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Appeal - Grounds - Misapprehension of Evidence (4). R. v. Mahoney
In R. v. Mahoney (Ont CA, 2024) the Ontario Court of Appeal commented on an appeal argument for 'misapprehension of evidence':[3] In any event, even if the trial judge did misapprehend any of this evidence, these errors did not “play an essential part the reasoning process resulting in conviction” in the sense described in Morrissey and Lohrer: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221; R. v. Lohrer, 2004 SCC 80, 2004 3 S.C.R. 732, at paras. 2-3. In other words, even if there was a misapprehension of either of the two aspects of the evidence raised by the appellant – which we do not accept – we are not persuaded that the trial judge’s reasoning process leading to conviction was infected by any error. This is made clear in paragraph 38 of the reasons, where the trial judge summarized a number of aspects of the evidence that led him to conclude, on the totality of the evidence, that the Crown had proven beyond a reasonable doubt that the appellant was a party to the offences. . R. v. Hernandez Barrios
In R. v. Hernandez Barrios (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here where the court considered whether the "trial judge caused a miscarriage of justice by misapprehending the evidence":[7] We do not accept this submission. A “stringent standard” applies to claims that a trial judge caused a miscarriage of justice by misapprehending the evidence: R. v. Lohrer, 2004 SCC 80, at para. 2. As expressed by LeBel J. in R. v. Sinclair, 2011 SCC 40, at para. 53:In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is needed than an “apparent” mistake (e.g., an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious. . R. v. D.A.
In R. v. D.A. (Ont CA, 2023) the Court of Appeal considered (and allowed) a rarely successful 'misapprehenson of evidence' appeal, here criminal:ANALYSIS
[12] A misapprehension of evidence will warrant appellate intervention only where the misapprehensions go to substance and not detail, where they are material and not peripheral to the judge’s reasoning and where they play 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.
[13] As will be explained below, the trial judge misapprehended the evidence on some points and those misapprehensions were material in nature because they formed a substantial part of the basis upon which the trial judge rejected the appellant’s evidence as lacking in any credibility. Given that the appellant’s credibility was central to the verdict, these misapprehensions played an essential role in the reasoning process.
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(2) The misapprehensions of evidence were material to rejecting the appellant’s credibility
[21] While the respondent acknowledges the three misapprehensions of evidence relied upon by the appellant, the respondent says that, when they are understood in their proper context, the misapprehensions of evidence are not material in nature.
[22] For instance, the respondent emphasizes that while the trial judge misunderstood the appellant to have told the police that the complainant broke up with him, when he had in fact told the police that he had broken up with the complainant, he had also told the police that the relationship was not over. At trial, the appellant explained that when he told the police that the relationship was not over, it was because the complainant had left her ring at his residence and he interpreted this to mean that she wanted the relationship to continue. Accordingly, even though the appellant was not inconsistent as to who broke up with who, the respondent emphasizes that there was still an inconsistency between his police statement and his testimony at trial.
[23] In addition, the respondent underscores that while the trial judge was wrong that the appellant had told the police that the complainant only visited him five times per month, the appellant seems to have accepted that he told police that when the trial Crown erroneously suggested it to him. Therefore, the respondent emphasizes that the material point for the trial judge remained the same: that the appellant did not have a good idea as to how many times the complainant visited him per month.
[24] Finally, the respondent emphasizes that while the trial judge was wrong that the appellant had admitted to telling the complainant to paint her bedroom window black, he had still told the complainant to hang a curtain on her bedroom window. Whether painting the window black or putting up a curtain matters not, says the respondent. The point for the trial judge was that the appellant was attempting to control the complainant.
[25] Respectfully, the trial judge’s misapprehensions of the evidence are not as benign as suggested. When approached in their proper context, they were fundamental to the rejection of the appellant’s credibility.
[26] The trial judge’s reasons make clear that he was leaning on seven factors in total to reject the appellant’s credibility and to find that he had made every effort to “put himself in the best light” possible.
