Misapprehension of evidence by a trial judge

Today’s Court of Appeal decision in R. v. McNeil, 2008 ONCA 647 deals with the effect of a misapprehension of evidence by a trial judge.

It is not sufficient that a trial judge misunderstood evidence for there to be grounds for an appeal. The misunderstanding must be material in that it (a) affected the reasonableness of the judgment or (b) occasioned a miscarriage of justice.

The first branch of the test is easy to understand – if the error makes the decision unsafe then obviously an appeal ought to be allowed. The second branch is harder to follow – how can a verdict be reasonable and yet occasion a miscarriage of justice?

The concept is that if the error leads to reasoning that leads to a result, and that result could have been different if the error was not made, then a miscarriage of justice may have occured. It may be that the actual result could be supported on the evidence; but the route to the decision is tainted by error.

The Court clarifies the concept below :

[22] On a conviction appeal where misapprehension of the evidence is alleged, it is not enough that the appellant demonstrate that the trial judge misapprehended portions of the evidence. The appellant bears the additional burden of showing that the misapprehension affected the reasonableness of the verdict, or occasioned a miscarriage of justice, or amounted to an error in law. As Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at paragraph 88 (Ont. C.A. ) explained:

In my opinion, on appeals from convictions in indictable proceedings where misapprehension of the evidence is alleged, this court should first consider the reasonableness of the verdict (s. 686(1)(a)(i)). If the appellant succeeds on this ground an acquittal will be entered. If the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice (s. 686(1)(a)(iii)). If the appellant is able to show that the error resulted in a miscarriage of justice, then the conviction must be quashed and, in most cases, a new trial ordered. Finally, if the appellant cannot show that the verdict was unreasonable or that the error produced a miscarriage of justice, the court must consider the vexing question of whether the misapprehension of the evidence amounted to an error in law (s. 686(1)(a)(ii)).

[23] The appellant did not attempt to argue that the misapprehension of the evidence rendered the verdict unreasonable. The trial judge identified a number of other reasons for disbelieving the appellant’s testimony and for why it did not raise a reasonable doubt in his mind. The verdict cannot be said to be unreasonable.

[24] I would, however, find that the trial judge’s misapprehension of the evidence occasioned a miscarriage of justice in this case.
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[29] In Morrissey Doherty J.A. indicated at paragraph 96 that the appellant met the onus of showing a miscarriage of justice by demonstrating that there were “significant errors in the trial judge's understanding of the substance of the evidence” which “figured prominently in the reasoning process which led to crucial findings of credibility and reliability, and then to crucial findings of fact”. In R. v. Beaulieu, [2004] O.J. No. 4107, there was, apart from the misapprehended evidence, ample evidence to support rejection of the appellant's testimony and to sustain the conviction. Still, this court found there had been a miscarriage of justice because the conviction resulted from the trial judge’s disbelief of the appellant and the misapprehended evidence was “an essential part of the reasoning process he used” (at paragraph 7).