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Reasons - Corrections. 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.
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