What is a judge’s role as an appellate judge to second-guess the weight of evidence?

British Columbia, Canada


The following excerpt is from R. v. Gill, 2009 BCSC 1100 (CanLII):

While another judge may have come to a different conclusion, it is not my role as an appellate judge to second-guess the weight to be given to various items of evidence. It is my role to determine if the trial judge’s conclusion was reasonable based upon the evidence. I agree with the comments of Mr. Justice Halfyard in the case of R. v. Bracchi, 2008 BCSC 1504, at para. 25 where he said this: In the inference–drawing process, the weight that should be given to each of the circumstantial facts is, generally speaking, a decision that is within the discretion of the trial judge. This rule is described by the majority in Housen v. Nikolaisen … in the following words … And he is quoting from that case at paragraph 23: We reiterate that it is not the role of appellate courts to second–guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference–drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts … Also see par 58, where the majority affirms the rule that it is “… open to the trial judge to place less weight on certain evidence and accept other, conflicting evidence which the trial judge found to be more convincing …“

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