Under s. 676(1)(a) of the Code, the Crown’s right of appeal from an acquittal is limited to “any ground of appeal that involves a question of law alone”: R v KS, 2017 ONCA 307 at para 7; R v George, 2017 SCC 38
In order for the Crown to succeed on an appeal from acquittal, it must show “in the concrete reality of the case at hand” that the legal error had some material bearing on the acquittal, such that the outcome may well have been affected by the legal error: R v Hall, 2016 ONCA 013 at para 29. There must be reasonable degree of certainty as to the materiality of the legal error: George
The court cannot allow an appeal from an acquittal on the basis of “a miscarriage of justice”: Hall at para 34
The crown must rely on the actual trial record - not the record that might have existed had different tactical decisions been made at trial: Hall at para 32
The Crown must rely on the factual scenario legal submissions advanced at trial. To do otherwise on appeal would be unfair to the trial judge and the respondent: R v Tran, 2016 ONCA 48 at para 4
Section 676(2) gives the Crown a right of appeal on the main charge even if there is a conviction on the included offence.