Criminal Law Notebook

Misapprehension of Evidence

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General Principles

See also: Appeal on Miscarriage of Justice and Appeal of an Error of Law

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]

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". [9]

A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.[10]

An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.[11]

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.[12] 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".[13] This is grounds of appeal relates to the misapprehension of evidence.

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”.[14]

Biniaris Test vs Lohrer Test

The Binaris Test related to the reasonableness of a verdict. [15] The differences between the two tests are that:[16]

  • 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.[17]

  1. ↑ R v Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 193 (Ont. C.A.), 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), per Rowe JA at para 16 - 18
  2. ↑ R v Butler, 2013 ONSC 2403 (CanLII), per Durno J, at para 63
    R v Vant, 2015 ONCA 481 (CanLII), per Watt JA, at para 108
  3. ↑ R v GG, 1995 CanLII 8922 (ON CA), (1995) 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
  4. ↑ R v Lohrer, 2004 SCC 80 (CanLII), 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.")
  5. ↑ Vant, supra, at para 108
    Morrissey, supra at para 93
  6. ↑ Vant, supra, at para 109
  7. ↑ Vant, supra, at para 109
  8. ↑ Vant, supra, at para 109
  9. ↑ R v Lee, 2010 ABCA 1, 23 Alta LR (5th) 76, per curiam (2:1) at paras 8-9
    R v Loher, 2004 SCC 80 (CanLII), (2004), 193 CCC (3d) 1 (SCC), per Binnie J at para 1, 2
    R v Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 CCC (3d) 218 (Ont. C.A.), per Doherty JA at para 218 and 221
    see R v Izzard, 2013 NSCA 88 (CanLII), per Beveridge JA
    Butler, supra, at para 63
  10. ↑ R v DB, 2012 ONCA 301 (CanLII), per Doherty JA
    Butler, supra, at para 63
  11. ↑ R v Lee, 2010 SCC 52 (CanLII), per curiam, at para 4
  12. ↑ Lohrer, supra
  13. ↑ Lohrer, supra, at para 2
    R v Movchan, 2016 ABQB 317 (CanLII), per Yungwirth J at paras 22 to 25
  14. ↑ Biniaris, supra
  15. ↑ see Unreasonable Verdict
  16. ↑ Movchan, supra, at para 24
  17. ↑ R v Barber, 2018 ONSC 4940 (CanLII), per Andre J, at para 17
    Lohrer, supra, at para 1

See Also

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