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Criminal - Appeal - Unreasonable Verdict. R. v. Nnane
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal dismissed a first degree murder appeal.
The court cites the test and evidence requirements of the 'unreasonable verdict' doctrine:THE VERDICT WAS NOT UNREASONABLE
[45] The test for an unreasonable verdict is well established. A verdict is unreasonable if it is one that a properly instructed jury acting judicially could not reasonably have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. The court explained the limited re-weighing of the evidence that the test requires in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 27-28:... On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.
On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”. Thus, in deciding whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience. [Citations omitted; emphasis in original.] . R. v. J.P.
In R. v. J.P. (Ont CA, 2024) the Ontario Court of Appeal considered a criminal appeal argument of 'unreasonable verdict':[18] In oral argument, the appellant agreed that this ground of appeal could also be framed as the trial judge making a logical error that resulted in an unreasonable verdict: see R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 96-97, per Fish J. (dissenting in the result); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 16, 19-21, per Fish J. (dissenting in the result). . R. v. Mohamed
In R. v. Mohamed (Ont CA, 2024) the Divisional Court briefly considered 'unreasonable verdict' doctrine:[34] In order to establish that the trial judge rendered an unreasonable verdict, Mr. Mohamed must show that (1) the verdict was not supported by the evidence, or (2) the verdict was based on illogical or irrational reasoning: see R. v. Brunelle, 2022 SCC 5, 412 C.C.C. (3d) 489, at para. 7; Lights, at para. 71. The trial judge’s decision in this case does not suffer from either of these defects. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismisses a first-degree murder appeal, here on an argument of 'unreasonable verdict':[5] Respecting the first ground of appeal, it is well-established that for a verdict to be unreasonable, this court must conclude that on all of the evidence, no jury, properly instructed and acting judicially, could have reached that verdict: R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 42, leave to appeal refused, [2023] S.C.C.A. No. 273. . R. v. McAllister
In R. v. McAllister (Ont CA, 2024) the Ontario Court of Appeal characterizes the appellate argument of 'unreasonable verdict':[8] Second, the appellant contends that the verdict is unreasonable. There are two avenues through which an appellate court can find a verdict is unreasonable: (1) if the verdict is not one that a properly instructed jury acting judicially could reasonably have rendered; and (2) in a judge alone trial, if the verdict is reached “illogically or irrationally” even if the evidence may be reasonably capable of supporting the verdict: R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at paras. 28-29; and R. v. Bacchus, 2024 ONCA 43, at para. 12.
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[17] As this court has noted, inconsistent verdicts are a subspecies of unreasonable verdicts. If a trier of fact returns a conviction on one count, and an acquittal on another count, the inconsistency in the verdicts will only render the conviction unreasonable if the appellant can demonstrate that on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis: R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 6; R. v. McShannock (1980), 1980 CanLII 2973 (ON CA), 55 C.C.C. (2d) 53 (Ont. C.A.) at p. 56. . R. v. Layne
In R. v. Layne (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on an 'unreasonable verdict' argument:(4) The Verdict Was Reasonable
[64] Because the trial was free of impactful errors, the appellant has a heavy burden to show that the verdict was still unreasonable and unsupported by the evidence: R. v. Harvey (2001), 2001 CanLII 24137 (ON CA), 57 O.R. (3d) 296 (C.A.), at para. 20, aff’d, 2002 SCC 80, [2002] 4 S.C.R. 311. He has not met that burden.
[65] The verdict was reasonable because powerful independent confirmatory evidence and additional compelling factors supported it. After carefully considering the four Tat factors, the trial judge found that three of them compellingly indicated the appellant’s guilt and negated the inherent danger that the remaining factor, identification by a stranger, posed. He found that the victim had a good opportunity to accurately identify the gunman during the shooting and provided detailed descriptions of him that substantially matched the appellant, that the pre-trial identification procedure was fair, and that powerful independent confirmatory evidence negated concerns about the victim’s credibility and reliability. This confirmatory evidence was compelling and substantially minimized the eyewitness identification dangers. The trial judge also reasonably placed considerable weight on the gunman’s statements referencing the Wendy’s confrontation the night before the shooting. These statements strongly suggested that the appellant was the gunman because he admitted his presence at the Wendy’s. . R. v. S.P.
In R. v. S.P. (Ont CA, 2024) the Ontario Court of Appeal considers an appeal argument of 'unreasonable verdict' [under CCC 686(1)(a)(i)]:[25] The appellant argues that the conviction for sexual assault is unreasonable under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46.[3]
[26] When faced with a claim that a verdict is unreasonable, the reviewing court must give due weight to the advantages of the jury as the trier of fact who saw and heard the evidence as it unfolded. This court must review, analyze and, within the limits of appellate disadvantage, weigh the evidence in order to consider whether judicial fact-finding precludes the jury’s verdict.
[27] In evaluating the reasonableness of the jury’s verdict in a case that turns on findings of credibility, the reviewing court must ask whether the jury’s verdict is supportable on any reasonable view of the evidence: see R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 30-34, and R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 108.