[27] Yet two of the most critical factors for rejecting the appellant’s credibility rested on misapprehensions of the evidence: who broke up with who and the number of times that the appellant and complainant would meet each month. These were, in fact, not inconsistencies, and certainly not ones that, to use the trial judge’s words, reflected a “tailoring [of the appellant’s] evidence to suit his purposes” or to the “situation that surrounds him”. Of course, there was also the misapprehension of evidence involving telling the complainant to paint her window black, which the appellant simply did not do.
[28] The other factors relied upon by the trial judge to reject the appellant’s evidence were less significant. For instance, the trial judge found that the appellant made a somewhat fantastical claim that he had 35 children and had slept with around 750 women. But even the trial judge acknowledged that this evidence may have demonstrated that the appellant did not understand math or that he lived in a fantasy world. The fact is that there was evidence at trial that the appellant was significantly intellectually challenged, even having difficulty spelling his own name at the outset of his testimony. He also testified that he was on ODSP for, among other reasons, a disability involving numbers.
[29] In his own words, the trial judge “based” his credibility finding upon seven issues he had identified. Only two of them involved true inconsistencies between the appellant’s police statement and his evidence at trial. The trial judge misapprehended the evidence on both of those matters.
[30] His rejection of the appellant’s evidence relied on what he called a “mass of inconsistent and/or incredible evidence” that could “only be explained as an attempt by the accused to put himself in the best possible light”. Both factors that rested on factual errors were also explained as an attempt by the accused to tailor his evidence. Without relying on those two examples, and without relying on the misapprehension of evidence about having told the complainant to paint her window black, one is left wondering whether the balance of the evidence would have led the trial judge to conclude that the appellant was tailoring his evidence.
[31] This is particularly true considering the trial judge’s observation that, taken individually, some of the difficulties with the appellant’s evidence “may not adversely affect the accused’s credibility in any meaningful way”. He did not specify what difficulties he was referring to.
[32] Nothing was more central to the trial judge’s reasoning than his credibility findings. The only way in which a conviction could have flowed was by way of first rejecting the appellant’s evidence. This was central to the verdict and anything but peripheral to the trial judge’s reasoning. Undoubtedly, the errors played an essential part in the reasoning process resulting in the rejection of the appellant’s evidence. . R. v. B.C.M.
In R. v. B.C.M. (Ont CA, 2023) the Court of Appeal considered a 'misapprehension of evidence' criminal appeal argument:[14] As Doherty J.A. explained in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 24, not every misapprehension of evidence is fatal: “The trial judge’s misapprehension of a part of the evidence does not, standing alone, render his [or her] verdicts unreasonable, constitute an error in law, or result in a miscarriage of justice. The impact of that error on the trial judge’s reasoning process and the product of that process must be assessed”. See also: R. v. Abdullahi, 2015 ONCA 549, at para. 6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56. . R. v. Rudder
In R. v. Rudder (Ont CA, 2023) the Court of Appeal considered (and allowed) an appeal, here on an argument of misapprehension of evidence:[41] “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 evidence.”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. Some misapprehensions of evidence will arise from errors of law. Where misapprehensions of evidence do not give rise to errors of law, which they generally do not, they will not ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey, at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1, 2. Where a misapprehension of evidence plays an essential part in the reasoning process, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court considered an ODSP 'person with a disability' (PWD) appeal, which was argued (and allowed) on grounds that "the SBT ignored or misapprehended evidence ... engaged in discriminatory reasoning, ... based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment":[18] ... A tribunal also errs in law when it improperly approaches the evidence, such as by misapprehending evidence, ignoring relevant evidence, or relying on irrelevant evidence or irrelevant factors in reaching its decision: Filipska et al v. Ministry of Community and Social Services, et al., 2017 ONSC 5462, O.J. No. 4814, at para. 7. A tribunal does not err in law, however, when it has considered the relevant evidence but the court disagrees with the weight it gave to the evidence in reaching its decision; that would be a question of fact.
