introduction of the evidence, and over a year after the communications and photographs “extracted” from it had been recorded. This
untested material was of no evidentiary value in assessing the credibility of the complainants or the reliability of their testimony.
The reasons of the trial judge
 The trial judge’s reasons with respect to the photographs
are excerpted above, at para. 54 of these reasons.
The arguments on appeal
 In this court, the appellants advance two arguments about
the evidence of these photographs.
 First, the trial judge misapprehended the evidence, and as
a result, failed to properly factor it into his assessment of the testimony of G.D.
 The misapprehensions, the appellants continue, were several
in number and amount to palpable and overriding errors. Contrary
to the findings of the trial judge, G.D. was shown the photograph.
She identified the people depicted in it. Although she did not recall
the photograph having been taken, she agreed that the location
depicted appeared to be the area around the basement couch in the
appellant C.B.’s home. The series of photos entered into evidence
were time stamped between 8: 26 and 8: 32 p.m. on the day that
G.D. said she was assaulted. If the time stamps were accurate, the
photos were taken after the alleged assault occurred.
 The appellants argue that this misapprehension of evidence
was material in that it resulted in the failure of the trial judge to
consider the after-incident conduct of G.D. as depicted in the
photos in assessing her credibility and the reliability of her testimony, both of which were issues residing at the heart of the case.
 Second, the appellants fault the trial judge for failing to
apply the principles laid down in R. v. Nikolovski (1996), 31 O.R.
(3d) 480,  3 S.C.R. 1197,  S.C.J. No. 122 in his
assessment of the photographs put to G.D. in cross-examination.
These principles permitted the trial judge to compare the persons
depicted in the photographs with those who testified or otherwise
appeared at trial to determine their identity. This too resulted in
a failure on the part of the trial judge to consider evidence relevant to the credibility of G.D. and the reliability of her testimony.
 The respondent concedes that the trial judge’s approach to
the cellphone photos involved a misapprehension of evidence. But
not every misapprehension of evidence amounts to a fatal flaw in
the determination of guilt. The misapprehension must be one of
substance. And it must form an essential part of the trial judge’s
reasoning in reaching a conclusion of guilt.