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Simon Shields, Lawyer

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Since 2005

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Appeal - Misapprehension of Evidence

R v Khan (Ont CA, 2014)

In this criminal case, the Court of Appeal characterized the standard to be met for the appeal ground of misapprehension of evidence. Logically, this standard would apply to civil cases with equal or even greater stringency, since criminal defendants are typically afforded more generous protection from the courts:
Misapprehension of evidence involves a “stringent standard”: R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only “[w]here 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” (emphasis added): R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541, cited with approval in Lohrer.

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