On appeal, the Crown resiles from the position it took at
trial. The Crown now argues that on the evidence, there was no
air of reality to the provocation defence and that the trial judge
erred in law in leaving the defence with the jury.
May the Crown argue that provocation should not have been
left with the jury?
 The Crown submits that if there was no air of reality to
the defence of provocation, the trial judge erred in law in leaving
the defence with the jury regardless of the position taken by the
Crown at trial. Counsel acknowledges that the Crown’s position
at trial is a factor to be considered in determining whether there
was an air of reality to the defence, but argues that the Crown’s
position at trial cannot foreclose the ground of appeal advanced
 Crown counsel makes two submissions in support of his
position. First, he points to s. 676, which gives the Crown a right
of appeal against a verdict of acquittal on questions of law alone.
He notes that the section does not qualify that right based on
the position the Crown may have taken at trial. Second, counsel
refers to cases in which appellate courts on appeals from conviction have allowed the Crown as respondent to argue against the
availability of the defence of provocation despite the Crown at
trial having accepted that the defence was available.
 The Criminal Code provision does not assist the Crown.
Section 676 gives the Crown a right of appeal on questions of
law alone. The section does not, however, restrict an appellate
court’s power on appeals brought by the Crown. The section
speaks only to what the Crown can appeal, not the manner in
which an appellate court may exercise its powers on a Crown
appeal from acquittal. To take a simple example, no one would
suggest that s. 676 gives the Crown the right to have a moot
appeal determined on the merits simply because that moot
appeal raises a question of law alone. An appellate court would
maintain its discretion to decline to hear a moot appeal even
though the appeal was brought by the Crown. In the same way,
s. 676 does not leave an appellate court powerless in the face of a
Crown appeal that constitutes an abuse of the appellate process.
 The case law relied on by the Crown is distinguishable.
Those cases involved appeals from conviction in which the
accused argued that reversible error arose either from the failure to leave provocation as a defence, or from the jury instruction on provocation. In those cases, it was open to the Crown to
argue that provocation should not have been left with the jury,
even if the Crown took a different position at trial because in