When the Court of Appeal reviews a trial decision it does so from a very limited perspective. Factual decisions are not reviewed except in extreme situations.
For example see today's decision R. v. Mihalkov, 2009 ONCA 154:
[33] This court does not retry criminal cases. The court can test findings of fact made at trial against only the reasonableness standard set out in found in s. 686(1)(a)(i). The trial judge's findings of fact clear that hurdle. The circumstances identified by him were all relevant to whether the appellant had an element of control over the counterfeit money and the equipment and material being used to manufacture that money.
[34] I do not suggest that the inference drawn by the trial judge was the only available inference, or that the evidence was particularly strong. Certainly, another trial judge, acting reasonably, could have concluded that the appellant's failure to speak to the authorities and her flight at the time of arrest was consistent with concerns about her own welfare and did not support the inference that she had any control over the contraband material and equipment. That is not, however, the inference that this trial judge chose to draw. Assuming the inference he drew is one that a reasonable trier of fact could draw, and I think it was, it is his job and not the function of this court to determine what inference should be drawn.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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