R. v. Lohrer (A.W.) (2004), 208 B.C.A.C. 1 (SCC);

    344 W.A.C. 1

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]


Temp. Cite: [2004] B.C.A.C. TBEd. DE.058

Allan Wayne Lohrer (appellant) v. Her Majesty The Queen (respondent)

(30160; 2004 SCC 80)

Indexed As: R. v. Lohrer (A.W.)

Supreme Court of Canada

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

December 10, 2004.


The accused was charged with the aggravated assault of C and H, with uttering threats to C and H and their families, and with using a weapon during the assault. The accused was convicted of the aggravated assault of C, assault causing bodily harm of H and uttering threats to C and H and their families. The accused appealed from conviction, submitting, inter alia, that the trial judge misapprehended material evidence.

The British Columbia Court of Appeal, Hollinrake, J.A., dissenting, in a judgment reported (2003), 186 B.C.A.C. 58; 306 W.A.C. 58, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal. There was no misapprehension of evidence going to substance, rather than just detail. The alleged errors did not play an essential part in the reasoning process resulting in conviction. There was no error in appreciating the evidence that could have affected the outcome (no miscarriage of justice even if errors committed).

Criminal Law – Topic 4852

Appeals – Indictable offences – Grounds of appeal – Miscarriage of justice – An accused appealed his convictions on the ground that, inter alia, the trial judge misapprehended material evidence – The Supreme Court of Canada, in affirming dismissal of the accused’s conviction appeal, stated that “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 … 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’. … 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.” – There was no error “in his appreciation of the evidence in a manner that could have affected the outcome” – See paragraphs 1 to 11.

Criminal Law – Topic 4957

Appeals – Indictable offences – New trials – Grounds – Misapprehension of evidence – [See
Criminal Law – Topic 4852

Criminal Law – Topic 5020

Appeals – Indictable offences – Setting aside verdicts – Verdict unreasonable or unsupported by evidence – [See
Criminal Law – Topic 4852].

Criminal Law – Topic 5035

Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – General – [See
Criminal Law – Topic 4852

Cases Noticed:

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 1].

R. v. R.C. (1992), 49 Q.A.C. 37; 81 C.C.C.(3d) 417 (C.A.), revd. [1993] 2 S.C.R. 226; 153 N.R. 241; 55 Q.A.C. 63, refd to. [para. 8].


Shawn P. Buckley, for the appellant;

Kenneth Madsen, for the respondent.

Solicitors of Record:

None disclosed.

This appeal was heard on December 10, 2004, before Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On December 10, 2004, Binnie, J., delivered the following judgment orally in both official languages for the Supreme Court of Canada.


R. v. Lohrer (A.W.)

[2004] 3 SCR 760

Supreme Court of Canada
Reading Time:
3 minutes
Abella, Bastarache, Binnie, Charron, Deschamps, Fish, LeBel 

Binnie, J.
[orally]: 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. Justice Hollinrake dissented. He found applicable to this case what was said by Justice Doherty of the Ontario Court of Appeal in
R. v. Morrissey (R.J.)
(1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), 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, Justice Doherty 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.”

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