The Directed Verdict Not Just for Jury Trials

A request for Directed Verdict is an indispensible tool in any defence lawyer’s arsenal. I recently had the opportunity to request a directed verdict during a trial in the Ontario Court of Justice. My request produced a good result for my client and for that reason I thought it might be helpful to share that experience with my peers on the defence bar.

This tool can work well in a situation where the criminal code provision relied upon by the Crown is at least somewhat stringent. For instance, think of s. 265(1)(b), which is the provision on assault to do with threats or attempts. This section states as follows:

a person commits an assault when… he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose.

Reading this it is clear that there are indeed circumstances under s. 265(1)(b) where a person can be convicted of an assault for merely threatening to apply force to another individual. However, not every threat will amount to an assault. Looking at the section closely it is clear that there needs to be a “present ability” for the person to carry out that threat for the action to constitute an assault. This means that if the two parties are separated by glass, doors, distance, etc. the Crown will not be able to make out an assault.  

Thus, in a scenario where somebody has been accused of threatening somebody through a locked door and been charged with an assault, a defence counsel might be well advised to patiently wait their turn while the Crown calls their witnesses and enters their case before standing up and asking the Judge for a directed verdict. This can be done without calling a single witness, entering a single exhibit, and most crucially, without risking anything at all.

In such a scenario there is certainly nothing for the client to lose as the defence makes the motion for directed verdict while simultaneously reserving their right to call evidence. This means that in the event that the Judge rejects the motion for directed verdict the defence lawyer will still have the opportunity to call their own case. Frankly, provided there was actually a logical basis for your request, all you’ve really done in losing the argument (in my opinion) is taken an extra opportunity to point out the underlying perilousness of the Crown’s case.

As for case law, the test for directed verdict is quite succinctly set out in the Supreme Court of Canada decision in R v. Arcuri 2001 SCC 54.  At paragraph 21 the Court states that a trial judge considering a defence motion for directed verdict must consider “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” (I would also suggest reading United States of America v. Shephard, [1977] 2 S.C.R. 1067 if planning to ask for a directed verdict).

If the evidence called by the Crown - even if accepted as 100% accurate - would not be sufficient to make out the wording of the criminal code offence, then it is fair to conclude that a reasonable jury properly instructed could not return a verdict of guilty. This is when you stand up, make the motion for directed verdict, and hope that you’ve just won a trial while barely breaking a sweat.

I can conceive of many scenarios where this tool could come in handy, and frankly, I think a defence lawyer should always keep this concept in their back pocket in case the Crown fails to call evidence which proves a key element of a criminal code provision.