Stuart O'Connell Criminal Law Blog

     The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the Crown is a difficult argument to make successfully.     "To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the [Crown witnesses]."                             R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, per Doherty J.A. The different standards of scrutiny argument is a difficult argument to succeed on in an appellate court for two related reasons: 1. credibility findings are the province of the trial judge and attract a very high degree of d...

A misapprehension of the evidence will constitute a miscarriage of justice if the trial judge was mistaken as to the substance of material parts of the evidence, and those errors played an essential part in the reasoning process: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA) , 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221. The misapprehension must go to the substance rather than to the detail and must be material rather than peripheral to the reasoning of the trial judge: R. v. Lohrer , 2004 SCC 80 (CanLII) , [2004] 3 S.C.R. 732, at para. 2. The errors must play an essential part in the reasoning process resulting in a conviction.