Misapprehension of Evidence: Difference between revisions
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On a judge-alone trial, an appeal on the misapprehension of evidence refers to one or more failures on the part of the trial judge in a judge-alone trial:<ref> | On a judge-alone trial, an appeal on the misapprehension of evidence refers to one or more failures on the part of the trial judge in a judge-alone trial:<ref> | ||
{{CanLIIRP|Morrissey|6jtj|1995 CanLII 3498 (ON CA)|97 CCC (3d) 193}}{{perONCA|Doherty JA}}{{atL|6jtj|83}} (misapprehension 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."<br> | {{CanLIIRP|Morrissey|6jtj|1995 CanLII 3498 (ON CA)|97 CCC (3d) 193}}{{perONCA|Doherty JA}}{{atL|6jtj|83}} (misapprehension 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."<br> | ||
{{ | {{CanLIIRP|MacIsaac|fx4jn|2013 NLCA 26 (CanLII)|335 Nfld & PEIR 199}}{{perNLCA|Rowe JA}}{{atsL|fx4jn|16| to 18}}<br> | ||
</ref> | </ref> | ||
* a "failure to consider evidence relevant to a material issue"; | * a "failure to consider evidence relevant to a material issue"; | ||
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Not every misapprehension of evidence will be a reversable error.<ref> | Not every misapprehension of evidence will be a reversable error.<ref> | ||
{{ | {{CanLIIRP|Butler|fx8hl|2013 ONSC 2403 (CanLII)|44 MVR (6th) 281}}{{perONSC|Durno J}}{{atL|fx8hl|63}}<br> | ||
{{CanLIIRP|Vant|gjrjd|2015 ONCA 481 (CanLII)|324 CCC (3d) 109}}{{perONCA|Watt JA}}{{atL|gjrjd|108}}<br> | {{CanLIIRP|Vant|gjrjd|2015 ONCA 481 (CanLII)|324 CCC (3d) 109}}{{perONCA|Watt JA}}{{atL|gjrjd|108}}<br> | ||
</ref> | </ref> | ||
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The reversible error must:<ref> | The reversible error must:<ref> | ||
{{ | {{CanLIIRP|Lohrer|1jx8r|2004 SCC 80 (CanLII)|[2004] 3 SCR 732}}{{perSCC|Binnie J}}{{atsL|1jx8r|1| to 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.")<br> | ||
</ref> | </ref> | ||
* "go to the substance" of the case and cannot simply be a "detail"; | * "go to the substance" of the case and cannot simply be a "detail"; | ||
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<ref> | <ref> | ||
{{CanLIIRP|Lee|27scf|2010 ABCA 1 (CanLII)|23 Alta LR (5th) 76}}{{TheCourt}} (2:1){{atsL|27scf|8| to 9}}<br> | {{CanLIIRP|Lee|27scf|2010 ABCA 1 (CanLII)|23 Alta LR (5th) 76}}{{TheCourt}} (2:1){{atsL|27scf|8| to 9}}<br> | ||
{{CanLIIRP|Loher|1jx8r|2004 SCC 80 (CanLII)| | {{CanLIIRP|Loher|1jx8r|2004 SCC 80 (CanLII)|[2004] 3 SCR 732}}{{perSCC|Binnie J}}{{atsL|1jx8r|1|, 2}}<br> | ||
{{CanLIIRP|Morrissey|6jtj|1995 CanLII 3498 (ON CA)|97 CCC (3d) 218}}{{perONCA|Doherty JA}}{{atsL|6jtj|218| and 221}} <br> | {{CanLIIRP|Morrissey|6jtj|1995 CanLII 3498 (ON CA)|97 CCC (3d) 218}}{{perONCA|Doherty JA}}{{atsL|6jtj|218| and 221}} <br> | ||
see {{ | see {{CanLIIRx|Izzard|fzqt1|2013 NSCA 88 (CanLII)}}{{perNSCA|Beveridge JA}}<br> | ||
{{supra1|Butler}}{{atL|fx8hl|63}}<br> | {{supra1|Butler}}{{atL|fx8hl|63}}<br> | ||
</ref> | </ref> | ||
A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.<ref> | A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.<ref> | ||
{{ | {{CanLIIRx|DB|fr7tf|2012 ONCA 301 (CanLII)}}{{perONCA|Doherty JA}}<br> | ||
{{supra1|Butler}}{{atL|fx8hl|63}}</ref> | {{supra1|Butler}}{{atL|fx8hl|63}}</ref> | ||
An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.<ref> | An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.<ref> | ||
{{ | {{CanLIIRP|Lee|2d8r7|2010 SCC 52 (CanLII)|[2010] 3 SCR 99}}{{TheCourtSCC}}{{atL|2d8r7|4}}<br> | ||
</ref> | </ref> | ||
| Line 73: | Line 73: | ||
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".<ref> | 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".<ref> | ||
{{supra1|Lohrer}}{{atL|1jx8r|2}}<br> | {{supra1|Lohrer}}{{atL|1jx8r|2}}<br> | ||
{{ | {{CanLIIRP|Movchan|gs07f|2016 ABQB 317 (CanLII)|39 Alta LR (6th) 347}}{{perABQB| Yungwirth J}}{{atsL|gs07f|22| to 25}} | ||
</ref> | </ref> | ||
This is grounds of appeal relates to the misapprehension of evidence. | This is grounds of appeal relates to the misapprehension of evidence. | ||
The Lohrer test was also articulated as follows:<Ref> | The Lohrer test was also articulated as follows:<Ref> | ||
{{ | {{CanLIIRx|Kaemmer|hzzf1|2019 BCCA 136 (CanLII)}}{{perBCCA|Hunter JA}}{{AtL|jdzlb|28}}<br> | ||
