Barrister and Solicitor
Legal Writing and Research
Appeals - Misapprehension of Evidence
R v Harris (Ont CA, 2014)
In this case the Court of Appeal commented as follows on the appeal ground of misapprehension of evidence:
 Fundamentally, this appeal amounts to an invitation to this court to improperly substitute its own credibility assessments for those made by the trial judge. The appellant asks this court to dissect and microscopically examine single passages from the trial judge's reasons in isolation and out of context. As the Supreme Court of Canada made clear in R. v. Stirling, 2008 SCC 10 (CanLII),  1 S.C.R. 272, at para. 13, citing R. v. Davis, 1999 CanLII 638 (SCC),  3 S.C.R. 759, at para. 103, citing R. v. Davis (1998), 1998 CanLII 18030 (NL CA), 159 Nfld. & P.E.I.R. 273 (C.A.), at para. 138:
It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin, J. said in B.(C.R.) at 26: "[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence.” [Citations omitted] In short, the trial judge directed himself to the relevant issues and he did not err in his appreciation of the evidence in a manner that could have affected the outcome of the trial: R. v. Alboukhari, 2013 ONCA 581 (CanLII), 310 O.A.C. 305, at para. 30. There was no miscarriage of justice and this ground of appeal is dismissed.