Misapprehension of Evidence

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General Principles

See also: Appeal on Miscarriage of Justice

The misapprehension of evidence is the "failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence."[1]

Not every misapprehension of evidence will be a reversable error.[2] The error must result in an unreasonable verdict, an incurable error in law or a miscarriage of justice.[3]

The consideration of whether the misapprehension affected the verdict must be made "in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial.[4]

Recommended Analysis
The first step in analysis must be to consider the "reasonableness of the verdict". If it is unreasonable the accused is entitled to an acquittal.[5] If the verdict is not unreasonable, the next step is to determine whether there was a "miscarriage of justice" which would entitle the accused to a quashed verdict and a new trial.[6] Finally, if there is no miscarriage of justice the final step is to determine whether the misapprehension amounted to an error of law, which, if proven, places a burden on the Crown to establish that there was no miscarriage of justice warranting a new trial.[7]

Magnitude of Error
Appeal for misapprehension of evidence requires that the error be must be "material, not peripheral, to the reasoning of the trial judge" and must "play an essential part in the reasoning process resulting in a conviction". [8]


A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.[9]

Totality of Evidence Rule (Lohrer Test)
It is an error of law for a trial judge to fail to consider the totality of the evidence.[10] The failure must have "played an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction".[11] This is a grounds of appeal relates to misapprehension of evidence.

Biniaris Test vs Lohrer Test
The Binaris Test related to the reasonableness of a verdict. [12] The difference between the two tests are that:[13]

  • the "Lohrer test applies when the attack is on a discrete finding of fact and it appears the conclusion of the trial judge on that fact is unsupported by any evidence, or perhaps that it is against the overwhelming weight of the evidence on that point";
  • the Biniaris test "applies when the attack is on the overall strength of the case, and not any discrete finding of fact that is said to be plainly inconsistent with the uncontradicted evidence".
  1. R v Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 193 (Ont. C.A.), at para 83
    R v MacIsaac, 2013 NLCA 26 (CanLII) at para 16 - 18
    R v Lohrer, 2004 SCC 80 (CanLII) at para 4 ("The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.")
  2. R v Butler, 2013 ONSC 2403 (CanLII) at para 63
    R v Vant, 2015 ONCA 481 (CanLII), at para 108
  3. R v GG, 1995 CanLII 8922 (ON CA), (1995) 97 CCC (3d) 362 (Ont. C.A.), at para 59
    Morrissey, supra
    See s. 686(1)(a)(iii) regarding defence appeals on miscarriages
  4. Vant, supra at para 108
    Morrissey, supra at para 93
  5. Vant, supra at para 109
  6. Vant, supra at para 109
  7. Vant, supra at para 109
  8. R v Lee, 2010 ABCA 1, 23 Alta LR (5th) 76, at paras 8-9
    R v Loher, 2004 SCC 80 (CanLII), (2004), 193 CCC (3d) 1 (S.C.C.) at para 1, 2
    R v Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 218 (Ont. C.A.) at para 218 and 221
    see R v Izzard, 2013 NSCA 88 (CanLII)
    Butler, supra at para 63
  9. R v DB, 2012 ONCA 301 (CanLII)
    Butler at para 63
  10. Lohrer, supra
  11. Lohrer, supra at para 2
    R v Movchan, 2016 ABQB 317 (CanLII) at paras 22 to 25
  12. see Unreasonable Verdict
  13. Movchan, supra at para 24

See Also