Simon looking earnest in Preveza, Greece

Free Online Lawyer Consultations

Legal Guides
tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law) / animal cruelty / dogs & cats / wild animal law (all Canada)

home / about / testimonials / Conditions of Use


... what's this?

Appeals - Misapprehension of Evidence

R v Hemsworth (Ont CA, 2016)

The court commented as follows on the appeal ground of 'misapprehension of evidence':
[40] Not every misapprehension of evidence by a trial judge will justify this court’s intervention. The misapprehension must be material. In R. v. Sinclair, 2011 SCC 40 (CanLII), [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed the concept of materiality and the test for appellate intervention:
For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based. As Binnie J. correctly stated in Lohrer, the standard described by Doherty J.A. in Morrissey is a stringent one. In other words, 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. [Citations omitted.]

Law Society Number #37308N / Website © Simon Shields 2005-2019