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Phrase of the Week - Simple Factual Finding

Simple Factual Finding

What is the distinction between “a simple factual finding” and the “application of the legal standard for subjective belief to the evidence”? Other than the form of words used, there is none; they are the same thing, by another name. Thus, the distinction sought to be drawn is invalid. Beyond this, it constitutes an invitation for appellate courts to treat (at least certain) findings of fact as reviewable on a standard of correctness. That conflicts with the principles in Housen v. Nikolaisen, [2003] 2 S.C.R. 235, 2002 SCC 33. The practical consequence is to lay open a path for the retrial of cases on appeal.
. . . . .
... it is not “plainly seen”. Rather, what is occurring is a retrying of the (factual) issue based on the transcript by the appellate court.

R. v. Day |
2014 CarswellNfld 78 (N.L. C.A.) at para. 83, 85 |
Rowe J.A. (dissenting)

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