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Appeal - Grounds - Misapprehension of Evidence (5). R. v. R.B.-M.
In R. v. R.B.-M. (Ont CA, 2024) the Ontario Court of Appeal comments on the appeal ground of 'misapprehension of evidence':[30] I agree with the applicant that a trial judge errs when they refer to matters not properly in evidence as though they were part of the trial record – this is a misapprehension of evidence. But for a conviction to be reversed based on a misapprehension of the evidence, a stringent standard must be met. The error must go to substance rather than detail and must be on a matter that is essential to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, 8; R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462, at paras. 54-58. If the error does not play an essential part in the reasoning process, there is no miscarriage of justice and a misapprehension of evidence ground of appeal will not succeed: Lohrer, at para. 8; Kwok, at para. 54; R. v. Saunders, 2024 ONCA 552, at para. 8. . R. v. S.H.
In R. v. S.H. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal, here where one issue was 'misapprehension of evidence':[29] As Doherty J.A. explained in R. v. Morrissey (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. 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. [30] The curative proviso has no application in situations where a trial judge’s misapprehension of the evidence is found to have caused a miscarriage of justice: see e.g., R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 6. ....
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