Sunday, August 25, 2013

Misapprehension of evidence

R. v. Vokurka2013 NLCA 51:

[20]        In R. v. MacIsaac2013 NLCA 26 (CanLII), 2013 NLCA 26, Rowe J.A. summarized the law relating to misapprehension of evidence:

[16]      The test for misapprehension of evidence was set out by Doherty J.A. in R. v. Morrissey 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at paragraph 83:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

[17]      The misapprehension of the evidence must be such that it could have affected the verdict.  As Laskin J.A. wrote in R. v. G.(G.)1995 CanLII 8922 (ON CA), (1995) 97 C.C.C. (3d) 362 (Ont. C.A.), at paragraph 59:

When an appellate court finds error, it has a duty to consider the nature of the error, its effect on the verdict, and when the verdict is rendered by a judge alone, on the reasoning process by which the verdict was reached.  Obviously not every error in the apprehension or appreciation of evidence or in the drawing of a conclusion from evidence warrants quashing a conviction.  But s. 686(1)(a)(i) of the Criminal Coderequires this court to intervene if the error leads to an unreasonable verdict, or if the error is an error of law which cannot be cured by s. 686(1)(b)(iii), or if the error results in a miscarriage of justice.

[18]      In R. v. Lohrer2004 SCC 80 (CanLII), [2004] 3 S.C.R. 732, Binnie J. wrote at paragraph 2:

Morrissey, it should be emphasized, describes a stringent standard.  The misapprehension of the evidence must go to the substance rather than to the detail.  It must be material rather than peripheral to the reasoning of the trial judge.  Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".

[21]        To this summary I would add the statement of LeBel J., speaking for the majority in R. v. Sinclair2011 SCC 40 (CanLII), 2011 SCC 40, [2011] 3 S.C.R. 3, to the effect that there is no misapprehension of the evidence if the alleged error is one which the trial judge "may" have committed.  Rather, the error must be one that is "readily obvious" and was actually committed.

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