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[36] To determine whether a verdict is unreasonable, this court “must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury”: W.H., at para. 2 (emphasis in original). A review of the evidence, including the complainant’s testimony, demonstrates that there were sufficient grounds upon which a jury could have convicted. In my view, the verdict is reasonable and I reject this ground of appeal. . R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered an appeal argument of 'unreasonable verdict':(a) Law in relation to unreasonable verdict
[144] A jury’s verdict is entitled to deference. However, s. 686(1)(a)(i) of the Criminal Code requires an appellate court to review the trial record to determine whether a conviction “is unreasonable or cannot be supported by the evidence.” Review of verdicts for reasonableness recognizes that, even where a trial is error-free and there is some evidence against an accused, appellate intervention is sometimes necessary to avoid an injustice: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 180-81; 183-86; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 38-42; R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at paras. 97-98; R. v. Phillips, 2016 ONCA 651, 364 C.C.C. (3d) 220, at para. 51.
[145] The question on reviewing the reasonableness of a verdict is not whether there is any evidence capable of supporting the conviction, but rather, considering the evidence as a whole, whether the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered. This assessment necessarily involves some assessment of the evidence – although cognizant of the disadvantage of an appellate court that does not see and hear the witnesses: Biniaris, at paras. 36, 38-42; Tat, at paras. 97-98; Phillips, at para. 67.
[146] One aspect of the assessment of a verdict’s reasonableness by an appellate court is considering the trial record “through the lens of judicial experience”, alive to features of a case that may give experienced jurists cause for concern: Biniaris, at paras. 40-41. Judicial experience has shown that cases involving eyewitness identification evidence given in circumstances which raise fundamental questions about its reliability are well-suited to review for reasonableness of the verdict under s. 686(1)(a)(i) of the Criminal Code: Biniaris, at para. 41. This was explained by Doherty J.A. in Tat, at paras. 99-100:While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well-suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness.
The extensive case-law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and there is no other evidence tending to confirm or support the identification evidence. [Citations omitted.] . R. v. Bacchus
In R. v. Bacchus (Ont CA, 2023) the Court of Appeal considered the law of 'unreasonable verdict' by a jury:[12] There are two avenues on which an appellate court can find a verdict is unreasonable: (1) if the verdict is not one that a properly instructed jury acting judicially could reasonably have rendered; and (2) in a judge alone trial, if the verdict is reached “illogically or irrationally” even if the evidence may be reasonably capable of supporting the verdict (the Beaudry/Sinclair error: R. v. C.P., 2021 SCC 19, paras. 28-30).
[13] Unreasonable verdicts under Beaudry/Sinclair are exceedingly rare. The Beaudry/Sinclair error is not an invitation for appellant courts to substitute their credibility assessments and preferred findings for those of the trial judge: R. v. C.P., 2021 SCC 19 at para. 30.
[14] In our view, the trial judge came nowhere near making a Beaudry/Sinclair error in this case. As in many criminal trials, his credibility assessments and findings were a combination of both positive and negative facts relating to witnesses’ testimony standing alone and in comparison to other witnesses. This is normal in the course of a criminal trial. None of what the trial judge said in his judgment comes anywhere close to the label ‘unreasonable’. . R. v. Firlotte
In R. v. Firlotte (Ont CA, 2023) the Court of Appeal considered the argument that the trial judge had made a 'Beaudry error', and thus facilitated an unreasonable jury verdict:Issue One: The Verdict Was Not Unreasonable
[25] ... Second, the appellant asserts a Beaudry error (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190): that the trial judge made findings of fact that were essential to the verdict that were either plainly contradicted by, or demonstrably incompatible with, other evidence that he accepted – in other words, that the verdict was illogical.
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The Alleged Beaudry Error
[38] Another basis on which an appellate court may find a verdict unreasonable under s. 686(1)(a)(i) of the Criminal Code is when the trial judge drew an inference or made a finding of fact that was either (1) plainly contradicted by the evidence they relied on in support of that inference or finding; or (2) demonstrably incompatible with evidence that was not otherwise contradicted or rejected by the trial judge: Beaudry, at para. 79; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 16. The Supreme Court has confirmed that the scope of review under Beaudry is not an invitation for reviewing judges to substitute their preferred findings of fact for those of the trial judge. Rather, it is an inquiry into the logic or rationality of the judge’s essential findings that is “narrowly targeted at ‘fundamental flaws in the reasoning process’”: R. v. C.P., 2021 SCC 19, 457 D.L.R. (4th) 553, at para. 30. . R. v. Benhsaien
In R. v. Benhsaien (Ont CA, 2023) the Court of Appeal considers an issue of 'unreasonable verdict':[5] With respect to the argument that the verdicts were unreasonable, an appellate court can only intervene under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46 where the verdict is reached “illogically or irrationally” or cannot be supported by the evidence: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 44. In the case of a jury trial, the verdict must be one that no properly instructed jury could have rendered: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at para. 23; R. v. Daponte, 2023 ONCA 572, at para. 22. ... . R. v. Moreira
In R. v. Moreira (Ont CA, 2023) the Court of Appeal considered the appellate approach to an 'unreasonable verdict' ground:[91] In order to succeed on an alleged unreasonable verdict, an appellant must show that “no properly instructed jury” could have found him guilty and that the jury’s conclusion, with due regard to its ability to witness firsthand all of the evidence, does not align with the weight of judicial experience: Criminal Code, s. 686(1)(a)(i); R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36 and 38-39. This is a high threshold. The reasonableness of a verdict is a question of law: Biniaris, at para. 42.
[92] In making this assessment, “[t]he reviewing court must not act as a ‘13th juror’ or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record”: R. v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-28 and 32; Biniaris, at paras. 26, 36, and 40. Furthermore, “the question … is whether the verdict is unreasonable on the evidence received at trial, not whether the verdict is unjustified”: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 73. . 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. ...
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[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.
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[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.
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[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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