Simon's Legal Resources

Review - Errors of Law - Uneven Scrutiny (2)

. R. v. Hornsby

In R. v. Hornsby (Ont CA, 2026) the Ontario Court of Appeal granted a rarely-granted 'uneven scrutiny' criminal appeal:

a. General principles

[7] The uneven scrutiny ground of appeal is made out where a trial judge errs in the consideration of the evidence by using a different degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence, which renders the trial unfair: R. v. Kiss, 2018 ONCA 184, at paras. 82-83; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. 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. B.T.D., 2022 ONCA 732, 163 O.R. (3d) 561, at para. 55, citing R. v. Greif, 2021 BCCA 187, at para. 82, leave to appeal refused, [2021] S.C.C.A. No. 182. The argument of uneven scrutiny can serve as an overarching framework in which to consider overlapping arguments for why a trial judge’s credibility findings are problematic. Indeed, it is often “tacked on” to arguments including insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 100.

[8] I acknowledge that the appellant’s uneven scrutiny ground of appeal carries a high threshold. As noted by the Supreme Court, per Karakatsanis J. for the majority, in G.F., at para. 99, this argument commonly features in judge-alone trials where the result turns on the trial judge’s credibility assessments of the evidence given by the complainant and the accused. Appellate courts have noted it is a “notoriously difficult argument to prove” because “[c]redibility findings are the province of the trial judge and attract significant deference on appeal”: at para. 99. As this court observed in Kiss, at para. 83, “courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility”.

[9] The persuasive burden for this argument was outlined by this court in Howe, at para. 59:

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.

[10] Or, stated another way: an appellant must persuade the appeal court that the trial judge relied on “a demonstrably flawed assessment methodology or reasoning process that affected the credibility determination": R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 50.

[11] The inquiry into whether there was uneven scrutiny is fact-specific: R. v. J.B., 2023 ONCA 264, at para. 26. While each case must be examined on its own facts, this ground of appeal appears to have succeeded in certain circumstances of analytical error in a trial judge’s assessment of the evidence.

[12] Relevant to the circumstances of the present case are the following instances of the trial judge’s uneven scrutiny of the evidence that, in Kiss, this court found amounted to an error of law and warranted a new trial:

1. The trial judge took “even the leanest opportunities to find reason to reject” the appellant’s evidence while being “uncommonly forgiving of similar and even more serious problems with [the complainant’s] testimony”: Kiss, at para. 84;

2. The trial judge “expected more of [the appellant] than he did of [the complainant]”, magnifying the importance of minor inconsistencies in the appellant’s evidence while treating as minor glaring inconsistencies in the complainant’s testimony on important issues: Kiss, at paras. 90, 96-103;

3. The trial judge gave “no adverse weight to the complications with [the complainant’s] evidence but instead treated her readiness to admit those difficulties as enhancing her credibility and reliability.” While the trial judge could note the candour of the complainant, he erred because he failed to weigh and consider “the impact of the difficulties she admitted” on her credibility and reliability: Kiss, at paras. 104-7.

[13] Again, relevant to the circumstances here, in other cases, appellate courts have found that similar examples constitute uneven scrutiny and reversible error:

1. A trial judge criticized the accused'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: B.T.D., at paras. 58-61;

2. The trial judge rejected the accused's evidence for a reason that applied equally to the complainant and gave intense scrutiny to minor inconsistencies in the accused's evidence while significant inconsistencies in the complainant's evidence were not critically assessed: R. v. E.S. (2002), 2002 CanLII 49353 (ON CA), 158 O.A.C. 241 (C.A.), at paras. 8-11;

3. The trial judge failed to conduct a critical assessment of testimonial weaknesses that could undermine the Crown's evidentiary foundation on an essential element of the offence: Roth, at para. 142;

4. The trial judge made a negative credibility assessment of the accused’s testimony based on stereotypical assumptions and generalizations unsupported by the evidence: B.T.D., at para. 68; Roth, at para. 64-73;

5. The trial judge required the accused to explain himself, thus reversing the burden of proof: B.T.D., at para. 67;

6. The trial judge relied on minor or collateral inconsistencies in the accused’s evidence to reject his credibility while ignoring issues with the complainant’s evidence that go to the heart of her credibility and reliability: R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 43, 61; and

7. The trial judge’s treatment of consistencies was inconsistent: despite relying on the consistency of the complainant’s testimony with the testimony of other witnesses, she failed to take into account other pieces of evidence that were consistent with the accused’s testimony, in particular that the accused’s testimony aligned very well with the testimony of others: R. v. M.P.H., 2022 BCCA 216, at paras. 47-56.

[14] In such cases, even if the evidence at trial 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: B.T.D., at para. 56, citing R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 43.

. R. v. Ramdeo

In R. v. Ramdeo (Ont CA, 2025) the Ontario Court of Appeal considered 'uneven scrutiny' doctrine:

[40] Second, I do not believe there is any basis for the argument that the trial judge applied uneven scrutiny to the appellant’s evidence. This is a notoriously difficult argument to prove: see R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 99. This is 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. Kiss, 2018 ONCA 184, at para. 83, citing R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, at paras. 71-73; R. v. Aird, 2013 ONCA 447, at para. 39. It is not sufficient to show that a different trial judge could have reached a different credibility assessment, that a trial judge failed to say something when assessing respective credibility, or that a trial judge failed to set out the legal principles relevant to the credibility assessment: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.). Success requires the appellant to show something in the reasons or elsewhere in the record that makes it clear the trial judge applied different standards in assessing the evidence: Howe, at para. 59.

. 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.