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Criminal - Appeal - Unreasonable Verdict

. R. v. Rodrigues

In R. v. Rodrigues (Ont CA, 2023) the Court of Appeal considered the appeal grounds of 'unreasonable verdict':
[1] This is the matter of R. v. Rodrigues. The appellant raises one ground of appeal in his conviction appeal, which is that the verdict is unreasonable. In particular, he submits that the trial judge used illogical reasoning to reject the testimony of the appellant, finding inconsistencies in his explanations that do not bear scrutiny. He submits that the trial judge’s error is the type described in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, as described by Watt J.A. in R. v. Smith, 2016 ONCA 25, at para. 75:
In cases tried without a jury, the unreasonableness analysis required under R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, involves scrutiny of the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15, 44. Under this test, an appellate court can interfere where a trial judge draws an inference or makes a finding of fact that is:
i. plainly contradicted by the evidence relied upon by the judge for that purpose; or

ii. demonstrably incompatible with evidence that is not otherwise contradicted or rejected by the trial judge: Sinclair, at para. 16.
[2] We do not accept this submission. The trial judge gave detailed, comprehensive reasons for her findings, including for her rejection of the appellant’s evidence. We do not agree that her reasons are illogical or inconsistent with the evidence, or that the verdict is unreasonable.
. R. v. Marrone

In R. v. Marrone (Ont CA, 2023) the Court of Appeal considered what constitutes an 'unreasonable verdict':
[26] A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. To determine whether this has occurred, an “appellate court [is entitled] to re-examine and to some extent reweigh and consider the effect of the evidence … in light of the standard of proof in a criminal case. ...


[30] I do not accept these arguments. An assertion of unreasonable verdict is not an invitation for an appellate court to simply retry the case. The evidence is reviewed “to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier of fact properly instructed and acting judicially could have convicted”: R. v. Mars, (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 3.
. R. v. J.P.

In R. v. J.P. (Ont CA, 2023) the Court of Appeal considers an 'unreasonable verdict' appeal from a jury trial:
[36] To start, it is for a jury to decide how much weight to assign any piece of evidence, how to treat inconsistencies in a witness’s account, and whether to accept an allegation that a complainant had a motive to fabricate. When a claim of unreasonable verdict relies on credibility findings this court cannot intervene unless those findings are unsupportable on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Stated otherwise, a “trial by jury must not become trial by appellate court on the written record”: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 34; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474.


[38] Appellate courts will rarely disturb a jury’s credibility assessments. While this court is obligated to review the reasonableness of criminal convictions: Criminal Code, s. 686(1)(a)(i), in so doing we must appreciate the trier of fact’s advantaged position and be ever mindful of the limited scope of review: R. v. L.M., 2017 ONCA 33, at paras. 25-26; M.(N.), at para. 32.

[39] Assessing the reasonableness of a verdict requires looking at the evidence on which it rests: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. This includes examining credibility assessments (see M.(N.), at paras. 34 and 36) and the propriety of the fact-finding exercise, as described for the jury in the final charge: see L.M., at para. 32.

The verdict was reasonable in view of the complainant’s credibility.

[40] Unlike in M.(N.), the complainant never resiled from her allegation that she was sexually assaulted by the appellant many times over the course of several years. She was cross-examined at length and the details of her account were vigorously probed. She was confronted on the many inconsistencies in her testimony and police statements and was challenged about any motive she might have had to fabricate, all of which were addressed by counsel in their respective closings and by the trial judge in her final instructions. The jury had a job to do – to consider the evidence presented in the courtroom, to weigh that evidence, follow the law as instructed, and in the end to decide whether the Crown had met its onus. The jury performed that role.

[41] One of the appellant’s specific complaints is that many of the allegations simply could not be true in that he could not have sexually assaulted the complainant while others were in the same room, and in some cases same bed, because the others would have surely detected it. While the defence framed this contradiction as a lie at trial, nothing outright established it as such, and the complainant maintained that it in fact happened.

[42] Absent a demonstrable and deliberate lie, none of the concerns about the complainant’s credibility rendered all of her evidence incapable of belief. The jury knew full well what was being alleged, and knew of the deficiencies in the complainant’s account. They understood each party’s position, and the law they had to apply to the facts as they found them. In this case, a jury, acting reasonably, could have attributed inconsistencies to the complainant being a child witness. It was open to the jury to conclude that they had a reasonable doubt about some aspects of the complainant’s testimony, but not about others. Again, concerns about the complainant’s credibility did not necessarily mean that her testimony was incapable of supporting the jury’s finding of guilt.

[43] To the extent there was any uncertainty about what the jury accepted, or did not accept, as there was in this case, the process worked as it should have when the trial judge stepped in and, for the purposes of sentencing, determined what facts in her view had been established beyond a reasonable doubt.

