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Simon Shields, LLB

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Appeals - Misapprehension of Evidence

R v Hemsworth (Ont CA, 2016)

The court commented as follows on the appeal ground of 'misapprehension of evidence':
[40] Not every misapprehension of evidence by a trial judge will justify this court’s intervention. The misapprehension must be material. In R. v. Sinclair, 2011 SCC 40 (CanLII), [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed the concept of materiality and the test for appellate intervention:
For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based. As Binnie J. correctly stated in Lohrer, the standard described by Doherty J.A. in Morrissey is a stringent one. In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground. [Citations omitted.]

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