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Appeal - Grounds - Misapprehension of Evidence
COMMENT
Watt JA (a model that all judges should aspire to) states in R v Stennett (Ont CA, 2021):[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. The point is that courts aren't always consistent in labelling the various 'misapprehension of evidence' (or fact) errors that can occur, and the lines aren't bright between them in any event, so as you go through the cases recognize that.
MORE CASES
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. R. v. Marchant
In R. v. Marchant (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here in an interesting case of 'failure to provide the necessaries of life' [CCC s.215] by paramedic first responders.
Here the court briefly considers the law of 'misapprehension of evidence':[84] There is no suggestion that the verdict in this case is unreasonable. The question is thus whether there were any misapprehensions of evidence and, if so, whether standing on its own or combined with others, those misapprehensions occasioned a miscarriage of justice in the sense that they were essential to the reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 221. . R. v. Saunders
In R. v. Saunders (Ont CA, 2024) the Ontario Court of Appeal considered when a 'misapprehension of evidence' will operate as grounds for appeal:[12] The appellant argues that because the trial judge referred several times in his reasons to his mistaken belief that the guns had not been forensically tested, this error must have played some part in his reasoning process, particularly since he also made comments during the course of the trial that alluded to the sloppiness of the police investigation and the associated frailty of the Crown’s case. The appellant places particular reliance on Zarnett J.A.’s comment in Kwok, at para. 55, that a verdict of guilt should be set aside if the trial judge’s “misapprehension could have affected the outcome” (underlining in original).
[13] Kwok does not go so far as to suggest that a miscarriage of justice can arise even when the impact of a misapprehension of evidence on the trial judge’s reasoning process cannot be plainly seen. To the contrary, Zarnett J.A. explained at paras. 54-55:To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only.
A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction. [Citations omitted; underlining in original.] [14] In short, Kwok simply reiterates the well-settled principle that a misapprehension of the evidence will give rise to a miscarriage of justice when it undermines the trial judge’s actual reasoning process, even if a different judge who did not made the error could still have reasonably convicted. Kwok does not suggest that a verdict can be set aside based on the purely hypothetical possibility that the trial judge’s mistake might have implicitly affected the verdict, even when the impact of the error on the judge’s actual reasoning process cannot be determined from the judge’s reasons.
[15] As the Crown correctly observes in its factum, in the case at bar “[t]he trial judge could not and did not rely on a perceived failure to swab and print the firearms as strengthening the Crown’s case.” Nothing in the trial judge’s reasons suggests that he made this error. Rather, his comments about how “one wonders why no testing occurred”, and how “it would be preferable to have documented the search more fully and to have tested the materials seized”, can be interpreted as merely observations about what he considered to be slipshod aspects of the police investigation, rather than as suggesting that he was improperly relying on the absence of evidence as a makeweight that favoured the Crown.
[16] We would accordingly not give effect to the appellant’s first ground of appeal. While the trial judge did misapprehend the evidence, we are not persuaded that this error “play[ed] an essential part in the reasoning process resulting in a conviction”: Morrissey, at p. 541. . R. v. Woods
In R. v. Woods (Ont CA, 2024) the Ontario Court of Appeal characterizes 'misapprehension of evidence':[14] To set aside a conviction on the ground that the trial judge misapprehended the evidence, the misapprehension must go to the substance rather than to detail and must play an essential part in the judge’s reasoning: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 7-8. ... . Davis v. Aviva General Insurance Co.
In Davis v. Aviva General Insurance Co. (Div Court, 2024) the Divisional Court allowed an insured's LAT SABS appeal, here where the insurer paid several years of claims but then successfully denied coverage on the basis that there was no 'accident'.
Here the court considers the SOR for questions of law, including both misapprehensions of evidence and where fact errors can constitute errors of law:[51] Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was followed. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[52] This court had an opportunity to further expand on what constitutes a question of law on a statutory appeal in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained as follows, at para. 28:[28] On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385(SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25). [53] The appeal turns on whether the LAT applied the correct law in respect to each issue, or otherwise made an error of law on applying the relevant test. . R. v. B.W.
In R. v. B.W. (Ont CA, 2024) the Ontario Court of Appeal considers an appeal argument of misapprehension of evidence:[56] Before addressing these specific issues, it is helpful to remember that the test for appellate intervention on the basis of a misapprehension of evidence is stringent. This court will only intervene if: a) the misapprehension goes to the substance of the evidence and not just a peripheral detail; b) the misapprehension is material to the trial judge’s reasoning; and c) striking the misapprehension leaves the verdict on unsteady ground: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Gill, 2019 ONCA 902, at para. 10. . R. v. Hoang
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal considered a 'misapprehension of evidence' argument:[49] To demonstrate that a verdict was unreasonable based on a misapprehension of evidence, an appellant must show that the trial judge was mistaken about evidence that played an essential role in the convictions. As Doherty J.A. stated in R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), 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.” . 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.
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