The Misapprehension of Evidence by the Trial Judge


In R. v. Morrisey, (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221, Doherty J.A. stated:

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict.

At a later point in the same paragraph, he stated:

If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was a victim of a miscarriage of justice. This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

As the Supreme Court of Canada observed after citing Morrissey in R. v. Lohrer, [2004] 3 S.C.R. 732, at para. 4:

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 identified must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in conviction.’

In R. v. Marini, 2017 ONCA 46, for instance, even although the evidence adduced at trial may have been capable of supporting the appellant’s conviction, “the errors the trial judge made in assessing the evidence played an essential part in his reasoning process with the result that the convictions were not “true” verdicts in the sense of having been arrived at in accordance with the rule of law.”

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