Tuesday, April 22, 2014

Misapprehensions of evidence

R. v. Fournel, 2014 ONCA 305:

[38] The first two grounds of appeal relate to purported misapprehensions of evidence made the trial judge. The standard for setting aside a trial judgment on this basis is a demanding one. It is not sufficient to show that a trial judge has drawn different factual conclusions from evidence than those advanced by a party at trial. As this court recently stated in R. v. Cloutier, 2011 ONCA 484, at para. 60:

 A misapprehension of the evidence may relate 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: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T.) (2009), 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.

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