What is the appropriate remedy where a trial judge has misapprehended the evidence?

R. v. B.W., 2012 NSCA 13 deals with the appropriate remedy where a trial judge has misapprehended the evidence.  The Court holds that where there is evidence that could reasonably result in a finding of guilt, the appropriate remedy is a new trial;  hardly a surprising result.  The Court holds:

 

 

[19]      The traditional test is well known.  The function of a court of appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed judge or jury, acting judicially, could reasonably have rendered.  The court of appeal must not merely substitute its view for that of the trial judge or jury, but to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence (see R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381). 

 

[20]      An expanded scope to review a verdict under s. 613(1)(a) by a trial judge for reasonableness was first articulated by the dissenting reasons of Fish J. in R. v. Beaudry, 2007 SCC 5.  The existence of such a scope was recently confirmed by the Supreme Court of Canada in R. v. Sinclair, 2011 SCC 40.  In a nut shell, illogical or irrational reasoning can also render verdicts unreasonable under s. 686(1)(a)(i) of the Code, but the remedy may well be different.  If a verdict is unreasonable on the basis that a reasonable trier, properly instructed and acting reasonably could not have reached it, an acquittal is entered.  If an appellate court finds a trial judge’s verdict to be unreasonable on the Beaudry criteria, the remedy is a new trial if there is evidence reasonably capable of supporting a conviction (Sinclair, para. 23)