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[29] The SBT did, very briefly, refer the appellant’s evidence of his anxiety at paras. 15 and 17 of the decision. However, it cannot be said, as the respondent submits, that the SBT was weighing competing evidence, as there was no competing evidence. In my view, these conclusions can only have been reached by the SBT because it either ignored the appellant’s evidence, failed to appreciate it, or fundamentally misapprehended it. As discussed above, and as this court has stated in other decisions involving appeals from the SBT, the tribunal errs in law when it disregards, misapprehends, or fails to appreciate relevant evidence: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747, O.J. No. 2300, at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, O.J. No. 5603, at para. 41; Housen, at para. 46; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, appeal dismissed, 2022 ONCA 446, O.J. No. 2602, leave to appeal to SCC granted, 2023 CanLII 17178 (SCC).
[30] The SBT’s finding on this issue went to the heart of the decision, as it then concluded that there was a “significant conflict between the IEWS and the Appellant’s testimony.” This so-called conflict was never explained, yet it led to the finding that the “ratings are less reliable” and therefore the appellant had not discharged his onus “of demonstrating that it is more likely than not that he experienced substantial impairment.” If there was a conflict, the SBT ought to have explained it, and explained why it preferred the appellant’s testimony over the medical reports. That would have been weighing the evidence. But instead, the tribunal said there was “no indication” from his testimony to support the ratings and did not weigh the evidence at all. . R. v. R.K.
In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered the law of misapprehension of evidence:[29] A misapprehension of evidence will amount to a miscarriage of justice where the mistake goes to the substance rather than the detail of the evidence, is material rather than peripheral to the trial judge’s reasoning, and plays 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 and 8. . R. v. D.M.
In R. v. D.M. (Ont CA, 2023) the Court of Appeal considered the test for misapprehension of evidence:[18] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. The misapprehension must be of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. . R. v. Ansari
In R. v. Ansari (Ont CA, 2023) the Court of Appeal considers a misapprehension of evidence issue:[32] ... But the question for the panel will not be whether the appellant’s evidence warrants disbelief, either based on the record as a whole, or based on the other issues identified by the trial judge. The focus must be on the role the misapprehension played in the trial judge’s decision. As this court has recently held, the relevant inquiry for the misapprehension of evidence error is whether the material representation was essential to the trial judge’s reasoning: R. v. Yang, 2023 ONCA 526, at para. 16. This ground of appeal is a credible one. . R. v. Choudhary
In R. v. Choudhary (Ont CA, 2023) the Court of Appeal considers the issue of 'misapprehension of evidence', here in the context of credibility findings:[56] While the respondent’s concession is proper, I am not persuaded that this is a material misapprehension. Not every misapprehension of evidence will vitiate a finding of guilt. The misapprehension “must be material rather than peripheral to the reasoning of the trial judge”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[57] Where the alleged misapprehension relates to 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, 116 D.L.R. (3d) 594. . R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal briefly considers 'misapprehension of evidence' as an appeal ground:[30] A verdict in a judge-alone trial may also be unreasonable if the verdict is based on findings of fact or inferences that are reached illogically or irrationally, or in a manner that is demonstrably incompatible with the evidence: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98, per Fish J. (dissenting on other grounds); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 20-21, 44‑45. . R. v. Yang
In R. v. Yang (Ont CA, 2023) the Court of Appeal considers how material a misapprehension of evidence must be before it 'matters':[15] The Crown position is that when viewed in the context of the evidence as a whole, these errors are not material because the trial judge’s misapprehension of the evidence was not essential to his credibility analysis, and there are other compelling bases for rejecting Mr. Xu’s account apart from these reasoning errors. The Crown emphasizes that the trial judge mentioned several other problems with Mr. Xu’s evidence, including that Mr. Xu’s denial of trafficking is contradicted by the way the marijuana was packaged; the trial judge’s observation that Mr. Xu’s claim that he was not aware that he has to grow the marijuana in a building was “fishy”; and the trial judge’s conclusion that Mr. Xu’s account of the lease “sounds even fishier”. The Crown emphasizes that the trial judge rejected the entire story, not just the aspects of the story he relied on the two errors to address.
