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R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80


Allan Wayne Lohrer                                                                                         Appellant




Her Majesty The Queen                                                                               Respondent


Indexed as:  R. v. Lohrer


Neutral citation:  2004 SCC 80.


File No.:  30160.


2004: December 10.


Present:  Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.


on appeal from the court of appeal for british columbia


Criminal law — Evidence — Misapprehension of evidence — Accused convicted of aggravated assault and uttering threats — Test applicable to setting aside of convictions on basis of trial judge’s misapprehension of evidence not met —  Convictions upheld.


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.


Cases Cited


Applied:  R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. C. (R.), [1993] 2 S.C.R. 226, rev’g (1993), 81 C.C.C. (3d) 417.


Statutes and Regulations Cited


Criminal Code, R.S.C. 1985, c. C-46, s. 686(1) (a)(i), (iii).


APPEAL from a judgment of the British Columbia Court of Appeal (2003), 186 B.C.A.C. 58, 306 W.A.C. 58, [2003] B.C.J. No. 1952 (QL), 2003 BCCA 457, upholding the accused’s convictions for aggravated assault and uttering threats.  Appeal dismissed.


Shawn P. Buckley, for the appellant.


Kenneth Madsen, for the respondent.


The judgment of the Court was delivered orally by


1                                   Binnie J. — This is an appeal as of right from convictions of the appellant for aggravated assault and uttering a threat.  A majority of the B.C. Court of Appeal affirmed the convictions.  Hollinrake J.A. dissented.  He found applicable to this case what was said by Doherty J.A. of the Ontario Court of Appeal in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, as follows at p. 221:


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.


Later in the same paragraph, Doherty J.A. 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 the victim of a miscarriage of justice.  This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.


We agree with these observations. Where a miscarriage of justice within the meaning of s. 686(1) (a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 , has been demonstrated an accused appellant is not bound to show in addition that the verdict cannot “be supported by the evidence” within the meaning of s. 686(1) (a)(i).  


2                                   Morrissey, it should be emphasized, describes a stringent standard.  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.  Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that 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”.


3                                   The test is not met in this case.  The only error identified by Hollinrake J.A. in his dissent appears at para. 55 of the judgment ((2003), 186 B.C.A.C. 58, 2003 BCCA 457), where he says:


For instance, the trial judge found that Ms. Colville’s “life was endangered from the repeated blows that she received”.  There was no medical evidence that her life was endangered, and that finding in my opinion cannot be supported on the basis of an inference being drawn by the judge.


4                                   Ms. Colville was beaten about the head and body with a baseball bat.  We prefer on that particular point what was said by the majority at para. 23, where Hall J.A. stated:


I do not consider that the trial judge misapprehended the evidence when he described the injury to Colville as “life threatening”.  The fact is that fracture injury to the orbital area of the face is serious and can be life threatening.


Further along in the same paragraph Hall J.A. states:


The essential ingredients of this offence are contained in that definition [that is to say s. 268(1)  of the Criminal Code ] and by that definition, there can be no doubt but what happened to Colville was, at the very least, maiming or disfiguring.


5                                   In the course of his argument, the appellant mentioned a number of other alleged errors and inconsistencies in the trial judgment including his view that the trial judge had not adequately recognized the inconsistencies in the complainants’ evidence.  However, what the trial judge said was that there were no “major” inconsistencies in their evidence, a conclusion with which we agree.  In any event he evidently did not consider the inconsistencies, which he recognized, to be fatal to the complainants’ credibility on the material issues in dispute.


6                                   In our view, none of the errors urged by the appellant goes to “the substance of material parts” of the evidence that bears on an “essential part in the reasoning process” of the trial judge leading to the convictions. 


7                                   We would apply to the trial judge in this case what was stated by Rothman J.A., dissenting in the result, in the Quebec Court of Appeal in R. v. C. (R.) (1993), 81 C.C.C. (3d) 417, where he said at p. 420:


I can see no indication that [the trial judge] failed to direct himself to the relevant issues or that he erred in his appreciation of the evidence in a manner that could have affected the outcome.


I emphasize the last phrase.  The reasons of Rothman J.A. in dissent were adopted by a majority of this Court in restoring the conviction, reported in [1993] 2 S.C.R. 226. 


8                                   In our view, the statement of Rothman J.A. in C. (R.) and the statement of Doherty J.A. in Morrissey both correctly emphasize the centrality (or “essential part”) the misapprehension of the evidence must play in the trial judge’s reasoning process leading to the conviction before the trial judgment will be set aside on appeal on that basis. 


9                                   None of the errors alleged in this case meets this standard.  The appeal is therefore dismissed.


Appeal dismissed.


Solicitors for the appellant:  Buckley & Company, Kamloops.


Solicitor for the respondent:  Ministry of Attorney General, Vancouver.



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