Definition

 

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 Thompson, 2015 ONCA 800 at para 39;

 

 

Burden to Meet

 

A misapprehension of evidence may warrant appellate intervention if it is material to the trial judge's reasoning process and amounted to:

  • An error of law

  • An unreasonable verdict

  • a miscarriage of justice

  • a 'miscarriage of justice' embraces any error that deprives an accused of a fair trial

 

R v. Wolynec, 2015 ONCA 656 at paras 88-91; R v. Pannu, 2015 ONCA 677 at paras 90-91; R v Milliken, 2015 ONCA 897 at para 6; R v. Abdullahi, 2015 ONCA 549 at para 6; R v Hemsworth, 2016 ONCA 85 at para 40

 

An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground: R v DR, 2016 ONCA 162 at para 10

While the failure to consider all of the evidence is an error of law, “unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect: R v Tippett, 2015 ONCA 697 at para 27

Remedy

 

If the appellant establishes an unreasonable verdict or a miscarriage of justice, s/he is entitled to an acquittal. If he establishes an error of law, the Crown must prove that there was no miscarriage of justice under s.686(1)(b)(iii)R v Vant, 2015 ONCA 481 at paras 108-109