[16] We do not agree. The question for us is not whether Mr. Xu’s evidence warrants disbelief, either based on the record as a whole, or based on the remaining problems identified by the trial judge. The focus must be on the role these errors played in the trial judge’s decision. The relevant inquiry for the misapprehension of evidence error is whether the material representation was essential to the trial judge’s reasoning: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36,39. The inquiry relating to illogical or irrational reasoning, such as the “failure to admit error”, is functionally identical, namely, whether the error is “essential to the verdict”, such that the verdict “rests on a mistake as to the substance of the evidence”: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 19, per Fish J. (dissenting, but not on this point), and paras. 44,45, per Lebel J. (emphasis added); R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98, per Fish J. (dissenting, but not on this point). In both cases we are inquiring whether the trial judge would have rejected Mr. Xu’s evidence beyond a reasonable doubt even had he not made either or both of these errors in his credibility assessment. In the circumstances, we can have no confidence that he would have done so. The “available half-ton truck misapprehension” played a prominent role in the trial judge’s explanations for his finding. Indeed, on its own, his belief that Mr. Xu had no reason to borrow or take Mr. Yang’s car completely undercuts Mr. Xu’s entire account. Even the “failure to admit error” was featured in the trial judge’s explanation. Although the trial judge’s reasons for judgment make clear that he rejected Mr. Xu’s account in its entirety, he explained this conclusion by particularizing several reasons, among which the two reasoning errors we have identified arguably received the greatest attention. In the circumstances, we find that these errors formed an essential part of the trial judge’s reasoning. . R. v. Kwok
In R. v. Kwok (Ont CA, 2023) the Court of Appeal considered 'misapprehension of evidence' as a ground of criminal appeal:(3) The Misapprehension of Evidence Ground of Appeal
[53] That a trial judge, in the course of convicting an accused, got some of the evidence wrong, does not necessarily equate to a miscarriage of justice.
[54] But a conviction that rests on a material misapprehension of the evidence will be reversed, and a new trial directed, if the misapprehension goes to substance, and is on a matter that is material to the trial judge’s reasoning process. 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: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; Morrissey, at p. 541.
[55] A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable: Morrissey, at p. 541. 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.
[56] The appellant argues that the trial judge misapprehended the evidence by relying on material – the Digital Forensic Report – as a source of dates when files or folders were downloaded onto the computers and when an image was viewed. The report was not in evidence; consequently, neither were the dates derived solely from it. D.C. Kaut’s testimony and the exhibits introduced when he testified did not contain these dates.
[57] Treating, as facts, “information derived from sources extraneous to the trial” is a type of misapprehension of evidence: Morrissey, at p. 541. As this court clearly stated in Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 86, leave to appeal refused, [2015] S.C.C.A. No. 119: “If an expert's report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire.” The trial judge accepted the report expressly on the basis that it was not evidence, and the Crown did not take up his invitation to apply to have the report treated as evidence. The trial judge erred to the extent he used it to find facts beyond what the actual evidence disclosed. . R. v. J.W.
In R. v. J.W. (Ont CA, 2023) the Court of Appeal equated fact-findings without an evidentiary basis, with fact-findings made under a misapprehension of evidence:[20] The significance of these errors directly relates to one of the defences that the appellant was advancing, that is, an honest but mistaken belief in consent. The trial judge rejected that defence in part based on issues that were not properly in evidence before her. In my view, those errors are the functional equivalent of an error involving a misapprehension of the evidence. Whether a trial judge misapprehends what the evidence is, or relies on matters that are not in evidence, the result is the same. Either is fatal to a conviction, if material and an essential part of the trial judge’s reasoning process, because they deprive the accused person of a fair trial. As Doherty J.A. said in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541: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. . R. v. A.B.
