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Review - Grounds - Misapprehension of Evidence (5). 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. ....
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