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Appeals and Judicial Review - Misapprehension of Evidence (2)

. R. v. Levely

In R. v. Levely (Ont CA, 2022) the Court of Appeal considers a nicety of the review ground of 'misapprehension of evidence':
[49] A misapprehension of evidence can support reversal of a conviction where it pertains to the substance rather than to the detail of the evidence, is material rather than peripheral to the reasoning of the trial judge, and the error plays an essential part in the reasoning process resulting in a conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, 8.
. R. v. Houle

In R. v. Houle (Ont CA, 2022) the Court of Appeal assesses incidents of misapprehension of evidence:
[27] First, it is evident that in order to find that the proposed evidence was so distant in time as to be irrelevant, the trial judge must have misapprehended the evidence relating to the timing of the events. He was either mistaken as to the substance of the evidence, or failed to give it proper effect: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 538. The three prior incidents occurred within five months of the charged offences. Using any reasonable measure, the prior incidents were not distant in time from the charged event. Moreover, the trial judge erroneously recorded dates in his endorsement, including by describing the year of the offence as 2019, when it was in fact 2018. I am therefore persuaded that in making this finding, the trial judge misapprehended the evidence and/or came to an unreasonable finding.

[28] Second, the trial judge misapprehended the relevance of evidence of prior attacks on dogs by failing to give it proper effect. Speaking of the first such event he said, “There was nothing about this incident between dogs from which it could be said that the accused ought to have had a concern for the lives or safety of persons.” He said this reasoning applied equally to the other dog attack the Crown wished to prove. This reasoning fails entirely to recognize that in both cases the dog attacks persisted despite the involvement of persons; that in the first dog attack the teenaged owner sustained an injury; that these events coupled with the incident with the neighbour showed a pattern by the dogs of escapes and aggression; and that prior aggressive and persistent joint attacks by two dogs in a populated neighbourhood, even on other dogs, can foreshadow risk not just to other dogs but also to persons.

[29] There are only two apparent explanations for the emphasis that the trial judge gave to the fact that two of the prior incidents involved dog attacks and not attacks on people. Either the trial judge erred in law by treating striking similarity as a prerequisite to admissibility when the prior incident evidence in this case does not depend on similarity for its logical relevance, or the trial judge misapprehended the proper effect of this evidence by concluding that “there is nothing about [this evidence] from which it could be said that the accused ought to have had a concern for the lives or safety of persons” (emphasis removed).

[30] Third, whatever one may say about the probative value of the prior incident evidence, and even bearing in mind that some measure of deference is warranted to judicial determinations of irrelevance, it was not reasonable for the trial judge to have found that the prior conduct evidence “is neither relevant nor material to the issues before the Court on this trial.” The relevance and materiality of the evidence is obvious.

[31] Cumulatively, the misapprehensions of evidence that I have identified played an essential role in the reasoning process that led to the decision to exclude the prior incident evidence, and to the acquittal. They therefore amount to reversible errors: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, citing Morrissey, at p. 541
. R. v. Scott

In R. v. Scott (Ont CA, 2022) the Court of Appeal considers the doctrine of misapprehension of evidence:
[29] A misapprehension of evidence results from a “mistake as to the substance of material parts of the evidence” that play an essential part in the reasoning process resulting in a conviction: R. v. Brownlee, 2018 ONCA 99, at para. 41 and R. v. Lohrer, 2004 SCC 80, at para. 2. Such a misapprehension of evidence is a reversible error: R. v. Lohrer, 2004 SCC 80 at para. 2 and R. v. Morrissey (1995), 97 CCC (3d) at 221 (OCA) and R. v. Smith, 2021 SCC 16 at para. 2.
. Walls v. Canada (Attorney General)

In Walls v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considers what amounts to a statutory standard of review for fact-findings in the CPP appeal system (akin to 'misapprehension of evidence'):
[5] The Appeal Division rendered its decision (the AD Decision) on April 1, 2021 (2021 SST 132). The Appeal Division upheld the decision of the General Division, finding that Mr. Walls did not meet the requirements for incapacity set out in subsections 60(8) to 60(10) of the CPP. In accordance with its role, as prescribed in subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (the DESD Act), the Appeal Division confirmed that it could only interfere with the decision of the General Division if it was satisfied that the General Division: (1) failed to observe a principle of natural justice or acted beyond or refused to exercise its jurisdiction; (2) erred in law in making its decision; or (3) based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The Appeal Division found no such errors.

....

