Appeals - Grounds - Misapprehension of Evidence
R v Marshall (Ont CA, 2017)
In this criminal case the Court of Appeal restates the criteria for allowing an appeal on the basis of misapprehension of evidence:
 A misapprehension of evidence includes “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 evidence”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. The well-settled test for appellate intervention based on misapprehension of evidence is “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 … the accused’s conviction is not based exclusively on the evidence and is not a true verdict”: Morrissey, at p. 541.
 The Supreme Court has made it clear that the misapprehended evidence must be a central element of the trial judge’s reasoning on which the conviction is based. If the trial judge would inevitably have arrived at the same conclusion without the misapprehended evidence, there is no miscarriage of justice. The relevant question is whether striking the error in the assessment of the evidence would leave the trial judge’s reasoning on which the conviction is based on shaky ground: R. v. Sinclair, 2011 SCC 40 (CanLII),  3 S.C.R. 3, at para. 56.