Today's decision in R. v. J.M.H., 2009 ONCA 834 is a good source for the basic law regarding how evidence is to be treated for appeal purposes in criminal matters:
[33] It is well-settled that the admissibility of evidence is a question of law: R. v. B. (G.), [1990] 2 S.C.R. 57, at p. 71. What appears less clear is the extent to which the assessment of properly admissible evidence in a particular case also raises a question of law alone, thus is cognizable on appeals from acquittal under s. 676(1)(a).
[34] A misapprehension of evidence may involve a failure to consider evidence relevant to a material issue, a mistake about the substance of the evidence, or a failure to assign proper effect to the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538. To determine in any given case whether a particular misapprehension of evidence amounts to an error of law alone is a question that is not entirely unencumbered with difficulty: Morrissey at p. 538.
[35] The Crown is not entitled to contest an acquittal on the ground that the acquittal is unreasonable or not supported by the evidence. Sections 686(1)(a)(i) and (ii) clearly distinguish between unreasonable and unsupportable verdicts, on the one hand, and wrong decisions on questions of law, on the other. Implicit in the dispositive authority enacted by s. 686(1)(a) is the correlative right of a person convicted of an indictable offence to challenge the conviction on the ground of unreasonableness. No such authority is furnished to the Crown or court on appeals from acquittal: Sunbeam Corp. (
[36] A trial judge must take a legally correct approach to the evidence in a case, lest the final step in the process of adjudication, weighing the evidence, be flawed: B. (G.) at p. 77. As a necessary corollary to the proposition just stated, an erroneous approach to or treatment of the evidence adduced at trial constitutes legal error: B. (G.) at p. 71; see also Wild v. The Queen, [1971] S.C.R. 101, at pp. 111-112. It is equally wrong to ground a reasonable doubt on pure conjecture: see Wild at p. 117. Misapprehension or lack of appreciation of relevant evidence only amounts to legal error where there is a self-misdirection by the trial judge on the applicable legal principles: B. (G.) at p. 75. On appeals from acquittal, it is more difficult to establish with certainty that the error raises a question of law alone because of the Crown's burden of proof and the enhanced importance of examining critically all evidence that may raise a reasonable doubt: B. (G.) at p. 75.
[37] A trial judge's failure to direct her or himself to all the evidence relevant to a material issue may amount to legal error: B. (G.) at p. 72. It is also legally wrong for a trial judge to fail to consider individual items of evidence in the context of the evidence as a whole; in other words, it is wrong to use a piecemeal approach, extracting individual items from their evidentiary surroundings: see B. (G.) at p. 77. It is all the more so where the individual items are subjected to the standard of proof required of the evidence as a whole: see R. v. Morin, [1988] 2 S.C.R. 345, at p. 359.
[38] As a general rule, findings of fact made in the absence of any supportive evidence are errors of law: R. v. Schuldt, [1985] 2 S.C.R. 592, at p. 604. Where the finding of fact made in the absence of evidence is an acquittal, however, an error of law occurs only where there has been a transfer to the accused by law of the burden of proving a particular fact: Schuldt at p. 604.
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