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Simon Shields, Lawyer

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Since 2005

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Appeals - Misapprehension of Evidence

Judicial Review - Misapprehension of Evidence

R v Sousa (Ont CA, 2014)

In this criminal appeal case the Court of Appeal cited the recognized standard for a finding that the trial judge committed a 'misapprehension of evidence':
[12] The decision of this court in R. v. Morrissey 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d) 193 (C.A.) has frequently been cited for the test for whether there has been a misapprehension of the evidence which vitiates the conviction. In that case, Doherty J.A. stated at p. 221,
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.… If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
See: R. v. Lohrer, 2004 SCC 80 (CanLII), 2004 SCC 80, at para. 1; and R. v. C.L.Y., 2008 SCC 2 (CanLII), 2008 SCC 2, at para. 19.

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