Appellant appealed conviction for convenience store robbery. Issue at trial of whether identification evidence was sufficient to convict appellant. In finding that it was, the trial judge misapprehended evidence of an important witness. Crown conceded that verdict of guilt could not stand in those circumstances. Defence sought an acquittal rather than a new trial, arguing ID evidence called by the Crown would not support a conviction.
Held: Appeal allowed; new trial ordered.

Per Grdic, 1985 CanLII 34 (SCC), “Where the verdict is found to be unreasonable and, in any event, unavailable on the trial record, an acquittal will typically follow. In that event, an appeal court would not likely give the Crown an opportunity for a do-over to lead evidence that might have been available with due diligence.” However, where the verdict is found to be unreasonable but the record nonetheless “discloses ‘evidence capable of supporting a conviction’, a new trial will typically be ordered”: Sinclair, 2011 SCC 40.

A. Sanders – Defence Counsel