Simon's Megalomaniacal Legal Resources

Review - Grounds - Misapprehension of Evidence (5)

. R. v. Sturgeon

In R. v. Sturgeon (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal defendant's appeal, finding that while the trial judge "misapprehended the corroborative evidence", they did so with immaterial effect:

(1) Principles governing misapprehension of evidence

[24] The test for appellate intervention on the basis of a misapprehension of evidence is stringent. Appellate intervention is only warranted where: (i) the misapprehension goes to the substance of the evidence and not just a peripheral detail; (ii) the misapprehension is material to the trial judge’s reasoning; and (iii) striking the misapprehension leaves the verdict on unsteady ground or would otherwise result in a miscarriage of justice: R. v. B.W., 2024 ONCA 412, 438 C.C.C. (3d) 241, at para. 56; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; and R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 83. By contrast, if other evidence would inevitably have led the trial judge to the same conclusion, then there is no miscarriage of justice: R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 28, 35; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 56-57.

. R. v. Ramdeo

In R. v. Ramdeo (Ont CA, 2025) the Ontario Court of Appeal considered 'misapprehension of evidence' doctrine:

[35] First, I do not agree that the trial judge misapprehended the appellant’s evidence. The test to establish a misapprehension of evidence as a ground of appeal is difficult to meet. The law on the misapprehension of evidence is aptly summarized in R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at paras. 71-72, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 218, 221:

A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.

To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt. [Citations omitted.]

[36] In describing the stringent standard set out in Morrissey, the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, noted that:

The misapprehension of the 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 (the test is expressed as conjunctive rather than disjunctive) 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. B.B.

In R. v. B.B. (Ont CA, 2025) the Ontario Court of Appeal considered the law of 'misapprehension of evidence':

[4] The law concerning the misapprehension of evidence is not in dispute. As the Supreme Court noted in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, the standard set out in this court’s decision in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 is a stringent one. A misapprehension of the evidence is more than simply an apparent error. The error must be real rather than speculative, and plain in the language of the decision. As LeBel J. noted in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, such an error will be “readily obvious”: at para. 53. It is not to be parsed from the trial judge’s reasons. The misapprehension of the evidence must go to the substance rather than the detail; it must be material rather than peripheral to the reasons; and it must play an essential part not only in the narrative of the decision but in the reasoning process that led to the conviction: Lohrer, at para. 2.

. R. v. A.K.H.

In R. v. A.K.H. (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's criminal appeal on rarely-successful 'misapprehension of justice' grounds:

[13] The test for misapprehension of evidence sufficient to warrant appellate intervention is stringent. “A misapprehension of 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), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. 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: Morrissey, at p. 221; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

. R. v. N.P.

In R. v. N.P. (Ont CA, 2025) the Ontario Court of Appeal considered the test for misapprehension of evidence:

[16] In R. v. B.W., 2024 ONCA 412, this court noted that the threshold for appellate intervention based on the trial judge’s misapprehension of the evidence is a stringent one: at para. 56. The onus is on the appellant to demonstrate that (1) the misapprehension goes to the substance of the evidence and is not merely a peripheral detail; (2) the misapprehension is material to the trial judge’s reasoning; and (3) striking the misapprehension leaves the verdict on unsteady footing: B.W., at para. 56; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Gill, 2019 ONCA 902, at para. 10. The appellant failed to satisfy his burden on this strict standard.

. R. v. Conron

In R. v. Conron (Ont CA, 2025) the Ontario Court of Appeal considers misapprehension of evidence, here as a merits argument in the bail pending appeal application:

[18] The applicant submits that the trial judge’s misapprehension is as described in R. v. Doodnaught, 2017 ONCA 781, at para. 71, per Watt J.A., citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218: “[A] failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings.” The applicant must demonstrate a misapprehension “but also a link or nexus between the misapprehension and the adverse result reached at trial”: Doodnaught, at para. 71. In Morrissey, Doherty J.A. explained, 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”: see also R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. I note that in Bayford v. Boese, 2021 ONCA 442, 156 O.R. (3d) 241, the court commented, at para. 28, that “appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case.”

. R. v. R.B.-C.

In R. v. R.B.-C. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here considering 'misapprehension of evidence':

[32] A miscarriage of justice occurs 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”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541. This is a stringent standard. The misapprehension must be about a substantial portion of the evidence and not a detail, and it must be material rather than peripheral to the trial judge’s reasoning process: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.

[33] Where misapprehended evidence is used to assess credibility, the issue of whether there has been a miscarriage of justice “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 para. 36. If the trial judge mischaracterized parts of the evidence that were central to the credibility assessment, it is more likely that an appellate court will find a miscarriage of justice: Alboukhari, at para. 38; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 15.

. 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. ....