Misapprehension of Evidence

This page was last substantively updated or reviewed June 2021. (Rev. # 96812)

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General Principles

On a judge-alone trial, an appeal on the misapprehension of evidence refers to one of three failures on the part of the trial judge in a judge-alone trial:

• a "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".

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

The reversible error must:

• "go to the substance" of the case and cannot simply be a "detail";
• It must be "material" and not "peripheral" to the reasoning of the case;
• the error must "play an essential part in the reasoning process", and not simply be narrative.

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."

Recommended Analysis

The first step in the analysis must be to consider the "reasonableness of the verdict". If it is unreasonable, the accused is entitled to an acquittal. 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. 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.

The test requires re-examination of the evidence which includes some degree fo reweighing and considering the effect of evidence.

It is insufficient to rely on "vague unease, or a lingering or lurking doubt."

Interpretation

The appellant cannot simply “cherry pick” incorrect sentences without considering the full context.

The reasons must be read "as a whole", in the context of the evidence, the issues and arguments a trial, and the purposes and functions of the reasons.

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".

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

An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.

Biniaris Test vs Lohrer Test

The Biniaris Test related to the reasonableness of a verdict. The differences between the two tests are that:

• 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".

Central Element Test (Lohrer Miscarriage of Justice test)

It is an error of law for a trial judge to fail to consider the totality of the evidence. 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." This is grounds of appeal relates to the misapprehension of evidence.

The Lohrer test arises from an expansion of the misapprehension analysis beyond application of power s. 686(1)(a)(i) and to expand the analysis to apply s. 686(1)(a)(iii) power for miscarriage of justice.

The Lohrer test was also articulated as follows:

1. a misapprehension of the evidence will only vitiate a conviction if the error was a central element of the judge’s reasoning on which the conviction is based; and
2. the means of determining whether the error was a central element of the judge’s reasoning is to consider whether striking it from the judgment would leave the trial judge’s reasoning on unsteady ground.

"Unfair Trial" analysis

The misapprehension may reverse the verdict where the misapprehension renders the trial unfair, resulting in a miscarriage. Reviewing courts look at "the nature and extent of the misapprehension and its significance to the verdict rendered at trial". If the error plays "an essential part" in the reasons then it will constitute a miscarriage. The unfair trial analysis is a "stringent standard."

The misapprehension is not a miscarriage where it goes to "the detail" of the evidence (as opposed to the substance) and is not simply part of the narrative of the judgement. The misapprehension cannot be peripheral.

The error is one where if it was struck from the judgement would leave the reasoning on "unsteady grounds." It must be a "central element" to the trial judge's reasoning.

Consequence of Misapprehension Findings

Where there is a finding of a reversible misapprehension of evidence it does not matter whether the rest of the evidence could support a conviction. The error "amounts to an unfair trial" and requires quashing of the conviction.

See Also

• Unreasonable Verdict
• Appeal on Miscarriage of Justice
• Appeal of an Error of Law