see also {{CanLIIR|Wei|gpj9f|2016 BCCA 75 (CanLII)}} | see also {{CanLIIR|Wei|gpj9f|2016 BCCA 75 (CanLII)}} | ||
</ref> | </ref> | ||
| Line 100: | Line 100: | ||
; Consequence of Misapprehension | ; Consequence of Misapprehension | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRx|Barber|htkjp|2018 ONSC 4940 (CanLII)}}{{perONSC|Andre J}}{{atL|htkjp|17}}<br> | ||
{{supra1|Lohrer}}{{atL|1jx8r|1}}<br> | {{supra1|Lohrer}}{{atL|1jx8r|1}}<br> | ||
</ref> | </ref> | ||
Revision as of 12:00, 11 May 2021
General Principles
On a judge-alone trial, an appeal on the misapprehension of evidence refers to one or more failures on the part of the trial judge in a judge-alone trial:[1]
- 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.[2] The error must result in an unreasonable verdict, an incurable error in law or a miscarriage of justice.[3]
The reversible error must:[4]
- "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.[5]
- 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.[6] 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.[7] 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.[8]
- Interpretation
The appellant cannot simply “cherry pick” incorrect sentences without considering the full context.[9]
- 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". [10]
A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.[11]
An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.[12]
- 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.[13] 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".[14] This is grounds of appeal relates to the misapprehension of evidence.
The Lohrer test was also articulated as follows:[15]
- 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
- 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.
- Properly Instructed Jury Test (Biniaris test)
It is a reversible error where "the verdict is one that a properly instructed jury acting judicially could reasonably have rendered”.[16]
- Biniaris Test vs Lohrer Test
The Binaris Test related to the reasonableness of a verdict. [17] The differences between the two tests are that:[18]
- 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".
- Consequence of Misapprehension
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.[19]
- ↑
R v Morrissey, 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193, per Doherty JA, at para 83 (misapprehension 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."
R v MacIsaac, 2013 NLCA 26 (CanLII), 335 Nfld & PEIR 199, per Rowe JA, at paras 16 to 18
- ↑
R v Butler, 2013 ONSC 2403 (CanLII), 44 MVR (6th) 281, per Durno J, at para 63
R v Vant, 2015 ONCA 481 (CanLII), 324 CCC (3d) 109, per Watt JA, at para 108
- ↑
R v GG, 1995 CanLII 8922 (ON CA), 97 CCC (3d) 362 (Ont. C.A.), per Laskin JA, at para 59
Morrissey, supra
See s. 686(1)(a)(iii) regarding defence appeals on miscarriages
- ↑
R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J, at paras 1 to 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.")
- ↑
Vant, supra, at para 108
Morrissey, supra, at para 93 - ↑
Vant, supra, at para 109
- ↑
Vant, supra, at para 109
- ↑
Vant, supra, at para 109
- ↑ R v Davis, 1999 CanLII 638 (SCC), per Lamer CJ, at para 103 (“It is not sufficient to “cherry pick” certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages”)
- ↑
R v Lee, 2010 ABCA 1 (CanLII), 23 Alta LR (5th) 76, per curiam (2:1), at paras 8 to 9
R v Loher, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J, at paras 1, 2
R v Morrissey, 1995 CanLII 3498 (ON CA), 97 CCC (3d) 218, per Doherty JA, at paras 218 and 221
see R v Izzard, 2013 NSCA 88 (CanLII), per Beveridge JA
Butler, supra, at para 63
- ↑
R v DB, 2012 ONCA 301 (CanLII), per Doherty JA
Butler, supra, at para 63 - ↑
R v Lee, 2010 SCC 52 (CanLII), [2010] 3 SCR 99, per curiam, at para 4
- ↑ Lohrer, supra
- ↑
Lohrer, supra, at para 2
R v Movchan, 2016 ABQB 317 (CanLII), 39 Alta LR (6th) 347, per Yungwirth J, at paras 22 to 25 - ↑
R v Kaemmer, 2019 BCCA 136 (CanLII), per Hunter JA, at para 28
see also R v Wei, 2016 BCCA 75 (CanLII) - ↑
Biniaris, supra
- ↑ see Unreasonable Verdict
- ↑
Movchan, supra, at para 24
- ↑
R v Barber, 2018 ONSC 4940 (CanLII), per Andre J, at para 17
Lohrer, supra, at para 1