Unreasonable verdict

R. v. Moss, 2011 ONSC 5143 has a good summary of the law regarding when an appeal will be allowed as being “unreasonable”:

 

 

[55]        When considering unreasonable verdict grounds of appeal, an appellate court is not entitled to re-try the case and substitute its view of the evidence.  Rather, the court must thoroughly re-examine and to an extent at least, re-weigh and consider the effect of the evidence:  R. v. W.(R.), [1992] S.C.R. 122.  The question is not whether another judge might have acquitted the appellant.

 

[56]        The questions are whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached:  R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] 1 S.C.R. 381.  It is not whether it was the only reasonable verdict, but whether it was a reasonable verdict:  R. v. Portillo 2003 CanLII 5709 (ON CA), (2003), 176 C.C.C. (3d) 467 (Ont. C.A.).

 

[57]        In Biniaris, supra, Arbour J. provided the following comments regarding the process to be employed in determining whether a verdict was unreasonable at para. 42:

 

To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests.  That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight.  It also requires that the reviewing court articulate as explicitly and precisely as possible the grounds for its intervention…  

 

[58]         Further, Arbour J. considered allegations of unreasonable verdicts in judge alone trials as follows at para. 37:

 

The review for unreasonableness on appeal is different ... and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached. ... [I]n trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernible defects are themselves sometimes akin to a separate error of law ...

 

 

[59]        The Supreme Court of Canada has re-iterated the test on appeal where the appellant seeks to overturn a conviction by having the appellate court interfere with findings of fact or inferences drawn in R. v. Clark, 2005 SCC 2 (CanLII), [2005] 1 S.C.R. 6, at para. 9 as follows:

 

… Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: (authorities omitted)