In R. v. A.B. (Ont CA, 2023) the Court of Appeal considers the elements of misapprehension of evidence:[36] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. The misapprehension must be of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. . R. v. Chu
In R. v. Chu (Ont CA, 2023) the Court of Appeal held the 'misapprehension of evidence' was not an error of law, but one of mixed fact and law:[17] As noted above, we did not call on the respondent on the second and third grounds of appeal. The second ground raised by the appellant was an argument that the trial judge misapprehended particular aspects of the evidence. This argument of misapprehension of evidence does not raise a question of law alone; rather, it raises a question of mixed fact and law: R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 6; J.M.H., at paras. 24-39. As such, it is not within the scope of the Crown’s right of appeal on questions of law alone, pursuant to s. 676(1)(a) of the Criminal Code. . R. v. Nelson
In R. v. Nelson (Ont CA, 2023) the Court of Appeal considers the law of misapprehension of evidence:[18] A misapprehension of evidence must be relevant to a material issue. It must play an essential part, not just in the narrative, but in the reasoning process that led to the conviction: see R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995, 22 O.R. (3d) 514 (C.A.); R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. . R. v. B.T.D.
In R. v. B.T.D. (Ont CA, 2022) the Court of Appeal states the elements of misapprehension of evidence, and the standard of review that applies to it:(1) Misapprehension of the evidence
[23] A misapprehension of evidence occurs when a trier of fact fails to consider evidence relevant to an issue, makes a mistake about the substance of an item or items of evidence, or fails to give proper effect to evidence: R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 50.
[24] In this case, the appellant argues that the trial judge misapprehended the evidence in two material ways: (1) she mistakenly found that the appellant had difficulty recalling the complainant at the time of his arrest, and (2) she omitted exculpatory text messages from March 14, 2017 in determining the meaning of the appellant and the complainant’s text exchange following the alleged sexual assault.
[25] For the following reasons, I agree that the trial judge misapprehended the evidence with respect to the appellant’s memory and the text messages from March 14, 2017.
(a) Standard of review
[26] As this court has repeatedly stated, the ground of misapprehension of evidence invokes a stringent standard. Where, as here, it is argued that the trial judge’s misapprehension of evidence caused a miscarriage of justice, the reviewing court must examine the nature and extent of the misapprehension and its significance to the verdict rendered at trial. Specifically, the reviewing court must determine whether the mistake relates to a material part of the evidence and whether the error plays an essential part in the reasoning process leading up to the conviction. If that is the case, the conviction is not grounded exclusively on the evidence and constitutes a miscarriage of justice, warranting a new trial. See: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; Stennett, at para. 52; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. If not, the court must then consider whether the misapprehension rests on an error of law and whether the Crown can show that a substantial wrong or miscarriage of justice did not occur: Morrissey, at p. 531; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 150, leave to appeal refused, [2021] S.C.C.A. No. 362. . Kawa Arab v. Unica Insurance
In Kawa Arab v. Unica Insurance (Div Court, 2022) the Divisional Court contrasts various evidence errors and how they range from errors of law to errors of fact, including 'extricable errors of law' embedded in mixed errors of fact and law:[19] .... If an adjudicator ignores evidence that the law requires to be considered to arrive at a decision, that would amount to an error in law, see Canada (Director of Investigation and Research) v. Southam Inc., 1997, CanLII 385 at para. 41. Challenges to the sufficiency of or the weight given to 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. . R. v. S.G.
In R. v. S.G. (Ont CA, 2022) the Court of Appeal considered the test for misapprehension of evidence as a ground of appeal:Analysis
[11] There is no dispute between the parties about the applicable law in relation to misapprehension of evidence as a ground of appeal. The misapprehension must of substance rather than detail; it must be material, rather than peripheral, in the reasoning of the trial judge. In addition, it must not merely be part of the narrative of the judgement, but an essential part of the reasoning process resulting in conviction: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
[12] Where the misapprehension is in relation to evidence used by the trial judge to assess credibility, 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. S.R., 2022 ONCA 192, at para. 15; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 36-38. Ultimately, the concern is that where it is shown that there are misapprehensions of substance about material parts of the evidence, and which play an essential part of a trial judge’s reasoning process, the resulting conviction “is not based exclusively on the evidence and is not a ‘true’ verdict”: Morrisey, at p. 221.
[13] In considering this ground of appeal, I am cognizant of the direction of the Supreme Court that findings of credibility by trial judges are entitled to deference, and that appellate courts should not “finely parse trial judge’s reasons in a search for error”: R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at paras. 69-82.
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