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R. v. Lohrer, 2004 SCC 80, [2004] 3 SCR 732  Cas LII


The accused was convicted of aggravated assault and of uttering threats, and a majority of the Court of Appeal upheld the convictions.  The dissenting judge  would have set aside the convictions and ordered a new trial as he concluded that the misapprehensions of the evidence found in the trial judge’s reasons were such that it could not be said the accused received a fair trial.

Held: The appeal should be dismissed.

To set aside a conviction on appeal on the basis that the trial judge  misapprehended the evidence, the misapprehension of the evidence must go to the substance rather than to the detail.  It must be material rather than peripheral to the reasoning of the trial judge, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction.  This test is not met in this case.  There is  no indication that the trial judge erred in his assessment of the evidence in a manner that could have affected the outcome.


R. v. Morton, 2011 NSCA 51 (CanLII)

[6]              Since R. v. Abourached, 2007 NSCA 109 (CanLII), 2007 NSCA 109, this Court, in unreasonable verdict cases, has consistently applied the traditional test that has been expressed by the Supreme Court of Canada in various forms.  In R. v. Hawco, 2008 NSCA 81 (CanLII), 2008 NSCA 81, at  ¶ 13, Bateman J.A., speaking for the Court, described the proper test this way:

The test to be applied in determining whether a verdict is unreasonable was recently summarized by Fichaud, J.A. for this Court in R. v. Abourached [citations]:

I will consider whether the findings essential to the decision are demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge.  I will also consider the traditional Yebes/Biniaris test, preferred by Justice Charron in Beaudry whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

R. v. Yebes, [1987] 2 SCR 168


                 Under s. 613(1)(a)(i) of the Code, a court of appeal is required to decide whether the verdict of the jury was unreasonable. While this involves a reconsideration of the facts, it also requires the court to resolve a question of law by giving legal content to the concept of "unreasonable". The application of the proviso thus always involves a question of law and it is reviewable in this Court on appeal under s. 618 of the Criminal Code.

                  The function of a court of appeal, under s. 613(1)(a)(i) of the Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence "whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered". While the court of appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence. This process is the same whether the case is based on circumstantial or direct evidence. In the Court of Appeal, the majority found that there was sufficient evidence to justify the verdict and rejected all rational inferences offering an alternative to the conclusion of guilt. It is therefore clear that the law was correctly understood and applied.


Jim O'Neil, LL.B.

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