whether the respondent’s automatism should result in a verdict of not guilty or a special verdict of NCRMD: Luedecke, at para. 142.