The Crown cannot take back an admission made at trial later on appeal. Acquittal Restored.

R v Robertson, 2021 SKCA 125: The accused was on trial for impaired driving and of driving while his blood alcohol content exceeded .80mg/100ml. At the outset of trial, the Crown admitted that the accused was arbitrarily detained; the arresting officer did not have a subjective belief that the accused was impaired by alcohol.

The judge ruled that the accused’s rights under sections 8 and 9 of the Charter had been violated. As a result, the Judge excluded the evidence of the failed screening demand and the certificate of analysis. Without that evidence, the Crown could not prove its case against the accused and, therefore, the trial judge acquitted him of all charges. The Crown appealed to the Court of Queen’s Bench and took back its admission that the accused was arbitrarily detained. The Court of Queen’s Bench Justice allowed the Crown to do this and then overturned the acquittals and entered convictions in relation to the accused. The accused then brought an appeal to the Court of Appeal of Saskatchewan which ruled:

“[24]Accordingly, I conclude the appeal judge erred in law when he permitted the Crown to withdraw on appeal what was an admission of fact made and not withdrawn at trial. As the error led the appeal judge to displace the trial judge’s findings of breach, those findings must be restored. While the appeal judge also found error in the trial judge’s s. 24(2) Charter analysis, he did so by assessing the arresting officer’s evidence afresh, which is not permitted (R v Grant at para 129). Lastly, in part because this Court is also bound by the Crown’s admission, I conclude there is no basis to interfere with the findings of the Charter breach or with the remedy granted by the trial judge under s. 24(2) of the Charter.”