[41] This Court has held that a perverse or capricious finding of fact is one where the finding squarely contradicts or is unsupported by the evidence (Garvey v. Canada (Attorney General), 2018 FCA 118, [2018] FCJ No 626 (QL) at para. 6). In the recent decision of Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, at paragraphs 122 and 123, referring to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 and to Rohm & Haas Canada Limited v. Canada (Anti-Dumping Tribunal) (1978), 1978 CanLII 2028 (FCA), 22 N.R. 175, 91 D.L.R. (3d) 212, this Court considered the meaning of "“made in a perverse or capricious manner or without regard to the material before [the decision maker]”" in a similar context of determining whether there was a basis for intervention of erroneous factual findings from an administrative decision-maker. In this passage, this Court explained that the notion of "“perversity”" has been interpreted as "“willfully going contrary to the evidence”". The notion of "“capriciousness”" or of the factual findings being made without regard to the evidence would include "“circumstances where there was no evidence to rationally support a finding or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings.”"
. R. v. S.R.

In R. v. S.R. (Ont CA, 2022) the Court of Appeal comments on the appeal ground of misapprehension of evidence:
[15] Where the alleged misapprehension is respecting evidence used to assess credibility, the decision whether a miscarriage of justice has occurred turns on the extent to which the misapprehended evidence played a role in the trial judge’s credibility assessment: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-37. If the trial judge mischaracterized parts of the accused’s evidence that were central to the assessment of credibility, there is more likely to be a miscarriage of justice: Alboukhari, at para. 38, citing R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, and Whitehouse v. Reimer (1980), 1980 ABCA 214 (CanLII), 34 A.R. 414 (C.A.).
. Carmichael v. GlaxoSmithKline Inc.

In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal considered when an allegation of misapprehension of fact meets the palpable and overriding standard:
[124] In my view, therefore, the motion judge’s finding that he had “no trouble” concluding that several of the Huang/Hengeveld indicators of capacity were not met reflects a misapprehension of the evidence. A misapprehension of the evidence “may refer to 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”: Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, at para. 37, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. Here, the motion judge made a mistake about the substance of the evidence and failed to give proper effect to the evidence, by finding that the evidence showed that several of the Huang/Hengeveld indicators of capacity were absent, when that was not so.

[125] A misapprehension of evidence justifies appellate intervention where it is palpable and overriding, that is, where the misapprehension is obvious and goes to the very core of the outcome of the case: see Moore, at para. 40; Benhaim v. St‐Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38; and Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), 44 B.L.R. (3d) 165, at paras. 296-297, leave to appeal refused, [2004] S.C.C.A. No. 291. That is so here, because the motion judge’s misapprehension is obvious and was essential to his conclusion that Mr. Carmichael was incapable of suing GSK until December 2, 2009, because of his psychological condition.
. R. v. Stennett

In R. v. Stennett (Ont CA, 2021) the Court of Appeal (Watt JA) considered grounds of misapprehension of evidence:
[49] First, misapprehension of evidence.

[50] The phrase “misapprehension of evidence” encompasses at least three errors. The failure to consider evidence relevant to an issue. A mistake about the substance of an item or items of evidence. And a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-18.

[51] Where an appellant advances misapprehension of evidence as a ground of appeal, 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: Morrissey, at pp. 219-20.

[52] Whether a misapprehension of evidence renders a trial unfair and results in a miscarriage of justice requires an examination of the nature and extent of the misapprehension and its significance to the verdict rendered at trial. Where the mistake relates to a material part of the evidence and the error plays an essential part in the reasoning process leading up to the conviction, the conviction is not grounded exclusively on the evidence and constitutes a miscarriage of justice: Morrissey, at p. 221. This is a stringent standard: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
. R. v. Gauthier

In R. v. Gauthier (Ont CA, 2021) the Court of Appeal stated basics of the appeal ground of misapprehension of evidence:
(3) Misapprehension of the evidence

(i) The principles

[52] The principles governing the misapprehension of evidence are well known and articulated in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) and adopted in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

[53] In Morrissey, at p. 221, Doherty J.A. wrote that a misapprehension of evidence will result in a miscarriage of justice when the misapprehension relates to the substance of material parts of the evidence and the errors play an essential part in the reasoning process:
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. 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. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. 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.
[54] In Lohrer, at para. 2, Binnie J. affirmed Morrissey and stated that 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.
. McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home)

In McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home) (Ont CA, 2020) the Court of Appeal comments on the appeal ground of misapprehension of evidence:
[39] There is no merit to this submission. It is well established that a misapprehension of evidence must go to the substance of a matter, rather than to the detail, and must be material rather than peripheral: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4. A trial judge need not make findings on every disputed matter in order to provide meaningful reasons for a decision.
. R v Khan

In R v Khan (Ont CA, 2014), a criminal case, the Court of Appeal characterized the standard to be met for the appeal ground of misapprehension of evidence:
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.
. R v Sousa

In R v Sousa (Ont CA, 2014), a 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.
. R v Hemsworth

In R v Hemsworth (Ont CA, 2016) the Court of Appeal 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.]
. R v Marshall

In R v Marshall (Ont CA, 2017), a criminal case, the Court of Appeal restates the criteria for allowing an appeal on the basis of misapprehension of evidence:
[54] 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.

[55] 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), [2011] 3 S.C.R. 3, at para. 56.


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