Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Uneven Scrutiny

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COMMENT

This is a ground of appeal raised commonly in criminal cases, though it can be raised in civil. It is rarely successful.

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MORE CASES

Part 2

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. R. v. S.K.

In R. v. S.K. (Ont CA, 2023) the Court of Appeal considered the appeal ground of 'uneven scrutiny', here in a criminal case:

(4) The appellant’s evidence was not subject to unequal scrutiny

[43] The appellant argues that the trial judge over-emphasized the appellant's inability to recall details of the incidents and subjected the appellant’s evidence to excessive scrutiny that was not applied to discrepancies in the complainant’s evidence.

[44] According to the appellant, even if the evidence could have supported a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence, the defendant has not received a fair trial and thus has been the victim of a miscarriage of justice: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 43; R. v. B.T.D., 2022 ONCA 732, at paras. 54-56.

[45] The Crown submits that the claim of unequal scrutiny is not supported by the record and emphasizes that the appellant was an adult at the time of the incidents and 22 at trial, while the complainant and N.G. were 12 at the time, and only 15 when testifying at the trial. In this context, different approaches to the evidence of each witness are entirely appropriate: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 32.

[46] The threshold for establishing unequal scrutiny is high. As this court held in R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28:

We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial.

An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment.

Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions. [Citations omitted.]

. R. v. R.K.

In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered the evidentiary law of 'uneven scrutiny':

[54] Uneven scrutiny is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied: G.F., at para. 99.

. R. v. Diehl

In R. v. Diehl (Ont CA, 2023) the Court of Appeal considered "stereotypical reasoning and uneven scrutiny":

[3] We begin with an outline of the law regarding the dangers of stereotypical reasoning and uneven scrutiny.

[4] When stereotypical reasoning is alleged, the evidence must be looked at as a whole: R. v. Donnelly, 2023 ONCA 243.

[5] Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; and R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 39 and 129.

[6] However, they must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence”: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166, at paras. 19-27; and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.

[7] Uneven scrutiny is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied to something significant (such as rejecting the appellant’s testimony for speculative reasons): G.F., at para. 99.

. R. v. Saini

In R. v. Saini (Ont CA, 2023) the Court of Appeal considered the appeal ground of 'uneven scrutiny' of the evidence:

[13] Findings of credibility and reliability are entitled to a high degree of deference. To succeed on an argument of uneven scrutiny of the evidence, “the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the [Crown]”: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.); R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 96-98; and R. v. S.P., 2021 ONCA 233, at para. 27.

. R. v. J.B.

In R. v. J.B. (Ont CA, 2023) the Court of Appeal extensively considers the (perhaps-)doctrine of 'uneven scrutiny' as an appeal ground:

[22] The appellant’s second ground is that the trial judge assessed the testimony of the Crown’s witnesses and the appellant in an uneven fashion, which affected the assessments of credibility. This is the “uneven scrutiny” ground.

[23] Where a judge has applied uneven scrutiny, it amounts to an error of law because there has not been a fair trial: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 18 & 43. Justice Doherty has explained the “uneven scrutiny” appeal ground in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.) as follows:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. (Emphasis added.)

[24] Uneven scrutiny is “notoriously difficult to prove”: R. v. B.T.D., 2022 ONCA 732, at para. 54, citing R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. This is for two reasons: (1) credibility findings are the province of the trial judge and are given a high degree of appellate deference, and (2) a high standard is required to ensure that “uneven scrutiny” is not used as a means by which to reassess trial judge’s credibility assessments: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.

[25] A trial judge’s reasons must be read as a whole, in the context of the evidence, the issues and the arguments: G.F., at para. 69; B.T.D., at para. 90. To succeed in displacing the deference owed to trial judge’s credibility assessments, the record must indicate a different standard of scrutiny, “as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons”: B.T.D., at para. 55. In other words, there must be an error in principle in the judge’s credibility assessment: B.T.D., at para. 55.

[26] The inquiry into whether there was uneven scrutiny is fact-specific. The question is whether the trial judge applied different standards to the evidence of the Crown and the defence. In B.T.D., this court allowed an appeal and ordered a new trial based on the trial judge’s unbalanced approach and analytical errors in the credibility assessments in a sexual assault case. The court found that “the trial judge criticized the appellant’s evidence as contrived because of its detail but accepted the exact same level of detail in the complainant’s version as a mark of credibility and reliability, without explaining why she drew this distinction based on the same factor”: B.T.D., at para. 61. The trial judge assessed the appellant’s evidence through an “unforgiving lens” but “tolerated and failed to analyze serious discrepancies in the complainant’s evidence”: B.T.D., at paras. 62 & 69.

[27] The court observed that the unfair treatment of the appellant’s evidence led to a reversal of the burden that lies with the Crown: B.T.D., at para 67. Similarly, in Gravesande, at para. 42, this court found that the “trial judge’s reasons demonstrate a degree of scrutiny of the prosecution evidence that was tolerant and relaxed as compared to the irrelevant, tenuous and speculative observations largely about collateral matters applied to unfairly discount the appellant's evidence.”[1]

[28] The Supreme Court has not yet ruled on whether “uneven scrutiny” is an independent ground of appeal. In G.F., without deciding the issue, writing for the majority, Karakatsanis J. expressed “serious reservations about whether ‘uneven scrutiny’ is a helpful analytical tool to demonstrate error in credibility findings”: at para. 100. This is because in cases that have accepted the uneven scrutiny argument, it is often “tacked on to” a specific error in the trial judge’s credibility assessment such as insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable or overriding error, or an unreasonable verdict: G.F., at para. 100. Misapprehension is precisely what the applicant is alleging in this case. That must also be the ground on which uneven scrutiny rises or falls.

[29] As outlined above, a credibility error arising from a misapprehension of the evidence is difficult to establish. The uneven scrutiny argument does little to change the character or chance of success of the main thrust of the applicant’s appeal: that the trial judge wrongly disbelieved the applicant’s evidence while accepting the evidence of the Crown’s witnesses, including the complainant.

. R. v. Donnelly

In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered the evidence issue of uneven scrutiny:

(a) Uneven Scrutiny

[33] Uneven scrutiny as a ground of appeal is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. To make out this ground of appeal, an appellant

must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons, to displace the deference due to a trial judge’s credibility assessments:

R. v. B.T.D., 2022 ONCA 732, at para. 55; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

. R. v. B.T.D.

In R. v. B.T.D. (Ont CA, 2022) the Court of Appeal considers the appeal ground of uneven scrutiny, here in a criminal case:

[54] Uneven scrutiny as a ground of appeal is “notoriously difficult to prove”, as the Supreme Court recently observed in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99.[2]

[55] To make out this ground of appeal, an appellant must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony for speculative reasons, to displace the deference due to a trial judge’s credibility assessments: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19. Uneven scrutiny may be another way of expressing that the trial judge erred in principle in some manner in making an assessment of credibility: R. v. Greif, 2021 BCCA 187, 406 C.C.C. (3d) 39, at para. 82, leave to appeal refused, [2021] S.C.C.A. No. 182.

[56] Even if the evidence was capable of supporting a conviction, where the trial judge has applied different standards to the assessment of prosecution and defence evidence, the appellant has not received a fair trial, and thus has been the victim of a miscarriage of justice: Gravesande, at para. 43.

. R. v. Saleh

In R. v. Saleh (Ont CA, 2022) the Court of Appeal considered the appeal ground of uneven scrutiny, here in a criminal case:

[22] Trial judges’ credibility assessments are owed deference and are not to be interfered with, absent palpable and overriding error, as triers of fact are best placed to review the evidence, draw proper inferences, and assess the credibility of witnesses. A trial judge is entitled to deference in determining the significance of inconsistencies in the evidence, and how those inconsistencies bear on the assessment of the credibility of witnesses. Appellate courts therefore view uneven scrutiny arguments “with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23; see also, R. v. G.F., 2021 SCC 20, at paras. 80-81 and 99-101.

. Taliano v. College of Physicians and Surgeons of Ontario

In Taliano v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered an issue of uneven scrutiny, here in an administrative context:

[48] In assessing Dr. Taliano’s submissions about uneven scrutiny, it is important to keep in mind the following:

(i) To succeed on such an argument, it is not enough to show that a different trier could have assessed credibility in a different way. Nor it is enough to demonstrate that a trier failed to say something that they could have said in assessing the respective credibility of a complainant and a defendant. Dr. Taliano must point to something in the reasons or the record that makes it clear that the trier has actually applied different standards in assessing the evidence of both parties: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 294; R. v. T.C., 2020 ONCA 469, at para. 27.

(ii) Appellate courts are not entitled to reweigh and reassess evidence unless the tribunal below has committed a palpable and overriding error. Appeals on the basis of uneven scrutiny of the evidence can often be disguised as attempts to engage in precisely this exercise. As put by the Court of Appeal in Radcliffe, at para. 23:

[A]ppellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record. [Citations omitted.]

(iii) It is within the discretion of the trier of fact to determine what areas of the evidence should be included in their reasons and a trier is not obligated to deal with every frailty in a witness’ evidence: T.C., at para. 25. As long as a trier has grappled with the substance of the issues, failure to mention some aspects of the evidence does not constitute an error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.

. Schwarz v. The College of Physicians and Surgeons of Ontario

In Schwarz v. The College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out principles applicable to uneven scrutiny of evidence:

The Applicable Legal Principles

[46] Dr. Schwarz submits that the Committee over-scrutinized the details of his evidence and failed to resolve errors and inconsistencies in Patient A’s evidence. It is an error of law for a trier of fact to use a higher degree of scrutiny in assessing the credibility or reliability of evidence adduced by one party over that adduced by another party. Where this happens, a party is denied a fair hearing: Miller v. College of Optometrists of Ontario, 2020 ONSC 2573, at para. 30.

[47] In assessing Dr. Schwarz’s submissions about uneven scrutiny, it is important to keep in mind the following:

i. To succeed on such an argument, it is not enough to show that a different trier could have assessed credibility in a different way. Nor it is enough to demonstrate that a trier failed to say something that they could have said in assessing the respective credibility of a complainant and a defendant. Dr. Schwarz must point to something in the reasons or the record that makes it clear that the trier has actually applied different standards in assessing the evidence of both parties: R. v. Howe (2005) 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.); R. v. Radcliffe, 2017 ONCA 176, 247 C.C.C. (3d) 3, at para. 25; R. v. T.C., 2020 ONCA 469, at para. 27.

ii. Appellate courts are not entitled to reweigh and reassess evidence unless the tribunal below has committed a palpable and overriding error. Appeals on the basis of uneven scrutiny of evidence can often be disguised as attempts to engage in precisely this exercise. As put by the Court of Appeal in Radcliffe, at para. 23:

[A]ppellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record.

iii. It is within the discretion of the trier of fact to determine what areas of the evidence should be included in their reasons and a trier is not obligated to deal with every frailty in a witness’ evidence: T.C., at para. 25. As long as a trier has grappled with the substance of the issues, failure to mention some aspects of the evidence does not constitute an error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.

. R. v. G.F

In R. v. G.F (SCC, 2021) the Supreme Court of Canada commented critically on the appeal ground of 'uneven scrutiny' in a criminal case:

[99] This Court has never ruled on whether “uneven scrutiny” of Crown and defence evidence is an independent ground of appeal: R. v. Mehari, 2020 SCC 40. It was described by the Court of Appeal for Ontario in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59, as a common argument “on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments”. In the last decade, provincial appellate courts have dealt with uneven scrutiny extensively and stressed that it is a notoriously difficult argument to prove: Howe, at para. 59; R. v. Kiss, 2018 ONCA 184, at para. 83 (CanLII); R. v. Wanihadie, 2019 ABCA 402, 99 Alta. L.R. (6th) 56, at para. 34; see also R. v. J.M.S., 2020 NSCA 71; R. v. C.A.M., 2017 MBCA 70, 354 C.C.C. (3d) 100, at para. 54; R. v. K.P., 2019 NLCA 37, 376 C.C.C. (3d) 460. Credibility findings are the province of the trial judge and attract significant deference on appeal: R. v. Aird (A.), 2013 ONCA 447, 307 O.A.C. 183, at para. 39; Gagnon, at para. 20. As explained by Doherty J.A.:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

(Howe, at para. 59)

[100] I have serious reservations about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings. As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge’s credibility findings. Even in Howe, Doherty J.A. ultimately chose to frame the uneven scrutiny argument slightly differently: para. 64. Rather than say that the appellant had demonstrated uneven scrutiny of the evidence, Doherty J.A. explained that the essential problem in the trial judge’s reasons was that he had “failed to factor into his assessment of [the complainant’s] credibility his finding that she deliberately lied on important matters in the course of testifying in reply”: para. 64. In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., Kiss, at paras. 88-106; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe, uneven scrutiny easily overlaps with other arguments for why a trial judge’s credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict.

. R v Chanmany

In R v Chanmany (Ont CA, 2016) the Court of Appeal discusses the treatment of an 'uneven scrutiny' argument on appeal, being the argument that the trial judge was unbalanced in their treatment of the respective parties' evidence at trial:

[26] We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial: R. v. Aird, 2013 ONCA 447 (CanLII), 307 O.A.C. 183, at para. 39.

[27] An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.

[28] Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions: Howe, at para. 59.

. Chaba v. Khan

In Chaba v. Khan (Ont CA, 2020) the Court of Appeal considered the error of 'applying differential standards of scrutiny', more commonly argued in criminal appeals:

[23] Fourth, there is no merit to the appellants’ assertion that the trial approached the evidence unfairly by applying differential standards of scrutiny. As noted in R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at para. 59, which the appellants cite, “[t]he argument usually fails.” This is because “credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations”: at para. 59, citing R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. To succeed, the appellants “must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility assessments”: R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

[24] Here, the appellants have not met this standard. The trial judge conducted a fair trial and approached the evidence in a balanced way, accepting the appellants’ evidence on some points but rejecting it on others.