The fact-finding exercise was not flawed

[44] Both M.(N.) and L.M. make it clear that even if a jury has been adequately charged, and even when they have been cautioned against drawing unwarranted conclusions, in some cases the totality of the evidence, and its peculiar factual circumstances, will lead an experienced jurist to conclude that the fact-finding exercise applied at trial was flawed.

[45] This can occur when the evidence demonstrates a deliberate lie, and even more so when such dishonesty is not highlighted in the jury instructions.

[46] However, once again, this is the significant distinction between the case at bar and the facts in M.(N.) and L.M., where demonstrable lies had been clearly established. Further, while this court in L.M. found that the “risk of a wrongful conviction [was] too high”, and therefore allowed the appeal and substituted an acquittal, it wrote this at para. 32:
As in R. v. M.(N.), had the jury been instructed on the potential significance of N.M.’s lies – that a deliberate lie on an important matter would be very significant in their assessment of whether guilt beyond a reasonable doubt had been proven on the basis of a complainant’s evidence – an appellate court might have greater confidence in the verdict. [Emphasis added.]
[47] In our case, the trial judge highlighted for the jury inconsistencies in the complainant’s evidence, and as between her account and her mother’s, and she addressed the alleged motive to fabricate. Unlike in M.(N.), what to do with and how to treat conceded, or otherwise established, lies was not in issue. As the pertinent questions were properly framed for the jury, the fact-finding exercise was not flawed.
. R. v. Kwok

In R. v. Kwok (Ont CA, 2023) the Court of Appeal reviews some aspects of the 'unreasonable verdict' ground of appeal:
(2) The Unreasonable Verdict Ground of Appeal

[43] A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. To determine whether this has occurred, an “appellate court [is entitled] to re-examine and to some extent reweigh and consider the effect of the evidence … in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55 (citations omitted).

[44] In a circumstantial case, the trier of fact is required to consider other plausible theories and reasonable possibilities inconsistent with guilt, provided they are “based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: Villaroman, at para. 37. But the Crown does not need to negative every possible conjecture which “might be consistent with the innocence of the accused”: at para. 37.

[45] When assessing whether the verdict is unreasonable, a court will bear in mind any misapprehension by the trial judge: see e.g., R. v. Ali, 2023 ONCA 411, at para. 21; Morrissey, at p. 540.


[50] Given that the appellant did not testify at trial, his argument that there were alternative inferences the trial judge should have, but did not give effect to, is all the more difficult. As this court stated in R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at para. 141, leave to appeal refused, [2022] S.C.C.A. No. 113: “When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt”.
. R. v. Dent

In R. v. Dent (Ont CA, 2023) the Court of Appeal considered the very general ground of appeal of 'unreasonable verdict', here advanced by well-respected counsel:
[49] A number of the alleged reasoning errors Ms. Dent relies upon are presented by her under the rubric, “unreasonable verdict”, a ground of appeal advanced under s. 686(1)(a)(i) of the Criminal Code. Ms. Dent does not make a general claim that no reasonable jury, properly instructed and acting judicially, could have reached the verdict the trial judge did on the whole of the evidence before him, as contemplated in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185, or R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. This is not surprising. Given the bases for her conviction that I have just described, the case against her was powerful.

[50] Ms. Dent argues, instead, that the verdict is unreasonable because it is based on findings of fact and 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, but not on this point); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 44, 45.

[51] Ms. Dent also relies on alleged misapprehensions of the evidence in advancing her unreasonable verdict submission, citing the decision in R. v. Blea, 2012 ABCA 41, 297 C.C.C. (3d) 444, at para. 39, in which the court described the test in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 for reversible misapprehensions of evidence as a branch of unreasonable verdict appeal. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. explained that “a misapprehension of evidence does not render a verdict unreasonable”, and I understand Lebel J. to be saying the same in 2011 in Sinclair, at para. 45. Of course, where the unreasonable verdict claim is that no properly instructed reasonable trier of fact could have come to the verdict in question, a demonstrated misapprehension of evidence “can … figure prominently in an argument that the resulting verdict was unreasonable”: Sinclair, at para. 13, per Fish J. (dissenting, but not on this point), citing Morrissey, at p. 220. But as the Alberta Court of Appeal recognized in Blea itself, at para. 39, when the unreasonable verdict appeal is based on a misapprehension of evidence as the illogical or irrational reasoning, the stringent test for material misapprehensions of evidence in Lohrer, associated with subsection 686(1)(a)(iii), is to be used: see also Sinclair, at para. 45. Specifically, the misapprehension must be of substance rather than detail; material rather than peripheral; and it must not merely be part of the narrative but an essential part of the reasoning resulting in conviction: Lohrer, at para. 2; Morrissey, at p. 541.
The court continues at paras 53-115 to analyze the elements of these grounds.


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