Where the allegation is that the trial judge misapprehended the evidence, the standard of review is palpable and overriding error. A re-weighing of any evidence is confined to the question of whether the conviction was unreasonable or cannot be supported by the evidence: R v. Ngo, 2009 BCCA 301 at paras. 62-65. In Ngo the court set out a threshold test that an appellant must meet to establish a misapprehension of the evidence; it must: a) Be on a question of substance; b) Be material to the judge's reasoning process; and c) Play an essential role, not just in the narrative of the judgment but in the reasoning process resulting in a conviction.
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