Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Misapprehension of Evidence (4)

. Halton (Regional Municipality) v. Canadian National Railway Company

In Halton (Regional Municipality) v. Canadian National Railway Company (Ont CA, 2024) the Court of Appeal considered (and dismissed) appeals of denials of injunction and declaration applications by several local municipalities against CN, this with respect to the construction of a huge rail intermodal hub near Milton. The primary issue was the extent to which this federal project required provincial and municipal authorizations in the face of the doctrine of 'interjurisdictional immunity'.

Here, the court cites authority for 'misapprehension of evidence' being a ground of appeal:

[35] I agree with Halton’s claim that a misapprehension of a party’s position can lead to a failure to give proper effect to the evidence on an issue that goes to the core of the outcome, thereby giving rise to a ground of appeal: see Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 124 - 125, leave to appeal refused, [2020] S.C.C.A. No. 409, for a general description of “misapprehensions of evidence”. ....

. R. v. S.W.

In R. v. S.W. (Ont CA, 2024) the Court of Appeal considered 'misapprehension of evidence', here as an appeal ground:

[30] A misapprehension of evidence will warrant appellate intervention only where it is material, goes to substance rather than detail, and plays an essential role in the reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, quoting R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 221. “[A]n 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”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

. R. v. N.G.

In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered a rare 'after-the-fact judicial justification' - here where the trial judge made a fact error and ruled, and then discovered the error and corrected it (without changing the outcome):

[8] When delivering her oral reasons for conviction on June 5, 2019, the trial judge apparently thought the word “continue” appeared in the appellant’s text message. For example, at one point in her reasons, within a larger discussion that I set out below, she said: “the fact that he says, ‘…we’re going to continue to use her’, indicates that this was an ongoing course of action which had already taken place and would be continued in the future” (emphasis added).

[9] The trial judge returned to the text message later in her reasons concerning the human trafficking and material benefits counts. She found that it demonstrated the appellant “had a financial motive to continue to deceive [the complainant] into believing that they loved her when in fact his motive was to continue to use her or exploit her work in the sex trade for financial gain” (emphasis added).[4]

[10] The trial judge discovered her mistaken reading of the text message when reviewing her conviction reasons for the purpose of the appellant’s sentencing hearing on January 29, 2020. At the sentencing hearing, she noted that the appellant had not said “We are going to continue to use her” but had said “we are going to use her.” She apologized for the error and added that it “might impact…the analysis in relation to how long the trafficking had been going on. It was only one piece of evidence that I relied on in relation to the whole, but it was incorrect.”[5]

Discussion

[11] The appellant argues, the Crown concedes, and I agree, that in evaluating the argument that there was a material misapprehension of the evidence leading to conviction, the additional reasons containing the correction the trial judge provided on January 29, 2020, should not be considered. After-the-fact justification for a decision cannot be considered by an appellate court; only the original reasons for conviction are germane: R. v. Thompson, 2010 ONCA 463, 256 C.C.C. (3d) 51, at paras. 24-26.

[12] Although the trial judge misread the text message to include the word “continue”, I do not agree with the appellant that this meets the stringent test for setting aside a conviction because a mistake about the evidence rises to the level of a misapprehension of evidence that has resulted in a miscarriage of justice.

[13] For that stringent test to be met, the misapprehension of evidence “must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle…that the errors thus identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), (1995), 97 C.C.C. (3d) 193, at p. 221. “[A]n 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”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

. R. v. A.A.

In R. v. A.A. (Ont CA, 2023) the Court of Appeal considered a criminal appeal grounded in misapprehension of evidence:

[26] A failure to consider material evidence can constitute a misapprehension of the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ONCA) 97 C.C.C. (3d) 193, at 218. As with other alleged misapprehensions of evidence, the appeal court must examine the trial judge’s reasons using a “functional, context-specific approach”: R. v. R.E.M., 2008 SCC 51, at 15. The reasons must be considered in light of the evidence adduced at trial, the live issues, and the submissions of the parties: R.E.M., at para. 35; R. v. J.C., 2023 ONCA 101, at para. 9. Nor does a failure to consider evidence automatically constitute a misapprehension of the evidence. The impact of a failure to consider certain evidence depends on the potential significance of that evidence to the resolution of the live issues at trial. As observed in R. v. Smith, 2021 SCC 16, at para. 2:

Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict.

....

[32] The trial judge should have expressly addressed the effect of Exhibit 6 on the credibility and reliability of the complainant’s evidence. The document showed the complainant was wrong about a material matter in her evidence. Because the trial judge did not specifically address the impact of the text messages on his assessment of the complainant’s evidence, it is left to this court to place that evidence in the broader context of the trial and determine what, if anything, the trial judge made of the complainant’s misstatement as to the time of the assault.

[33] Having looked at the entire record, we are satisfied that the trial judge accepted the Crown’s submissions in respect of the text messages. Not only, as the Crown argued, was the timing not an essential element of the alleged offences, the specific time of the assault did not matter to the overall integrity of the complainant’s narrative about the assault. The veracity of her story remained intact whether the assault occurred between 12:30 a.m. and 1:00 a.m., or shortly after 2:15 a.m. In other words, the complainant’s error about the time of the offence could not logically have done any damage to the overall credibility of her allegation that the appellant assaulted her.

[34] Finally, having regard to the strong credibility findings made in favour of the complainant by the trial judge, it is not realistic to suggest that even if the trial judge failed to consider the text messages, he would have reached a different credibility assessment had he considered those messages.