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...