Simon's Megalomaniacal Legal Resources

Appeal - Grounds - Uneven Scrutiny (2)

. R. v. N.D.

In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here where the defendant raised an issue of uneven scrutiny:

[31] Uneven scrutiny is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: G.F., at para. 99. In fact, the Supreme Court has expressed “serious reservations” regarding whether uneven scrutiny is a helpful analytical tool for assessing a trial judge’s findings of credibility: G.F., at para. 100. In any event, to succeed in this 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: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

. R. v. G.B.

In R. v. G.B. (Ont CA, 2024) the Ontario Court of Appeal dismisses an 'uneven scrutiny' criminal appeal argument:

[4] In his notice of appeal, the appellant claims that the trial judge applied uneven scrutiny to his evidence as compared to the complainant’s evidence. Uneven scrutiny is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99. This court explained in R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, how to successfully make out this argument: “[T]he 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.”

. R. v. Griffin

In R. v. Griffin (Ont CA, 2024) the Ontario Court of Appeal considered the appeal ground of 'uneven scrutiny':

[14] Mr. Herscovitch’s second argument, which applies to all of the appellant’s convictions, is that the trial judge erred by applying a different standard of scrutiny to the complainant and the appellant’s evidence when assessing their testimonial credibility.

[15] As Paciocco J.A. explained in R. v. Kiss, 2018 ONCA 184, at paras. 82-83:

It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence. Where this happens, a trial will be unfair to the accused: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), [2005] O.J. No. 39; R. v. Owen (2001), 2001 CanLII 3367 (ON CA), 150 O.A.C. 378 (C.A.), [2001] O.J. No. 4257; and R. v. T.(T.), 2009 ONCA 613, at paras. 71-74.

This is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility: R. v. D.T., 2014 ONCA 44, at paras. 71-73; and R. v. Aird, 2013 ONCA 447, at para. 39. An “uneven scrutiny” ground of appeal is made out only if it is clear that the trial judge has applied different standards in assessing the competing evidence: Howe, at para. 59. Where the imbalance is significant enough, “the deference normally owed to the trial judge’s credibility assessment is generally displaced”: R. v. Rhayel, 2015 ONCA 377, at para. 96; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19; and R. v. Phan, 2013 ONCA 787, at para. 34.

. R. v. Bowman

In R. v. Bowman (Ont CA, 2024) the Ontario Court of Appeal considered the difficult appeal ground of 'uneven scrutiny':

[23] According to the Supreme Court, the uneven scrutiny ground is a “notoriously difficult argument to prove” because it engages the trial judge’s credibility and reliability findings, which are owed a very high degree of deference on appeal: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 99. As this court noted: “appellate courts invariably view this argument with skepticism”, viewing it as “a thinly veneered invitation” 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, leave to appeal ref’d, [2017] S.C.C.A. No. 294.

. Tenn-Lyn v. Mackenzie Health [administrative context]

In Tenn-Lyn v. Mackenzie Health (Div Court, 2023) the Divisional Court considered (what to me) is analogous to the 'uneven scrutiny' appeal ground, common in criminal cases:

(b) The HPARB Did Not Have to Address the Behavior of Others

[60] The Appellant argues that the HPARB did not address the evidence about unprofessional comments and communications by others at the Hospital. It did, in fact, make note of her submissions on this issue at paragraph 112 of its decision. At paragraph 105 of its reasons, the Board went so far as to opine that Dr. Tenn-Lyn did not fit in to a department “mostly staffed by male physicians, rife with chauvinism, crude humor, and locker room talk”. Nonetheless, the Board made it clear that the behavior of others at the Hospital was not relevant to the central issue that was before it, which was whether the Appellant met the criteria for reappointment or whether her conduct justified the revocation of her privileges.

[61] I agree with the Respondent’s position that Dr. Tenn-Lyn cannot now change that analysis by pointing her fingers at others. The HPARB was not required, more than it did, to address this evidence in its reasons.

. R. v. A.J.

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

The Trial Judge did not Engage in Uneven Scrutiny of the Crown and Defence Evidence

[22] It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of the defence evidence relative to the Crown’s evidence. Uneven scrutiny however is a “notoriously difficult argument to prove”, as it engages the trial judge’s credibility findings, which are owed significant deference: R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 99. To succeed in this 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”: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont.C.A.).

. R. v. B.C.M.

In R. v. B.C.M. (Ont CA, 2023) the Court of Appeal considered an 'uneven scrutiny' criminal appeal argument:

[4] As the appellant acknowledges and as this court has repeatedly indicated, “[uneven scrutiny] is a difficult argument to make successfully” because “[c]redibility findings are the province of the trial judge” and “attract significant appellate deference”: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 2, at para. 23, leave to appeal refused, [2017] S.C.C.A. No. 294. As Watt J.A. explained in Radcliffe, “appellate 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”.

. Okafor v. College of Physicians and Surgeons of Ontario

In Okafor v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considers an 'uneven scrutiny' argument, here in an RHPA professional misconduct appeal:

Issue 2: Did the Committee err in assessing the credibility and reliability of the testimony of the Appellant by placing a higher degree of scrutiny upon the Appellant than on Patient A’s testimony?

....

[47] There is no merit to the argument that the Committee assessed the Appellant’s evidence in an “overly microscopic fashion” compared to Patient A. Not every inconsistency needs to be resolved [Takashima v. Ontario College of Teachers, 2015 ONSC 3125]. The Supreme Court of Canada has recently cast serious doubt on “uneven scrutiny” as a helpful tool to demonstrate error in credibility findings [R. v. G.F., 2021 SCC 20 at para. 100]. Claims of uneven scrutiny should not be a meritless opportunity to re-try a case. There must be a demonstration of palpable and overriding error. There was nothing in the reasons or the record that made it clear that the Committee had actually applied different standards in assessing the evidence of the Appellant and Patient A.

[48] In essence, the Appellant asks this court to re-weigh the evidence and reach a different conclusion from the Committee. A trier of fact is not obliged to find that a witness is not credible or reliable due to inconsistencies in their evidence: it is up to them to assess the impact of inconsistencies, if any, on the witness’ credibility or reliability. This requires consideration of whether there is, in fact, an inconsistency on the record, and if so, whether that inconsistency is actually material to the credibility or reliability of the witness.

[49] Even in the criminal context, where the standard of proof is ‘beyond a reasonable doubt’, a conviction can be based on evidence from a witness that contains inconsistencies. It is open to the trier of fact to accept explanations a witness offers for the inconsistencies.[12]

[50] As described above, the Committee considered inconsistencies in the evidence of Patient A, and determined that in the circumstances of this case, these inconsistencies did not detract from her credibility and reliability on the core issues. By contrast, the Committee found the Appellant’s evidence was illogical and replete with contradictions and variation that were significantly detrimental to his credibility. This was not holding him “to every detail” but rather was assessing the evidence before them as a whole. The Committee explained the basis for and was entitled to reach its conclusions. The Appellant’s argument that the Committee applied uneven scrutiny to the evidence offered by the prosecution and the defense is no more than an invitation to this court to re-try the case.

[51] The Appellant has neither demonstrated that the Committee unevenly scrutinized the evidence in the course of its credibility assessments nor that any alleged error in reasoning figured in the Committee’s ultimate conclusions as to the professional misconduct. I would dismiss this ground of appeal.