Can an acquittal be set aside on the basis that the finding is not supported by the element?

Cromwell J., in dealing with this issue in H. (J.M.), confirmed, at para. 25, that the error of law in making a finding of fact in the absence of evidence has no application to a finding of reasonable doubt: It has long been recognized that it is an error of law to make a finding of fact for which there is no supporting evidence: Schuldt v. The Queen. It does not follow from this principle, however, that an acquittal can be set aside on the basis that it is not supported by the element. An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met. (Citations omitted)