Unfair trials

Canadian trials are fair.  While the Courts are not above error, it is extraordinary for a trial to be unfair.  That said, today's Court of Appeal decision in R. v. T.T., 2009 ONCA 613 sets out the applicable principles that apply in such an unusual circumstance:

The Applicable Principles

 

[30]          Counsel agree on the applicable legal principles.

Different Standards of Scrutiny

[31]          The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the complainant, as Doherty J.A. noted in R  v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, "is a difficult argument to make successfully."  The unbalanced scrutiny must be clearly demonstrated in the reasons for judgment or the trial record.  Doherty J.A. continued, in the same paragraph:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment.  To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]

[32]          The question is whether that rigorous test has been met here. 

Misapprehension of Evidence

[33]          A misapprehension of the evidence warranting appellate interference requires more than a mere misstatement or inaccuracy in the trial judge's treatment of the evidence.  The trial judge must be "mistaken as to the substance of material parts of the evidence" and "those errors [must] play an essential part in the reasoning process resulting in a conviction": R v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541, per Doherty J.A., adopted in R v. Lohrer, [2004] 3 S.C.R. 732, per Binnie J. at paras. 1-2. In such circumstances, as Doherty J.A. observed, the accused has not received a fair trial and has been the victim of a miscarriage of justice; this is so even if the evidence at trial was capable of supporting a conviction: Morrissey, at p. 541.

[34]          The appellant contends that the criteria for setting aside his conviction on both "different standard of scrutiny" and "misapprehension of the evidence" grounds exist here.  He asserts that the trial judge failed to address important aspects of the evidence in making her overall assessment of the complainant's credibility.  He also asserts that she misapprehended the evidence she did consider in significant ways.  These two errors – alone and in combination – were central to the trial judge's reasoning process and key to the fairness of her decision because, as she herself observed, she had to consider whether she believed the complainant when conducting the third part of the W.(D.) analysis.  She asked herself:  "Was [the complainant] credible?  Was her evidence reliable?  Was there other evidence that supported the reliability of her evidence or was there other evidence that supported the accused, such as to raise a reasonable doubt in [the trial judge's] mind?" [Emphasis added.]   

[35]          As noted above, the appellant's arguments – different standards of scrutiny and misapprehension of the evidence – overlap and find common ground in the record at times as the trial judge's treatment of evidence now and then crossed the boundaries between the two.

…

 

 [73]          As Doherty J.A. noted in Morrissey, at p. 541, and the Supreme Court of Canada affirmed in Lohrer, at para. 1:

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.  This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[74]          The same rationale applies and the same result must flow, in my view, in those rare cases where – as here – "the appellant [can] point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge [has] applied different standards in assessing the evidence of the appellant and the complainant": Howe, at para. 59.  In such a case – even where the record may otherwise be capable of supporting a conviction, had the evidence been properly assessed and the complainant believed – the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice.