When should a conviction should be set aside because it was not supported by the evidence before the trial judge

R. v. Kinney, 2013 YKCA 5 is a useful source for when conviction should be set aside because it was not supported by the evidence before the trial judge:


[10]        The approach to be taken in considering this contention was discussed by the Supreme Court in R. v. Biniaris, 2000 SCC 15 (CanLII), 2000 SCC 15, [2000] 1 S.C.R. 381, and summarized as follows by Madam Justice Arbour in the companion case of R. v. A.G., 2000 SCC 17 (CanLII), 2000 SCC 17 at para. 6, 2000 SCC 17 (CanLII), [2000] 1 S.C.R. 439:

[6]        ... embarking on the exercise mandated by s. 686(1)(a)(i) of the Criminal Code, the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one.  Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration.  Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did.  The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence.  This is what must now be done in this case.