The argument that a trial judge has applied a different level of scrutiny in assessing the evidence of the accused and the Crown is a difficult argument to make successfully.
“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[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the [Crown witnesses].”
R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, per Doherty J.A.
The different standards of scrutiny argument is a difficult argument to succeed on in an appellate court for two related reasons:
1. credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and
2. appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations: see R. v. Aird, 2013 ONCA 447 (CanLII), per Laskin J.A, at para. 39; see also R. v. Singh, 2016 ONCA 835 (CanLII),
At least twice this week the Court of Appeal for Ontario has noted the difficulty of succeeding with a “different standards of scrutiny” argument.