Criminal Law Notebook

Misapprehension of Evidence

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

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 of three 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]

The test requires re-examination of the evidence which includes some degree fo reweighing and considering the effect of evidence.[9]

It is insufficient to rely on "vague unease, or a lingering or lurking doubt."[10]

Interpretation

The appellant cannot simply “cherry pick” incorrect sentences without considering the full context.[11]

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.[12]

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". [13]

A failure to give the evidence the meaning urged by counsel does not amount to a misapprehension.[14]

An allegation that the trial judge merely interpreted the evidence differently from a party does not amount to a misapprehension.[15]

Biniaris Test vs Lohrer Test

The Biniaris Test related to the reasonableness of a verdict. [16] The differences between the two tests are that:[17]

  • 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), 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 Stennett, 2021 ONCA 258 (CanLII), per Watt JA, at para 50
  2. ↑ 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
  3. ↑ R v GG, 1995 CanLII 8922 (ON CA), 97 CCC (3d) 362, 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), [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.")
  5. ↑ Vant, supra, at para 108
    Morrissey, supra, at para 93
  6. ↑ Vant, supra, at para 109
    Stennett, supra, at para 51 ("...the reviewing court considers first the reasonableness of the verdict rendered by the trier of fact. If the verdict is not unreasonable, then the reviewing court must decide whether the misapprehension of evidence caused a miscarriage of justice. If the appellant fails on this ground as well, the court must inquire whether the misapprehension amounted to an error of law, and if so, whether that error occasioned the appellant a substantial wrong or miscarriage of justice: ...")
  7. ↑ Vant, supra, at para 109
    Stennett, supra, at para 51
  8. ↑ Vant, supra, at para 109
    Stennett, supra, at para 51
  9. ↑ R v Lemaigre, 2016 SKCA 132 (CanLII), per Caldwell JA, at para 21
  10. ↑ Lemaigre, ibid., at para 21
  11. ↑ R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, 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”)
  12. ↑ R v GC, 2022 ONCA 678 (CanLII), per curiam, at para 14
  13. ↑ 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
  14. ↑ R v DB, 2012 ONCA 301 (CanLII), per Doherty JA
    Butler, supra, at para 63
  15. ↑ R v Lee, 2010 SCC 52 (CanLII), [2010] 3 SCR 99, per curiam, at para 4
  16. ↑ see Unreasonable Verdict
  17. ↑ Movchan, supra, at para 24

Overall Strength Test (Biniaris Unreasonable Verdict Test)

See also: Unreasonable Verdict

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.[1] 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."[2] 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.[3]

The Lohrer test was also articulated as follows:[4]

  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.[5] 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.[6] The unfair trial analysis is a "stringent standard."[7]

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.[8] The misapprehension cannot be peripheral.[9]

The error is one where if it was struck from the judgement would leave the reasoning on "unsteady grounds."[10] It must be a "central element" to the trial judge's reasoning.[11]

  1. ↑ R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J
  2. ↑ Lohrer, ibid., at para 2
    R v Movchan, 2016 ABQB 317 (CanLII), 39 Alta LR (6th) 347, per Yungwirth J, at paras 22 to 25
  3. ↑ R v Lemaigre, 2016 SKCA 132 (CanLII), per JA, at para 22 ("...in R v Lohrer, ... the Supreme Court has recognised, in the circumstances of a case such as this one, that an appellate court may go beyond its power under s. 686(1)(a)(i) to exercise its power under s. 686(1)(a)(iii) of the Criminal Code where the appellate court concludes that there has been a misapprehension of the evidence requiring a new trial.")
  4. ↑ R v Kaemmer, 2019 BCCA 136 (CanLII), per Hunter JA, at para 28
    see also R v Wei, 2016 BCCA 75 (CanLII), per Fenlon JA
  5. ↑ Stennett, supra, at para 52
    R v Gauthier, 2021 ONCA 216 (CanLII), per Harvison Young JA, at para 53
  6. ↑ Stennett, supra, at para 52
  7. ↑ Stennett, supra, at para 52
    R v Khan, 2014 ONCA 795 (CanLII), per curiam
  8. ↑ Gauthier, supra, at para 54 ("...the misapprehension must go to the substance, rather than the detail, of the evidence and that the error must play an essential part in not just the narrative of the judgment but in the reasoning process resulting in a conviction.")
  9. ↑ McGuinty v 1845035 Ontario Inc. (McGuinty Funeral Home), 2020 ONCA 816 (CanLII), per Hushcroft JA at para 39
  10. ↑ Sinclair, 2011 SCC 40 (CanLII), [2011] 3 SCR 3, at para. 56, Lebel J
    R v Hemsworth, 2016 ONCA 85 (CanLII), 334 CCC (3d) 534, per Epstein JA, at para 40
  11. ↑ R v Marshall, 2017 ONCA 801 (CanLII), per Epstein JA, at para 55

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.[1]

  1. ↑ R v Barber, 2018 ONSC 4940 (CanLII), per Andre J, at para 17
    R v Lohrer, 2004 SCC 80 (CanLII), [2004] 3 SCR 732, per Binnie J, at para 1

See Also

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